The end of the relationship can come from any number of reasons, but the end is reached either before or at the end of the underlying litigation.

<strong>Termination by client</strong>

It is the general rule in the United States, and the rule in New York that an attorney’s representation of a client may be terminated at any time by the client, either for good cause or for no cause. Analysis of a client’s termination of the attorney’s retention [hereinafter "termination"] starts with determination of whether the termination was for good cause or for no cause.

While the difference between "for cause, good cause, or cause" for termination and "no cause" has been endlessly debated, a "for cause" termination may be based upon misconduct which manifestly does not rise to the level of attorney malpractice.

<strong>Where the discharge is for
cause,the attorney has no
right to compensation</strong>

Where the discharge is for cause, the attorney has no right to compensation. This rule exists regardless of the terms of a retainer or other agreement between the attorney and the client. Traditional contract principles are not always applied to govern disputes between attorneys and clients.

Where the discharge is for cause, the attorney has no right to compensation or a retaining lien, regardless of pleading or stated defenses. "This rule is well calculated to promote public confidence in the members of an honorable profession whose relation to their clients is personal and confidential." "An attorney discharged for cause has no right to a fee or a retaining lien."

<strong>Where the discharge is without
cause, the attorney is limited
to recovering in quantum meruit</strong>

"When an attorney is discharged without cause, the attorney is entitled to recover compensation from the client measured by the fair and reasonable value of the services rendered whether that be more or less than the amount provided in the contract or retainer agreement." This rule, set forth by the Court of Appeals exists as a matter of law, whether pled or not, and whether set forth as an affirmative defense or not.

Where the discharge is without cause, the attorney is limited to recovering in quantum meruit the reasonable value of the services rendered. The courts clearly "possess the traditional authority to "supervise the charging of fees for legal services," pursuant to their "inherent and statutory power to regulate the practice of law."

<em>Quantum meruit</em> means "as much as he deserved, and is premised upon the finding of an implied promise to pay as much as he reasonable deserved." If it is determined that the termination was without cause, recovery should be determined to be an amount which "they reasonably deserved."

The Court of Appeals has found that where the discharge is without cause, as a matter of law, the attorney is limited to recovering the reasonable value of the services rendered, in quantum meruit.

"<strong>Cause" is not the
equivalent of "malpractice"</strong>

Good cause for termination is not the same as malpractice. Attorney malpractice, defined as a deviation from good and accepted practice, which proximately damaged the party, in which, but for the negligence of the attorney there would have been a different or better result is not the same as good cause for termination.

<strong>"Termination for cause"</strong> has arisen in many situations in which malpractice was not even discussed, much less claimed. For example, substantial delays in prosecuting the case or failing to bring the action until 2 days before the statute of limitations is sufficient; failure timely to obtain medical records is similarly sufficient .

Failure to retain an expert is similarly sufficient . "Employment [which] contravenes specific legal requirements is sufficient, as is abandonment of a case, ; or a conflict of interest; a refusal personally to try a case ; or a failure to disclose a settlement offer are all these examples misconduct which resulted in termination for cause, with no fee to the attorney. They do not amount to malpractice, however.

Termination for cause threshold lies well below any question of malpractice. As an example, Dagny Management Corp.,supra, is instructive. Friction between the client and the attorney grew over the management of the settlement funds, in which the attorneys frustrated, but did not destroy, the settlement. The Appellate Division determined that the "firm’s interference with the client’s right to settle constitutes misconduct sufficient to rise to a level warranting discharge for cause and forfeiture of its fee", citing De Luccia v. Village of Monroe, 180 AD2d 897 [3d Dept, 1992]

The difference flows logically from the question of damages is that in malpractice there is a positive claim for damages, over and above fee considerations from attorneys; in the question of termination for cause, there can be but a reduction of the fees paid, but no positive claim for damages. The heightened burden for malpractice logically accompanies the heightened possibility of damages.

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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.