Big cases and little cases alike are subject to the unique legal malpractice “strategic choice” doctrine as well as a speculation analysis.  Bison Capital Corporation v. Hunton & Williams, Supreme Court, New York County, Scarpulla, J. is today’s example.  “Bison and its president, Edwin E. Wells, Jr. (“Wells”) entered into a contract with nonparty ATP Oil and Gas Corporation (“ATP”) wherein Bison agreed to help secure a financing source for that company, which was facing imminent bankruptcy (“Contract”).”  Eventually, although ATP succeeded, it failed to pay Bison.  Bison retained Hunton & Williams to represent it against ATP.  After much litigation, during the appellate process communication and agreement broke down.  ATP filed for bankruptcy.

“The Legal Malpractice Cause of Action An action for legal malpractice requires proof: (1) of the negligence of the attorney; (2) that the negligence was a proximate cause of the loss sustained, and (3) of actual damages. See Excelsior Capitol LLC v. K&L Gates LLP, 138 A.D.3d 492, 492 (1st Dept. 2016) (internal quotation marks and citation omitted) lv denied 28 N.Y.3d 906 (2016). The complaint must sufficiently allege that the attorney did not exercise the “ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession.” Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442 (2007). “But for” the attorney’s actions, the plaintiff would have prevailed or not suffered ascertainable damages. Id.
Allegations in support of a legal malpractice claim that are conclusory, speculative or contradicted by the documentary evidence will be dismissed, even if there was negligence. See Katz v. Essner, 136 A.D.3d 575, 576 (1st Dept. 2016). An attorney will not be found negligent for an error of judgment simply because it leads to an unsuccessful result. See Rosner v. Paley, 65 N.Y.2d 736 (1985).

Dissatisfaction with strategic choices does “not support a malpractice claim as a matter of law.” Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 431 (1st Dept. 1990). Attorneys are not held to a
rule of infallibility and will not be found liable for honest mistakes of judgment “where
the proper course is open to reasonable doubt.” Id. at 430.

The burden is on the attorney to “offer a reasonable strategic explanation for the alleged negligence.” Ackerman v. Kesselman, 100 A.D.3d 577, 579 (2nd Dept. 2012)(internal quotation marks and citation omitted). It is only when there is no showing of reasonable decision-making that a “determination [of whether] a course of conduct constitutes malpractice require[ ] findings of fact.” Bernstein v. Oppenheim, 160 A.D.2d 428, 430 (1st Dept. 1990).

The overriding problem with Bison’s claims of malpractice based on defendant’s failure to produce an expert on junk bond “evergreen” fees is that, as stated by the district court and affirmed by the Second Circuit, Wells’ own October 15, 2004 letter to ATP articulated the terms of the parties’ agreement, which was that fees were owed for any transaction prior to the twelve-month period following termination of the agreement. Defendant decided in its professional judgment related to trial strategy that Wells, the drafter of the agreement and identified in paragraph three of the second amended complaint as a “financial advisor with a great deal of experience in oil and gas financing [who] had high-level contacts at financial institutions,” was able to testify sufficiently
about junk bond financing and terms of the parties’ agreement. Bison has not sufficiently alleged that despite this letter, had defendant performed differently, it would have achieved a better result. See Warshaw Burstein Cohen Schlesinger & Kuh, LLP v. Longmire, 106 A.D.3d 536, 537 (1st Dept. 2013) lv dismissed 21 N.Y.3d 1059 (2013). In any event, if there was error, it is shielded by the attorney judgment rule. See Ackerman v. Kesselman, 100 A.D.3d at 579.”



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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.