Opinion
151471/2017
08-01-2018
Sheryl MENKES, Plaintiff, v. BALLARD SPAHR LLP and John B. Harris, Defendants.
David Grossman & Associates, PLLC, 143 Main Street, Huntington, NY 11743 By: DAVID CRAIG GROSSMAN, Esq., Attorney for Plaintiff 1675 Broadway, 19th Floor, New York, NY 10019 By: JULIAN WALTER FRIEDMAN, Esq., Attorney for Defendants
David Grossman & Associates, PLLC, 143 Main Street, Huntington, NY 11743 By: DAVID CRAIG GROSSMAN, Esq., Attorney for Plaintiff
1675 Broadway, 19th Floor, New York, NY 10019 By: JULIAN WALTER FRIEDMAN, Esq., Attorney for Defendants
Robert R. Reed, J.
Plaintiff, Sheryl Menkes ("Menkes"), a lawyer, sues her former attorneys, Ballard Spahr LLP ("Spahr") and John B. Harris ("Harris"), for legal malpractice, negligence and breach of contract. Defendants now move, pursuant to CPLR 3124, to compel discovery. Menkes opposes, arguing the cost of production is burdensome and should be borne — at least in part — by defendants. Menkes, in addition, cross-moves to 1) serve a supplemental summons and amended complaint; 2) add a claim for improper and excessive billing; 3) disqualify Spahr from serving as counsel for itself, pro se , and Harris, and 4) dismiss the defendants first, second and fourth counterclaims. Defendants oppose.
DISQUALIFICATION
Menkes moves to disqualify Spahr from representing both itself, pro se , and Harris, who is Of Counsel to Spahr, alleging there is an unwaivable conflict of interest. Menkes alleges that this simultaneous representation is improper, pursuant to the Rules of Professional Conduct, because one may need to be a witness against the other, thus creating a conflict of interest. In opposition, Spahr and Harris assert that there is no conflict of interest between them, as they have no claims adverse to one another, and, ultimately, they have an identical interest in their desire to defend against Menkes' legal malpractice claims and to recover any legal fees. Additionally, defendants argue that the Rules of Professional Conduct expressly allow for the type of dual representation here as Harris is Of Counsel to Spahr (see Rule 1.13[d] of the Rules of Professional Conduct providing that "a lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7"). Finally, defendants waive any alleged conflict of interest in the dual representation.
While the Rules of Professional Conduct generally prohibit a lawyer from simultaneously representing clients with differing interests, an attorney may represent such clients where a disinterested lawyer would believe that the lawyer can competently represent the interest of each client and where each consents to the representation after full disclosure of the implications of simultaneous representation as well as the advantages and risks involved (see Rules of Professional Conduct [ 22 NYCRR 1200.0 ] rule 1.7[b]; see also Ferolito v. Vultaggio , 99 AD3d 19 ). As represented in their opposition papers, Spahr and Harris have similar interests, in that they are both defending against the same legal malpractice claim and they both desire that plaintiff pays the disputed legal fees. It is not objectively unreasonable to believe that the same attorney can adequately represent these parties under these circumstances. Moreover, the Rules of Professional Conduct permit dual representation of an organization and any of its directors, officers, employees, members, shareholders or other constituents (see Rules of Professional Conduct [ 22 NYCRR 1200.0 ] rule 1.13[d] ). Here, Spahr and Harris affirmatively consent to the dual representation, waiving any alleged conflict. Accordingly, the motion to disqualify Spahr as counsel for both itself, pro se , and Harris is denied.
AMENDED COMPLAINT
Menkes also moves to serve a supplemental summons and amended complaint. In general, leave to amend pleadings, pursuant to CPLR 3025(b), should be liberally granted where there is neither undue prejudice nor unfair surprise. Permitting leave to amend is a discretionary function of the trial court and should be freely granted "absent a showing that the facts supporting the amendment do not support the purported claim or claims" (see Loewentheil v. White Knight, LTD. , 71 AD3d 581 ) (internal quotation omitted). Here, Menkes seeks leave to add a cause of action for improper and/or excessive legal fees, which is separate and apart from the other causes of action (see Cherry Hill Market Corp. v. Cozen O'Connor P.C. , 118 AD3d 514 [holding that plaintiffs' third cause of action, alleging that defendants breached their fiduciary duty because they either collected and/or billed plaintiffs for excessive and/or unearned fees, should not have been dismissed as duplicative of the malpractice causes of action] ). Accordingly, plaintiff is granted leave to serve a supplemental summons and amended complaint to add the improper and/or excessive fee cause of action.
Accordingly, it is hereby
ORDERED that plaintiff's cross-motion to the extent that movant seeks leave to serve a supplemental summons and amended complaint is granted; and it is further
ORDERED that plaintiff's supplemental summons and amended complaint, in the proposed form annexed to the motion papers, shall be deemed served upon service of a copy of this order with notice of entry upon all parties who have appeared in the action; and it is further
ORDERED that plaintiff is directed to serve a copy of this order with notice of entry on the Clerk of the Trial Support Office, in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases ; and it is further
ORDERED that plaintiff's cross-motion, to the extent that it seeks to disqualify Spahr from representing both itself and Harris, is denied; and it is further
ORDERED that plaintiff's cross-motion, to the extent that it seeks to dismiss the first, second and fourth counterclaims, is denied as moot in light of the order granting leave to serve a supplemental summons and amended complaint; and it is further
ORDERED that defendant's motion seeking discovery is denied as moot in light of the order granting leave to serve a supplemental summons and amended complaint; and it is further
ORDERED that defendants shall answer the amended complaint or otherwise respond thereto within 20 days of said service; and it is further
ORDERED that all counsel are directed to appear for a preliminary conference in Part 43, Room 581 at 111 Centre Street, on Thursday, September 20, 2018 at 11:00 a.m.