It is rare to see a pro-se defendant in the rarified air of Federal District Court, even more rare for both sides to be pro-se.  Here,  in DANIEL KIRK and LINDA KIRK, v.  JOSEPH M. HEPPT, ESQ.,
05 Civ. 9977 (RWS) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK January 16, 2008, Filed , the tide seems to be turning in favor of the defendant attorney. 

Plaintiff unsuccessfully sued for employment discrimination, and when the case failed, turned, pro-se to sue his attorney.  The attorney counterclaimed for defamation and his fees.  Federal District Court Judge Sweet found everyone’s position to be deficient in some manner:

"The Plaintiffs’ first cause of action alleges a violation of 18 U.S.C. § 1341, the federal mail fraud statute, and is based upon the mailing of allegedly fraudulent invoices from Heppt’s office in Manhattan to the Kirks’ residence in New Jersey (Compl. P 23). However, there is no private right of action for violations of the federal mail fraud statute. See Pharr v. Evergreen Garden, Inc., 123 Fed. Appx. 420, 422 (2d Cir. 2005) ("The law in this circuit is clear that [18 U.S.C. § 1341] does not support any private right of action."). The cause of action for mail fraud [*6] under 18 U.S.C. § 1341 is dismissed.

In addition, the Complaint can be read as asserting a claim for common law fraud. To maintain a claim for common law fraud, a plaintiff must be able to show a causative link between the alleged fraud and his claimed damages. See, e.g., Friedman v. Anderson, 803 N.Y.S.2d 514, 517 (N.Y. App. Div. 2005) (granting a motion to dismiss a fraud claim for failure to demonstrate that defendants’ actions were the proximate cause of the claimed losses). With regard to fraud arising from the mailed invoices, the March 20, 2006, Memorandum Opinion denying the Plaintiffs leave to file an amended complaint stated that the Plaintiffs "will be unable to demonstrate that Defendant’s mailing of fraudulent invoices was the proximate cause of their alleged injuries." Kirk v. Heppt, 423 F. Supp. 2d at 151.

The Plaintiffs’ second cause of action alleges a scheme to defraud, in violation of New York Penal Law § 190.60. The New York State Legislature modeled the "scheme to defraud" crime on the federal mail fraud statute. People v. First Meridian Planning Corp., 86 N.Y.2d 608, 616 (1995); William C. Donnino, Practice Commentary, N.Y. Penal Law § 190.60 (McKinney 1998) ("Given [*7] parallel language in the two statutes, New York courts have found federal cases construing the mail fraud statute relevant to the construction of New York’s ‘scheme to defraud.’"). Because neither the New York State legislature nor any New York court has interpreted § 190.60 as providing a private cause of action, the claim based on the N.Y. Penal Law § 190.60 is dismissed.

The NY General Business Law § 349 Cause of Action is Dismissed

New York General Business Law § 349 applies solely to matters affecting the consumer public at large. Vitolo v. Mentor H/S. Inc., 213 Fed. Appx. 16, 17 (2d Cir. 2007). Private contract disputes, unique to the parties, are not covered by the statute. Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 24-25 (1995). See also Amadasu v. Ngati, et al., No. 05 Civ. 2585 (JFB), 2006 U.S. Dist. Lexis 19654, at *35-36 (E.D.N.Y. Mar. 27, 2006) (dismissing a Section 349 claim arising out of an attorney-client relationship for failure to state a consumer protection claim) (citing, inter alia, Exxonmobil Inter-America, Inc. v. Advanced Info. Eng’g Servs., Inc., 328 F. Supp. 2d 443, 447 (S.D.N.Y. 2004)).

The Complaint here is limited [*8] to a dispute between the Plaintiffs and the Defendant arising out of the attorney-client relationship, which is essentially contractual in nature. The broader impact on consumers at large is not adequately alleged. For the reasons stated above, the Plaintiffs’ claim based on New York (General Business Law § 349 is dismissed as a matter of law.

The Claim for Breach of Fiduciary Duty is Dismissed in Part

Although the Kirks have not explicitly asserted a cause of action for legal malpractice, under New York law, claims for legal malpractice and claims for breach of fiduciary duty in the context of attorney liability are coextensive. Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 780 N.Y.S.2d 593, 596 (N.Y. App. Div. 2004); see also Nordwind v. Rowland No. 04 Civ. 9725 (AJP), 2007 U.S. Dist. LEXIS 75764, at *20 (S.D.N.Y. Oct. 10, 2007) (citations omitted); Guiles v. Simser, 826 N.Y.S.2d 484, 485 (N.Y. App. Div. 2006) (treating Plaintiff’s cause of action, although labeled as a breach of fiduciary duty, as a claim of legal malpractice). To the extent that the Kirks’ claim for breach of fiduciary duty is based upon Heppt’s handling of Daniel’s case against his former [*9] employer before the Honorable Sidney H. Stein, see Kirk v. Schindler Elevator Corp., No. 03 Civ. 8688 (SHS), 2004 WL 1933584 (S.D.N.Y. Aug. 31, 2004), their claim will be treated as a claim for legal malpractice.

A cause of action for legal malpractice poses a question of law which can be determined on a motion to dismiss. Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (citing Rosner v. Paley, 65 N.Y.2d 736, 738 (1985)) (quotation marks omitted). In order to state a claim for legal malpractice under New York law, a plaintiff must adequately allege 1) an attorney-client relationship, and 2) attorney negligence, 3) which is the proximate cause of, 4) actual damages. Nordwind, 2007 U.S. Dist. LEXIS 75764, at *22; see also Pellegrino v. File, 738 N.Y.S.2d 320, 323 (N.Y. App. Div. 2002), lv denied, 98 N.Y.2d 606. Insofar as the Kirks are seeking damages for the value of the claim lost, they must establish the elements of proximate cause and actual damages by "demonstrat[ing] that ‘but for’ the attorney’s conduct the client would have prevailed in the underlying matter or would not have sustained any ascertainable damages." Trautenberg v. Paul, Weiss, Rifkind, [*10] Wharton & Garrison, LLP, No. 06 Civ. 14211 (GBD), 2007 U.S. Dist. LEXIS 56222, at *9 (S.D.N.Y. Aug. 2, 2007) (citing Fashion Boutique of Short Hills, 780 N.Y.S.2d at 596). "Notwithstanding counsel’s purported negligence, the client must demonstrate his or her own likelihood of success; absent such a showing, counsel’s conduct is not the proximate cause of the injury. Nor may speculative damages or conclusory claims of damage be a basis for legal malpractice." Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, LLP, 301 A.D.2d 63, 67 (N.Y. App. Div. 2002) (citing Pellegrino, 738 N.Y.S.2d 320,). See also Morgan, Lewis & Bockius, LLP v., Inc., 2007 NY Slip Op 50149U, at 6 (N.Y. Misc. 2007).

In order to establish negligence in a legal malpractice case, a plaintiff must allege that the attorney’s conduct "’fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of the profession.’" Achtman, 464 F.3d at 337 (quoting Grago v. Robertson, 370 N.Y.S.2d 255 (N.Y. App. Div. 1975)). While "an attorney may be held liable for ‘ignorance of the rules of practice, failure to comply with conditions precedent to suit, or for his neglect to prosecute [*11] or defend an action," Achtman, 464 F.3d at 337 (quoting Bernstein v. Oppenheim & Co., 554 N.Y.S.2d 487 (N.Y. App. Div. 1990)), "[a] complaint that essentially alleges either ‘an error in judgment’ or a ‘selection of one among several reasonable courses of action’ fails to state a claim for malpractice," id. (quoting Rosner, 65 N.Y.2d at 738).

Construing the complaint liberally in Plaintiffs’ favor, the Kirks’ allegations regarding Heppt’s failure to thoroughly investigate Daniel’s ERISA plan and exhaust all administrative remedies prior to filing suit may constitute negligence However, the Kirks have not sufficiently alleged proximate cause to withstand a motion to dismiss. Therefore, their claim for fiduciary duty with regard to these allegations is dismissed, with leave granted to replead. "

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 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.