A person comes to the office.  He has had a car accident.  While at the office, the law firm decides that it will not take the case, but gives it to an attorney who might be an “of counsel”, or an employee who is going off on his own, or simply someone hanging around.  In any event new client pays $ 200 for the “of counsel’s” expenses, through the law firm’s credit card program, and signs a retainer agreement.  Somehow, against their wishes, the law firm’s name also appears on the retainer agreement.  Years of aggravation follow, along with a judgment of legal malpractice against the firm.

Tsang v Dong  2016 NY Slip Op 31575(U) August 18, 2016 Supreme Court, New York County  Docket Number: 150970/2016 Judge: Carol R. Edmead is a cautionary tale.  “Plaintiffs, managers of the Firm, allege that in July 2008, defendant contacted the Firm seeking an attorney to represent him in a personal injury matter. The Firm referred defendant to Michael Wiseberg (“Wiseberg”) and introduced defendant to Wiseberg on July 14, 2008 in the Firm’s oflice. Wiseberg and defendant signed a retainer agreement, and collected $200 from defendant for travel and parking expenses. Though the Firm did not practice personal injury law and did not consent to inclusion, Wiseberg added the Firm’s name to the retainer agreement. Wiseberg alone handled defendant’s matter. On two occasions, when defendant called the Firm to reach Wiscberg and was advised that the Firm was not involved in the matter, defendant came to the Firm and harassed and insulted plaintiffs. In particular, defendant stated, in front of the Firm’s clients, that the Firm was irresponsible, caused him to lose his case, and would not let him sec Wisebcrg; he also stated that he would not leave the office until he saw Wiseberg. As a result, the Firm’s clients were disturbed, which resulted in a loss of business of at least $87,000.00, as well as damage to the Firm’s reputation. ”

“Nevertheless, as defendant argues, plaintiffs’ defamation and trespass claims arc barred by resjudicata. Under New York’s transactional approach analyzing a defense based on res judicata, “[O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (O’Brien v City of Syracuse, 54 NY2d 353, 357, 445 NYS2d 687, 429 NE2d 1158). And, as relevant herein, “res judicata bars not only those claims that were actually litigated previously, but also those which might have been raised in the former action” (Bernstein v State, 129 AD3d 135, 810 NYS3d 752 [3d Dept 2015] citing Moss v Medical Liab. Mut. Ins. Co., 224 AD2d 762, 763, 636 NYS2d 948 [ 1996] (finding that plaintiff attorney’s present claims against the State of New York, that he had a valid retaining lien on the subject funds, “stem from his previously adjudicated disbarment, for which a final judgment on the merits was rendered. As such claims could have been raised during plaintiff’s disbarment proceeding”)). Here, plaintiffs’ defamation and trespass claims stem from the same scope of legal representation that gave rise to defendant’s previous legal malpractice claim against plaintiffs. As such, plaintiffs could have raised the statements made and actions performed by defendant during the course of that same legal representation as a defense or counterclaim to the legal malpractice suit. Defamation is “the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society” (Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 987 NYS2d 3 7; Foster v Churchill, 87 NY2d 744, 751, 642 NYS2d 583, 665 NE2d 153 [ 1996]). To prove a claim for defamation, a plaintiff must show: (I) a false statement that is (2) published to a third party (3) without privilege or authorization, and that ( 4) causes harm, unless the statement is one of the types of publications actionable regardless of harm (see Dillon v City of New York, 261 AD2d 34, 3 8, 704 NYS2d I [1st Dept 1999]). Defendant’s statements concerning the Firm’s mishandling of his matter also serve as a basis for defendant’s legal malpractice claim against plaintiff, meaning that the statements· falsity could have been litigated during the legal malpractice proceeding (see e.g. Af\·hari v Barer, I Misc3d 57, 769 NYS2d 687 [Sup Ct, App Term 2″d and l l 1h Jud Dist 2003] (former client, pro se, sued attorney to recover sum of money that attorney had allegedly retained as his fee while handing a real estate closing for said client, and attorney counterclaimed for libel based on defamatory letter sent to attorney and attorney’s former counsel); Williams v Varig Brazilian irlines, 169 AD2d 434, 564 NYS2d 328 (1st Dept 1991 )”

“Based on the foregoing, it is hereby ORDERED that the motion by defendant Yonghan Dong for summary judgment dismissing the complaint of the plaintiffs Bernice Tsang and Ivanka Wang as agents of Mertz, Bitelman & Associates Law Office, P.C., plus costs and disbursements. for payment of a money judgment issued against the Firm in favor of defendant in a separate matter. and an award on defendant’s counterclaims is granted to the extent that the complaint is severed and dismissed and to the extent that defendant’s counterclaim for $519.00 is severed and granted; “

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.