In Menaker & Herrman, LLP v Foster 2017 NY Slip Op 31456(U) July 7, 2017 Supreme Court, New York County Docket Number: 651969/2016  Judge Manuel J. Mendez presents a primer on the law of legal fee billing and retainer agreements.

“The complaint alleges that on May 3, 2013, defendant, Larry J. Guffey, an at1:orney, retained the plaintiff on behalf of his daughter and son-in-law, Martha G. Foster and Matthew Foster (the “Foster defendants”) and his two minor grandchildren. Plaintiff commenced an action titled Foster v. Svenson, filed under Index Number 651826/2013, in Supreme Court New York County alleging violations of New York Civil Rights Law §50-§51 and for intentional infliction of emotional distress against Arne Svenson, an artist, after he used a telephoto lens to photograph the Foster defendants and their minor children for his artwork, titled “The Neighbors,” without obtaining approval (Mot., Exh. 1 and 1A).

Justice Eileen A. Rackower’s August 5, 2013 Decision/Order denied defendants’ motion for an injunction and granted Arne Svenson’s cross-motion to dismiss the action filed under 651826/13 (Opp. Exh. 16). On April 9, 2015 the Appellate Division 1st Department affirmed Justice Rackower’s decision (Foster v. Svenson, 128 A.O. 3d 150, 7 N.Y.S. 3d 96 [1st Dept., 2015]).”

“The documentary evidence produced by the defendants does not conclusively establish a defense as a matter of law or utterly refute plaintiff’s claims. Defendants arguments that the documentary evidence shows the billing statements are excessive and should be reduced, does not conclusively establish a defense. The bills are sufficiently detailed. The documentation showing rejection of some of plaintiffs’ bills does not utterly refute the claims asserted in the complaint. ”

“Defendants have not shown that the complaint fails to state legally recognizable causes of action. Plaintiff sought arbitration of the full amount of the disputed legal fees, and provided proof of same as Exhibit D to the Complaint, in compliance with 22 N.Y.C.R.R. 137.6 [b]. Arbitration was rejected by the defendants (Opp. Exhs. 63 and 64). Defendants signed two retainer agreements without objection. They have not shown that the cause of action for breach of contract is not stated. The failure to comply with the rules on retainer agreements (22 N.Y.C.R.R. 1215.1 ), does not preclude a law firm from suing to recover legal fees under such theories as services rendered, quantum meruit, and account stated (Kueker & Bruh, LLP v. Sendowski, 136A.D. 3d 475, 24N.Y.S. 3d 507 [1st Dept, 2016] citing to Roth Law Firm PLLCv. Sands, 82 A.O. 3d 675, 920 N.Y.S. 2d 72 [1st Dept., 2011]). Plaintiff is not prohibited from asserting causes of action under quantum meruitand account stated for legal fees, without a retainer agreement Plaintiff agreed to a fixed fee for the appeal which was billed and treated differently from the work perfonned in the lower court action. This could be deemed as creating a second representation and create a new period for objection, but does not eliminate the potential claim (See Boies, Schiller & Flexner LLP v. Modell, 129 A.O. 3d 533, 11N.Y.S.3d 60 [1st Dept. ,2015]). Defendants received bills and partial payment was made by Larry J. Guffey. There has been no showing by the defendants that the rules governing contingency fees for personal injury and wrongful death cases applies to intentional infliction of emotional distress and violation of privacy claims, or that plaintiff did not provide legal services. Potentially meritorious causes of action for account stated and quantum meruit have been stated in the complaint.”

“Plaintiff under Motion Sequence 003 pursuant to CPLR §3212[a] seeks partial summary judgment on the third cause of action for account stated. Plaintiff refers to the two retainer agreements, copies of bills sent to defendants, proof of Larry J. Guffey’s partial payments, together with proof of attempts to resolve the dispute through arbitration that were rejected by defendants (Mot. Seq. 003, Exhs. 1, 2-19, 200). Plaintiff claims that although monthly billing throughoutthe litigation was sent to Larry J. Guffey as guarantor, as of December of 2013 the Foster defendants were included in the billing and did not object or question the amounts (Menaker Aff. in Opp. Exhs. 35-50). ”

“Defendants have raised issues of fact warranting denial of partial summary on account stated. Plaintiff concedes that the billing sent directly to the Foster defendants for the first time in December of 2013, after the final determination by the Supreme Court and the work on the Appeal had commenced. The billing sent to the Foster defendants was inconsistent and partial and does not make a prima facie case for summary judgment. The March 18, 2014 bill included a letter from plaintiff acknowledging Larry J. Guffey’s e-mail complaining of being overcharged and provided forms for the New York County Lawyer Association fee conciliation program (Mot. Exh. 1 C). Larry J. Guffey has raised an issue of fact whether the bills and statements were objected to warranting denial of the relief sought. ”

 

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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.