An attorney departs from good practice and an immigrant is jailed for a year.  The attorney is sued and (presumably) is not insured.  He gets a childhood friend to defend the legal malpractice case.  The childhood friend departs from good practice and the immigrant wins a large verdict.  Attorney cannot pay the judgment and files bankruptcy.  Bankruptcy is not discharged.  Can things get worse?  Yes.  In the end, no one wins and no one is compensated.

Borges v Placeres  2019 NY Slip Op 29221  Decided on July 18, 2019  Appellate Term, First Department is a tragedy all round.

The underlying facts of this legal malpractice case are set forth in our prior decision (see Borges v Placeres, 43 Misc 3d 61 [App Term, 1st Dept 2014], affd 123 AD3d 611 [2014]). Briefly stated, plaintiff, a Venezuelan native, retained defendant Placeres, an attorney, in connection with an immigration matter. As a result of Placeres’ negligence (i.e., his departure from an attorney’s professional standard of care), the Immigration Court issued an in absentia deportation order against plaintiff, resulting in plaintiff spending 14 months in detention lockdown. The jury verdict finding that defendant committed malpractice, and awarding plaintiff damages in the amount of $1,249,121.37, inclusive of $900,000 for pain and suffering, was affirmed following two appeals.

It is not seriously disputed that, but for the error of Placeres’ litigation counsel, namely Jose Luis Torres and Brian Robinson, in failing to object to plaintiff’s pain and suffering evidence or the related jury charge and verdict sheet, Placeres might not have been liable for [*2]$900,000 in pain and suffering damages (see Borges v Placeres, 43 Misc 3d at 64).[FN1] After the verdict, Placeres filed for bankruptcy, but he was ultimately denied a discharge because he “knowingly failed to disclose” his potential malpractice claim against his litigation counsel, for the errors resulting in the $900,000 pain and suffering award (In re Placeres, 578 BR 505, 523 [Bankr SD NY 2017]).

Plaintiff’s judgment against Placeres remains unsatisfied. As a means of enforcing the judgment, plaintiff moved, inter alia, for an order directing Placeres to turnover or assign to plaintiff the (unasserted) cause of action for legal malpractice that Placeres has against his litigation counsel. Placeres opposed the motion on various grounds. As the Bankruptcy Court explained, Placeres refused to assign the malpractice cause of action to plaintiff because his attorney of record, specifically, Jose Luis Torres, “was his friend since high school, he represented Placeres for free, Torres did not represent him at trial and he was not going to throw Torres ‘under the bus'” (In re Placeres, 578 BR at 523).”

“Plaintiff’s judgment against Placeres remains unsatisfied. As a means of enforcing the judgment, plaintiff moved, inter alia, for an order directing Placeres to turnover or assign to plaintiff the (unasserted) cause of action for legal malpractice that Placeres has against his litigation counsel. Placeres opposed the motion on various grounds. As the Bankruptcy Court explained, Placeres refused to assign the malpractice cause of action to plaintiff because his attorney of record, specifically, Jose Luis Torres, “was his friend since high school, he represented Placeres for free, Torres did not represent him at trial and he was not going to throw Torres ‘under the bus'” (In re Placeres, 578 BR at 523).

Civil Court granted plaintiff’s motion to the extent that “any and all rights to any prospective cause of action arising from the professional negligence and/or legal malpractice of defendant’s attorneys in the scope of their representation in this action is hereby immediately assigned to plaintiff…” (Borges v Placeres, 60 Misc 3d 1033, 1043 [Civ Ct, NY County 2018]). With respect to Placeres’ argument that the assignment is barred by judicial estoppel, the court held that the only issue before it is the assignability, not vitality, of the potential malpractice cause of action, and that any judicial estoppel defense could be asserted in the ensuing litigation.

Defendant appeals, and we now reverse. In the particular facts of this case, we conclude that plaintiff is judicially estopped from pursuing any assigned legal malpractice cause of action that Placeres has against his litigation counsel.

The doctrine of judicial estoppel “prevents a party who assumed a certain position in a prior proceeding and secured a ruling in his or her favor from advancing a contrary position in another action, simply because his or her interests have changed” (Becerril v City of NY Dept. of Health & Mental Hygiene, 110 AD3d 517, 519 [2013], lv denied 23 NY3d 905 [2014]; see Herman v 36 Gramercy Park Realty Assoc., LLC, 165 AD3d 405, 406 [2018], lv denied __ NY3d __, 2019 NY Slip Op 72363 [2019]). The doctrine rests upon the principle that a litigant should not be permitted to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise (see Leonia Bank v Kouri, 3 AD3d 213, 219 [2004]).”

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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.