Not for the first time, courts hold that suing an attorney appointed by the court is impermissible.  In J.D. v Galchus  2022 NY Slip Op 22139 Decided on March 31, 2022 Supreme Court, Queens County Velasquez, J. held just that.

“This is a legal malpractice action against the defendant, the court appointed attorney for the minor child in a custody proceeding. On April 25, 2018, the plaintiff commenced a proceeding in Family Court, Queens County, to modify a custody agreement she had with her ex-husband, P. L., regarding their minor child, Anonymous. Plaintiff sought to relocate with the child to New Orleans. P. L. opposed the Family Court petition and also executed his own petition in which he sought to be awarded primary residential/physical custody of Anonymous. In May 2018, defendant was assigned by the Family Court as the Attorney for the child, Anonymous. At the Family Court hearing, defendant stated that it was the child’s preference to relocate with the plaintiff to New Orleans.”

“The plaintiff herein lacks standing to bring this action against the defendant, the Law Guardian. There is no privity between the plaintiff and the defendant. (see Bluntt v O’Connor, 291 AD2d 106, 114 [4th Dept 2002].) Indeed, the defendant was appointed to assist the child in presenting her views and her wishes. He was not representing the plaintiff in any capacity, and no attorney-client relationship existed between them. As such, the defendant is entitled to quasi-judicial immunity.

Although the court is aware of the October 2, 2019 Appellate Division decision stating that the defendant did not advocate for the position of the child herein, the court cannot use this as a basis to allow the plaintiff to maintain a malpractice action against the defendant. To allow a malpractice lawsuit against the defendant in these types of circumstances would discourage attorneys from serving as court appointed counsel. (see Bluntt v O’Connor, 291 AD2d at 118-119.) As noted by the Supreme Court of Wisconsin, without the assistance and impartial judgment of a guardian ad item, the “court would have no practical or effective means to assure itself that all of the essential facts have been presented untainted by the self-interest of the parents and children.” (Paige K.B. v Molepske, 219 Wis 2d 418, 434, 580 NW2d 289 [Sup Ct, Wisconsin 1998].) Moreover, the court wisely noted that immunity in these situations is necessary “to avoid the harassment and intimidation that could be brought to bear on GALs by those parents and children who may take issue with any or all of the GAL’s actions or recommendations.” (Paige K.B. v Molepske, 219 Wis 2d at 434.)

Other courts have taken similar positions. One court has stated that “[f]ear of liability to one of the parents can warp judgment that is crucial to vigilant loyalty for what is best for the child; the guardian’s focus must not be diverted to appeasement of antagonistic parents.” (Ward v San Diego County Dept. of Social Servs., 691 F Supp 238, 240 [SD Ca 1988].) Further, court-appointed experts, “faced with the threat of personal liability, will be less likely to offer the disinterested objective opinion that the court seeks.” (Winchester v Little, 996 SW2d 818, 827 [Sup Ct, Tenn 1999].) Moreover, “[a] failure to grant immunity would hamper the duties of a guardian ad litem in his role as advocate for the child in [*3]judicial proceedings.” (Kurzawa v Mueller, 732 F2d 1456, 1458 [6th Cir 1984].) Many of these cases are based on the holding of the Supreme Court that “the common law provided absolute immunity from subsequent damages liability for all persons—governmental or otherwise—who were integral parts of the judicial process.” (Briscoe v LaHue, 460 US 325, 335 [1983].)

This court agrees with these opinions and finds that permitting a malpractice case to proceed against the defendant herein would go against public policy. It would subject these attorneys to possible unnecessary litigation for performing an extremely important function for the court.

Accordingly, this motion by defendant to dismiss the complaint is granted, and the action is dismissed.”

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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.