An attorney can be a free agent, or part of a team.  Increasingly, it seems the attorney can be both, at once.  Carasco v Schlesinger   2022 NY Slip Op 33021(U)  September 8, 2022
Supreme Court,  New York County Docket Number: Index No. 156729/2019,  Judge: David B. Cohen is an example of an attorney taking a case on in a partnership, leaving the partnership, moving on to a new firm, taking a case with him, but not transferring it to a new firm.  When it all goes wrong, the question remains:  Who is the attorney?

On or about December 8, 2014, plaintiff signed a retainer agreement with defendant law firm Julien & Schlesinger (“J&S”). Doc. 1 at par. 21; Doc. 46. Pursuant to the agreement, J&S
was to represent plaintiff in connection with personal injuries she sustained when she tripped and fell at Second Avenue and 58th Street in Manhattan on October 31, 2014 (“the accident”). Doc. 1 at par. 22; Doc. 46.”

“It is undisputed that, on January 6, 2016, Schlesinger, was no longer an employee of J&S, which ceased operations in 2015, became an associate at defendant Morelli Law Firm, PLLC
(“MLF”). Doc. 39 at pars. 22, 27. On or about January 28, 2016, plaintiff commenced a personal injury action in this Court styled Hazel Carasco v City of New York, Consolidated Edison
Company, and Halcyon Construction Company, et. al., under Ind. No. 105779/16 (“the underlying action”). Doc. 1 at par. 24; Doc. 47. The summons and complaint in the underlying
action listed counsel for plaintiff as “Michael S. Schlesinger of the Schlesinger Law Firm, P.C.” Doc. 47.”

“Between February 2017 and July 2018, this Court (d’ Auguste, J. and Tisch, J.) issued orders dismissing the underlying action against the defendants therein based, inter alia, on
plaintiffs failure to provide discovery. Doc. 54. ”

“MLF has, however, established its prima facie entitlement to summary judgment by demonstrating that it did not have an attorney-client relationship with plaintiff. One of the
elements of a legal malpractice claim is the existence of an attorney-client relationship (See Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP, 129 AD3d 790, 792 [2d
Dept 2015]). Here, MLF demonstrates that it did not have a retainer agreement with plaintiff; plaintiff concedes that Schlesinger never told her that she was represented by MLF;  Schlesinger and Morelli both testified that MLF refused to accept plaintiff’s case; and plaintiff did not communicate with, or receive legal advice from, anyone from MLF other than Schlesinger, who, although not mentioned in the retainer agreement signed by J&S, filed plaintiff’s complaint in the underlying action as Michael Schlesinger of “The Schlesinger Law Firm, P.C.” Thus, the burden shifts to plaintiff to raise a material issue of fact to defeat MLF’ s motion.

Plaintiff fails to raise an issue of fact regarding whether she was represented by MLF. The sole retainer agreement she signed in connection with the underlying action was with J&S.
Plaintiff’s presumption that there would be a continuation of the retainer agreement she signed with J&S when Schlesinger moved to MLF is insufficient to raise an issue of fact (See Davis v Cohen & Gresser, LLP, 160 AD3d 484,486 [1 st Dept 2018] citing Pellegrino v Oppenheimer & Co., Inc., 49 AD3d 94, 99 [1st Dept 2008] [“a party cannot create the relationship based on his or her own beliefs or actions”]; Jane St. Co. v Rosenberg & Estis, 192 AD2d 451,451 [1st Dept 1993], lv denied 82 NY2d 654 [1993] [plaintiff’s unilateral beliefs and actions do not confer upon it the status of client”]). Plaintiff conceded at her deposition that Schlesinger never told her that MLF represented her, but rather that he was representing her and that he worked for MLF. Plaintiff even conceded that Schlesinger told her as early as April 2016 that MLF was reluctant to take her case and there is no evidence that plaintiff was ever told that MLF agreed to represent her. Therefore, MLF is entitled to summary judgment dismissing the complaint against it (See Jones v. Lopez, 12 Misc 3d 1184[A], 2006 NY Slip Op 51444[U] [Sup Ct. Bronx County 2006] [plaintiff failed to establish that the defendant law firm explicitly undertook to perform a service for her, either orally or in writing]).
This Court acknowledges that plaintiff met with Schlesinger at MLF’ s offices on 3 or 4  occasions, that MLF appeared as counsel ofrecord on eLaw and/or eCourts, evidently because
Schlesinger was affiliated with the firm, and that plaintiff received email correspondence from Schlesinger via MLF’s email server. While the foregoing facts may be some indicia that MLF represented plaintiff, this Court finds that they do not raise a material issue of fact regarding whether she had an attorney-client relationship with the firm given the conclusions in the previous paragraph (See generally Theroux v Resnicow, 2021 NYLJ LEXIS 686 [Sup Ct New York County 2021] [Lebovits, J.] [in ruling whether emails were protected by attorney-client privilege, this Court held that no attorney-client relationship existed where, as here, there was no retainer or letter of engagement, no fees were paid, the attorneys did not appear on behalf of the alleged client, and the attorneys’ names were not on any of the documents filed in the action]). Contrary to plaintiffs contention, MLF is not vicariously liable for acts committed in furtherance of Schlesinger’s personal motives and not in furtherance ofMLF’s business (See Esposito v Isaac, 54 Misc3d 134[A] [App Term 1st Dept 2017] [citation omittedJ). ”

“Schlesinger fails to establish his prima facie entitlement to summary judgment dismissing the complaint. Although Schlesinger did not personally have a retainer agreement or letter of engagement with plaintiff, he represented plaintiff at her 50-h hearing on behalf of J&S and assumed her representation in the underlying action by filing the summons and complaint therein as Michael Schlesinger of “The Schlesinger Law Firm, P.C.” which, said documents indicated, was the “Attorney[ ] for the Plaintiff.”

It is well settled that “an attorney must seek leave of the court to be relieved as counsel for a client based upon good cause, unless a consent to change attorneys signed by the client has been filed (CPLR 321 [b][2]; Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[d]).” (Grant v Mendez, 2013 NY Slip Op 33750[U], *3 [Sup Ct, Westchester County 2013]). In
Grant, the court held that an attorney acted improperly by advising his client that he was going to withdraw from representing him without obtaining the client’s signed consent or seeking a court order relieving him as counsel and that the attorney had an obligation to continue representing the client until such time as he was formally relieved as counsel.

Schlesinger maintains, in essence, that he drafted the complaint for plaintiff as an accommodation. However, he fails to acknowledge his responsibility to continue representing
her until such time as he successfully moved to be relieved as counsel or was discharged as counsel by plaintiff. Although Schlesinger told plaintiff that MLF would not take her case, and that she should retain new counsel, this did not fulfill his legal obligation to sever his ties with her. Thus, he remained responsible for representing her in the underlying action which, he admits, was dismissed due to “nonappearance of the plaintiff.” “

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.