In an artificial social policy sort of way, lawyers protect lawyers.  Although legal malpractice is a tort (maybe), there is still a requirement of privity.  Remembering back to law school and the progression in products liability from a strict requirement of privity for a recovery from the manufacturer to strict liability, we wonder if the legal world will ever accept that any attorney who participated in a specific litigation should be responsible for departures?

Well, Tatintsian v Pryor Cashman LLP  2018 NY Slip Op 33152(U)  December 10, 2018
Supreme Court, New York County  Docket Number: 152022/2017  Judge: David Benjamin Cohen describes the current state of affairs.

“In this action, plaintiff Gary Tatintsian (Plaintiff) alleges that defendants Pryor Cashman
LLP (Pryor Cashman), Eric Hellige (Hellige) and Eudora Partners LLC (Eudora, along with
Pryor Cashman and Hellige, collectively, Defendants) participated in a scam perpetrated by
Mikhail Vorotyntsev (MV) to “fleece” investors, including Plaintiff. The complaint asserts four
causes of action: fraudulent inducement, aiding and abetting fraud, legal malpractice and unjust
enrichment. By the instant motion (sequence number 001), Defendants move, pursuant to CPLR
3211 (a) (1) and (a) (7), for an order dismissing all causes of action with prejudice. For the
reasons set forth below, the relief sought in the motion is granted in part and denied in part. ”

“In order to plead a legal malpractice claim, the complaint must allege “the negligence of
the attorney” and that the negligence is the “proximate cause of the loss sustained” by plaintiff
(O’Callaghan v Brunelle, 84 AD3d 581, 582 [I51 Dept 201 l][internal citations and quotation
marks omitted]). Further, a legal malpractice claim cannot be stated if there is no attorney-client
relationship between the parties (Waggoner v Caruso, 68 AD3d 1, 3 [1 51 Dept2009], affd 14
NY3d 874 [2010]).
Plaintiff acknowledges that he is not a client of and is not in privity with Defendants, but
asserts that he may recover for losses arising from Defendants’ legal malpractice if the complaint
alleges “fraud, collusion, malicious acts or other special circumstances” (Plaintiffs opposition at
25, citing, inter alia, Estate of Schneider v Finmann, 15 NY3d 306, 308 [2010]). In such regard,
the complaint alleges that Defendants “engaged in fraud, collusion, or malicious or tortious acts
against Plaintiff,” and as a result, “Defendants are liable to Plaintiff for legal malpractice”
(Complaint, iii! 61-62).
However, Plaintiffs allegation of “collusion” in the complaint is conclusory because he
fails to identify any collusive acts between Defendants and MV, and has neither alleged nor specifically identified any “malicious acts” on the part of Defendants. In his opposition to the
motion, Plaintiff merely alleges that because “Defendants committed fraud against him to benefit
themselves … and implicitly … Defendants secretly colluded with [MV] to misappropriate
Plaintiffs investment for Defendants’ and [MV’s] own enrichment” (Defendants’ opposition at
26-27), The foregoing allegations sound more like an unjust enrichment claim rather than a legal
malpractice claim, because the conclusory allegation of “secret collusion” is not supported by any
fact. Also, his fraud against Defendant has been dismissed, for the reasons stated above.
Accordingly, the legal malpractice claim should be dismissed (Benzemann v Citibank,
NA., 149 AD3d 586, 586 [1st Dept 2017] [absence of privity, along with conclusory allegation of
fraud and collusion, required dismissal of the legal malpractice claim]). “

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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.