Courts are closed today and on Monday for the President’s weekend.  Nevertheless, today we present an Appellate Term case on the interplay of fee dispute arbitration and legal malpractice.

Calabro & Assoc., P.C. v Katz ;2010 NY Slip Op 50192(U) ;Decided on February 9, 2010 ; Appellate Term, First Department .  This was a garden or varietal version of a fee demand, legal malpractice counterclaim.  Client successfully seeks dismissal of the case in favor of Part 137 fee arbitration, but then roundly loses the balance of his argument.  From the decision:
 

"As defendant conceded in his opposition papers below, his counterclaims alleging that plaintiff over-billed him are properly addressed in the attorneys’ fees arbitration proceeding, since the arbitrators must determine the reasonableness of the fees based on "all relevant facts and circumstances" (22 NYCRR 137.0) and those counterclaims relate to a potential "adjustment of the fee" (22 NYCRR 137.1[b][4]). The counterclaim for legal malpractice should have been dismissed. Plaintiff made a prima facie showing that it was not negligent and that any alleged negligence did not proximately cause defendant’s claimed damages. In opposition, defendant failed to raise a triable issue on either score. On the issue of plaintiff’s alleged negligence, defendant did not submit any competent evidence showing that plaintiff failed to exercise the degree of care commonly exercised by a member of the legal profession (see Orchard Motorcycle Distrib., Inc. v Morrison Cohen Singer & Weinstein, LLP, 49 AD3d 292 [2008]; Schadoff v Russ, 278 AD2d 222 [2000]). Moreover, defendant failed to show that "but for" plaintiff’s alleged negligence defendant would have obtained a more favorable result in the underlying landlord-tenant proceeding or would have successfully sold his business to a third-p[*2]arty (see AmBase Corp. v Davis Polk & Wardell, 8 NY3d 428 [2007]; Davis v Klein, 88 NY2d 1008 [1996]). "