Many large law firm retainer agreements contain arbitration clauses.  It is our guess that the law firms believe that respondent has the better hand in arbitration, that arbitration is costly and not particularly beckoning to Plaintiffs, and that arbitrators will be kinder to the law firm than would a jury.  Arbitration clauses are enforceable, and little can be done after the retainer agreement is signed.

Menche v Meltzer, Lippe, Goldstein & Breitstone, LLP  2015 NY Slip Op 04617  Decided on June 3, 2015  Appellate Division, Second Department  demonstrates how the Appellate Division pays heed to an arbitration clause.

“The plaintiff retained the defendant law firm Meltzer, Lippe, Goldstein & Breitstone, LLP, to represent him in two matters involving his service as a trustee. An engagement letter executed by the parties contained an arbitration provision stating that in the event of “any dispute arising out of or relating to this agreement and/or the legal services rendered hereunder,” the parties agreed to binding arbitration before the Alternative Dispute Resolution Tribunal of the Bar Association of Nassau County, Inc. After a dispute arose, the plaintiff commenced this action in the Supreme Court to recover damages for legal malpractice, breach of fiduciary duty, and fraud. The defendant moved pursuant to CPLR 3211(a) to dismiss the complaint, and the Supreme Court granted the motion.

” To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law'” (M.H. Mandelbaum Orthotic & Prosthetic Servs., Inc. v Werner, 126 AD3d 857, 858, quoting Gould v Decolator, 121 AD3d 845, 847; see Goshen v Mutual Life. Ins. Co. of N.Y., 98 NY2d 314; Leon v Martinez, 84 NY2d 83). Contrary to the plaintiff’s contention, the arbitration provision of the engagement letter was clear, explicit, and unequivocal, and the legal malpractice and breach of fiduciary duty causes of action fall within the broad scope of this provision (see Nasso v Loeb & Loeb, LLP, 19 AD3d 465; Stoll Am. Knitting Mach. v Creative Knitwear Corp., 5 AD3d 586).”

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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.