Divorce in wealthy families can be expensive.  Division of significant assets, using teams of lawyers can quickly add up.  Kaufman v Boies Schiller Flexner, LLP  2021 NY Slip Op 31340(U) April 22, 2021 Supreme Court, New York County Docket Number: 154149/2018 Judge: James E. d’Auguste not only cost a lot, it spawned multiple other litigations as well. This case has a good discussion of the elements of breach of contact claims in a legal malpractice setting.

“The breach of contract cause of action is predicated upon defendants’ alleged overbilling practices. According to the complaint, “critical errors, in violation of the terms of the relevant retainer agreements” resulted in substantial overbilling, and defendants charged “[p]laintiff for services that were unnecessary, duplicative or wasteful” (NYSCEF Doc No. 66, ¶¶ 1 and 50).

To sustain a cause of action for breach of contract, the plaintiff must prove the existence of a contract, the plaintiff’s performance, the defendant’s breach, and damages (see Harris v Seward Park Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010]). “[A] cause of action for breach of contract may be maintained against an attorney ‘only where the attorney makes an express promise … to obtain a specific result and fails to do so’” (Aglira v Julien & Schlesinger, 214 AD2d 178, 185 [1st Dept 2004], quoting Pacesetter Communications Corp. v Solin & Breindel, 150
AD2d 232, 236 [1st Dept 1989], lv dismissed 74 NY2d 892 [1989]; accord Kaplan v Sachs, 224 AD2d 666, 667 [2d Dept 1996], lv dismissed and denied 88 NY2d 952 [1996]).

Applying these principles, the complaint fails to adequately plead a breach of contract claim. First, plaintiff fails to set forth the terms of the BSF Retainer or the BRIR Retainer in the complaint that defendants allegedly breached (see Boies, Schiller & Flexner LLP v Modell, 129 AD3d 533, 534 [1st Dept 2015] [dismissing the defendant client’s counterclaim for breach of contract because the defendant failed to identify the  specific provision of the retainer in which the plaintiff law firm promised to produce a specific result]; Steiner v Lazzaro & Gregory, 271 AD2d 596, 597 [2d Dept 2000] [dismissing a cause of action for breach of contract where the complaint failed to set forth the terms of the retainer agreement]). Second, a close examination of both retainer agreements reveals that defendants did not commit to obtaining a specific result or outcome for plaintiff in the Divorce Proceeding. ”

“Generally, where a breach of contract claim arises out of the same facts and seeks the same or similar damages as a legal malpractice claim, the contract claim must be dismissed (see Courtney v McDonald, 176 AD3d 645, 645-646 [1st Dept 2019]; Roth v Ostrer, 161 AD3d 433, 435 [1st Dept 2018]). That said, a breach of contract claim premised upon the assertion that the “defendants overbilled … and performed unnecessary services … is not duplicative of the legal
malpractice claim” (Ullmann-Schneider v Lacher & Lovell-Taylor, P.C., 121 AD3d 415, 416 [1st Dept 2014]). “The former claim, unlike the latter claim, does not speak to the quality of defendants’ work” (id.). Hence, the plaintiff must “reasonably allege that the fee bore no rational relationship to the product delivered” (Johnson v Proskauer Rose LLP, 129 AD3d 59, 70 [1st Dept 2015]). Here, plaintiff’s opposition largely consists of complaints about the quality of defendants’
work which then led to the purported overbilling. As discussed earlier, complaints about overbilling based on the quality of an attorney’s work cannot support a breach of contract claim (see Ullmann-Schneider, 121 AD3d at 416). Thus, defendants’ motions to dismiss the first cause of action for breach of contract are granted, and the first cause of action is 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.