Legal malpractice issues, and definitely attorney-client privilege issues arise in Estates.  They can come up prior to death, by virtue of the death or afterwards, but in each instance there is a question of the relationship of the estate and the attorney, and who is now the “client” in terms of rights and privileges between the client (Deceased and the Estate) and the attorney.

Matter of Thomas  2019 NY Slip Op 08293  Decided on November 15, 2019 Appellate Division, Fourth Department DeJoseph, J. is an example of the attorney-client privilege issue.

“In a prior appeal, we remitted the matter to Surrogate’s Court for further proceedings on the issue of ownership of certain stock in New York State Fence Company (NYSFC) after concluding that “[w]here, as here, an asset is not included in the inventory of the estate based upon respondent fiduciary’s assertion that he is the owner of the asset, it is respondent’s burden to show a legal and sufficient reason for withholding’ the asset from the estate” (id. at 1765). Upon remittal, the Surrogate held a nonjury trial during which respondent, in his capacity as executor, [*2]waived decedents’ attorney-client privilege, and decedents’ former counsel thereafter testified that she did not include a specific bequest with respect to Anthony’s NYSFC shares in his most recent will because Anthony had already transferred those shares to respondent. After the trial, the Surrogate concluded that respondent had in fact satisfied his burden and specifically established that the shares of NYSFC were sold and transferred to respondent prior to Anthony’s death. Petitioners appeal, and we affirm.

The primary issue on appeal is one of first impression in this Department and requires us to determine whether an executor has the authority to waive a decedent’s attorney-client privilege. The Second and Third Departments have answered that question in the affirmative, and we agree.

In Mayorga v Tate (302 AD2d 11 [2d Dept 2002]), the assignee of the executor of the decedent’s estate brought a legal malpractice action against the decedent’s attorney and sought to obtain pretrial disclosure “of the file that [the attorney] maintained in connection with” his representation of the decedent (id. at 12). The attorney refused to disclose the file, claiming that it was protected by the attorney-client privilege (id.). The trial court held that the assignee could waive the privilege and that the attorney could not invoke the privilege to avoid producing the requested discovery (id.). The Second Department affirmed, stating:

“We conclude by returning to the basic thesis that it makes no sense to prohibit an executor from waiving the attorney-client privilege of his or her decedent, where such prohibition operates to the detriment of the decedent’s estate, and to the benefit of an alleged tortfeasor against whom the estate possesses a cause of action . . . That an executor . . . may exercise authority over all the interests of the estate left by the [decedent], and yet may not incidentally have the right, in the interest of that estate, to waive the [attorney client] privilege . . . would seem too inconsistent to be maintained under any system of law . . . We therefore conclude that, under the terms of CPLR 4503, just as under the common law, an executor may waive the attorney-client privilege of his or her decedent” (id. at 18-19 [internal quotation marks omitted]).

The Third Department endorsed that same view in Matter of Johnson (7 AD3d 959, 960-961 [3d Dept 2004], lv denied 3 NY3d 606 [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…

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.