A client walks into the office and tells you he was hurt.  You discuss his situation, and tell him that you will not take the case.  You hand him a letter saying you will not be taking the case.  Can there be liability when he later discovers that he could have sued the City of New York?

The answer to at least part of the question is found in Lago v Gucciardo Law Firm  2020 NY Slip Op 31716(U) June 3, 2020 Supreme Court, New York County Docket Number:  57977/2018
Judge: Barbara Jaffe.

“In advancing causes of action against defendants for legal malpractice and breach of contract, plaintiff alleges in his complaint, in pertinent part, that on October 9, 2015, he “retained” defendants to represent him and advise him as to whether he had “any legal claims to compensate” him for an accident he had while working as a laborer on August 25, 2015 for a subcontractor at a New York City-owned construction site. Defendants advised him that there was no basis for filing a lawsuit and referred him to a Workers’ Compensation attorney. Thus,plaintiff alleges, defendants failed to advise him that he had causes of action against City for its failure to provide a safe place to work in violation of Labor Law§§ 200, 240, and 241(6), in that it caused and permitted “the improper hoisting of construction materials, which resulted in a sewer pipe” striking the ladder on which he stood, causing him to fall some eight feet to the bottom of the trench in which the ladder had been placed, injuring him. “‘But for’ those failures, plaintiff claims, he “would have had a viable and valuable personal injury action against The City of New York.” Based on these allegations, plaintiff claims that defendants may be held liable for legal malpractice. ”

“To prevail on a motion for summary judgment, the movant must establish, prima facie, its entitlement to judgment as a matter of law, providing sufficient evidence demonstrating the
absence of any triable issues of fact. (Jacobsen v New York City Health & Hasps. Corp., 22 NY3d 824, 833 [2014]). If this burden is met, the opponent must offer evidence in admissible
form demonstrating the existence of factual issues requiring a trial; “conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient.” (Justinian Capital SPC v WestLB AG, 28 NY3d 160, 168 [2016], quoting Gilbert Frank Corp. v Fed. Ins. Co., 70 NY2d 966, 967 [1988]). In deciding the motion, the evidence must be viewed in the “light most
favorable to the opponent of the motion and [the court] must give that party the benefit of every favorable inference.” (0 ‘Brien v Port Authority of New York and New Jersey, 29 NY3d 27, 37 [2017]).

To establish a claim for legal malpractice, a party must show that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the
legal profession, and that the attorney’s breach of this duty approximately used the party to sustain actual and ascertainable damages. (Rudolph v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 [2007]). To establish proximate cause, a plaintiff must demonstrate that but for the attorney’s negligence, the plaintiff would have prevailed in the underlying matter or would not have sustained ascertainable damages. (Nomura Asset Cap. Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40 [2015]).

Here, defendants prove, based on plaintiff’s deposition, that there was no retainer agreement or contract with plaintiff, that the firm performed no legal services for him and
sent him no bills or invoices, and that he did not believe that the firm was representing him.  hus, defendants demonstrate, prima facie, that there was no attorney-client relationship between them and plaintiff. In any event, plaintiff has apparently retreated from the claim in his complaint that he had retained defendants to represent him, and now asserts that at the consultation, a fiduciary duty arose.

The evidence offered by defendants also reflects that plaintiff transmitted to the firm no confidences, that they had no history with him nor communications following the consultation
apart from the alleged rejection letter, and that the firm had undertaken no task on plaintiff’s behalf beyond referring him to the Workers’ Compensation attorney. Thus, defendants
demonstrate, prima facie, that no fiduciary relationship resulted from the consultation. The opinion offered by plaintiff’s expert that defendants owed him a fiduciary duty not to
“give false recommendations or false advice where it was reasonably foreseeable that the client would rely on the recommendation or advice” is unsupported by legal authority as are all of his opinions. His opinion that a lawsuit against City is “implicate[ d]” under the Labor Law is of no evidentiary value and likewise, unsupported.

Even if plaintiff had felt overwhelmed by the firm’s opinion that he had no case and thus pursued the claim against City no further, he offers no evidence that defendants were aware of his feelings in that regard. (See Gregor v Rossi, 120 AD3d 447 [1st Dept 2014] [“Plaintiffs subjective belief did not create an attorney-client relationship or a close relationship approaching privity that imposed upon defendants a duty to them to impart correct information … “]). That the firm made available to him a Workers’ Compensation attorney does not prove otherwise. In any event, plaintiffs feeling apparently subsided when he eventually retained not one but two successor attorneys to pursue his claim against City.”

Email this postTweet this postLike this postShare this post on LinkedIn
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.