In this NJ case, [which the NJLJ calls "Bad Bedside Manner"], client has car accident. We’ll call him driver 1.  Relative of driver 2 comes to hospital room and gets hired as attorney,  He doesn’t tell driver 1 that he is related to Driver 2.

Here is the rest of the case.

DOCKET NO. A-1862-05T21862-05T2
MIGUEL HERRERA, Plaintiff-Appellant,
and HARK & HARK, P.C.,

"These are the salient facts. On or about March 1, 2002, Herrera was the operator of a motor vehicle involved in a collision with a vehicle owned and operated by Vernon Roth, the grandfather of Jeffrey Hark’s wife. Herrera was injured and hospitalized. During Herrera’s hospitalization, and without his authorization, Hark obtained access to Herrera’s hospital room. Despite the fact that Herrera was in severe pain and under the influence of pain medication, Hark induced Herrera to sign a contingency fee agreement. Hark disclosed neither his conflict of interest nor that his conduct in soliciting to be retained under these circumstances was in violation of the Rules of Professional Conduct. RPC 7.3(b)(1); see In re Pajerowski, 156 N.J. 5, 515 (1998) (finding a violation to send runner to accident victims hospital rooms shortly after accident). "

"It is well-settled that a legal malpractice claim is a negligence action brought against an attorney. Kranz v. Tiger, 390 N.J. Super. 135, 147 (App. Div. 2007); Sommers v. McKinney, 287 N.J. Super. 1, 9 (App. Div. 1996). In order to establish legal malpractice, the plaintiff must demonstrate: 1) the existence of an attorney-client relationship creating a duty of care upon the attorney; 2) that the attorney breached the duty owed; 3) that the breach was the proximate cause of any damages sustained; and 4) that actual damages were incurred. Jerista v. Murray, 185 N.J. 175, 190-191 (2005); Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996). The law imposes upon the attorney a standard of care to ensure adequate legal needs of the client. Lamb v. Barbour, 188 N.J. Super. 6, 12 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983); Lovett v. Estate of Lovett, 250 N.J. Super. 79, 88 (Ch. Div. 1991). The claim is based on alleged negligence in the practice of law because the attorney did not comply with the requisite standard of care. McGrogan v. Till, 167 N.J. 414, 425 (2001); Carney v. Finn, 145 N.J. Super. 234, 236 (App. Div. 1976).

It is part of the claimant’s burden to show that the attorney’s negligence proximately caused damages. Davin, L.L.C. v. Daham, 329 N.J. Super. 54, 72 (App. Div. 2000); Lamb, supra, 188 N.J. Super. at 12. That is to say, the negligence of the lawyer must have been a substantial factor in bringing about the loss and in addition some harm must have been foreseeable. Conklin, supra, 145 N.J. at 418-22.

Usually, a legal malpractice trial follows the "trial within a trial" format because the claimant has to show what result would have been obtained, but for the attorney’s negligence. Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 358, petition denied, 182 N.J. 151 (2004). At such a trial, "plaintiff has the burden of proving by a preponderance of the evidence that (1) he would have recovered a judgment in the action against the main defendant, (2) the amount of that judgment, and (3) the degree of collectability of such judgment." Garcia, supra, 179 N.J. at 358 (quoting Hoppe v. Ranzini, 158 N.J. Super. 158, 165 (App. Div. 1978)). The plaintiff’s damages are the difference between the result sought and the actual result. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001); see Gautam v. De Luca, 215 N.J. Super. 388, 397, certif. denied, 109 N.J. 39 (1987) ("The measure of damages is ordinarily the amount that the client would have received but for his attorney’s negligence.").

Here, Herrera has not shown how he would have obtained a better result than the $95,000 settlement, even if Hark had disclosed his conflict of interest. In short, no showing of damages has been made.

We are still concerned by the conduct alleged here; however, disciplinary code violations are not designed to establish standards for civil liability, but rather to provide standards of professional conduct for which lawyers are to be disciplined. Baxt v. Liloia, 155 N.J. 190, 200 (1998). Accordingly, a copy of this opinion will be sent to the Office of Attorney Ethics, for its review and further action if appropriate. "

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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.