As many defense attorneys in legal malpractice settings argue, the legal malpractice claim often arises in response to an attorney’s action for fees, that is, as a counterclaim.  The attorneys always say that the legal malpractice counterclaim is a reflex, and a poorly disguised one, and is there merely to try to avoid paying fees.

Goldberg & Connolly v Upgrade Contr. Co., Inc.  2016 NY Slip Op 00152  Decided on January 13, 2016 Appellate Division, Second Department is an example of what happens when the fee claim, the legal malpractice counterclaim and the “account stated” doctrine all come into play.

“The plaintiff is a law firm that was retained by the defendant, inter alia, to represent it as a third-party defendant in a personal injury action. After the conclusion of the underlying action, the plaintiff commenced this action against the defendant, among other things, to recover damages for breach of contract and on an account stated, seeking to recover unpaid legal fees. The defendant asserted a counterclaim to recover damages for legal malpractice. The plaintiff moved to disqualify the defendant’s attorney, James Haddad, on the basis that Haddad would be a witness in this action. The defendant cross-moved, inter alia, for summary judgment dismissing the complaint and on its counterclaim. The Supreme Court granted the plaintiff’s motion and denied the defendant’s cross motion. The defendant appeals. We affirm.”

“The Supreme Court also properly denied the defendant’s cross motion for summary judgment dismissing the complaint and on its counterclaim. The defendant failed to establish its prima facie entitlement to judgment as a matter of law on its counterclaim, as the defendant failed to submit any evidence, other than the speculative and factually unsupported opinion of its attorney, that the plaintiff committed any acts of malpractice, or that the defendant was damaged thereby (see Barouh v Law Offs. of Jason L. Abelove, 131 AD3d 988, 991; Quantum Corporate Funding, Ltd. v Ellis, 126 AD3d 866).

Concomitantly, in support of that branch of its cross motion which was for summary judgment dismissing the complaint, the defendant failed to submit evidence in support of its contention that it was justified in refusing to pay the attorney’s fees allegedly incurred in light of the plaintiff’s alleged malpractice. Further, since the defendant presented no evidence that it did not receive and retain, without objection, invoices for legal services rendered, the defendant failed to establish its prima facie entitlement to summary judgment dismissing the causes of action to recover on an account stated (cf. Callaghan v Curtis, 82 AD3d 816; Gassman & Keidel, P.C. v Adlerstein, 63 AD3d 784). Accordingly, the Supreme Court properly denied the defendant’s cross motion for summary judgment dismissing the complaint and on its counterclaim, without regard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).