For as long as there have been attorneys, it seems that there have been fee disputes.  Fee disputes and legal malpractice counterclaims go together like, well you fill in the simile…love and marriage, horse and carriage…

Here is a case from Nassau which illustrates that question of whether defendant counterclaminant has the right to a jury trial, when plaintiff elects to have a bench trial.

"The plaintiff also submits, essentially, that the defendant waived her right to serve a Demand for Jury pursuant to CPLR §4101, as plaintiff has asserted a cause of action for unjust enrichment, (equitable), along with plaintiff’s claim for legal fees, (law), and the defendant has asserted the affirmative defense of estoppel, (equitable), and a counterclaim sounding in breach of fiduciary duty and legal malpractice, (equitable and legal).

"A plaintiff cannot, by artful pleading, deprive a defendant of his constitutionally guaranteed right to a trial by jury by limiting his demand for relief to a declaration of rights instead of seeking whatever coercive relief would be appropriate in enforcing the rights thus established." (Gordon v. Continental Casualty Company, 91 AD2d 987). When the facts pleaded permit a judgment for a sum of money, the defendant’s jury demand must be honored under CPLR §4101 despite plaintiff’s framing his demand for relief in equity. (Id.) Where one cause of action seeks equity, and another law, the plaintiff may have waived its right to a jury trial, but the plaintiff cannot deprive defendant of its rights to a jury trial of all issues so triable. (L.C.J. Realty Corp. v. Back, 37 AD2d 840). An executor was held to be entitled to a jury trial on a legal malpractice claim even where the attorney fee proceeding was equitable. (Sackler v. Breed, Abbott & Morgan, 222 AD2d 9). In Behrins & Behrins, P.C. v. Chan, 15 AD3d 515, following a divorce action, the law firm that represented the wife brought an action against her seeking payment of outstanding attorney fees. The wife also brought a legal malpractice action against the firm and made a jury demand on both actions. The Second Department reversed the lower court’s decision that held that the wife was not entitled to a jury trial on such claims. The Court found that plaintiff’s action involved actions at law seeking money judgments, and thus the wife was entitled to a jury trial. (Id.) The Court also stated that although the jury may have to incidentally have to examine a prior equitable distribution award, it is irrelevant as the jury is not being called upon to change the prior distribution of the assets between the appellant and her former husband. (Id.)

Here, the defendant is entitled to a jury trial as the defendant has asserted a counterclaim sounding in malpractice, and the plaintiff’s action seeks a money judgment from the defendant in order to recoup its legal fees in connection with the plaintiff’s representation of the defendant in her divorce action.

In light of the foregoing, the plaintiff’s motion is denied."