We’ve always thought that a retainer agreement between an attorney and a client had some meaning, real meaning.  Emery Celli Brinckerhoff & Abady, LLP v Rose   2013 NY Slip Op 07428 Decided on November 12, 2013  Appellate Division, First Department  disabuses us of that notion, and has two other interesting things about it.  It’s the first appeal we’ve seen from the Law office of Richard Lerner, long an appellate star with Wilson Elser.  The decision also sets forth that an "account stated" cannot be successful if the fees claimed are "intertwined" with the asserted malpractice.
 

"Plaintiff established its entitlement to judgment as a matter of law on its claim for an account stated "by showing that its client received, retained without objection, and partially paid invoices without protest" (Scheichet & Davis, P.C. v Nohavicka, 93 AD3d 478, 478 [1st Dept 2012] [internal quotation marks omitted]; see Miller v Nadler, 60 AD3d 499 [1st Dept 2009]).

Defendant’s argument that plaintiff failed to make a prima facie case because it submitted no expert opinion that its retainer agreement and the legal services it rendered were fair and reasonable is unpreserved. Were we to reach the merits, we would find it unavailing. It is not part of a plaintiff’s prima facie case on a claim for an account stated to show the reasonableness of the retainer agreement or its legal services (see e.g. Scheichet & Davis. P.C. at 478; Miller at 499). Indeed, in Miller, we found that "[p]laintiff’s failure to comply with the rules on retainer agreements … does not preclude it from suing to recover legal fees for the services it provided" (Miller at 500), and "[i]n the context of an account stated pertaining to legal fees, a firm does not have to establish the reasonableness of its fee" (Lapidus & Assoc., LLP v Elizabeth St., Inc., 92 AD3d 405, 405-406 [1st Dept 2012] [internal quotation marks omitted]).

If a defendant client’s legal malpractice claim is intertwined with a plaintiff law firm’s claim for legal fees, the plaintiff will not be entitled to summary judgment on its account stated claim. However, if the malpractice claim is not so intertwined, courts are not precluded from [*2]granting the plaintiff summary judgment (see Morrison Cohen Singer & Weinstein v Ackerman, 280 AD2d 355, 356 [1st Dept 2001]).

Here, it was not an improvident exercise of the motion court’s discretion to rule, in effect, that defendant had waived his right to raise malpractice by not filing an amended answer by the deadline set by the court (see Quintanna v Rogers, 306 AD2d 167, 168 [1st Dept 2003]). Furthermore, the record shows that plaintiff performed a great deal of work that was unrelated to the purported malpractice.