It seems as if the Appellate Division scratched its head on this claim of legal malpractice.  It seemed not sure how to calculate the claimed departure from good practice.  In Kaplan v Conway & Conway  2019 NY Slip Op 04477  Decided on June 6, 2019  Appellate Division, First Department it questioned the foundation of the legal malpractice case.

“The motion court properly granted defendants’ motion to dismiss. The complaint alleged that defendants committed legal malpractice by failing to timely advocate for a “formal closure” of a “sham” internal investigation instigated by plaintiffs’ employer, or to secure “more favorable language” in the FINRA U-5 Forms that were filed upon plaintiffs’ voluntary resignation. As a result of defendants’ alleged negligence, plaintiffs claim that they were subject to a FINRA investigation and “reputational damage.” Given the vague, speculative, and conclusory nature of these allegations, plaintiffs failed to allege facts that “fit into any cognizable legal theory” (see Nonnon v City of New York, 9 NY3d 825, 827 [2007], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994] [internal quotation marks omitted]).

Moreover, emails submitted by defendants show that the law firm did advocate for plaintiffs’ employer to include language on the U-5 Forms indicating that any allegations against plaintiffs were unsubstantiated, and plaintiffs’ employer refused, calling such language a “non-starter.” Defendants also drafted a “Broker Comment,” which would have provided plaintiffs’ rebuttal to the negative information included on their U-5 Forms, but, according to defendants, plaintiffs would not discuss or approve the comment. It is undisputed that, prior to their voluntary resignation, plaintiffs were on administrative leave and already suffering damages in the form of loss of business and reputational damage. Accordingly, plaintiffs have no cause of action to recover damages for legal malpractice as they cannot demonstrate that defendants were negligent in their representation, or that such negligence proximately caused the alleged damages (see Rudolf v ShaynesupraWeil v Fashion Boutique, supra).”

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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.