The claim in Berkovits v Berkovits  2021 NY Slip Op 00406 Decided on January 27, 2021Appellate Division, Second Department is not matrimonial, it is patriarchal.  Father alleges that son defrauded him over valuable assets.  For our purposes, there is also a claim against his attorneys for not explaining the deal.

“The plaintiff Joseph Berkovits alleges that his son, the defendant Mayer Berkovits, improperly induced him to execute an agreement creating an irrevocable trust (hereinafter the trust). Joseph Berkovits alleges that Mayer Berkovits falsely advised him to sign documents purportedly related to the tax treatment of certain real property, and that those documents actually established the trust. Pursuant to the trust agreement, Joseph Berkovits, as grantor, transferred to the trust certain shares in the plaintiff Aberko Realty, Inc. (hereinafter Aberko; hereinafter together with Joseph Berkovits, the plaintiffs). The trust agreement provided, inter alia, that Mayer Berkovits was to serve as investment advisor, distribution advisor, and protector of the trust. In those capacities, Mayer Berkovits allegedly was granted sole authority to manage the trust and its assets, including the sole discretion to make any distributions.

According to the plaintiffs, the defendant Roberts & Holland, LLP, and the defendant David Mark Rozen, a partner in that firm (hereinafter together the attorney defendants), represented both Joseph Berkovits and Aberko in connection with the creation of the trust. The plaintiffs allege that the attorney defendants failed to explain to Joseph Berkovits the terms of the trust agreement. The plaintiffs allege that the attorney defendants improperly represented and promoted the interests of Mayer Berkovits in that transaction, and failed to seek or obtain a waiver of any conflict of interest.”

“Contrary to the contention of the attorney defendants, the fourth cause of action states a viable legal malpractice cause of action. “In an action to recover damages for legal malpractice, a plaintiff must demonstrate 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 proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, quoting McCoy v Feinman, 99 NY2d 295, 301; see Iannucci v Kucker & Bruh, LLP, 161 AD3d 959, 960). The “binding nature of [an] agreement between [a client] and a third party is not a complete defense to the professional malpractice of [a] law firm that generated the agreement to its client’s detriment” (Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 305; see Bishop v Maurer, 9 NY3d 910, 911).

The complaint alleges that the attorney defendants committed malpractice by failing to provide adequate legal advice to their client, Joseph Berkovits, prior to his execution of the trust agreement, and in failing to explain or seek any waiver of a potential conflict of interest created by their alleged simultaneous representation of Joseph Berkovits, Mayer Berkovits, and Aberko. The complaint also alleges that such conduct proximately caused damages to both Joseph Berkovits and Aberko. Under these circumstances, the complaint states a valid legal malpractice cause of action (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY3d at 304-305; see also Kram Knarf, LLC v Djonovic, 74 AD3d 628, 628; Tabner v Drake, 9 AD3d 606, 610).”

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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.