First words out of CLE lecturers in legal malpractice settings is “Don’t sue for fees!”  Reason? Legal malpractice counterclaims.  Tarshis & Hammerman, LLP v Hartig  2016 NY Slip Op  50393(U) Decided on March 18, 2016  Appellate Term, Second Department is a prime example. (Disclosure:  Both of the plaintiff attorneys were Kings County ADAs as was I at the time)

Mother retains plaintiff law firm to defend her son in a criminal matter.  They charge $10,000 up to trial, a fairly typical fee.  They defend, and one presumes that he was still convicted (pled guilty?).  Mother paid $ 5000 to start and then would not pay the balance.  Plaintiffs got their $ 5000 but had to go through a lot of telephone calls, a summons and complaint in Civil Court, a bench trial, and an appeal to the Appellate Term.  Was that worth $ 5000?  They had to hear the mother’s grief, have her call them minimally knowledgeable about criminal law, and the such.  They may even have trouble collecting.

From the decision:  “As a matter of public policy, courts pay particular attention to fee arrangements between attorneys and their clients (see Jacobson v Sassower, 66 NY2d 991, 993 [1985]), and the reasonableness of attorney’s fees is always subject to court scrutiny (see Matter of Bizar & Martin v U.S. Ice Cream Corp., 228 AD2d 588 [1996]).

The retainer agreement signed by defendant set forth “the scope of the representation and [*2]the basis or rate of the fee and expenses for which the client will be responsible” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.5 [b]), i.e., that defendant would be responsible for paying plaintiff the sum of $10,000, which would cover any legal services rendered by plaintiff in the criminal matter up until trial. The agreement was not ambiguous, and plaintiff demonstrated that substantial legal services had been rendered in the criminal matter resulting in a disposition before trial. In light of Hammerman’s testimony regarding the work he had performed, the nature of the issues involved in the case, the skill required to handle those issues and the results obtained (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.5 [a]), we find that the amount charged was reasonable. In view of the foregoing, the Civil Court did not err in awarding plaintiff the remaining balance due under the retainer agreement and in dismissing defendant’s counterclaims.

Although defendant contends that she was not able to adequately defend herself at trial, the record indicates the contrary. While she admits that she did not ask the court for an adjournment, she argues that, since she is not an attorney, she is entitled to a new trial. Her status as a self-represented litigant, however, does not entitle her to greater rights than any other litigant (see Roundtree v Singh, 143 AD2d 995 [1988]).”