Overbilling by an attorney as the basis of a breach of fiduciary duty claim. It’s a good idea. The Breach claim will not be dismissed as duplicitive, a positive finding leads to significant damages. All-in-all not too bad?
In Genesis Merchant Partners, LP v Gilbride, Tusa, Last & Spellane LLC
2017 NY Slip Op 02753 Decided on April 11, 2017 Appellate Division, First Department it did not work out so well.
“Defendants’ alleged failure to disclose their legal malpractice does not give rise to a separate action for breach of fiduciary duty (Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435, 436 [1st Dept 2011]). Plaintiffs have not sufficiently alleged defendants’ overbilling to support a separate cause of action (cf. Cherry Hill Mkt. Corp. v Cozen O’Connor P.C., 118 AD3d 514, 514 [1st Dept 2014] [breach of fiduciary duty claim was not duplicative where, among other things, the plaintiffs alleged that the defendants had overbilled the plaintiffs]).