From this decision, it seems there is little difference, hence much duplication.  Duplication in the legal malpractice world means dismissal of causes of action, which is what happened here.  Justice Edmead bought none of defendant (counterclaimant’s) arguments.  She dismissed the cause of action in Brinen & Assoc. v Krippendorff  2016 NY Slip Op 31803(U)  September 29, 2016
Supreme Court, New York County  Docket Number: 653485/2014.

“This action arises from an agreement between Plaintiff Brinen & Associates, LLC (“Plaintiff), a law firm, and Defendant Kaihan Krippendorff (“Defendant”), who retained Plaintiff for representation in certain transactional matters pursuant to an engagement letter (the “Agreement”). Plaintiff moves pursuant to CPLR 321 l(e) to dismiss Defendant’s sixth counterclaim for breach of fiduciary duty, arguing that the counterclaim duplicates Defendant’s fifth counterclaim for breach of contract (see NYSCEF 129 [“Second Amended Answer”]). ”

“Under CPLR 321 l(a)(7), a cause of action for breach of fiduciary duty whose allegations are merely duplicative of a breach of contract claim cam10t stand (William Kaufinan Org., Ltd v Graham & James LLP, 269 AD2d 171, 173 [1st Dept 2000], accord Weight v Day, 134 AD3d 806, 808-09 [2d Dept 2015] (affirming dismissal of breach of contract cause of action as duplicative of the causes of action alleging accounting malpractice and breach of fiduciary duty); see also Joyce v Thompson Wigdor & Gilly LLP, 2008 WL 2329227, 36 Media L Rep 2030 [SDNY June 3, 2008] (overlapping claims of negligence, breach of contract, breach of fiduciary duty, negligent misrepresentation, or fraudulent misrepresentation premised on the same facts and seeking identical relief as a claim for legal malpractice are generally dismissed as duplicative [collecting cases])). Conversely, both causes of action may co-exist where a claim of breach of fiduciary duty rests on a duty separate and distinct from the breach of contract (Savage Records Group, NV v Jones, 247 AD2d 274, 274-275 [1st Dept], Iv denied 92 NY2d 804 [1998] (when parties have . entered into a contract, unless a party can show a separate duty, “independent of the mere contract obligation,” no fiduciary relationship is established); compare Mandelblatt v Devon Stores, Inc., 132 AD2d 162, 163 [lst Dept 1987] (breach of fiduciary duty for disparaging the employer was found to be separate and distinct from the former employee’s alleged failure to perform his duties under the contract) with William Kaufman Org, 269 AD2d at 173 (“[h]ere, there is no such distinction. Indeed, the cause of action for breach of contract refers … to the unethical conduct described in the … breach of fiduciary duty”); see also MBIA Ins. Corp. v Countrywide Home Loans, Inc., 87 AD3d 287, 293 [1st Dept 2011] (“[u]nlike a misrepresentation of future intent to perform, a misrepresentation of present facts is collateral to the contract … and therefore involves a separate breach of duty”); Brooks v Key Trust Co. Nat. Ass’n,26 AD3d 628, 809 NYS2d 270, 272-73 (3d Dept 2006) (in order to survive a motion to dismiss, a claim for breach of fiduciary duty must “set[ ] forth allegations that, apart from the terms of the contract, the parties created a relationship of higher trust than would arise from , [their contracts] alone” [emphasis added])). ”

“However, though an attorney-client relationship is unique and may create duties independent of the contract, the focus for the purposes of analyzing the claims’ overlap must be on the “essence of the claims” – in other words, the manner in which the duties were alleged to have been violated, and the alleged harm flowing from any violation (Johnson v Proskauer Rose LLP, 129 AD3d 59, 70 [1st Dept 2015]). Claims are duplicative where they arise from the same facts and seek the same damages for each alleged breach (Amcan Holdings, Inc. v Can. Imperial Bank of Commerce, 70 AD3d 423, 426 [1st Dept 2010]; see e.g., Chowaiki, 115 AD3d at 600-01 (dismissing duplicative claim because it was premised upon the same facts and sought identical damages, return of the excessive fees paid); Shaub and Williams, L.L.P. v Augme Tech., Inc., 13 CIV. 1101GBD,2014 WL 625390, at *3 [SDNY Feb. 14, 2014] (“Defendant’s breach of fiduciary duty and breach of implied duty of goog faith a:nd fair dealing counterclaims arise out of the same set of alleged excessive billing practices [and seek the same damages] as Defendant’s breach of contract counterclaim); Morgan, Lewis & Bockius LLP v IBuyDigital. com, Inc., 14 Misc 3d 1224(A) [Sup Ct NY County 2007] (counterclaim alleging that law firm breached its fiduciary duty by failing to abide by engagement letter’s express promise duplicated breach of contract counterclaim premised on the same letter)). Evert the presence of distinct fraud and nonfraud components that seemingly differentiate claims does not preclude dismissal when the claims allege “virtually identical” facts, theories, and damages (NYAHSA Services, Inc. v People Care Inc., 141 AD3d 785 [3d Dept 2016]). There is no appreciable difference between the disputed causes of action here. The breach of contract claim seeks damages pursuant to improper and fraudulent billing, misappropriation of a retainer, “conflict of interest-ridden advice,” and misrepresentation of skills, experience, and ability (Amended Answer ii 63). In nearly identical language, including allegations of fraud, the breach of fiduciary duty counterclaim seeks damages pursuant to “fraudulent conduct by failing to disclose … a conflict of interest,” fraudulent billing, and retainer malfeasance (Amended  Answer ¶ 67). “