Curtis v Berutti  2022 NY Slip Op 22307  Decided on August 24, 2022  Supreme Court, Orange County  McElduff Jr., J. illustrates two points which frequently come up in legal malpractice cases:  privity and collateral estoppel.  If a guardian hires an attorney to represent the guardian (and his ward) does the ward eventually have standing to sue the attorney?  This is an issue of Near Privity.

If the attorney successfully obtains a court order granting the attorney fees, is the guardian or ward collaterally estopped from suing for legal malpractice?  Often yes, and in this case definitely yes.

“Mr. Curtis’ Verified Complaint, dated December 19, 2019, contained four, labeled causes of action against the Defendants: (1) breach of fiduciary duty, (2) breach of contract, (3) unjust enrichment and (4) a demand for common law accounting. (See Iaconis Affm. Ex. A). The breach of fiduciary duty, breach of contract and unjust enrichment causes of action arise from the same set of facts and sought the same damages, which are “believed to be in excess of” $600,000.00, with such additional finance and interest charges that have accrued, including costs of legal fees. (See Iaconis Affm. Ex. A). Mr. Curtis’ accounting cause of action alleges that the Defendants are in possession of books and records without having returned them and demands that the Defendants provide him with “an accounting” for his Brooklyn property (1190 Bedford Avenue), turn over their files and “account” for the two lawsuits handled by the Defendants on Mr. Curtis’ behalf (the Tabak and Phillip cases).”

“The precise question of whether an attorney who represents a guardian also represents the guardian’s ward (under a “near privity” exception or otherwise) has not been answered in New York. Other states, however, have answered the question in the affirmative. Such states have recognized that an exception to the privity requirement for legal malpractice liability must exist when a guardian hires an attorney specifically the benefit their ward. For example, in Illinois, courts have recognized that an attorney-client relationship extended from the attorney to the ward where the attorney, although hired by the ward’s guardian, was acting for the primary benefit or best interests of the ward. See Schwartz v. Cortelloni, 177 Ill. 2d 166, 174—75 (1997) (stating that the key factor to be considered is whether the attorney acted at the direction of or on behalf of the client for the benefit of the ward). Similarly, in Florida, it has been held that the attorney for guardian owes a duty to the ward where the ward is the intended third-party [*4]beneficiary of the attorney’s services. See Saadeh v. Connors, 166 So. 3d 959 (Fla. Dist. Ct. App. 2015) (reinstating the ward’s legal malpractice claim against the guardian’s attorney and noting that the relationship between the guardian and the ward is such that the ward must be considered to be the primary or intended beneficiary and cannot be considered an “incidental” beneficiary). Further, Arizona courts have held that when an attorney undertakes to represent the guardian of an incompetent ward, the attorney assumes a relationship not only with the guardian but also with the ward as the intended beneficiary, whose interests overshadow those of the guardian and, thus, an attorney cannot escape liability for wrongful conduct on the ground of lack of privity. See In re Guardianship of Sleeth, 226 Ariz. 171 (Ct. App. 2010); see also Fickett v. Superior Court, 27 Ariz. App. 793 (1976).

Here, there is sufficient “near privity” between The Weiner Law Group and Mr. Curtis, notwithstanding the fact that his guardian, Mishael Pine, Esq., retained The Weiner Law Group. It is patently obvious that Ms. Pine retained The Weiner Law Group for Mr. Curtis’ benefit, in that The Weiner Law Group was hired as replacement counsel to represent Mr. Curtis in two pending Supreme Court actions, in which Mr. Curtis was already a party. For purposes of meeting New York’s “near privity” exception to the privity requirement for imposing legal malpractice liability, it doesn’t get any nearer than that. Under these circumstances, it is indisputable that Defendants were aware that their services would be used for a specific purpose that benefitted the ward (i.e., both defending Mr. Curtis and prosecuting his claims in the pending litigations) and that the ward/Mr. Curtis would necessarily be relying on those services as the intended beneficiary. Accordingly, this Court concludes that the relationship between The Weiner Law Group and Mr. Curtis was so near privity that The Weiner Law Group cannot escape liability for legal malpractice on the ground of lack of direct contractual privity.”

“As summarized in the case of Chisholm-Ryder Co. v. Sommer & Sommer:

It is familiar law that the doctrine of res judicata or claim preclusion forecloses a party from relitigating a cause of action which was the subject matter of a former lawsuit or from raising issues or defenses that might have been litigated in the first suit (see Gramatan Home Investors Corp. v. Lopez, 46 NY2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328). The related doctrine of collateral estoppel precludes a party from relitigating issues which were previously determined even though the prior suit involved a separate cause of action or a different **72 adversary. By definition, collateral estoppel, or issue preclusion, does not bar the litigation of issues which were not previously raised. It will, however, foreclose issues which were necessarily decided in the first action, litigated or not (Statter v. Statter, 2 NY2d 668, 672, 163 N.Y.S.2d 13, 143 N.E.2d 10 (in an action for separation, the validity of the marriage was “necessarily determined” and barred a subsequent action for annulment).

Chisholm-Ryder Co. v. Sommer & Sommer, 78 AD2d 143, 144 (4d Dept. 1980).

Specifically, a judicial determination fixing the value of a professional’s services necessarily decides there was no legal malpractice, even if the client did not raise any issue of malpractice in the prior proceeding. See Sharp v. Chittur, No. 155098/13, 2014 WL 2042295, at [*5]*1 (Sup. Ct. 2014); See also Breslin Realty Dev. Corp. v. Shaw, 72 AD3d 258, 264 (2d Dept. 2010) (holding that a prior determination awarding fees bars a subsequent claim sounding in legal malpractice pursuant to both the doctrine of res judicata and the doctrine of collateral estoppel).

By Decision and Order dated August 22, 2022, this Court granted Defendant Weiner Law Group’s application for attorney’s fees incurred on Mr. Curtis’ behalf during pendency of his guardianship (from the period August 1, 2018 through the termination of the guardianship on January 17, 2019) over the objection of Mr. Curtis, who, with counsel, submitted opposition to the motion.[FN1] Similar to the allegations of legal malpractice made in the instant Verified Complaint, Mr. Curtis’s opposition to The Weiner Law Group’s fee application contained allegations of fee churning, questionable billing practices and strategic choices. However, this Court’s determination of the propriety and reasonableness of The Weiner Law Group’s fees bars Mr. Curtis’ subsequent claim of legal malpractice concerning those fees pursuant to the doctrines of res judicata and 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.