A retainer agreement may be required by various NYS rules, but lack of one will not make attorney fees collectible.  On the other hand, a specific retainer agreement may limit liability for failure to undertake other litigation.  Flusser v Bikel 2019 NY Slip Op 32847(U) September 24, 2019
Supreme Court, New York County Docket Number: 155158/2019
Judge: Michael L. Katz is a good example.

“Plaintiff was represented in an action for divorce, Alan Flusser v Marlise Flusser, Index No. 314558/11, by Robert M. Preston, Esq. and his then-firm, Preston, Stutman & Partners, P.C., until on or about May 27, 2014.  That representation ended when plaintiff signed a retainer agreement with the defendant law firm, Bikel & Mandarano, a limited liability partnership, by which the firm agreed to represent her in connection with two limited issues; namely, (i) “the prosecution or defense of a divorce action;” and (ii) “the prosecution or defense of a Family Court proceeding concerning custody, visitation and support proceedings, including the attempt to negotiate a resolution of the matter.”

“Plaintiff contends that her former attorney, Mr. Preston, committed legal malpractice by failing to assert a specifically enumerated counterclaim against Mr. Flusser for the spousal maintenance arrears when the original Answer was filed in April 2012 and by failing to obtain discovery relating to the monies purportedly owed.

Plaintiff alleges, without any documentary proof and in direct contravention of the terms of the retainer agreement, that “the scope of defendants’ representation came to include representing and advising [her] with respect to claims for allegedly unpaid legal fees and for a charging lien brought by Preston and his firm and a claim for legal malpractice against Preston and his firm.””

“In the instant case, the retainer agreement enumerated the specific legal services that the defendant law firm would provide, and did not include a duty to provide any representation or advice with respect to the former attorney’s claim against plaintiff for unpaid legal fees or with respect to plaintiff’s potential claim against her former attorney for alleged legal malpractice. See, AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435 (2007); Keld v Giddins Claman, LLP, 170 AD3d 589, 589 (lSt Dep’t 2019) .”

“Thus, there is no basis for plaintiff to assert a claim against defendants for legal malpractice based on the firm’s purported failure to ‘thoroughly investigate’ and/or preserve a potential claim against plaintiff’s former attorney, or to advise plaintiff with regard to a matter wholly outside the scope of the firm’s agreed upon representation.”

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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.