While negligent selection of experts has been rejected as a legal malpractice claim many times on the explanation that selection of experts is a strategy choice, in Moncho v Miller  2021 NY Slip Op 06960
Decided on December 14, 2021, Appellate Division, First Department determined that selection of a litigation funder can be the basis for a legal malpractice claim.

“The eighth cause of action (malpractice against Pasternak based on his failure to conduct due diligence on Sprei and defendant Harry Miller) and the ninth cause of action (malpractice against Pasternak based on his breach of the duty of loyalty) should not have been dismissed. Plaintiffs allege that Pasternak recommended that they use Sprei as their bankruptcy plan funder, discouraged them from using an alternate funder, and received a $25,000 kickback from Sprei for successfully recommending him. They further allege that before 2014 there were at least seven lawsuits filed against Sprei and/or Miller based on causes of action similar to the instant causes of action and that most if not all of the suits resulted in judgments adverse to Sprei and Miller.

Pasternak accurately notes that the actions involving Sprei and/or Miller were a matter of public record. However, a lawyer like Pasternak is in a better position than nonlawyers like plaintiffs to discover whether someone (e.g., Sprei and/or Miller) has been sued and judgment entered against them. Moreover, a client is entitled to trust his/its lawyer when the latter recommends a plan funder (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 9 [1st Dept 2008]). Pasternak is also correct that recommending one among several reasonable courses of conduct does not give rise to a legal malpractice claim. However, we cannot conclude as a matter of law that recommending Sprei — who had the above-discussed litigation history and gave Pasternak $25,000 for recommending him to plaintiffs — was a reasonable course of conduct.

With respect to whether Pasternak’s negligence was a proximate cause of plaintiffs’ losses, we cannot conclude as a matter of law, — in view of Pasternak’s urging plaintiffs to use Sprei — that Sprei’s misconduct was independent of Pasternak’s (compare Excelsior Capitol LLC v K&L Gates LLP, 138 AD3d 492 [1st Dept 2016] [malpractice claim dismissed for lack of proximate cause where trial court’s error in underlying action was an intervening cause, breaking any proximate cause by defendant attorneys], lv denied 28 NY3d 906 [2016]).

As for the damages element of malpractice, it is reasonable to infer that if Pasternak had not pushed plaintiffs to use Sprei, they would have used the alternate funder and would not have sustained injury (see Fielding v Kupferman, 65 AD3d 437, 442 [1st Dept 2009]). At the motion to dismiss stage, this is not speculative (see id.).”

Print:
EmailTweetLikeLinkedIn
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.