Personal injury law is rife with violations of the Judiciary Law.  Cases over the years have identified “runners” who go to accident sites and hospital ERs to get clients, payments of cash to clients, promises to “fund” the case and improper solicitations.  Ginarte Gallardo Gonzalez & Winograd, LLP v Schwitzer  2019 NY Slip Op 33275(U) November 4, 2019 Supreme Court, New York County Docket Number: 159991/2018 Judge: James E. d’Auguste is the latest case to be heard, and it asks the question of whether this conduct supports a Judiciary Law §487 claim.  Here, it does not.

“The complaint alleges that beginning in June 2018, several of plaintiff’s clients, all of whom had previously executed retainer agreements, substituted the Schwitzer Firm or the Garcia Firm for plaintiff (id., iii! 31-33). The complaint alleges that plaintiff had referred each of those clients to the same pain management specialist, “Dr. X,” that defendants  met with plaintiff’s clients at or near Dr. X’s office, and that defendants improperly solicited or enticed plaintiff’s clients to substitute the Schwitzer Firm or the Garcia Firm as legal counsel (id., iii! 34-35). Pena and Gomez accompanied each client to the Schwitzer Firm’s office, where they met with Schwitzer, Merlino, Semel-Weinstein, and Diamond (id., iii! 36-37). The complaint further alleges that defendants offered to pay each client $2,000 or $3,000, help them obtain financing for their cases, and arrange transport to and from their medical appointments as part of a concerted effort to persuade them to terminate their retainers with plaintiff (id., if 35). The complaint asserts that defendants purportedly told plaintiff’s clients that plaintiff was ill-equipped or incompetent to handle their cases, that plaintiff was a “thief’ or “the biggest thief,” that plaintiff lied and stole its clients’ money, and that plaintiff was the equivalent of “doctors that kill you” (id.). ”

“The second cause of action is grounded upon an alleged violation of Judiciary Law§ 487. Defendants argue the claim must fail because it was not pled with the requisite particularity describing defendants’ intentional deceit or egregious conduct. Plaintiff posits that its submissions establish a pattern of wrongdoing and deceit.

Judiciary Law § 487 provides, in part, that an attorney who is “guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party … forfeits to the party injured treble damages, to be recovered in a civil action.” The statute focuses
on the intent to deceive (see Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]). Thus, a plaintiff must plead the attorney’s intentional deceit damages caused by the deceit (see Doscher v Mannatt, Phelps & Phillips, LLP, 148 AD3d 523, 524 [1st Dept 2017]). The alleged deceit must be directed at the court or must occur during a pending judicial proceeding (see Costalas v Amalfitano, 305 AD2d 202, 204 [1st Dept 2003]). It must be shown that the alleged deceit “reaches the level of
egregious conduct or a chronic and extreme pattern of behavior” (Savitt v Greenberg Traurig, LLP, 126 AD3d 506, 507 [1st Dept 2015] [internal quotation marks and .citation omitted]; but see Dupree v Voorhees, 102 AD3d 912, 913 [2d Dept 2013]). The allegations must be pied with particularity (see Facebook, Inc. v DLA Piper LLP (US), 134 AD3d 610, 615 [1st Dept 2015], Iv denied 28 NY3d 903 [2016]).

As an initial matter, the statute does not apply to non-attorneys, such as the Individual Defendants (see Neroni v Follender, 137 AD3d 1336, 1338 [3d Dept 2016], appeal dismissed 27 NY3d 1147 [2016], rearg denied 28 NY3d 1024 [2016]). Accordingly, the second cause of action
is dismissed against them.

As to the remaining defendants, the second cause of action is also dismissed. Relief under the statute is available only to a plaintiff who was a party in a pending judicial proceeding (see Costa/as, 305 AD2d at 204). While the statute does not limit recovery only to the offending
attorney’s client (see Fields v Turner, 1Misc2d 679, 680-681 [Sup Ct, NY County 1955]), “[t]he ‘party’ referred to is clearly a party to an action pending in a court in reference to which the deceit is practiced, and not a person outside, not connected with the same at the time or with the court” (Gelmin v Quicke, 224 AD2d 481, 483 [2d Dept 1996], quoting Looff v Lawton, 97 NY 478, 482 [1884]). Plaintiff was not a party to any pending, underlying judicial proceeding.

Plaintiffs reliance on the client affidavits, if considered, is misplaced. Essential to a claim under Judiciary Law § 487 is harm to the plaintiff caused by the purportedly deceitful acts (see Doscher, 148 AD3d at 524). Each affiant chose to remain a client of plaintiff. The facts in Fields
(1 Misc 2d 679) are also dissimilar. In Fields, an attorney, who  represented the plaintiffs wife, made several representations to the court in order to procure an arrest warrant for the plaintiff (id
at 680), whereas here, the purportedly false statements by the Schwitzer Defendants and the Garcia Defendants were not made to the court while they were representing a party in a pending judicial

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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.