Legal malpractice counterclaims face an uphill battle in attorney fee cases, and Schulte Roth & Zabel, LLP v Kassover ; 2011 NY Slip Op 00267 ; Decided on January 20, 2011 ; Appellate Division, First Department   is no exception.  The law firm represented defendants and worked up a $ 500,000 + bill.  Client partially paid monthly bills, and had objections but not enough for the Court to deny an account stated.  Client was able to demonstrate shortcomings and departures in the representation, but in a somewhat cruel outcome, was said not to have been able to demonstrate that if an appeal had been taken he would have won.  The "no appeal" area of legal malpractice is terribly difficult, because it is the most abstruse "hypothetical" judgment there is.  Contrast how an appellate division might come out on a disputed area of law with how a jury would find on a hit-in-the-rear car case with a fracture.
 

"Defendant client’s occasional oral objections to plaintiff law firm’s bills were insufficient to raise an issue of fact as to the existence of an account stated (see Duane Morris LLP v Astor Holdings Inc., 61 AD3d 418, 419 [2009]). At deposition, he was unable to relate any objection to a specific amount or invoice and had an extensive history of partial payment, including writings acknowledging the debt.

Evidence that plaintiff failed to read an order entered on consent before its entry, allowed the time for an appeal from that order to lapse, and abandoned defendant on a stay application just days before a material event raised a triable issue as to whether plaintiff’s conduct fell below the standard of the profession (see Bernstein v Oppenheim & Co., 160 AD2d 428, 430-431 [1990]). However, because defendant was unable to show that, but for counsel’s errors, he would have prevailed, his malpractice claims were correctly dismissed (see Schwartz v Olshan Grundman Frome & Rosenzweig, 302 AD2d 193, 198 [2003]). "