Republic Western Insurance v. Spierer, Woodward, Willens, Denis & Furstman

Spierer was paid an attorney’s fee in advance of the work to be done, and disgorged it when a conflict of interest prevented him from doing the work. His counterclaim was an attempt to have his malpractice insurer pay him the attorney’s fee for the work he did not do, with interest. He lacked entitlement to the money. Also, his claim was barred by the statute of limitations, because he did not sue the insurance company until more than four years after his cause of action, if he had one, had accrued.

Facts.

First Energy Leasing Corporation (“FELC”) sold leases of an energy conservation device as tax shelters. It retained Spi-erer and his law firm (collectively “Spierer”) to render a tax opinion on the availability of federal income tax credits to potential lessees of the system. FELC paid Spierer $200,000 in exchange for Spierer’s promise to provide a legal defense of the tax opinion and to litigate a single “test case” if necessary. Spi-erer paid $35,000 of that amount to another lawyer specializing in tax matters. That left $165,000, the amount at issue in this appeal.

In the promotional materials sent by FELC to potential lessees, FELC represented that Spierer would provide…