Clients want results, and are sometimes hesitant about paying bills.  Lawyers want to get paid, whether they are in good relations with the client or not.  Let me repeat:  Lawyers want to get paid.  The greater portion of cases in which lawyers are parties concerns attorney fees.  This is amply demonstrated by Adam Leitman Bailey, P.C. v Pollack  2019 NY Slip Op 50793(U)  Decided on May 17, 2019 Supreme Court, New York County  Reed, J..

Here, plaintiff owned a brownstone which was being damaged by the next-door neighbor’s construction.  The attorney either did a great job, or not.  Regardless, this attorney wanted to get paid.

“Defendant is the owner of a townhouse located at 44 East 82nd Street, New York, New York (the Premises) (NY St Cts Elec Filing [NYSCEF] Doc No. 34, affidavit of John. M. Desiderio [Desiderio aff], exhibit A [complaint], ¶ 4). In 2014, nonparty 46 East 82nd Street LLC, whose principal is nonparty Penny Bradley (Bradley), purchased the adjacent townhouse at 46 East 82nd Street, and proceeded to renovate the property (id., ¶ 6; NYSCEF Doc No. 56, affirmation of plaintiff’s counsel, exhibit W [defendant tr] at 11). Defendant alleges that Bradley’s renovation work caused damage to the interior and exterior of the Premises. In [*2]addition, defendant’s tenants, to whom he had leased the townhouse for $384,000 in annual rent (NYSCEF Doc No. 56 at 22), vacated the Premises in mid-November 2014 before their two-year lease term expired “because of [the] noise and dust and dangerous conditions” (id. at 77). They surrendered possession to defendant on December 5, 2014 (id. at 24).

Defendant executed a retainer agreement with plaintiff on December 8, 2014, and paid $10,000 in advance (NYSCEF Doc No. 37, Desiderio aff, exhibit D [Retainer] at 1). The Retainer provides that plaintiff would render monthly invoices to defendant and that payment was due upon receipt (id. at 1). Importantly, the Retainer reads, in pertinent part, “[y]ou understand that, although ALBPC will use its best professional judgment in the prosecution or defense of this claim, ALBPC cannot and does not guarantee any particular outcome or result” (id. at 3). Attached to the Retainer is a two-page statement of client’s rights as mandated by 22 NYCRR 1210.1. Plaintiff represented defendant in his dispute with Bradley from December 8, 2014 through July 2015, when defendant terminated plaintiff’s services (NYSCEF Doc No. 32, Desiderio aff, ¶ 17). Although plaintiff has billed defendant $110,461.36 (NYSCEF Doc No. 34, ¶¶ 22 and 30), he has been paid only $26,783.20 (NYSCEF Doc No. 35, Desiderio aff, exhibit B [amended answer], ¶ 29).

Plaintiff commenced this action against defendant for breach of contract, an account stated, quantum meruit and unjust enrichment. Defendant interposed 13 affirmative defenses and two counterclaims for legal malpractice and breach of fiduciary duty in is amended answer. Plaintiff asserts five affirmative defenses in its response to the counterclaims.”

“To prevail on a cause of action for legal malpractice, a plaintiff must plead and prove “the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages” (Leder v Spiegel, 31 AD3d 266, 267 [1st Dept 2006], affd 9 NY3d 836 [2007], cert denied sub nom. Spiegel v Rowland, 552 US 1257 [2008] [internal quotation marks and citations omitted]). “An attorney’s conduct or inaction is the proximate [*5]cause of a plaintiff’s damages if ‘but for’ the attorney’s negligence ‘the plaintiff would have succeeded on the merits of the underlying action'” (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 50 [2015], rearg denied 27 NY3d 957 [2016], quoting AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). Thus, a plaintiff must meet the “case within a case” requirement to avoid dismissal (see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 272 [1st Dept 2004] [internal quotation marks and citations omitted]).

Defendant grounds the malpractice counterclaim upon a purported violation of rule 1.4 (a) (1) (iii) of the Rules of Professional Conduct (22 NYCRR 1200.0), which provides that a lawyer shall promptly inform a client of “material developments in the matter including settlement or plea offers.” Specifically, he complains of plaintiff’s failure to apprise him of Bradley’s demand for a counteroffer and plaintiff’s voluntary withdrawal of the motion for a preliminary injunction (NYSCEF Doc No. 35, ¶ 32). Defendant concedes that a violation of the Rules of Professional Conduct (22 NYCRR 1200.0) does not, without more, support a malpractice claim (see Cohen v Kachroo, 115 AD3d 512, 513 [1st Dept 2014] [citations omitted]). Nevertheless, he maintains that plaintiff’s actions have proximately caused substantial damages.”

“Regarding the first event, defendant posits that he “would have resolved” his dispute with Bradley in May 2015 had plaintiff discussed the proposal Bradley’s contractor had raised about repairing two of the three damaged walls (NYSCEF Doc No. 115, affirmation of defendant’s counsel, exhibit 53 at 1). However, “speculation on future events are insufficient to establish that the defendant lawyer’s malpractice, if any, was a proximate cause of any such loss” (Brooks v Lewin, 21 AD3d 731, 734-735 [1st Dept 2005], lv denied 6 NY3d 713 [2006] [citations omitted]). Apart from supposition and conjecture, defendant has not presented any admissible evidence that but for plaintiff’s failure to pursue the contractor’s proposal, he has sustained damages, or that Bradley would have consented to a compromise with respect to a repair of the [*8]third wall. In any event, even if such an arrangement was reached, it would have resolved only one aspect of the dispute with Bradley because defendant still wished to pursue monetary damages.[FN3] Moreover, defendant has not established that he would have agreed to accept Bradley’s settlement offer at any time, or that but for plaintiff’s negligence, he would have or has negotiated a more favorable monetary settlement (see Gallet, Dreyer & Berkey, LLP v Basile, 141 AD3d 405, 406 [1st Dept 2016]).

As to the second event, defendant maintains that plaintiff should not have pursued an injunction without first conducting an adequate investigation into the facts. Preliminarily, defendant’s contention that plaintiff failed to advise him that it would withdraw the application for injunctive relief is unfounded. Two weeks after plaintiff received Bradley’s settlement offer, defendant’s architects received Bradley’s revised architectural plans, and advised plaintiff and defendant that the renovation work would no longer directly impact the Premises (NYSCEF Doc No. 98, affirmation of defendant’s counsel, exhibit 36 at 3). As a result, the change obviated the need for a license agreement as Bradley’s counsel had warned previously (NYSCEF Doc No. 87 at 2). Plaintiff indicated it was unlikely that an injunction would issue (NYSCEF Doc No. 96, affirmation of defendant’s counsel, exhibit 34 at 1), and further advised defendant that it would “weaken us to argue the preliminary injunction and lose” (NYSCEF Doc No. 90, affirmation of defendant’s counsel, exhibit 28 at 1; NYSCEF Doc No. 95, affirmation of defendant’s counsel, exhibit 33 at 1). Here, defendant ignores the effect of Bradley’s changes to her plans, which could not have been reasonably anticipated when plaintiff commenced the Bradley Litigation in March 2015 because Bradley only exchanged the revised plans in May. Thus, defendant cannot establish that but for plaintiff’s actions, he would have prevailed on the preliminary injunction motion. Consequently, the part of plaintiff’s motion for summary judgment dismissing the first counterclaim for legal malpractice is granted.”

“”An account stated is an agreement between the parties to an account based upon prior transactions between them with respect to the correctness of the separate items composing the account and the balance due, if any, in favor of one party or the other” (Shea & Gould v Burr, 194 AD2d 369, 370 [1st Dept 1993] [internal quotation marks and citation omitted]). The cause of action “exists where a party to a contract receives bills or invoices and does not protest within a reasonable time” (Russo v Heller, 80 AD3d 531, 532 (1st Dept 2011] [internal quotation marks and citation omitted]), or where partial payment has been made (see Morrison Cohen Singer & Weinstein, LLP v Waters, 13 AD3d 51, 52 [1st Dept 2004]). “In the context of an account stated pertaining to legal fees, a firm does ‘not have to establish the reasonableness of its fee'” (Lapidus & Assoc., LLP v Elizabeth St., Inc., 92 AD3d 405, 405 [1st Dept 2012] [internal quotation marks and citation omitted]).

Plaintiff has demonstrated that defendant retained the invoices rendered between December 15, 2014 and June 15, 2015 without objection and made partial payments on them (NYSCEF Doc No. 47, Desiderio aff, exhibit N at 23; NYSCEF Doc No. 48 at 5). Thus, a balance did not begin to accrue until the March 15, 2015 invoice.

Defendant’s assertion that he was reviewing the invoices is too general to defeat the claim (see Schulte Roth & Zabel, LLP v Kassover, 80 AD3d 500, 501 [1st Dept 2011], lv denied 17 NY3d 702 [2011]), and he was unable to articulate a specific objection as to any of the invoices at his deposition. Furthermore, defendant failed to object to a specific amount or invoice until he terminated plaintiff’s services, and plaintiff elected to pursue litigation (see Mintz & Gold LLP v Daibes, 125 AD3d 488, 489 [1st Dept 2015]). As for the invoice dated July 15, 2015, defendant promptly raised an objection within five days of receipt (NYSCEF Doc No. 113, affirmation of defendant’s counsel, exhibit 51 at 1). Thus, plaintiff is entitled to summary judgment on liability only as to those invoices rendered prior to July 15, 2015.”

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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 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.