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”). “