In 2008, Whitney Group LLC -- a headhunting firm that specialized in placing Wall Street executives – announced that it was insolvent and going out of business, blaming unauthorized cash advances from its CFO to Hunt-Scanlon Corp., which tracks the executive search market. Whitney sued Hunt-Scanlon, Whitney’s CFO, and its outside counsel Jaspan Schlesinger. It alleged that the CFO had asked Jaspan attorneys for legal advice about the transfers and the firm advised Schlesinger to inform the CFO and the board, but failed itself to advise the other corporate officers or to confirm that the CFO had advised them. On appeal from a ruling denying Jaspan’s motion for summary judgment and on the viability of various affirmative defenses, the Appellate Division allowed the claims against Jaspan to proceed to the jury. Whitney Group, LLC v. Hunt-Scanlon Corp., 106 A.D.3d 671 (N.Y. App. Div. 2013). The court began by affirming the denial of summary judgment, rejecting Jaspan’s argument that Whitney could not show proximate cause because it knew of the transfers and did nothing to prevent them. The court found this argument to raise a factual issue for the jury. The court then affirmed the dismissal of Jaspan’s affirmative defense based on Whitney’s own failure to discover or prevent an ongoing fraud. The court held that to permit an affirmative defense of comparative negligence in a legal malpractice case, the defendant must show that the plaintiff did or did not do something that hindered the law firm from performing its duties to it client; here, no factfinder could rationally conclude that Whitney’s failure to uncover the fraud interfered with Jaspan’s ability to carry out its fiduciary duties. The court did let the affirmative defense of in pari delicto stand, noting a question of fact as to whether Whitney knew of the CFO’s conduct and allowed him to continue loaning money for several years.