Sometimes lawyers believe that they can affect the climate of litigation by getting a little press attention.  This may work on occasion, but can wreck a case as well.  Barr v Liddle & Robertson, L.L.P.  2018 NY Slip Op 33113(U)  December 3, 2018 Supreme Court, New York County Docket Number: 159781/14 Judge: Manuel J. Mendez is an example of the dangers of announcing a new law suit.

“This action arises from an alleged legal malpractice occurring in December 2002 and January 2003. Plaintiff was a managing director at an investment firm, Robertson Stephens Inc. (hereinafter “RSI”), which was indirectly owned by Robert Stephens Group Inc. (RSGI), both entities were subsidiaries of the parent company, FleetBoston Financial Corporation (hereinafter “FleetBoston”). In July of 2002 plaintiff was terminated from his employment as part of FleetBoston’s shut down of the subsidiaries. Plaintiff’s alleged compensation structure prior to termination consisted of a base salary and an annual bonus that included deferral of bonuses earned in the prior fiscal year, a Cash Equivalent Plan (CEP) and equity in the investment firm in the form of Restricted Stock Units (RSUs). ”

“Instead of signing the separation agreement plaintiff and 41 other former employees of RSI each separately retained defendants to represent them and commenced an arbitration action before the New York Stock Exchange against the RSI, RSGI, and FleetBoston (Mot. Exh.C).  After commencement of the action, defendants made comments to the Wall Street Journal and the New York Times about the arbitration. On December 12, 2002 an article was published in the Wall Street Journal titled “Robertson Band Claims Fleet Owes Some Bonuses.” The article specifically
referred to statements made by defendant Jeffrey Liddle (Mot. Exh. E, Cross-Mot., Barr Aft. Exh. G).

Plaintiff alleges that on December 10, 2002 defendants provided the Wall Street Journal with copies of two press releases, and a copy of a draft Statement of Claim for the arbitration, the day before it was actually filed (Cross-Mot., Haley Aft., Exhs. E, F, G and H). In a letter dated May 2, 2003 RSGI advised plaintiff that he was in violation of the non-disparagement provisions of the CEP section 8.1 and the Restricted Unit Award Agreement, section 4.6. The letter stated that plaintiff would not be paid his Deferred Compensation or awards of stock. The letter does not state the reasons for finding plaintiff was in violation of CEP section 8.1 or the Restricted Unit Awards Agreement (Mot. Exh. F).”

“The parties proceeded with the arbitration. On September 12, 2007 the arbitration panel issued a full and final award of $14,690,000.00, but only as to twenty seven of the claimants. Plaintiff and eleven other claimants were not awarded their bonuses or any compensation (Mot. Exh. I). The parties then commenced an action in the United States District Court which determined that the CEP and RSU claims were resolved as part of the arbitration and barred by res judicata (Mot. Exh. K). On March 23, 2011 the United States Court of Appeals for the First Circuit affirmed the United States District Court (Mot. Exh. L). The United States Court of Appeals for the First Circuit noted that the arbitration panel was silent as to how they reached the amount of the award, but none of the parties requested remand to the arbitral panel for clarification (Mot. Exh. L). On October 11, 2011 the Supreme Court of the United States denied plaintiff’s petition for writ of certiorari (Alt v. Robertson Stephens Group, Inc., 132 S. Ct. 414 [2011]). ”

‘Plaintiff raises an issue of fact on the issue of negligence and duty of care by arguing that only defendants’ “fee” was excluded in the retainer agreement, and that there is no specific language excluding representation as to the CEP plan. Paragraphs D and E exclude the CEP for 2001 and 2002 from the percentage of “recovery” defendants would be entitled to as part of their fees (Mot. Exh. C). The retainer agreement goes on to state ” … our understanding is that…Robertson Stephens and FleetBoston have indicated you will be paid the items listed in A through I above. In the event Robertson Stephens and/or FleetBoston contend, however that you are not entitled to any of the items listed in A through I above, then such contested items will be included within the term “recovery” for the purposes of the above percentages”(Mot. Exh. C). Plaintiff also claims he provided the Separation Agreement and release to the defendants, before he signed the retainer agreement, to show that they were aware his Deferred Compensation was guaranteed, as long as he complied with the requirements of section 8.1 of the CEP (Barr Aff. in Opp., Exh. D). ”

“Plaintiff correctly argues that the “litigation privilege” protects lawyers from claims of defamation and that the defendants have conflated “disparagement” as relevant to the provisions of CEP section 8.1, with “defamation.” Plaintiff has raised an issue of fact as to whether defendants acted negligently in making statements to the press in reliance on the “litigation privilege.” There remains issues of fact as to whether defendants’ erroneously relied on the “litigation privilege” and whether their actions were a reasonable pre-emptive measure to avoid anticipated negative publicity of their clients.”

“The conflicting facts presented warrant a determination at trial as to whether the defendants
act of filing for arbitration on December 11, 2002 was reasonable, warranting denial of plaintiff’s
cross-motion for summary judgment (See Ansah v. A.W.I. Sec. & Investigation, Inc., 129 A.O. 3d
538, 12 N.Y.S. 3d 35 [1st Dept., 2015], 180 Ludlow Development LLC v. Olshan Frome Wolosky LLP, 165 A.O. 3d 594, supra and Genesis Merchant Partners, LP. v. Gilbride, Tusa, Last & Spellane, LLC 157 A.O. 3d 479, supra).

Accordingly, it is ORDERED that defendants’ LIDDLE & ROBERTSON, L.L.P. and JEFFREY
L. LIDDLE’s motion pursuant to CPLR §3212 for summary judgment dismissing plaintiff’s
complaint, is denied, and it is further,

ORDERED that plaintiff’s cross-motion pursuant to CPLR §3212 for summary judgment on
the complaint and for an award of damages against the defendants, LIDDLE & ROBERTSON, L.L.P.
and JEFFREY L. LIDDLE, in the amount of $1,299,999.84 with interest, is denied. “

Print:
EmailTweetLikeLinkedIn
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.