Attorney sues Client for legal fees. Opening a legal malpractice blog with that sentence is akin to starting a novel with "it was a dark and stormy night…" So much of legal malpractice litigation arises after a fee dispute that "Fee dispute-legal malpractice" is a google search term. Here, in Brill & Meisel v Brown 2014 NY Slip Op 00180 Decided on January 14, 2014 Appellate Division, First Department the Appellate Division states some bedrock rules.
1. Whether the time to file a summary judgment motion has passed, a cross-motion for summary judgment which seeks dismissal of the same claims is properly considered.
2. It is error to refer a summary judgment case to a referee to determine factual matters, when the MSJ itself debates whether there are questions of fact to be determined.
3. Timely objection to a bill will defeat an account stated defense, but general objections may not be sufficient.
4. Misconduct that occurs before an attorney’s discharge but discovered after the discharge may serve for fee forfeiture.
"The motion court correctly found that issues of fact exist as to whether defendants sustained damages in connection with their malpractice counterclaim and whether plaintiff proximately caused those damages. In particular, the motion court correctly held that issues of fact exist as to whether defendants incurred unnecessary, as yet unreimbursed, attorneys’ fees when plaintiff continued to pursue allegedly futile contempt proceedings in a Housing Court action even after Housing Court made clear it could not afford defendants any relief. Further, plaintiff failed to eliminate any triable issues of fact as to whether its conduct in signing a confidentiality agreement was the proximate cause of defendants’ damages, as defendants allegedly incurred additional fees in procuring another inspection and report not covered by the agreement, and in attempting to overturn the agreement.
The motion court correctly ruled that any damages stemming from disclosure of defendant Altman’s litigation outline are too speculative to support defendants’ malpractice counterclaim (see Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d 63, 67 [1st Dept 2002]). Among other things, it is too speculative to conclude that cross-examination at Altman’s deposition would have been shorter, and thus legal fees lower, but for disclosure of the outlines.
The motion court, however, erred in denying defendants’ cross motion to strike plaintiff’s references to a "Damages Analysis" as proof of the value of defendants’ damages. The document was created for settlement purposes in a Supreme Court action against the cooperative corporation of defendants’ building. Such documents "are inadmissible to prove either liability or the value of the claims" (CIGNA Corp. v Lincoln Natl. Corp., 6 AD3d 298, 299 [1st Dept 2004]; see also CPLR 4547).
As issues of fact remain regarding whether defendant was discharged for cause, summary judgment is not warranted on plaintiff’s account stated claim (see EMC Iron Works v Regal Constr. Corp., 7 AD3d 366, 367 [1st Dept 2004]). Defendants’ timely written objections to plaintiff’s final invoice, dated July 2, 2008, for work performed in the Supreme Court action also creates triable issues of fact as to plaintiff’s account stated claim (id.). Defendants’ general objections, however, to plaintiff’s bills do not suffice to challenge the remainder of the amount owed (see Schulte Roth & Zabel, LLP v Kassover, 80 AD3d 500, 501 [1st Dept 2011], lv denied 17 NY3d 702 ).
Given the numerous triable issues of fact regarding plaintiff’s representation, triable [*3]issues of fact exist regarding plaintiff’s performance of the retainer agreement. Accordingly, summary judgment is not warranted on plaintiff’s breach of contract claim (see Kluczka v Lecci, 63 AD3d 796, 798 [2d Dept 2009]). "