Judiciary Law § 487 relates to deceit by attorneys and allows for treble damages.  There are already multiple hurdles for the successful litigant, not the least of which is that the deceit must take place during litigation and within New York state.  M.T. Packaging, Inc. v Maidenbaum & Assoc.,
P.L.L.C.  2018 NY Slip Op 30601(U)  April 4, 2018  Supreme Court, New York County  Docket Number: 153441/2017  Judge: James E. d’Auguste outlines another concern.  To what extent may privileged discussions form the basis of a good 487 claim?

“The allegations set forth in paragraphs 16 through 30 of the complaint in the withi~
action are duplicative of the very factual allegations of fraud that formed the basis of this Court’s
earlier severance decision. In defendants’ moving papers, they indicate that the allegedly
fraudulent certificate at issue in that action was provided to plaintiff more than four years prior to
the retention of defendants as counsel and commencement of the Contract Action. The
undersigned agrees with this Court’s prior determination that the allegations contained in
paragraphs 16 through 30 of the complaint have no bearing on the Judiciary Law claim and are
prejudicial to defendants as the only purpose such allegations serve are to disparage defendants
in this action. Defendants themselves, as attorneys, had nothing to do with the breach of contract
or certificate fraud because they were not involved in the conduct that is the subject of the
Contract Action and the Fraud Action. Defendants merely represented their clients in both
actions. Moreover, any pre-litigation conduct is not relevant to Claims brought under the

Judiciary Law as this is not the type of fraud contemplated by the statute. See, e.g., Mahler v. Campagna, 60 A.D.3d 1009, 1012 (2d Dep’t 2009). It is both unnecessary in this action and
inappropriate for plaintiff to prove the truth of the allegations contained in the Fraud Action
because it would be tantamount to having a litigation within this litigation. Further, it would be
prejudicial to defendants to make them defend against such allegations as parties. However, if
· the pu~ose of including such allegations in the complaint is to give context to the instant
Judiciary Law claim, as plaintiff asserts, the most appropriate way would be to state, using
neutral language, that defendants were lawyers in the Fraud Action and the Contract Action.
Accordingly, the·Court permits plaintiff leave to amend the complaint as directed above.

Moreover, the allegations contained in paragraphs 55 through 62.of the complaint relate
to privileged attorney-client communications-a privilege owned by defendants’ non-party
clients. The only way for defendants to defend against such allegations would be for defenaants
to reveal what they communicated to their clients, which is privileged. The Judiciary Law was
never designed to require such diselosure to defend against an allegation where the privilege has
not been waived. Because waiver of the attorney-client privilege belongs to the client, the
attorney, and thus defendants herein, cannot waive the privilege. While there are some situations
where an attorney’s conduct can constitute a waiver by the client, this is because the attorney is
acting as the client’s agent. In re von Bulow, 828 F.2d 94, 101 (2d Cir~ 1987). However, in this
instance, the allegations are not that defendants are acting as the .client’s agents, but that
defendants, as attorneys, are themselves committing a fraud. In such situations, an attorney is
not acting as an agent, but as a principal. This Court then must return to the strictures of the
attorney-client privilege-that the privilege belongs to the client and only the client can waive
the privilege, either expressly or impliedly. Defending against allegations made pursuant to the
Judiciary Law does not equate to a knowing or implied waiver of the attorney-client privilege by the client.  As such, this Court does not read the Judiciary Law as a hammer to chip away at the attorney-client privilege. Section 487 of the Judiciary Law is not meant to require disclosure by attorneys or waiver by their clients. See Wailes v. Tel Networks USA, LLC, 116 A.D.3d 625, 626 (l st Dep’t 2014) (“[T]he only allegations of wrongdoing refer to a settlement discussion had after Tel Networks commenced a legal proceeding, and that communication is absolutely privileged.”). Thus, the Court does not read the Judiciary Law as permitting a claim where the only means of defending against the cause of action is to disclose privileged communications. “

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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.