The jury system, along with the CPLR structure of motions and appeals can be cumbersome, long, but ultimately comforting.  In contrast, the arbitration system plays to a single individual or tribunal, with no margin for reassessment.  So went a case reported in the New York Law Journal, and sometime in the future will be determined by a court decision, albeit on very limited grounds.

Investment Fund Challenges Ruling in Herrick Malpractice Fight is the story of a legal malpractice by an investment company against Herrick Feinstein in a legal malpractice case, involving a former  NY Court of Appeals judges as an expert witness.

From Christine Simmons :“Gordon Group said it retained Herrick Feinstein in late 2009 after it was defrauded by a rogue bond trader who made unauthorized purchases of stock “in an elaborate pump and dump scheme.” Gordon Group said Herrick promptly filed in state court tort and other claims against the trader and others, but waited 13 months before considering the timeliness of the client’s contract claim against Fortis Investment Services, a clearing broker that was acquired by BNP Paribas. The claim against Fortis was subject to arbitration before the Financial Industry Regulatory Authority.

Herrick did not seek a tolling agreement with Fortis or tell Gordon Group that Herrick’s delay was destroying the value of its Fortis claim, Gordon Group claims. Gordon Group said it was advised by then-Herrick attorneys David Feuerstein and John Goldman.

Herrick, it claims, finally brought a FINRA arbitration against Fortis in March 2011, and argued then that its damages were $23.4 million plus interest, totaling $45 million. A FINRA panel in November 2015 awarded Gordon Group $11.3 million in compensatory damage but did not explicitly grant or deny interest.

In a legal malpractice arbitration brought against Herrick last year, Gordon Group argued the FINRA award was only based on the unauthorized trades that cleared Fortis inside the statute of limitations timeframe and a 9 percent statutory interest. Gordon Group’s expert witness at the malpractice arbitration, Robert Smith, a former judge of the New York Court of Appeals, testified that it was “very likely” that the FINRA panel credited the statute of limitations defense asserted in the FINRA arbitration as a result of Herrick’s inaction, Gordon Group said.

In a July decision, the arbitrator, Davidson, found Herrick’s “failure to assure” that the statute of limitations on the Fortis claim was tolled or that the client was fully informed of the danger in waiting to bring a claim “fell below the ordinary and reasonable skill and knowledge” commonly possessed by a member of the profession. However, in considering damages, Davidson found “the truth of the matter is that no one knows how the arbitrators [in the FINRA action] came up with their number.”

Gordon Group’s petition, filed Tuesday, argues that the arbitrator applied the wrong standard of proof and the ruling resulted in an unfair arbitration process. Its petition seeks to vacate the award and send the parties back to arbitration to establish 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 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.