It has been a long standing rule of law that a legal malpractice claimant must be able to prove both wrongdoing and damages as a direct result of that wrongdoing. On June 23, 2016 the Appellate Division upheld a New York County Trial Court that had dismissed a legal malpractice claim even assuming the truth of a claim that the claimant's attorney had a conflict of interest that was not waived. The attorneys agreed there was a conflict of interest but argued that the client verbally consented to the representation despite disclosure of the conflict. (Currently a waiver of a conflict of interest must be in writing. Rules of Professional Conduct, Rule 1.7.) As the Court noted: "In any event, the violation of a disciplinary rule, without more, is insufficient to support a legal malpractice cause of action." Fletcher v Boies, Schiller & Flexner LLP

The problem with the plaintiff's claims was that she was unable to prove that she was damaged as a direct consequence of the attorney filing a bankruptcy proof of claim one day late. The delay was inconsequential because the bankruptcy claim was accepted despite the delay and the plaintiff recovered a substantial sum of money thru mediation. Moreover, there was no proof submitted that but for the delay in filing, she would recovered a greater settlement. (Generally, a tough claim to prove, but not impossible.)