Kaufman v Boies Schiller Flexner LLP2022 NY Slip Op 32743(U)  August 15, 2022 Supreme Court, New York County  Docket Number: Index No. 154149/2018  Judge: James d’Auguste is the very fraught story of a massively fought matrimonial action.  It seems that millions were spent on litigation.  The martial estate must have been very worthwhile.  This case discusses two legal malpractice issues:  excessive billing and violation of Judiciary Law § 487.  In this blog, we will deal with the excessive billing.  In Friday’s blog, we will review the JL § 487 claims.

“A. Breach of Contract against BSF, Kaplan, B&K and BRIR

Plaintiff has renumbered the breach of contract action for alleged overbilling from the first cause of action in the original complaint to the sixth cause of action in the PAC. Allegations
Allegations of  overbilling, padding of costs, and billing for unnecessary legal services can constitute a cause of action for breach of contract, provided the allegations do not directly challenge the quality of the attorney’s work (Ullmann-Schneider v Lacher & Lovell-Taylor, P.C., 121 AD3d 415,416 [1st Dept 2014]; O’Connor v Blodnick, Abramowitz and Blodnick, 295 AD2d 586,587 [2d Dept 2002] [same]).

The PAC alleges that defendants routinely charged plaintiff for the presence of multiple attorneys at depositions, hearings and conferences even though not all the attorneys present
contributed (NYSCEF Doc. No. 203, ,r,r 183 and 398). In one instance, BSF billed $2,762 for an associate and two paralegals to transport banker’s boxes to a pretrial conference (id., ,r 188 and at 647 [Ex 18]). BSF and B&K allegedly engaged in duplicate billing whereby attorneys discussing the matter in person or by telephone or email billed separately for their time and billed for different amounts of time spent at the same meeting (id., ,r,r 76-77, 185-186, 396 and 399- 400). Attorneys at BSF and B&K purportedly billed for reviewing the same documents (id., ,187). BSF allegedly failed to disclose that attorneys Charles Miller (CM), James Miller (JM) and Theodore Uno (Uno) were based in Florida (id., ,r 301). BSF billed $139,982.89 for their travel expenses to New York and over $9,000 for local travel expenses (id., ,r 182). BSF also billed $22,412.38 for its services before plaintiff had even signed a retainer (the BSF Retainer) (id., ,r 391). The PAC alleges plaintiff first learned that Uno was not licensed to practice in New York at a Court conference on November 13, 2014 (id, ,r 216). She asserts that Uno’s $485,700 fee is an unnecessary expense because he was not permitted to participate in the Divorce Proceeding (id., ,r,r 194, 197, 403 and 409). Plaintiff also complains that the hourly rates charge by JM, who is not licensed to practice in New York, and Uno are greater than the hourly rate charged by Kaplan, who is licensed to practice in this state (id., ,r,r 202-203).

These new allegations are unrelated to plaintiffs earlier complaints about the quality of defendants’ legal work and are sufficient to overcome the pleading deficiencies in the original
breach of contract action as against BSF, B&K and Kaplan, but not as to BRIR. While the PAC attributes overbilling to all defendants, a complaint that fails to distinguish between defendants is an improper group pleading (see Principia Partners LLC v Swap Fin. Group, LLC, 194 AD3d 584, 584 [1st Dept 2021]). Here, the PAC does not specifically allege that BRIR billed plaintiff for its services, and none of the exhibits reflect an invoice or bill delivered to plaintiff from BRIR. Critically, the PAC alleges that plaintiff never paid BRIR a retainer (NYSCEF Doc No. 203, ,r 67) and that she had retained “Joel C. Bender, Esq., P.C.,” not BRIR (id., ,r 322). Accordingly, leave to rep lead the breach of contract cause of action for alleged overbilling, unnecessary billing and excessive fees is granted as to BSF, B&K and Kaplan. The action shall be restored to the active calendar”

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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.

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