One of the most common reflexive decisions by courts is to dismiss a breach of contract as well as a breach of fiduciary duty as duplicitive of the cause of action for legal malpractice.  If the claims of breach arise from the same facts and damages are similar then they are duplicitive.  However, when there is a legal malpractice claim that an asset has been lost and a breach of fiduciary duty claim that there has been overbilling, then they should not be duplicitive.  Mostly, however, trial courts dismiss without too much contemplation.

Menkes v Ballard Spahr LLP   2018 NY Slip Op 31834(U)  August 1, 2018  Supreme Court, New York County  Docket Number: 151471/2017  Judge: Robert R. Reed takes the time to look at the genesis of damages.

“Plaintiff, Sheryl Menkes (“Menkes”), a lawyer, sues her former attorneys, Ballard Spahr
LLP (“Spahr”) and John B. Harris (“Harris”), for legal malpractice, negligence and breach of
contract. Defendants now move, pursuant to CPLR 3124, to compel discovery. Menkes
opposes, arguing the cost of production is burdensome and should be borne – at least in part – by
defendants. Menkes, in addition, cross-moves to 1) serve a supplemental summons and
amended complaint; 2) add a claim for improper and excessive billing; 3) disqualify Spahr from
serving as counsel for itself, prose, and Harris, and 4) dismiss the defendants first, second and
fourth counterclaims. Defendants oppose. ”

“Menkes also moves to serve a supplemental summons and amended complaint. In
general, leave to amend pleadings, pursuant to CPLR 3025(b ), should be liberally granted where
there is neither undue prejudice nor unfair surprise. Permitting leave to amend is a discretionary
function of the trial court and should be freely granted “absent a showing that the facts
supporting the amendment do not support the purported claim or claims” (see Loewentheil v.
White Knight, LTD., 71 AD3d 581) (internal quotation omitted). Here, Menkes seeks leave to
add a cause of action for improper and/or excessive legal fees, which is separate and apart from
the other causes of action (see Cherry Hill Market Corp. v. Cozen O’Connor P. C., 118 AD3d
514 [holding that plaintiffs’ third cause of action, alleging that defendants breached their
fiduciary duty because they either collected and/or billed plaintiffs for excessive and/or unearned
fees, should not have been dismissed as duplicative of the malpractice causes of action]).
Accordingly, plaintiff is granted leave to serve a supplemental summons and amended _complaint
to add the improper and/or excessive fee cause of action. “