Sexter & Warmflash was fired by its client, who then sent it an angry letter.  That letter brought  a defamation case.  It survived summary judgment, but the Appellate Division today reversed and dismissed.  Reason?  As Anthony Lin of the NYLJ reports, it was qualified privilege.

"A Manhattan appellate court has thrown out a law firm’s defamation suit against a former client whose husband wrote a letter and copied to others questioning the competence and honesty of lawyers at the firm.

New York firm Sexter & Warmflash was hired by Elizabeth Margrabe in 2001 to represent her and her brother, Anthony Rusciano, in a Westchester County lawsuit against a cousin to whom the siblings wanted to sell their interests in a family business. The retention agreement provided that the firm would work at a reduced rate until the case was resolved, after which it would be entitled to a 50 percent premium over its total bill"

"Manhattan Supreme Court Justice Shirley Werner Kornreich (See Profile) denied the Margrabes’ motion to dismiss and granted summary judgment to Sexter & Warmflash regarding the Margrabes’ liability for the usury allegation. But the Appellate Division, First Department, reversed on the grounds that Mr. Margrabe’s letter was absolutely privileged as part of a judicial proceeding and ordered the dismissal of the defamation suit.

Sexter & Warmflash had argued that the privilege did not apply because Mr. Margrabe’s letter had discharged the firm from the case and because it had no purpose other than malice.

Privilege Applied

But the appellate court, in a ruling by Justice David Friedman (See Profile), said the letter was sufficiently "pertinent" to the proceeding, noting that only the most outrageous out-of-context statements would have escaped the privilege.

"In this case, the allegedly defamatory statements in the April 9 letter concern, on their face, the quality of S&W’s representation of Ms. Margrabe in the Westchester County action and in the negotiations to settle it, and the propriety of S&W’s fee arrangement for that representation," Justice Friedman wrote in Sexter & Warmflash v. Margrabe, 107569/04. "The statements were made in a letter that, besides being sent to S&W itself, was directed solely to parties legitimately involved in the proceeding with which the letter was concerned."

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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.