Zappin v. Supple

Background

Anthony Zappin, an attorney proceeding without a lawyer, sued J. Richard Supple, Jr., and Hinshaw & Culbertson LLP. Zappin alleged legal malpractice, breach of contract, and fraud arising from Supple’s representation of him during attorney-discipline proceedings.

The New York Attorney Grievance Committee sought a finding that Zappin committed attorney misconduct based on his conduct while representing himself in a family-law proceeding. The First Department granted that request and found Zappin guilty of multiple professional-conduct violations. Supple later represented Zappin during the proceeding concerning the appropriate sanction. A referee recommended disbarment, and the First Department disbarred Zappin on March 8, 2018.

Zappin alleged that Supple said he would pursue several actions, including motions concerning the misconduct finding, a stay, and settlement discussions, but did not do so. Zappin also alleged that Supple failed to take various actions during the sanctions hearing.

Report and Recommendations

A magistrate judge recommended dismissing the fraud and contract claims but allowing the legal-malpractice claim to proceed. Defendants objected to the recommendation concerning malpractice. No party objected to the recommendations concerning fraud and breach of contract.

The court adopted and rejected portions of the report. It adopted the recommendations concerning service and the timeliness of the fraud and malpractice claims. It also adopted the recommendations to dismiss the fraud claim for failing to meet the heightened pleading requirements for fraud and to dismiss the contract claim as duplicative. It rejected the recommendation that the malpractice claim was adequately pleaded.

Malpractice Claim

The court held that the rule barring federal district-court review of certain state-court judgments did not apply. Zappin’s malpractice claim sought to consider whether he would have been in a better position if the alleged malpractice had not occurred; it did not ask the federal court to review and reject the state court’s disbarment judgment.

The court nevertheless dismissed the malpractice claim under Rule 12(b)(6), which permits dismissal for failure to state a legally sufficient claim. Under the legal standard applied by the court, a malpractice claim required allegations that the attorney failed to use the ordinary skill and knowledge of the legal profession, that the failure caused the plaintiff’s injury, and that the plaintiff suffered actual, measurable damages. The required causation showing was that, without the attorney’s negligence, the plaintiff would have prevailed.

The court found that Zappin had not alleged facts plausibly showing that he would not have been disbarred without Supple’s alleged negligence. The misconduct finding occurred before Zappin retained Supple, and the amended complaint did not allege facts suggesting that a motion to reconsider, clarify, stay, or otherwise challenge that finding would have changed the First Department’s determination that Zappin committed misconduct. Regarding the sanctions hearing, the court stated that the referee’s role was to consider aggravating or mitigating evidence and recommend a sanction, not to alter or disregard the earlier misconduct findings. The amended complaint did not allege that omitted mitigating evidence or other conduct by defendants would have changed the outcome.

Disposition

The court adopted the report in part and rejected it in part. Defendants’ motion to dismiss was granted under Rule 12(b)(6), and Zappin’s fraud, breach-of-contract, and legal-malpractice claims were dismissed. The court stated that another amendment was unlikely to cure the deficiencies but allowed Zappin to request permission to file a second amended complaint by submitting a letter and proposed pleading by July 15, 2021. The Clerk was directed to close the motion.