It is a frequent trope in the legal malpractice world that LM claims are made reflexively in order to avoid payment of attorney fees.  While that might actually happen, our anecdotal examination finds that most legal malpractice claims are well considered, and are generally meritorious. The same is not necessarily true of Judiciary Law 487 claims after the Court of Appeals decided Amalfitano v Rosenberg  12 NY3d 8,   February 12, 2009 Read, J.  Court of Appeals.  Lin Shi v Alexandratos
2016 NY Slip Op 01560 [137 AD3d 451]  March 3, 2016  Appellate Division, First Department provides an example.  This is a residential real estate sales contract which never closed.  The Court had to decide whether purchaser had waited too long to try to cancel.  In the swirl, purchaser asserted a claim for JL 487 against the escrow holder.  It was summarily dismissed.

“The residential contract of sale entered into between plaintiff and defendants Panagis Alexandratos and Carol Alexandratos provided that, if plaintiff did not receive a commitment for a first mortgage loan from an institutional lender on or before the “Commitment Date,” he “may cancel this contract by giving Notice to Seller within 5 business days after the Commitment Date.” It is undisputed that plaintiff failed to give the Alexandratoses notice of cancellation within five business days after the date on which the extension period he had requested and been granted expired. Plaintiff’s argument that the mortgage contingency clauses of the contract constituted a condition precedent to his purchase of the Alexandratoses’ house is belied by the contract language and by plaintiff’s own conduct in requesting an extension of the mortgage contingency date before the initial 60-day “Commitment Date” term expired (see Regal Realty Servs., LLC v 2590 Frisby, LLC, 62 AD3d 498 [1st Dept 2009]).

Plaintiff’s equitable restitution cause of action is barred by the existence of the contract of sale (see IIG Capital LLC v Archipelago, L.L.C., 36 AD3d 401, 404-405 [1st Dept 2007]).

Plaintiff’s causes of action against defendant Triades for breach of fiduciary duty and violation of Judiciary Law § 487 were correctly dismissed since documentary evidence established that Triades, as escrow agent, handled the down payment in accordance with the contract’s escrow terms (see Carter Fin. Corp. v Atlantic Med. Mgt., 268 AD2d 233 [1st Dept 2000], lv denied 94 NY2d 764 [2000]). We have considered plaintiff’s remaining arguments and find them unavailing. Concur—Tom, J.P., Saxe, Richter and Kapnick, JJ.”

Attorney fee litigation takes up the larger part of all litigation involving attorneys as parties, and it almost always revolves around hourly billing.  There are few cases involving contingent fee cases.  Hourly rate billing principles include “account stated” which posits that regularly tendered invoices for services rendered to the client where the client either signed off on the invoices or failed to timely object to them constitutes “acceptance” of the invoices, and precludes an argument that they are in any fashion incorrect.

Wand, Powers & Goody, LLP v Yuliano  2016 NY Slip Op 07946  Decided on November 23, 2016  Appellate Division, Second Department shows us one defense to the “account stated” principle.  “The Supreme Court should have denied that branch of the plaintiff’s motion which was for summary judgment on the complaint. The plaintiff demonstrated its prima facie entitlement to judgment as a matter of law on the complaint by establishing that it regularly tendered invoices for services rendered to the defendant and that the defendant either signed off on the invoices or failed to timely object to them (see Landa v Blocker, 87 AD3d 719, 721). Nonetheless, in opposition, the defendant submitted an affidavit in which she asserted that she only signed the invoices because she was told that, if she did not sign, no work would be done on her case. This assertion was sufficient to raise a triable issue of fact as to whether the defendant acquiesced in the correctness of the invoices (see id. at 721).”

The statute of limitations is a strong and almost impermeable defense…when there is adequate proof that the attorney-client relationship actually ended.  Here, in  Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A.  2016 NY Slip Op 07916  Decided on November 23, 2016  Appellate Division, Second Department the proof was lacking and the case goes on.

“The plaintiff and another entity, Land Settlement, LLC, retained the defendant law firm to represent them in their efforts to recover funds loaned to a real estate developer, which were secured by a mortgage on certain real property in New Jersey, after the developer defaulted in repaying the loan. Another mortgagee of the same property then commenced a foreclosure action against the developer in 2009, naming the plaintiff and Land Settlement, LLC, as junior lienors. The resulting judgment in the foreclosure action effectively extinguished the mortgage lien of the plaintiff and Land Settlement, LLC.

On September 11, 2014, the plaintiff commenced this legal malpractice action against the defendant to recover the loan amount, alleging that in an answer filed by the defendant on May 27, 2009, on behalf of the plaintiff and Land Settlement, LLC, in the foreclosure action, the defendant erroneously made certain concessions and failed to raise meritorious defenses to foreclosure. The defendant thereafter moved pursuant to CPLR 3211(a) to dismiss the complaint, contending, inter alia, that the action was time-barred by the three-year statute of limitations applicable to legal malpractice actions. The defendant contended that it continued to represent the plaintiff in the foreclosure matter only until August 18, 2011, when it sent a letter to an attorney and principal of Land Settlement, LLC, in which it turned over the litigation file in the foreclosure action [*2]to him and asked him to execute and file with the court a substitution of attorney in that action. The plaintiff opposed the motion by arguing that there was no indication that the August 18, 2011, correspondence was ever sent to it. Rather, the plaintiff maintained that the defendant’s legal representation of its interests continued until at least March 7, 2012, when the defendant wrote to the plaintiff’s president requesting that the plaintiff execute a substitution of attorney relieving it from representing the plaintiff in the foreclosure action.”

“A claim to recover damages for legal malpractice accrues at the time the malpractice is committed (see Shumsky v Eisenstein, 96 NY2d 164, 166; Farage v Ehrenberg, 124 AD3d 159, 164). However, pursuant to the doctrine of continuous representation, the time within which to sue on the claim is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates (see Farage v Ehrenberg, 124 AD3d at 164). Here, the defendant satisfied its initial burden on its motion to dismiss the complaint as time-barred by establishing that more than three years had elapsed between the commission of the alleged malpractice and the commencement of this action on September 11, 2014 (see Singh v Edelstein, 103 AD3d 873, 874; DeStaso v Condon Resnick, LLP, 90 AD3d 809, 812). The burden then shifted to the plaintiff to raise a question of fact, inter alia, as to whether the action was timely under the continuous representation doctrine. Contrary to the Supreme Court’s determination, the plaintiff satisfied this burden by raising a question of fact as to whether any notice of the defendant’s termination of the attorney-client relationship was communicated to it prior to March 7, 2012 (see generally Shumsky v Eisenstein, 96 NY2d at 171). Although the defendant contends that the parties’ relationship terminated at the time it sent the August 18, 2011, letter and the case file to another attorney, it submitted no affidavit from a person with personal knowledge or documentary evidence establishing that notice of the cessation of the attorney-client relationship was given to the plaintiff. Moreover, the letter dated March 7, 2012, sent by the defendant to the plaintiff requesting that the plaintiff execute a substitution of attorney relieving the defendant from representing it in the foreclosure action suggests that the legal representation continued until that date. Accordingly, the Supreme Court erred in dismissing the complaint as time-barred.”

With a throwaway line that plaintiff also brought claims against “the attorneys”, Homapour v Harounian  2016 NY Slip Op 31408(U)  July 21, 2016  Supreme Court, New York County Docket Number: 653795/2015  Judge: Eileen Bransten goes on to discuss when a receiver should be appointed in a litigation.

“This is an action brought by Mehrnaz Nancy Homapour against her brother, Defendant Mark Harounian, and sixteen family-held limited liability companies (“Family LLCs”) 1 , of which Homapour and Harounian are each members. Homapour alleges that Mark Harounian mismanaged the Family LLCs to further his own interest. As a result, at the commencement of this litigation, Homapour filed the instant motion for the appointment of a receiver. Defendant Harounian opposes. For the reasons that follow, Homapour’ s motion is denied. ”

“After commencing the instant action, asserting a sole claim for a formal accounting, Defendants purportedly allowed Homapour access to records for the years 2013, 2014, and 2015 for the purpose of conducting an audit. Id. iii! 71-72. Through this audit, Plaintiff purportedly learned that Harounian was giving himself distributions from the LLCs’ accounts in the guise of commissions and personal expenditures. Id. iii! 83- l 01. Harounian also allegedly performed a cash-out refinancing of one of the LL Cs – United Fifth, LLC – and wrote himself a check for the proceeds without providing a distribution to any of the other members of United Fifth, LLC, including Plaintiff. Id. iii! 80-82. Homapour then amended her complaint to add Harounian and certain LLCs created by Harounian as defendants, as well as her father, sister, and sister-in-law. In addition, Homapour brings claims against the Family LLCs’ attorney and accountant. In addition to expanding the number of defendants, Homapour likewise added to the number of claims, which now number thirteen. Seven claims are asserted against Harounian: breach of fiduciary duty; waste; conversion; unjust enrichment; fraud/fraudulent inducement; constructive trust; and, accounting. Claims for breach of fiduciary duty, aiding and abetting breach of fiduciary duty, and injunction are brought against the lawyer, while Plaintiff asserts aiding and abetting breach of fiduciary duty and professional negligence against the accountant. ”

“CPLR § 6401(a) provides for the appointment of a temporary receiver where “[ u ]pon motion of a person having an apparent interest in property which is the subject of an action . . . where there is danger that the property will be removed from the state, or lost, materially injured or destroyed.” “It is well recognized that courts of equity exercise extreme caution in appointing receivers pendente lite because such appointment results in the taking and withholding of possession of property from a party without an adjudication on the merits.” Hahn v. Garay, 54 A.D.2d 629, 630-31 (1st Dep’t 1976). Therefore, appointment of a temporary receiver requires a showing by clear and convincing evidence of the danger of irreparable loss or damage. See McBrien v. Murphy, 156 A.D.2d 140, 140 (1st Dep’t 1989). No such showing is made here. While Plaintiff highlights certain distributions to and expenditures made by Harounian, her displeasure with Harounian’s compensation and her belief that “he admittedly will not stop” do not demonstrate by clear and convincing evidence that the assets of the Family LLCs are in danger of waste, dissipation or disappearance. In re Armienti, 309 A.D.2d 659, 661 (1st Dep’t 2003). Instead, her allegations, if proven, may support her claims in the litigation3 but do not mandate the immediate wresting of the corporation from Harounian’ s control for the pendency of the litigation. Notably, Plaintiff does not challenge Harounian’s assertion that the Family LLCs are profitable, going concerns; instead, Homapour asserts that the profitability of the LLCs is no bar to the imposition of a temporary receiver. However, in this instance, the unchallenged solvency of the corporations and the fact that the compensation at issue has been in effect for several years strongly detracts from Plaintiff’s argument that Harounian’s alleged financial diversions “pose[] an immediate danger to the Companies’ well-being.” (Reply Br. at 12); see Martin v. Donghia Associates, Inc., 73 A.D.2d 898, 898 (1st Dep ‘t 1980) (determining that “it is unnecessary at this time to appoint a receiver for this profitable, on-going business”); see also B.D. & F. Realty Corp. v. Lerner, 232 A.D.2d 346, 346 (1st Dep’t 1996) (affirming denial of receiver application where “the value of the realty itself provides security and the property still generates income”). “

It takes a lawyer and an accountant to make a mess that basically stupefies the mind and court.  Attorney agrees to defend an accountant in a malpractice setting and barters the fees for accounting work. (Red flag?)  Later, the accountant, who works for a big firm takes on the attorney as a “private client” in violation of the partnership agreement.  Bad so far?  It gets far worse.  Accountant fills out income tax returns for the attorney and tells it to wire the tax payments to the accountant’s account.  Does the money go to the firm, and then to the IRS?  No.  Close to $1 Million goes to the accountant and is stolen.  Is there a malpractice claim against the accounting firm?

Targum v Citrin Cooperman & Co., LLP  2016 NY Slip Op 31628(U)  August 25, 2016   Supreme Court, New York County  Docket Number: 650665/2014  Judge: Saliann Scarpulla starts to move toward decision and then backs off.

“It is well established that before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to the plaintiff. In the absence of duty, there is no breach and without a breach there is no liability.” See Pulka v Edelman, 40 NY2d 781, 782 (1976) (internal citations omitted). An accountant owes a duty “to the party contracting for the accountant’s services,” see William Jselin & Co., Inc. v Landau, 71 NY2d 420, 425 (1988),4 but “accountants do not have a duty to the public at large.” Parrot v Coopers & Lybrand, L.L.P., 263 AD2d 316, 319 (1st Dept 2000), aff’d 95 NY2d 479 (2000). Similarly, an accountant-client relationship is a necessary element to the Targum plaintiffs’ fiduciary duty claim. See Tai v Superior Vending, LLC, 20 AD3d 520, 521 (2d Dept 2005). Thus, the Targum plaintiffs’ negligence claims, as well as its claim for breach of fiduciary duty, depend entirely upon a finding that the Targum plaintiffs were Citrin clients.

Citrin has submitted substantial evidence to show that it did not have an accountant-client relationship with the Targum plaintiffs. Unlike other Citrin clients, Citrin did not have an engagement agreement with the Targum plaintiffs. No invoices were ever issued by Citrin to the Targum plaintiffs,5 and Targum never paid Citrin for any of Weber’s accounting services.6 Further, it is undisputed that the Targum/Weber barter agreement was solely between Targum and Weber. Weber himself states that Citrin had nothing at all to do with his barter agreement with Targum, and that Targum knew that Weber was working individually for the Targum plaintiffs, not in his capacity as a partner of Citrin. Finally, the only person who worked on the Targum plaintiffs tax returns was Weber. In opposition, the Targum plaintiffs submit the generic Citrin memos they allegedly received, which were addressed to “Our Clients.”7 The Targum plaintiffs also submit some of the tax returns Weber prepared for the Targum plaintiffs which contain Citrin’s name on them, as well as a screen shot showing that Lester reviewed the returns for a length of time of 0:00. 8 Finally, the Targum plaintiffs’ note that their tax notices were mailed to Citrin. This evidence, though underwhelming, at best, is sufficient to warrant an exchange of discovery as to whether there was an accountant-client relationship between Citrin and the Targum plaintiffs. Accordingly, although I originally determined to convert this motion to a summary judgment motion, I decline at this time to dismiss the Targum plaintiffs’ negligence, breach of fiduciary duty, professional negligence, and negligent supervision claims. Instead, I direct the parties to exchange discovery related to whether or not the Targum plaintiffs were clients of Citrin, and invite the parties to remake their summary judgment motions at the close of discovery. “

Attorneys and attorney fees inhabit such a large portion of the legal malpractice universe, and indeed the legal practice universe itself, that it is a tautology to say that attorney fees are always the subject of attorneys’ attention.

The story in Matter of Ginsburg 2016 NY Slip Op 07733 Decided on November 17, 2016  Appellate Division, Third Department starts with a suicide, one of many at this particular bridge over a gorge in Ithaca by a Cornell freshman.  The case then devolved into a fight over legal fees and claims of violation of Judiciary Law § 487.

“On February 17, 2010, Bradley Marc Ginsburg (hereinafter decedent), then a freshman at respondent Cornell University in Tompkins County, jumped to his death from the Thurston Avenue Bridge — one of several bridges extending across the gorges located on or near Cornell’s campus. The bridge in question, which spans Falls Creek Gorge and connects two portions of Cornell’s campus, is owned by respondent City of Ithaca. Petitioner, who is both decedent’s father and an attorney licensed to practice in this state, was granted letters of administration in May 2011 and thereafter retained respondent Leland T. Williams as counsel for the estate. In late 2011, Williams commenced an action upon petitioner’s behalf against, among others, Cornell and [*2]the City of Ithaca in the United States District Court for the Northern District of New York. The complaint set forth 14 causes of action sounding in, among other things, wrongful death and premises liability and sought damages in the amount of $180 million, including $12 million in punitive damages.

After District Court dismissed the punitive damages claim and all claims against those Cornell representatives or employees named in their individual capacities, petitioner terminated Williams’ representation and retained respondent McCallion & Associates, LLP (hereinafter the firm) as counsel ^[FN1]. Thereafter, Kenneth F. McCallion (hereinafter McCallion) — a principal therein — entered into settlement negotiations with Cornell and the City of Ithaca upon petitioner’s behalf. After much discussion, the parties devised a proposed settlement of the wrongful death claim — specifically, that petitioner would accept a monetary sum from the City of Ithaca and, as to Cornell, would agree that a scholarship would be established in decedent’s name ^[FN2]. While McCallion was not opposed to this resolution, he advised petitioner via email that, “[b]efore [he] sign[ed] onto any settlement proposal,” petitioner and the firm would need to “reach an understanding as to the allocation of any settlement funds” — namely, that “the balance of the net cash component of the settlement,” then anticipated to be $200,000, would be allocated to the firm as counsel fees. In response, petitioner advised District Court that he, in his capacity as co-counsel, would be handling all further negotiations, and McCallion was excluded from the settlement conferences that followed.”

“In September 2014, petitioner entered into stipulations of settlement with Cornell and the City of Ithaca resolving the wrongful death claim. Specifically, the City of Ithaca agreed to pay $100,000 in settlement of the District Court action against it, and Cornell agreed to establish a perpetual scholarship in memory of decedent. Although documentation in the record reflects that such scholarship, if funded by a private donor, would have required an endowment of approximately $1.6 million, the stipulation of settlement provided that the scholarship would be established “using existing financial aid funds” and, inasmuch as Cornell was neither “allocating any new money” to the scholarship nor otherwise making any payment to petitioner, the scholarship itself had “no monetary value” — except to the student recipients thereof. District Court thereafter signed off on the respective stipulations of settlement.

In November 2014, petitioner sought leave in Surrogate’s Court to compromise the wrongful death claim against Cornell and the City of Ithaca. In conjunction therewith, petitioner asked that both Williams and the firm (hereinafter collectively referred to as respondents) be denied counsel fees — essentially contending that Williams and McCallion each had engaged in conduct that was contrary to the interests of the estate. Respondents opposed petitioner’s requests and cross-moved to, among other things, disapprove the settlement agreements and sanction petitioner in accordance with Judiciary Law § 487.”

“Rather, as Surrogate’s Court appropriately found, petitioner — in his representative capacity as the administrator of decedent’s estate — received in settlement from Cornell only the sentimental, “symbolic or moral value” of the scholarship established in decedent’s name. As the scholarship itself clearly was not an asset of decedent’s estate, Surrogate’s Court did not abuse its discretion in computing respondents’ respective counsel fees based solely upon the $100,000 monetary settlement received from the City of Ithaca. To hold otherwise not only would ignore the plain language of the stipulation of settlement with Cornell but, further, would misconstrue the nature of the scholarship itself by assigning — to decedent’s estate — a monetary value or benefit that exists only with respect to the scholarship’s actual recipients. Adopting respondents’ valuation analysis also would obligate decedent’s estate, which ultimately received less than $4,000 in settlement proceeds and otherwise is devoid of assets, to pay a six-figure bill for counsel fees — a result that hardly can be characterized as reasonable, equitable or just. Respondents’ remaining contentions, to the extent that they do not lie outside the jurisdiction of Surrogate’s Court in the first instance (see SCPA 201), have been examined and found to be lacking in merit.”

Breslin v Raich, Ende, Malter & Co., LLP 2016 NY Slip Op 32015(U) July 25, 2016 Surrogate’s Court, Nassau County Docket Number: 290592J Judge: Margaret C. Reilly is the story of a really, really big estate and how multiple professionals are said to have committed professional negligence.

“Robert Frankel (the decedent) died on April 21, 1995, survived by his wife, Adele Frankel-Loeb, and three adult children, Wendy Frankel, Richard Frankel and Lynn Frankel Fleetwood (Wendy, Richard and Lynn, collectively, the objectants). Under the terms of decedent’s will, each of the objectants is a beneficiary under Article III of the will and a beneficiary of 1/3 of decedent’s residuary estate. Prior to his death, the decedent owned a chain of stores and was a real estate investor and manager. The decedent and Breslin jointly owned a number of real estate ventures, and had personally and jointly guaranteed related bank debt of approximately $100,000,000.00. At the time of the decedent’s death, some of these ventures were in financial distress. Shortly after the death of the decedent, an arrangement was reached among the preliminary executors of the decedent’s estate, Gerald Deutsch, Stephen Levy, Breslin, and the decedent’s children, whereby Breslin’s family purchased control over a portion of the decedent’s assets, and reserved the right to acquire the remaining assets for $2,500,000.00 (the Weary Option). Pursuant to this agreement, on December 11, 1995, Breslin was appointed as successor executor of the estate, taking over management of the real estate ventures that previously had been jointly owned by Breslin and the decedent, as well as the decedent’s assets and properties. On September 12, 2012, Breslin filed a judicial accounting in which he sought settlement of his account, approval of legal fees, and his release and discharge, individually and as successor executor. The account shows total principal charges of $18,510,068.89 and income charges of $6,813,228.50, with total income of $5,478,074.46 on hand as of March 31, 2010.”

“Breslin hired Tenzer in 1995, when Tenzer was associated with a prior accounting firm, and continued to utilize Tenzer’s services after Tenzer joined Raich Ende as a principal and accountant in 2002, pursuant to a retainer letter, dated November 7, 2002. The defendants, among other services, were to prepare a final accounting for the Frankel estate. On February 22, 2012, the defendants produced the accounting, which covered the period from April 21, 1995 through March 31, 2010.”

“[M]alpractice in the statutory sense describesthe negligence of a professional toward the person for whom he rendered a service . . . an action for malpractice springs from the correlative rights and duties assumed by the parties through the relationship” (Cubito v Kreisberg, 69 AD2d 738, 742 [2d Dept 1979]). A plaintiff seeking to recover damages for legal malpractice must “show that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney’s breach of this duty caused the plaintiff to suffer actual and ascertainable damages” (Gaskin v Harris, 98 AD3d 941, 942 [2d Dept 2012] [citations omitted]). In Breslin’s complaint, he states that the defendants were retained “to perform a variety of accounting, audit, tax, and consulting services with regard to Breslin’s role as both a major creditor and Successor Executor of the Frankel Estate.” Breslin asserts that “for many years prior to December 1995, Tenzer had already provided substantial legal, accounting and tax services to Breslin . . .” and that “Tenzer repeatedly induced Breslin to repose an extremely high degree of trust and confidence in Tenzer with respect to numerous legal, tax and accounting matters . . . .” In his claim for legal malpractice, Breslin asserts that Tenzer breached his “duty to exercise due professional care and to render reasonable and competent legal advice and legal services . . . .  The court finds that the plaintiff’s complaint states a cause of action. The defendants’ motion to dismiss the cause of action for legal malpractice is DENIED. ”

Analogy is a familiar tool in legal analysis.  An analogy to legal malpractice insurance coverage law helps to understand the holding in Matter of Neuberger Berman Trust Co., N.A.  2016 NY Slip Op 32277(U)  November 10, 2016  Surrogates’s Court, New York County  Docket Number: 1983-0735 D Judge: Nora S. Anderson.

One of the more prominently litigated features of legal malpractice insurance is the “notice” issue.  Attorneys are required, under their policies, to notify the carrier at the earliest possible opportunity about a claim, and even about a potential claim.  Carriers have successfully declined and avoided coverage based upon “late notice.”

In this case, the law firm wishes to avoid disclosing certain documents, and claims them to be “work-product” prepared in contemplation of litigation.  They say that as soon as a possible error became known, they were on notice, and everything created after that date is privileged.

“Decedent Irma Croll died in 2001. In her will, she named NB and Schlesinger as coexecutors of her estate; NB and Schlesinger were also co-trustees of her IV trust. HGG served as counsel to NB and Schlesinger in the administration of the estate and the trust. By letter dated December 9, 2011, counsel for three of the trust beneficiaries informed NB that the Generation Skipping Transfer (“GST”) tax may have been incorrectly calculated on the federal estate tax return filed in 2003, resulting in a tax overpayment. After confirming that the estate had overpaid its taxes by $2.9 million, NB commenced the Supreme Court action transferred here against HGG and Schlesinger’s estate. While not disputing the tax error, HGG moved to dismiss NB’s malpractice claim as time-barred. Meanwhile, NB petitioned for judicial settlement of its accounts as co-executor and as co-trustee. When Schlesinger died on April 24, 2012, the fiduciary of his estate petitioned for judicial settlement of Schlesinger’s account as cotrustee.”

“Third, HGG argues that it is not required to produce documents created after December 9, 2011, because, on that date, counsel for the beneficiaries first raised concerns over the GST tax, at which point HGG “became the object of a potential malpractice claim.” HGG asserts that all documents created after that date constitute work-product prepared in anticipation oflitigation. NB counters that HGG cannot reasonably have anticipated litigation simply based on the letter from beneficiaries’ counsel, which merely requested an explanation as to how the tax was calculated and noted their inability to “reconcile the numbers.” NB asserts that it was not until May 2012, when NB and HGG received another letter from the beneficiaries’ counsel pointing to the incorrect GST calculation and directing NB and HGG to preserve all relevant documents, that HGG had a reasonable basis for anticipating litigation. In support of its claim that HGG was still acting as its counsel during March and April of 2012, NB submits e-mails between NB and HGG during that time regarding the tax calculation. However, those e-mails merely demonstrate a joint effort to respond to the beneficiaries’ inquiry and do not necessarily lead to the conclusion that HGG was still representing NB. After receiving the first letter from beneficiaries’ counsel, HGG could have reasonably anticipated that it might be subject to liability on the tax issue. Therefore, the court cannot discount the possibility that an otherwise responsive document generated after December 9, 2011, might be deemed privileged. The court directs HGG to produce all documents and ESI that are either responsive to the subpoena duces tecum or subject to the court’s 2015 order. To the extent that HGG withholds any document on the ground that it is privileged, it must submit a privilege log containing the identifying information set forth in CPLR 3122(b ). ”