A retainer agreement may be required by various NYS rules, but lack of one will not make attorney fees collectible. On the other hand, a specific retainer agreement may limit liability for failure to undertake other litigation. Flusser v Bikel 2019 NY Slip Op 32847(U) September 24, 2019
Supreme Court, New York County Docket Number: 155158/2019
Judge: Michael L. Katz is a good example.
“Plaintiff was represented in an action for divorce, Alan Flusser v Marlise Flusser, Index No. 314558/11, by Robert M. Preston, Esq. and his then-firm, Preston, Stutman & Partners, P.C., until on or about May 27, 2014. That representation ended when plaintiff signed a retainer agreement with the defendant law firm, Bikel & Mandarano, a limited liability partnership, by which the firm agreed to represent her in connection with two limited issues; namely, (i) “the prosecution or defense of a divorce action;” and (ii) “the prosecution or defense of a Family Court proceeding concerning custody, visitation and support proceedings, including the attempt to negotiate a resolution of the matter.”
“Plaintiff contends that her former attorney, Mr. Preston, committed legal malpractice by failing to assert a specifically enumerated counterclaim against Mr. Flusser for the spousal maintenance arrears when the original Answer was filed in April 2012 and by failing to obtain discovery relating to the monies purportedly owed.
Plaintiff alleges, without any documentary proof and in direct contravention of the terms of the retainer agreement, that “the scope of defendants’ representation came to include representing and advising [her] with respect to claims for allegedly unpaid legal fees and for a charging lien brought by Preston and his firm and a claim for legal malpractice against Preston and his firm.””
“In the instant case, the retainer agreement enumerated the specific legal services that the defendant law firm would provide, and did not include a duty to provide any representation or advice with respect to the former attorney’s claim against plaintiff for unpaid legal fees or with respect to plaintiff’s potential claim against her former attorney for alleged legal malpractice. See, AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435 (2007); Keld v Giddins Claman, LLP, 170 AD3d 589, 589 (lSt Dep’t 2019) .”
“Thus, there is no basis for plaintiff to assert a claim against defendants for legal malpractice based on the firm’s purported failure to ‘thoroughly investigate’ and/or preserve a potential claim against plaintiff’s former attorney, or to advise plaintiff with regard to a matter wholly outside the scope of the firm’s agreed upon representation.”