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. “

Email this postTweet this postLike this postShare this post on LinkedIn
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.