Delay in obtaining adverse evidence and overbilling are both claimed in Ostrolenk Faber LLP v Sakar Intl., Inc.  2019 NY Slip Op 31303(U)  April 23, 2019  Supreme Court, New York County
Docket Number: 657134/17 Judge: Melissa A. Crane.  Only one of the claims works in a legal malpractice setting.  It is not overbilling.

Plaintiff Ostrolenk Faber LLP (Ostrolenk), a law firm specializing in intellectual property, brings this action against its former client, Sakar International, Inc. (Sakar), to collect on outstanding invoices, totaling $259,841.20 plus interest. The four-count complaint asserts causes of action for breach of implied contract, account stated, quantum meruit, and unjust enrichment. In its answer, Sakar asserts several affirmative defenses and counterclaims for improper billing and malpractice (first and second counterclaims, respectively).”

“Of the $259,841.20 that Ostrolenk seeks in this action, approximately $240,000 relates to a patent infringement lawsuit, entitled Voltstar Tech., Inc. v Office Depot, Inc. (civil case No. 9: 15-cv-81190) and commenced in the United States District Court for the Southern District of Florida on August 21, 2015 (Underlying Action). 1 In that action, Voltstar Technologies, Inc. (Voltstar) alleged that a product that Sakar manufactured and sold to Office Depot, Inc. (Office Depot) infringed Voltstar’s patent. Ostrolenk represented Office Depot in the Underlying Action, at Sakar’s expense. ”

In addition, Sakar avers that “[Voltstar] settled for only $30,000 after [Ostrolenk] belatedly located ‘prior art’ (earlier patents) that invalidated [Voltstar’s] patent” and that “[Ostrolenk] reasonably should have located that prior art at the commencement of the Underlying Action and not after expending hundreds of thousands of dollars in unnecessary legal fees and expenses.” Id.,~ 46. Sakar alleges that “an attorney practicing in [Ostrolenk’s] specialty exercising reasonable skill and produce [sic] would have found such prior art promptly” (id.,~ 55) and that Ostrolenk’s failure to do so at the outset of the Underlying Action resulted in over $400,000 in fees and expenses.”

“Generally, allegations of improper billing, without more, are insufficient to state a claim for malpractice. See Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 601 (1st Dept 2014)
(finding that “[p]laintiffs’ claims of excessive billing and related conduct, which actions [were] not alleged to have adversely affected their claims or defenses in the underlying action, [did] not
state a claim for legal malpractice”); see also Gottlieb, Rackman & Reisman, P. C. v Zencolor
Corp., 2015 WL 4206982, *6, 2015 US Dist LEXIS 90345, *14 (SD NY, July 10, 2015, No. 13-
CV-5715 (JGK]) (finding that “allegations of improper billing-standing alone-[ did] not state a
claim for legal malpractice,” where former client “[did] not allege that but for this improper
billing, its patent applications would have been approved”); Byrne & Storm, P.C. v Handel, 2013
WL 2444092, *4, 2013 US Dist LEXIS 78708, *14-15 (ND NY, June 5, 2013, No. 1:12-CV-716
[GLS/RFT]) (finding “no support for the proposition that overbilling by itself ‘constitute[s] an
act oflegal malpractice”‘). ”

“Here, accepting the counterclaim’s allegations as true and according Sakar the benefit of
every favorable inference, Sakar states a claim for legal malpractice. The answer specifically
alleges that Ostrolenk “reasonably should have located [the] prior art at the commencement of
the Underlying Action” (answer, ,-i 46) and that its failure to do so constitutes malpractice. Id., ,-i
55. In addition, the answer alleges that the discovery of this prior art resulted in a favorable
settlement of the Underlying Action, which could have been accomplished sooner had Ostrolenk
been more prompt in conducting the prior art search. See id, , 46. Sakar is, therefore, not
merely second-guessing Ostrolenk’s litigation strategy and speculating about alternative results,
which would be insufficient to state a malpractice claim. See Dweck Law Firm, 283 AD2d at
293 (“[a]ttorneys may select among reasonable courses of action in prosecuting their clients’
cases … so that a purported malpractice claim that amounts only to a client’s criticism of
counsel’s strategy may be dismissed”). “

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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.