There are a whole group of social policy roadblocks to legal malpractice litigation.  The additional element of “but for” causation is one; the requirement of privity is another; the exemption for strategic decisions is a third.  A very black and white limitation is that of legal malpractice by a criminal defense lawyer.  Put in short, it is required that the client be acquitted, have the conviction reversed on appeal or be exonerated before a legal malpractice suit may be brought.

This is the short lesson of Braxton v Segal  2018 NY Slip Op 50393(U)  Decided on March 26, 2018  Supreme Court, New York County  Reed, J. in which a pro-se claimant has the complaint dismissed.

With regard to plaintiff’s motion for summary judgment as to Segal, “to state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense” (see Carmel v. Lunney, 70 NY2d 169). Plaintiff has not done so here. Instead, plaintiff alleges that Segal’s prior complaints, admonishments and suspensions from the practice are conclusive proof of malpractice in his case, entitling plaintiff to monetary relief. Such a clustering of unfortunate facts, however, does not translate into an articulable claim of legal malpractice. Segal was, it is true, suspended from the practice of law during the representation of plaintiff’s case. The Appellate Division of the First Judicial Department ordered Segal to transfer his cases to another attorney in good standing. While it certainly is an inconvenient and untimely disruption for any criminal defendant to receive a new attorney, this alone is not sufficient to sustain a cause of action for legal malpractice. Accordingly, plaintiff’s motion for summary judgment as against Segal is denied. Moreover, again searching the record pursuant to CPLR 3212(b), the court grants summary judgment to defendant Segal dismissing the complaint as against him — inasmuch as plaintiff fails to present anywhere in the record even a colorable claim of innocence in connection with the criminal matter for which defendant Segal provided him representation (see Carmel v. Lunney, supra; Merritt Hill Vineyardssupra).”


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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.