Opinion
Nos. 02 MDL 1448 (RWS), 02 Civ. 4758 (RWS).
November 7, 2006
MEMORANDUM OPINION
This action has been settled, and the attorneys' fees have been escrowed pending a resolution of the dispute between Heriberto A. Cabrera, Esq. ("Cabrera"), counsel for Norma Camacho, the decedent's wife, and Slack Davis, L.L.P., counsel to the administrator of the estate, Paul Karan. At the hearing on May 24, 2006, affidavits were submitted and arguments were heard.
The facts are undisputed except as noted. Dr. Humberto Antonio Jimenez Blanco (the "Decedent") died in the crash of American Airlines Flight 587 on November 12, 2001. Cabrera was retained by the decedent's wife, Norma Camacho ("Ms. Camacho") on November 25, 2001 by an undated retainer agreement. Cabrera flew to the Dominican Republic to meet with Ms. Camacho and her in-laws, and according to her, pressured her to give money to her in-laws. She requested that he obtain permission from her before taking any action. According to Ms. Camacho, Cabrera failed to answer her calls and to communicate directly with her.
On December 17, 2001, Cabrera filed an action on Ms. Camacho's behalf in the United States District Court for the Eastern District of New York without advising Ms. Camacho. Ms. Camacho is not a resident of the United States and lacked standing to bring suit in the Eastern District.
Because Ms. Camacho believed Cabrera had communicated privileged information to her in-laws and Guillermo Dilone, an acquaintance of the Decedent, had not returned her calls, and had not obtained her permission to file the Eastern District action on February 7, 2002, Ms. Camacho by letter terminated the relationship with Cabrera.
On February 25, 2002, Ms. Camacho retained Howie Sweeney, L.L.P., and letters of administration were granted on January 24, 2003 to Paul Karan as Administrator of the Estate of Dr. Humberto Antonio Jimenez Blanco. Slack Davis filed an action on behalf of Ms. Camacho in the United States District Court for the Northern District of Texas, which was transferred to this Court on June 20, 2002.
This action was settled with the defendants.
On June 30, 2004, Cabrera wrote to Slack Davis, asserting a lien of one-third of the total amount of attorneys' fees. Cabrera reasserted his claim to a one-third lien on attorneys' fees in a letter to Ladd Sanger, Esq. of Slack Davis. The claim was reiterated in a submission to this Court on May 22, 2006. Because of this claim, the attorneys' fees were placed in escrow.
Although he has been requested to do so, Cabrera has not submitted any files, time sheets or documentation other than correspondence with Ms. Camacho in January 2002, a copy of the complaint, and an Advance Parole Petition submitted to the Immigration and Naturalization Service on February 8, 2002.
New York law permits attorneys to obtain a charging lien against a recovery as security for their services. The statute states in pertinent part that:
[F]rom the commencement of an action . . . the attorney who appears for a party has a lien upon his client's cause of action . . . which attaches to a verdict . . . judgment or final order in his client's favor, and the proceeds thereof in whatever hands they may come. . . . The court upon the petition of the client or attorney may determine and enforce the lien.
N.Y. Jud. Law § 475 (McKinney 2004).
In order to be entitled to a lien under New York Judiciary Law section 475, the attorney must appear for the client by "participating in a legal proceeding on the client's behalf or by having his name affixed to the pleadings, motions, records, briefs, or other papers submitted in the matter." Ebert v. New York City Health Hosps. Corp., 619 N.Y.S.2d 756 (N.Y.App. Div. 2d Dep't 1994) (citing Rodriguez v. City of New York, 66 N.Y.2d 825, 827 (N.Y. 1985)).
Although Cabrera filed a complaint on behalf of Ms. Camacho, she did not have standing to bring the case and was never appointed Administratrix of the Estate.
While a statutory charging lien exists at the commencement of an action, the lien only attaches when proceeds from an identifiable fund are created by an attorney's own efforts in the action or proceeding. See City of Troy v. Capital Dist. Sports, Inc., 759 N.Y.S.2d 795, 797 (N.Y.App.Div. 3d Dep't. 2003) (citing Banque Indosuez v. Sopwith Holdings Corp., 98 N.Y.2d 34, 43-44 (N.Y. 2002)); Surdam v. Marine Midland Bank N.A., 603 N.Y.S.2d 233, 234 (N.Y.App.Div. 3d Dep't. 1993);Dunn v. Bleeck, 286 N.Y.S. 402, 404 (N.Y.App.Div. 3d Dep't. 1936).
Although a statutory charging lien does not arise from mere preliminary legal services, Picciolo v. State, 732 N.Y.S.2d 60, 62 (N.Y.App.Div. 2d Dep't. 2001); Weq and Myers, P.C. v. Banesto Banking Corp., 572 N.Y.S.2d 321, 323 (N.Y.App.Div. 1st Dep't. 1991), Cabrera did advise Ms. Camacho of her rights, negotiated with her in-laws, prepared certain documents with respect to entry into the United States, and filed an action on her behalf. A reasonable value for these services is $15,000.
Cabrera has claimed expenditure for airline tickets and hotel reservations in connection with his representation, and Ms. Camacho has agreed to a disbursement in an amount of $2,000.
The escrow is to be terminated in accordance with this opinion.
It is so ordered.