Purchase Partners II LLC v. Westreich, 604219/2004
Decided: January 23, 2007

Justice Bernard J. Fried

Here is a case from the NYLJ which denied disqualification:

Third-party defendant Adam Hochfelder moves for an order: (1) quashing a subpoena, pursuant to CPLR 2304 and 3103[1]; and (2) disqualifying the law firm of Kramer Levin Naftalis & Frankel LLP (Kramer Levin) from continuing to represent defendant/third-party plaintiff Anthony Westreich in these actions.

The complaint in the main action alleges that Hochfelder and Westreich together owned a real estate investment company named Max Capital Management Corporation (Max Capital), which owned an interest in a property located at and adjacent to 260 Park Avenue South (260 Park) (see Complaint, ¶¶11-12, 21). Westreich – and certain of his family members through an entity named DTT Park Avenue South LLC (DTT) – allegedly held a share of Max Capital’s interest in 260 Park (see id., ¶22). According to the complaint, plaintiffs are persons and entities who became creditors of Max Capital, Hochfelder and/or Westreich by investing money in, and/or loaning money to, any or all of them (see id., ¶¶15-25).

DR 5-108 (B) provides, in relevant part, that:

Except with the consent of the affected client after full disclosure, a lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:

(1) Whose interests are materially adverse to that person; and

(2) About whom the lawyer had acquired information protected by [DR 4-101 (B)] that is material to the matter.

Hochfelder has not established that disqualification of Kramer Levin is warranted under DR 5-108 (B) because, as previously stated, he has not established: (a) that he, rather than Belfonti and/or Aligned, was formerly a client of Selver or Paul Hastings; (b) that the matters involved in Selver’s and Paul Hastings’s prior representation of Belfonti and/or Aligned are substantially related to the matters involved in Kramer Levin’s current representation of Westreich; or (c) that the interests of Belfonti and/or Aligned are materially adverse to the interests of Westreich in this action.

Hochfelder has also failed to establish, as required for disqualification under DR 5-108 (B), that Selver, while he was a partner of Paul Hastings, acquired any information which is both "protected by [DR 4-101 (B)]" and "material" to the matter of this litigation. Insofar as Hochfelder may have communicated information to Selver concerning Hochfelder’s own prior relations with Max Capital and/or Westreich, such information might be material to this litigation, but would not be protected by DR 4-101 (B) – which concerns the protection of a client’s confidences and secrets – because Hochfelder has not established that he was a client of Selver’s and/or Paul Hastings’s. Conversely, insofar as Selver, in the course of his representation of Belfonti and/or Aligned, may have obtained information concerning Belfonti and/or Aligned which would be protected by DR 4-101 (B), Hochfelder has not established that any such information would be material to this litigation.

Finally, inasmuch as Hochfelder has failed to establish that Selver himself would be disqualified from representing Westreich in this litigation, if he attempted to do so, there is no basis for imputing such a disqualification to Selver’s current firm, Kramer Levin.

For the foregoing reasons, it is hereby

ORDERED that the branch of third-party defendant Adam Hochfelder’s motion which seeks to disqualify Kramer Levin Naftalis & Frankel LLP from continuing to act as counsel to defendant/third-party plaintiff Anthony Westreich is denied.

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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.