Feng Li v Shih  2022 NY Slip Op 04293 [207 AD3d 444] [207 AD3d 444]  July 6, 2022 Appellate Division, Second Department is a case so rife with wrongdoing, fee disputes, disbarments and other extreme forms of play that it stands out in a field which is awash with wrongdoing.  Here, the Court dismisses all causes of action.

“The plaintiff represented a number of clients in a lawsuit that resulted in a substantial judgment. The proceeds of the judgment were received by the plaintiff and deposited into his trust account. The plaintiff and the clients disagreed as to whether the plaintiff’s legal fees should be calculated pursuant to the terms of the retainer agreement they had signed or pursuant to New York’s contingency fee rules, and as to whether funds collected prior to the plaintiff’s representation of the clients should be included in that calculation as well (see Matter of Feng Li v Knight, 201 AD3d 1048, 1048-1049 [2022]). Before the fee dispute had been resolved, the plaintiff unilaterally disbursed approximately $1.2 million of the amount collected on behalf of the clients to himself and thereafter used the disputed funds to pay off foreign debts (see Feng Li v Peng, 161 AD3d 823, 824 [2018]; Feng Li v Peng, 516 BR 26, 32 [Bankr D NJ 2014], affd 610 Fed Appx 126 [3d Cir 2015]). The plaintiff “was subsequently disbarred in New Jersey and suspended from the practice of law in New York for misappropriating the disputed portion of his legal fee” (Feng Li v Peng, 161 AD3d at 824; see Matter of Feng Li, 149 AD3d 238 [2017]; In re Feng Li, 201 NJ 523, 65 A3d 254 [2013]). The fee dispute concluded in 2015 when a New Jersey court entered a judgment in favor of the clients and against the plaintiff in the total sum of approximately $1 million.

[*2] The plaintiff subsequently commenced this action against the defendant, an attorney who represented the plaintiff’s former clients in a number of actions and proceedings arising out of the fee dispute. The complaint asserted eight causes of action, sounding in malicious prosecution, abuse of process, prima facie tort, and intentional infliction of emotional distress, among other things. The complaint alleged that the plaintiff justifiably disbursed the disputed portion of the fee to himself, and that the defendant, despite knowing this to be true, pursued relief on the clients’ behalf in the New Jersey action that resulted in the money judgment and in two attorney discipline proceedings that resulted in the plaintiff’s disbarment in New Jersey and suspension in New York. The defendant moved, inter alia, pursuant to CPLR 3211 (a) to dismiss the complaint. The plaintiff opposed the motion, and separately moved pursuant to CPLR 3025 (b) for leave to supplement the complaint by adding a cause of action to recover treble damages under Judiciary Law § 487 and allegations that the defendant falsely accused the plaintiff of misappropriating client funds and misrepresenting the terms of the retainer agreement in communications with a number of courts and other bodies.”

“Nevertheless, the defendant was entitled to dismissal of the entire complaint. “The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action . . . and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). “ ’Collateral estoppel comes into play when four conditions are fulfilled: (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits’ ” (Wilson v City of New York, 161 AD3d 1212, 1216 [2018], quoting Conason v Megan [*3]Holding, LLC, 25 NY3d 1, 17 [2015]). Here, numerous courts, including this Court, have determined that the plaintiff may not relitigate the merits of the fee dispute with his former clients and the question of whether he misappropriated their funds (see e.g. Matter of Feng Li v Knight, 201 AD3d at 1048-1051; Feng Li v Peng, 161 AD3d at 825-826; Feng Li v Lorenzo, 2016 WL 10679578, *2, 2016 US Dist LEXIS 200997, *3-6 [SD NY, Sept. 7, 2016, No. 16-CV-4092 (CM), McMahon, J.], affd on other grounds 712 Fed Appx 21 [2d Cir 2017]; Feng Li v Peng, 516 BR at 42-48; Peng v Law Off. of Feng Li, 2017 WL 1166454, *6, 2017 NJ Super Unpub LEXIS 800, *15-16 [Mar. 29, 2017, No. A-3280-14T2]). The plaintiff’s first through fourth causes of action are all renewed attempts to relitigate these issues. Consequently, these causes of action are barred under the doctrine of collateral estoppel.”

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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.