Malpractice in disciplinary actions
Tinelli v Redl, CA2, 199 F.3d 603, Affd. 121 S.Ct. 47
After being found guilty of disciplinary charges, an individual decides to sue his or her attorney, contending that the lawyer’s action, or failure to act, in the disciplinary hearing or an appeal constituted malpractice.
In the Tinelli case, the U.S. Circuit Court of Appeals, Second Circuit considered such a malpractice claim. The decision sets out a test for determining if there is a basis for such an action against the attorney.
Joseph Tinelli was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. He retained an attorney, Frank Redl, to represent him in the matter. Following a two-day hearing, the hearing officer found Tinelli guilty of three charges of “misconduct and incompetence.”
The appointing authority adopted the findings of the hearing officer and imposed the penalty recommended by the hearing officer: termination.
Tinelli appealed. According to the decision, Redl failed to take any “further action ... after the initial filing of the petition for Tinelli’s appeal” in New York State Supreme Court. As a result, six months later Tinelli’s “appeal expired.”
Tinelli sued Redl, contending that the attorney’s (1) failure to perfect the Article 78 appeal and (2) his failure to ask the court for an extension of time to perfect the appeal, constituted malpractice.
He also charged that Redl’s performance at the administrative disciplinary hearing constituted malpractice.
The U.S. Circuit Court of Appeals decided that whether or not Redl’s handling the appeal constituted malpractice depended on whether or not Tinelli’s appeal would have been successful. In other words, if Tinelli would not have won the appeal regardless of the action or inaction of his attorney, there was no basis for holding the attorney liable for malpractice.
After reviewing the record, the circuit court said that “Tinelli’s appeal would not have succeeded because the hearing officer’s findings of misconduct and incompetence were supported by substantial evidence and because there was no abuse of discretion in recommending Tinelli’s termination under the circumstances.”
The court dismissed Tinelli’s claim, holding that his attorney could not be held liable for malpractice because he failed to perfect the appeal since Tinelli would not have been able to overturn either the administrative disciplinary determination or the penalty imposed.
As to Tinelli’s claim that “Redl’s poor performance at the administrative hearings constituted malpractice,” Redl’s motion for summary judgment dismissing this allegation was also granted.
