Rules are rules, no?  "A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel." In the First Department the case is Bernstein v. Oppenheim & Co., PC and in the Second Department the case is Tortura v. Sullivan Papain Block McGrath & Cannavo PC..  So, that’s a pretty clear rule?

Not so.  In the First Department, cases have started to be dismissed on the grounds that at settlement the client stated that they were satisfied with the work of their attorney.  Today, in Katz v Essner
2014 NY Slip Op 32967(U)  November 18, 2014  Supreme Court, New York County  Docket Number: 154865/2013  Judge: Eileen A. Rakower dismissed on this ground.  It’s the Katebi v. Fink line of cases. 

From Katz:

"A "claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel." Bernstein v. Oppenheim & Co., P. C., 160 A.D.2d 428, 429- 430 [1st Dept 1990]). "However, the First Department also makes clear that an allocution at settlement wherein the client states that she is satisfied with the attorney’s performance constitutes documentary evidence that contradicts an allegation of legal malpractice." Harvey v. Greenberg, 2009 N.Y. Slip. Op. 32625(U)(NY Ct. 2009) (citing Katebi v. Fink, 51 A.D.3d 424, 425 [1st Dept 2008]). 
 
Defendants submit a copy of the transcript of the Proceedings held before
Judge Barone on June 14, 2010, at which the following was placed on the record:
THE COURT: Mr. Katz, please raise your right hand. Do you swear to tell the
truth, the whole truth and nothing but the truth, so help you god?
MR. KATZ: Yes.
THE COURT: Please listen to the stipulation that the attorneys will place on
the record, after which time you be asked some questions.
MR. KATZ: Yes.
***
MR. ESSNER: Do you understand that there is a settlement offer of $375,000
in full and final settlement of all claims and actions you may have against Jack
Stem, Seth Neubardt, and their related entities, correct?
MR. KATZ: Yes.
MR. ESSNER: You have come here today and are willing to settle this case for
the gross sum of $375,000?
MR. KATZ: Yes.
MR. ESSNER: You are making this settlement after careful consideration?
MR. KATZ: Yes.
MR. ESSNER: You do realize that, Mr. Katz, that once the case is settled it is
settled forever and there is no coming back to the Court no matter what change
in your condition you may experience or what other sequelae from the alleged
Injury may occur.
MR. KATZ: Yes.
MR. ESSNER: Sir, you have considered the services of your counsel; are you
satisfied that you been adequately represented?
MR. KATZ: Yes. "
 
"Thus, the transcript shows that on the record before Judge Barone in the Underlying Action, Katz stated the following: he was willing to settle the case for a gross sum of $375,000, that he was making the settlement after careful consideration, that he understood settlement would resolve the dispute in full with prejudice, and that he considered the services of his counsel and was satisfied that he was adequately represented. Therefore, the documentary evidence – Katz’s allocution at settlement – flatly contradicts Katz’s allegations that he was "forced" to settle the Underlying Action based on Defendants’ alleged neglect.  "
Print:
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.

Read more about Andrew Lavoott BluestoneAndrew Lavoott's Linkedin Profile
Show more Show less
Related Posts
Privity May Be The Most Important Element in Legal Malpractice
June 23, 2015
The Elusive Judiciary Law 487 Claim
June 22, 2015
Several Important Lessons in a Workers' Compensation - Personal Injury Legal Malpractice Case
June 18, 2015