Almost uniformly claims of overbilling or unnecessary legal work and fees are dismissed as “duplicitive” of a legal malpractice claim.  Dubon v Drexel  2021 NY Slip Op 04119 Decided on June 30, 2021 Appellate Division, Second Department is a rare example where the Court distinguishes between a real contract claim and one which is based on the lack of quality of legal work.

“The plaintiff hired the defendants, Allen Drexel and Drexel, LLC (hereinafter together Drexel), to represent him in a divorce action. The plaintiff and Drexel entered into a retainer agreement (hereinafter the retainer), which set forth the terms of Drexel’s representation of the plaintiff. Pursuant to the retainer, Drexel, among other things, would provide the plaintiff with itemized billing statements at least every 60 days. The retainer further provided that any modifications to the agreement, fee estimates, budgets for work to be done for the plaintiff, or adjustments to Drexel’s bills “will be valid only if in writing and signed by [both parties]” (emphasis in original).

In November 2016, the plaintiff commenced the instant action against Drexel, in which he asserted two causes of action alleging breach of contract and one cause of action alleging fraudulent inducement. The first breach of contract cause of action alleged, among other things, that Drexel breached a provision of the retainer pursuant to which Drexel agreed to defend the plaintiff in his divorce action and “to provide all necessary legal services for an estimated cost of ‘no more than $100,000.'” The second breach of contract cause of action alleged that Drexel failed to provide invoices to the plaintiff as required by the retainer. The fraudulent inducement cause of action alleged that the plaintiff was fraudulently induced into entering into the retainer by relying on Drexel’s representations as to the cost of its legal services.”

“However, the Supreme Court should have denied that branch of Drexel’s motion which was to dismiss so much of the first breach of contract cause of action as alleged that Drexel overbilled and charged the plaintiff for unnecessary legal services (see Ullmann-Schneider v Lacher & Lovell-Taylor, P.C., 121 AD3d 415, 416; O’Connor v Blodnick, Abramowitz and Blodnick, 295 AD2d 586, 587). In opposition to that branch of Drexel’s motion which was to dismiss the first breach of contract cause of action, the plaintiff submitted an affidavit in which he averred that Drexel double-billed him for legal services in the sum of $291,000 and charged him at least $70,000 for unnecessary legal services. Contrary to Drexel’s contention, the plaintiff’s claim that Drexel overbilled and charged him for unnecessary legal services is distinct from a legal malpractice cause of action, as the plaintiff’s claim does not challenge the quality of Drexel’s work (see Ullmann-Schneider v Lacher & Lovell-Taylor, P.C., 121 AD3d at 416; Tanenbaum v Molinoff, 118 AD3d 774, 775-776).”