Attorney sues for fees, and the reflex reaction is to couter-punch, or as it is put in pleadings, counter-claim.  No harm in defending oneself?  This NJ case illustrates the dangers.

CUYLER BURK, LLP, Plaintiff-Respondent,   vs. ROBERT M. SILVERMAN, ESQ., Defendant-Appellant. Argued: September 10, 2007 – Decided October 9, 2007: Before Judges Cuff, Lisa and Lihotz.  On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-135-03.

 "On January 13, 2003, Cuyler Burk filed a complaint to collect the fees incurred by defendant in the amount of $18,747.94. Defendant filed an answer to the complaint and a counterclaim in which he asserted a legal malpractice claim against plaintiff. On August 19, 2003, Cuyler Burk notified defendant’s attorney that it considered the counterclaim frivolous and that it would move for sanctions.

On August 20, 2004, two months after the deposition of his expert, defendant dismissed the counterclaim. Following the submission of a stipulation of dismissal with prejudice of plaintiff’s complaint, plaintiff filed a motion for sanctions pursuant to N.J.S.A. 2A:15-59.1 and Rule 1:4-8.

In a written opinion filed on December 22, 2005, Judge Harper held that the legal malpractice counterclaim was frivolous. The judge held that Cuyler Burk was a prevailing party because defendant withdrew his complaint after defendant’s expert changed his opinion during his deposition. In other words, "the withdrawal of the complaint was done to avoid anticipated defeat, and as such, it is not a voluntary dismissal, but instead an acknowledgement that the Plaintiff would prevail."

Judge Harper also found that the counterclaim was commenced in bad faith. He found that the evidence was undisputed that Cuyler Burk had made attempts to resolve the case on defendant’s behalf and that he dragged his feet frustrating the firm’s effort to expeditiously and favorably resolve the case. He characterized the counterclaim as a tactic to frustrate the firm’s ability to collect the fees owed to it by defendant. Judge Harper also found that defendant knew or should have known that the counterclaim was "without any reasonable basis in law." Furthermore, the judge found that defendant’s contention that plaintiff recommended that he not settle the disciplinary matter is "patently untrue." The judge also found that the affidavit of merit submitted by one attorney and the expert report submitted by another were founded on inadequate and incomplete facts.

Once Judge Harper ruled that Cuyler Burk was entitled to an award of fees and costs, it submitted an affidavit of services in which it sought fees and costs in excess of $105,000. On April 24, 2006, Judge Harper conducted a plenary hearing on the fee request at which Cuyler testified in support of the firm’s application ."