Divorce is a huge step.  It ends a marriage and brings with it seismic shock.  When (as always) this type of event is coupled with legal representation, the client will often blame the attorney for the outcome.  Sometimes this is warranted, and sometimes not.  Barrett v Goldstein 2017 NY Slip Op 30010(U) January 3, 2017 Supreme Court, New York County Docket Number: 154225/2016 Judge: Arlene P. Bluth (which we will call Barrett 1 ) is an example of the latter.

This defendant was a mediator in a mediated divorce.  When plaintiff discovered that he had given away inherited non-marital property he sued everyone.  In Barrett 1 he unsuccessfully sued the mediator.

“Goldstein claims that the post-nuptial agreement signed by plaintiff and Comstock states ‘ that each party had their own legal counsel advising them regarding the effects of the post-nuptial agreement. Goldstein claims that plaintiff failed to state a cause of action for legal malpractice/breach of fiduciary duty because plaintiff failed to establish the existence of an attorney-client relationship. Goldstein further claims that even if there was an attorney-client relationship, plaintiff failed to plead facts to establish that ‘but for’ Goldstein’s alleged negligence, plaintiff would have received a larger distribution of the marital estate. Goldstein asserts that the complaint does not state what occurred in the divorce action and how the marital property was eventually divided, thereby precluding a finding of legal malpractice. Goldstein further argues that the cause of action for breach of fiduciary duty and fraud are duplicative of the cause of action for legal malpractice and, therefore, must be dismissed. In opposition, plaintiff disputes that Goldstein was a mediator and claims that Goldstein was hired by Comstock. Plaintiff insists that he had an attorney-client relationship with Goldstein and declares that the documentary evidence provided by Goldstein does not dispute that characterization. Plaintiff asserts that Comstock became entitled to a fifty percent interest in plaintiffs inherited land and mineral rights to which Comstock would not have otherwise been entitled under equitable distribution. Plaintiff claims the causes of action are not duplicative because if no attorney-client relationship is found, then a cause of action for fraud should remain. ”

“”In determining the existence of an attorney-client relationship, a court must look to the actions of the parties to ascertain the existence of such a relationship” (Wei Cheng Chang v Pi, 288 AD2d 378, 380, 733 NYS2d 471 [2d Dept 2001]). A purp9rted client’s “unilateral beliefs and actions do not confer upon [him] the status of client” (Jane Street Co. v Rosenberg & Estis, P.C., 192 AD2d 451, 451, 597 NYS2d 17 [1st Dept 1993]). Here, plaintiffs complaint attempts to characterize Goldstein’s role as an attorney-client relationship with plaintiff, but plaintiff failed to allege any facts to substantiate this claim. Goldstein also produced documentary evidence that utterly refutes plaintiffs claim that an attorney-client relationship existed. Plaintiffs complaint (Goldstein’s counsel, exh A) attaches a copy of the post-nuptial agreement signed by both plaintiff and Comstock. Paragraph 1.1 of the post-nuptial agreement states that “Each party acknowledges that his or her separate legal counsel has examined the attached financial information, has advised him or her with respect to same, and that each party fully understands the contents of such financial information of the other” (id.). Paragraph 1.2 states that “Each party acknowledges that: (a) he or she has had legal counsel of his or her own selection who advised him or her fully with respect to his or her rights in and to the property and income of the other and with respect to the effect of this Agreement and that such party understands such advice” (id.). This agreement makes clear that each party consulted with his or her own attorney before signing the agreement. Further, plaintiffs complaint supports this conclusion. Plaintiff alleges that defendants Fleischer and Berkman Bottger (the firm) were retained by plaintiff on or about March 22, 2013 to “review the Post-Nuptial Agreement drafted by Defendant Lori H. Goldstein” (plaintiffs complaint~ 51 ). Clearly, plaintiff did_ have his own individual counsel review the agreement before he signed it. ”

“Although Goldstein may have used her legal expertise to draft the agreement, plaintiff did not exclusively rely on that expertise before signing the agreement. He employed his own attorneys for that task. “

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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.