Legal Malpractice

Fee Suits and Legal Malpractice Counterclaims - A Constant Duo

By (Andrew Lavoott Bluestone)

"The best defense is a strong offense"..."Tyranny shall not go unopposed!"  which of these two opposing story lines will succeed in a legal fee / legal malpractice case.  Here is one example where the fee side wins out.    Duane Morris LLP v Astor Holdings Inc. ,  2009 NY Slip Op 02544
Decided on April 2, 2009   Appellate Division, First Department  permits the attorneys to collect their fee, and the malpractice claims to die. 
 

"The record shows that in December 2003, each defendant signed an agreement with plaintiff, acknowledging that it owed plaintiff a certain sum of money for their legal representation and agreeing to pay it within a certain amount of time. Although defendants contend that there is a triable issue of fact as to whether these agreements were signed under duress, "[r]epudiation of an agreement on the ground that it was procured by duress requires a showing of both (1) a wrongful threat, and (2) the preclusion of the exercise of free will" (Fred Ehrlich, P.C. v Tullo, 274 AD2d 303, 304 [2000]).  The affidavit of defendants' principal, which claimed that he orally protested plaintiff's services, does not serve to defeat plaintiff's motion. A client's "self-serving, bald allegations of oral protests [a]re insufficient to raise a triable issue of fact as to the existence of an account stated" (Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000])

The part of defendants' malpractice counterclaim that dealt with the action against Edward Roski III was properly dismissed. "A legal malpractice action is unlikely to succeed when the attorney erred because an issue of law was unsettled or debatable" (Darby, 95 NY2d at 315 [internal quotation marks and citation omitted]). When the Southern District of New York found that some of Astor's claims in the Roski Action were barred, it noted that "there appears to be no federal authority directly on point" (Astor Holdings, Inc. v Roski, 325 F Supp 2d 251, 262 [SD NY 2003]), and relied on a California state case that was decided in 2002 (see id.), which was after the Roski action was filed...."

Full post as published by New York Attorney Malpractice Blog on April 07, 2009 (boomark / email).