As we have reported before, sometimes legal malpractice cases arise by action of the plaintiff, and sometimes they arise after the attorney sues for legal fees.  Courts often take the later situation as a "reflexive" or "defensive" maneuver, and may not always believe that the client is genuinely prosecuting a legal malpractice case so much as avoiding paying a fee. 

In this case, it appears that the Appellate Division came down half-way between the two poles.  Bender Burrows & Rosenthal, LLP v Simon ;2009 NY Slip Op 06296 ;Decided on August 25, 2009 ; Appellate Division, First Department holds that plaintiff, who is defending a fee claim, is unable to prove legal malpractice, but has demonstrated a question of whether the law firm is aptly holding escrowed monies or not.

"Defendant’s first counterclaim for malpractice should have been dismissed since she failed to demonstrate that she would have succeeded on the merits of the underlying action for divorce but for plaintiff’s negligence (Maillet v Campbell, 280 AD2d 526, 527 [2001]). Defendant was not prejudiced by plaintiff’s mid-trial motion to withdraw. On defendant’s earlier appeal from the judgment of divorce (55 AD3d 477 [2008]), this Court found that the trial court appropriately exercised its discretion in granting a five-day adjournment rather than the longer one requested by defendant’s counsel since successor counsel had nearly a month to prepare for trial. Moreover, although this Court remanded the matter for recalculation of the parties’ respective child support obligations and a finding as to the cost of health insurance for defendant at the predivorce level of coverage, it found defendant’s arguments relating to the classification, valuation and distribution of property and the award of maintenance unavailing (id. at 478). Cruciata v Mainiero (31 AD3d 306 [2006]), which was decided on the specific facts of that case, is not to the contrary.

As to defendant’s second counterclaim seeking recovery of her escrow funds, the motion court aptly concluded that there are triable questions of fact as to what agreement, if any, the parties had reached as to the disposition of those funds. [*2]"