Holland & Knight LLC v Walsam 316, LLC 2023 NY Slip Op 33748(U)
October 17, 2023 Supreme Court, New York County Docket Number: Index No. 654470/2022 Judge: Dakota D. Ramseur has a third lesson in attorney billing litigation. How does a Judiciary Law 487 defense to the bills fare?

“In November 2022, plaintiff Holland & Knight LLC commenced the instant action
against defendant Walsam 316, LLC to recover outstanding legal fees Walsam accrued as part of plaintiffs legal representation in an underlying case entitled Walsam 316 LLC et al v 316 Bowery Realty Corp. et al. (NYSCEF index no. 153318/2017). In this motion sequence (001), plaintiff moves pursuant to CPLR 3211 (a) (1) and (a) (7) to dismiss Walsam’s counterclaims, wherein Walsam alleges, individually and on behalf of a putative class, that plaintiff invoiced for legal research that the parties’ retainer agreement did not permit. The motion is opposed. As part of this same motion sequence, Walsam cross-moves pursuant to CPLR 602 to consolidate this action with its malpractice action against plaintiff Walsam 316, LLC, et al. v Thompson & Knight, e. al. 1 (NYSCEF index. No. 156653/2022). For the following reasons, plaintiffs motion
to dismiss is granted in its entirety, and the cross-motion is deemed moot.”

“Under Judiciary Law§ 487, an attorney who “(1) is guilty of any deceit or collusion … or
(2) willfully delays his client’s suit with a view to his own gain; or willfully receives any money or allowance for or on account of any money which he has not laid out” is guilty of a misdemeanor, and liable to the injured client for treble damages. (Judiciary Law § 487.) For a law firm to be liable to their client under § 487, the client must allege a chronic and extreme pattern oflegally delinquent, wrongful, or deceitful behavior. (Freeman v Brecher, 155AD3d 453,454 [1st Dept 2017], citing Kaminsky v Herrick, Feinstein LLP, 59 AD3d 1, 13 [1st Dept 2008]; see also Kaufman v Maritt Hock Hamroff, LLP, 192 AD3d 1092, 1093 [2d Dept 2021] [“Relief pursuant to Judiciary Law S 487 ‘is not given lightly’ and requires a showing of ‘egregious conduct or chronic and extreme pattern of behavior on the part of defendant attorneys’.]) Allegations of excessive billing for services rendered and overinflated fees do not rise to the level of wrongful conduct required for liability to attach on a §487 claim. (See Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 601 [1st Dept 2014] [allegations that client was excessively billed and then threatened and coerced into paying the excessive and overinflated fees did not establish the “existence of a chronic and/or extreme pattern of legal delinquency”]; Rodriguez v Jacoby & Meyers, LLP, 2014 WL 3421053 at *5 [Sup. Ct. NY County 2014] [ allegations of defendants’ delaying plaintiffs lawsuit for their own gain and false
billing statements did not establish a chronic and extreme pattern of legal delinquency or intentionally egregious misconduct under§ 487], ajf’d 126, AD3d 606, 608 [1st Dept 2015] [“There is no evidence that defendants engaged in misconduct constituting a violation of Judiciary Law§ 487.]) Walsam’s Judiciary Law§ 487 claim is based solely on the nine invoices containing the allegedly false billings for Westlaw and Lexis access. Even if proven, Walsam’s misconduct allegations do not rise to the level required by Judiciary Law § 487.5 Accordingly, this counterclaim is dismissed pursuant to CPLR 3211 (a) (7).”