A criticism that arises regularly, and which seems embedded in the judiciary’s imagination is that the majority of legal malpractice cases are "sour grapes", "Monday morning quarterbacking" and "reflexive counterclaims." While we hotly dispute these terms, some cases do prove the generalization true. Liddle & Robinson, LLP v Byrne 2014 NY Slip Op 31328(U) May 21, 2014
Supreme Court, New York County Docket Number: 157825/2013 Judge: Eileen A. Rakower is one such example.
"This is an action for unpaid legal fees incurred by Plaintiff, Liddle & Robinson, LLP ("L&R") in representing Defendant, Brendan P. Byrne ("Byrne"). The Complaint alleges that Byrne breached the parties’ Retainer Agreement by failing to pay L&R the outstanding amounts due for legal fees and disbursement expenses. The Complaint also asserts claims for quantum meruit and account stated.
Presently before the Court is a motion by L&R, Batson, and Feldstein to dismiss Byrne’s Counterclaims and Cross Claims asserted against them, pursuant to CPLR § 321 l(a)(l) and (a)(7). Plaintiff submits the attorney affirmation of David I. Greenberger, a Partner at L&R. Annexed to Greenberger’s affirmation, among other exhibits, is a copy of the parties’ Retainer Agreement, L&R’s invoices, and an Order granting L&R’s motion to withdraw entered on March 4,
2013. Byrne does not oppose.
Byrne’s first Counterclaim against L&R and first Cross-Claim against Batson and Feldstein are for fraud, based on the following identical allegations:
6. BYRNE was explicit that he was not in a financial position and that he was not capable nor could he agree to pay for fees in excess of his retainer with the firm.
7. JAMES BATSON explained to BYRNE that it would be a difficult process for attorneys to withdraw from a case, hence the large upfront retainer when taking on the case. Therefore, Batson advised that the firm continue to represent the BYRNE. BATSON continued to make representations that if defendants are unable to pay the firm would not pursue defendants as judges generally frown upon lawyers and firms suing their clients and assured BYRNE that the firm "has bigger fish
to fry" than to chase small clients. It is evident in this action that these representations were fraudulent and misleading and subsequent invoices were fraudulent as well.
9. The Statements made by James Batson, with David Feldstein in regards to he [sic] and the firm does not pursue clients for billing hours over retainer which they are not capable of paying.
10. L&R has fraudulently misrepresented facts to induce Defendant to
continue with the action, which the firm was originally retained.
Here, Byrne’s second Counterclaim and second Cross-claim fail to make out a claim for legal malpractice against L&R or Batson and Feldstein. These claims fail to allege any allegations concerning how L&R, Batson, and Feldstein were specifically negligent, and how that alleged negligence was the proximate cause of the loss allegedly sustained.
Wherefore, it is hereby,
ORDERED that the motion is granted without opposition, and the counterclaims asserted by Defendant, Brendan P. Byrne, against plaintiff, Liddle & Robinson, LLP, and the cross-claims asserted by Defendant, Brendan P. Byrne, against James A. Batson and David H. Feldstein are dismissed in their entirety"