Attorney-client communications are privileged, and not open to discovery in general.  In a legal malpractice case, the rules are somewhat relaxed.  If the attorney client communications are “at issue” they are discoverable.  To the extent that Plaintiff relied upon these communications to make decisions about the underlying case for which he is suing the attorneys, it might be called a “shield.”  To the extent that he has decided to sue the attorneys and if he wishes to use the communications as a reason to sue, it might be called a “sword.”

If the communications are used either as a shield or a sword, they are discoverable and no longer privileged.  That’s the “at use” principal.  Gormakh v Khenkin & Sauchik, P.C. 2015 NY Slip Op 30700(U) April 28, 2015 Supreme Court, New York County Docket Number: 155923/2013 Judge: Manuel J. Mendez is an example.

“Plaintiff filed this action to recover from the defendants for legal malpractice and negligence as a result of the negotiating, drafting and signing of a commercial lease agreement for a proposed daycare. The Complaint seeks $300,000 in damages as a result of defendants’ malpractice and negligence. The Complaint also asserts a cause of action for attorneys’ fees and seeks in excess of $100,000 in special damages for “costs and expenditures in pursuit of this matter” (see Complaint, PP 46-47; Bill of Particulars, Response No. 7).

CPLR § 3101 (a) allows for the “full disclosure of all evidence material and necessary in the prosecution or defense of an action regardless of the burden of proof.” CPLR § 31 24 grants the court the power to compel a party to provide discovery demanded. CPLR § 3126 grants the court the power to sanction a party that fails to comply with a court’s discovery order. The striking of a pleading is a drastic remedy and is only warranted where a clear showing has been made that the noncompliance with an order was willful, contumacious or due to bad faith (Mateo v. City of New York, 274 A.O. 2d 337, 711N.Y.S.2d 396 [1st. Dept. 2000]). “The words ‘material and necessary’ as used in section 3101 must be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Kapon v. Koch, 23 N.Y.3d 32, 38, 11 N.E.3d 709, 988 N.Y.S.2d 559 [2014) citing to, Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 452, 235 N.E.2d 430, 432 [1968)). The documents sought by defendants are material and necessary to the defendants’ ability to defend against plaintiff’s claims. “[A]ny communications between plaintiff and its attorneys in the [prior action] that evaluated defendant’s prior advice … are certainly relevant to the issue of defendant’s alleged malpractice” (Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 62 A.D.3d 581, 582, 880 N.Y.S.2d 617, 618 [1st Dept., 2009)). The documents sought by defendants (see Aff. In Opposition to Cross-Motion, PP. 3[a-h]) were put at issue by plaintiff’s claim for legal fees and special damages, and plaintiff has not disavowed any intention to use privileged materials to help establish his claim for special damages (Assured Guar. Mun. Corp. v. DB Structured Prods., Inc., 111 A.D.3d 478, 974 N.Y .S.2d 455 [1st Dept., 2013); IDT Corp. v. Morgan Stanley Dean Witter & Co., 107 A.D.3d 451, 967 N.Y.S.2d 51, [1st Dept. 2013)). Defendants are entitled to the documents sought as to the claims for special damages. “

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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.