It is often said (one sees this in legal malpractice insurance applications and literature) that law suits for attorney fees will invariably trigger a legal malpractice counterclaim.  This perception tarnishes the legal malpractice field in general, yet it has merit.  Godosky & Gentile, P.C. v Brown
2015 NY Slip Op 31462(U)  August 4, 2015  Supreme Court, New York County  Docket Number: 153605/14  Judge: Barbara Jaffe is a good example of how the “account stated” principal, whether pled or not, affects the outcome in these fee cases.

“This action arises from plaintiff’s representation of defendant in an attorney disciplinary matter. Sometime in late 2012, the Departmental Disciplinary Committee (Committee) for the Appellate Division, First Department, commenced an investigation into defendant’s affairs when checks written on her attorney escrow account were returned by her bank for insufficient funds. (NYSCEF 11, 30). On December 14, 2012, defendant hired plaintiff law firm to represent her in the matter, and signed an engagement letter whereby she agreed to pay plaintiff an initial retainer of $5,000 and an hourly rate of $600 plus disbursements. NYSCEF 11 ). Shortly thereafter, defendant sent plaintiff a check for the initial retainer fee of $5,000. (NYSCEF 10). On June 13, 2013 the Committee charged defendant with nine violations of the Rules of Professional Conduct, alleging, as pertinent here, that defendant had improperly used her attorney escrow account for personal and business purposes, that she had allowed her accountant, a nonattomey, to be a signatory on said account and issue checks therefrom to cash and pay her personal and business expenses, and that she used the escrow account to shield assets from the Internal Revenue Service (IRS). (NYSCEF 24, 30). On October 25, 2013, plaintiff sent defendant an invoice for $31,150 representing fees incurred to date. (NYSCEF 14). ”

“Plaintiff claims that it performed legal services for defendant between December 2012 and February 2014 in connection with the Committee’s investigation and prosecution, and alleges that defendant acknowledged receipt of the October 2013 and January 2014 invoices. According to plaintiff, defendant did not dispute the outstanding balance, and despite several warnings, failed to pay. It thus argues that summary judgment is appropriate on its unpleaded cause of action for an account stated, as there is no dispute that the parties entered a binding retainer agreement, that it rendered services thereunder, that invoices were sent to defendant, and that defendant registered no objection. (NYSCEF 7). In response, defendant alleges that she orally objected to the invoices as excessive in the context of plaintiffs failure to perform as promised under the agreement by failing to call her accountant as a key witness, and that when she discovered the impact this oversight had on the outcome of her case, she fired plaintiff. (NYSCEF 24). She also claims that the $30,000 plaintiff charged for reviewing her bank statement was excessive and unjustified. (NYSCEF 26). Defendant also accuses plaintiff of repeatedly assuring her that she would prevail in her case before the Committee, and specifically, that plaintiffs lead attorney bragged to her that he had close relationships with Committee members, which she claims was a pretext to engage her as a client. (Id.). Claiming a need to depose plaintiff attorneys in order to elicit facts to defeat its motion and inform her counterclaims, defendant asks that a decision on the motion be stayed pending the completion of discovery. (NYSCEF 24). In reply, plaintiff alleges that defendant’s opposition, in the form of an untimely cross motion for leave to amend, does not address its motion for summary judgment other than to baselessly assert legal malpractice. It argues that defendant’s allegation that she objected to the invoices does not constitute a defense to a cause of action for breach of contract and is, in any event, refuted by the annexed emails and letters. Plaintiff also claims that defendant fails to establish that further discovery would reveal facts allowing her to develop a defense to her failure to pay her legal bills or otherwise raise a triable issue as to defendant’s alleged breach of their agreement. (NYSCEF 32).”

“Plaintiff argues that it is entitled to summary judgment on an unpleaded cause of action for an account stated. If supported by sufficient facts, summary judgment may be awarded on an unpleaded cause of action. (Boyle v Marsh & McLennan Cos., Inc., 50 AD3d 1587, 1588 [4th Dept 2008], iv denied 11 NY3d 705). A party may maintain an action for an account stated upon submission of the underlying contract, the unpaid invoices, and evidence that the defendant received and retained the invoices without objection. (Salamone v Cohen, 129 AD3d 877, 879 [2d Dept 2015]. The reasonableness of the plaintiff’s fees is irrelevant as the “client’s act of holding the statement without objection will be construed as acquiescence as to its correctness.” (Lapidus & Assoc., LLP v Elizabeth St., Inc., 92 AD3d 405, 405-406 [1st Dept 2012]). Moreover, the non-movant’s conclusory allegations that oral objections were registered with the movant are insufficient to raise a triable issue. (Stephanie R. Cooper, P. C. v Robert, 78 AD3d 572, 573 [1st Dept 201 O]). Here, plaintiff offers undisputed evidence of the retainer agreement and two detailed invoices delivered to defendant, along with various emails wherein defendant acknowledged receipt of the invoices and expressed her intention to pay. Plaintiff therefore has established, prima facie, entitlement to summary judgment on its unpleaded cause of action for an account stated. (See Morrison Cohen Singer & Weinstein, LLP v Waters, 13 AD3d 51, 51-52 [Pt Dept 2004] [plaintiff entitlement to summary judgment upon showing that invoices were retained by defendant without objection for sufficient length of time]). While defendant alleges that she orally objected to the account upon receipt of the October 2013 and January 2014 invoices, she fails to specify the time and/or the content of the objections, or to whom she registered those objections, and her allegations are contradicted by her January 2014 emails wherein she not only acknowledged the sum owed, but praised the quality of plaintiff’s services. Defendant thus fails to raise a triable issue of fact. (See Morrison Cohen Singer & Weinstein v Ackerman, 280 AD2d 355, 356 [1st Dept 2001] [self-serving and conclusory allegation that defendant orally objected to invoices for legal fees insufficient to defeat motion for summary judgment]; see also Mintz & Gold LLP v Daibes, 125 AD3d 488, 489 [1st Dept 2015] [defendant’s conclusory assertion by sworn affidavit that he advised plaintiff that invoices were “incorrect” insufficient to raise triable issue]; cf Jaffe & Asher v Cushing, 289 AD2d 17, 17 [1st Dept 2001] [defendant raised triable issue of fact by setting forth “ample specifics of her objections, including when and to whom made, as well as circumstances surrounding the retainer and course of representation that tend to explain why the bills were objectionable”]). Furthermore, defendant’s allegation that the $30,000 charged was unreasonable in light of the work required is also insufficient to raise a triable issue, as the reasonableness of the fee charged on an account stated is irrelevant. (See A1intz & Gold LLP, 125 AD3d at 490 [defendant’s challenge to reasonableness of firm’s fees was irrelevant to defeat summary judgment on account stated]; cf Bomba v Silberfein, 238 AD2d 261, 262-263 [1st Dept 1997] [as question of fact existed on whether defendants’ retention of plaintiff’s invoices resulted in account stated, defendants’ challenge to reasonableness of plaintiff’s fees precluded summary judgment on damages]). “