Opinion
40512/03.
Decided May 3, 2009.
Plaintiff's attorneys, the law firm of Samuel Associates, P.C. (hereinafter the movant), moves for an order setting the amount of compensation and disbursements to be paid to Eugene Castro, a disbarred attorney.
The affidavit of service of the instant motion alleges service to three parties, namely, the plaintiff; Eugene Castro and the law firm of Gannon, Rosenfarb Moskowitz. No one appeared or submitted opposition to the motion.
Plaintiff commenced an action for personal injuries she allegedly sustained on April 30, 2003, in a slip and fall incident allegedly due to defendant's negligence.
MOTION PAPERS
The movant submitted an affirmation of Violet E. Samuels, a member of their firm, and three annexed exhibits. The first exhibit is the underlying summons and complaint. The second exhibit is plaintiff's verified response to defendants demand for a bill of particulars. Both exhibits reflect that the papers were prepared by Castro and Associates, P.C. The third exhibit is an affidavit of Lloyd Berns in which he states, among other things, that he was a partner in the firm of Berns Castro, that he was not a partner in the firm of Castro Associates, P.C. and that he has no interest in the proceeds of the instant case.
APPLICABLE LAW
Judiciary Law § 475. Attorney's lien in action, special or other proceeding. From the commencement of an action, special or other proceeding in any court or before any state, municipal or federal department, except a department of labor, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, judgment or final order in his client's favor, and the proceeds thereof in whatever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment, final order or determination. The court upon the petition of the client or attorney may determine and enforce the lien.
22 NYCRR 691.10(b) provides as follows:
A disbarred, suspended or resigned attorney may not share in any fee for legal services performed by another attorney during the period of his removal from the bar. A disbarred, suspended or resigned attorney may be compensated on a quantum meruit basis for legal services rendered and disbursements incurred by him prior to the effective date of the disbarment or suspension order or of his resignation. The amount and manner of payment of such compensation and recoverable disbursements shall be fixed by the court on the application of either the disbarred, suspended or resigned attorney or the new attorney, on notice to the other as well as on notice to the client.
DISCUSSION
Under the rules of the four appellate divisions, a disbarred or suspended attorney may not share in any fee for legal services performed by another attorney during the period of his or her removal from the bar, but may, upon application to the court, be compensated on a quantum meruit basis for legal services rendered and disbursements incurred prior to the effective date of the disbarment or suspension order ( New York Jurisprudence, Second Edition § 221, Suspension or disbarment of attorney). 22 NYCRR 691.10(b) is the Appellate Division Rule for the Second Department applicable to the case at bar.
"The relationship between client and lawyer is such that the client may discharge the attorney at any time with or without cause, while the lawyer may withdraw only for good reason. Where the attorney is discharged for cause or withdraws without reason, he forfeits his fee. The converse is also true, however, that he is entitled to be paid when discharged without cause or he withdraws with sufficient reason" ( Schwartz v. Jones, 58 Misc 2d 998 [N.Y.Sup. 1969]).
The affirmation of the movant sets forth the following facts. Plaintiff was first represented by the firm of Berns Castro which later changed to Castro Associates, P.C. The firm of Castro and Associates, P.C. filed the summons and complaint, responded to defendant's discovery demands, exchanged plaintiff's medical records and attended the preliminary conference and compliance conference. Eugene Castro owns the firm. On January 9, 2007, the movants were substituted for Castro and Associates, P.C. as plaintiff's counsel. On October 2, 2008 the underlying personal injury action settled for ten thousand dollars ($10,000.00).
The movant's supporting papers leaves many question unanswered. The movants seek an order fixing Eugene Castro's share from the settlement proceeds. The movants at one point in the affirmation suggest a fee of $1,489.69 consisting of $1,534.69 in attorney's fees and $684.00 in disbursements. At another point they suggest an award of $2,173.69. The figures are inexplicably inconsistent and unsupported.
The affidavit of service of the instant motion reflects service on Eugene Castro, on the law firm of Gannon, Rosenfarb Moskowitz, and on the plaintiff. The plaintiff's annexed response to defendant's demand for a bill of particulars is addressed to the law office of Steven G. Fauth, as attorneys for the defendant. There is nothing explaining why service was made on Gannon, Rosenfarb Moskowitz instead of Seven G. Fauth.
The movant does not explain when and why the plaintiff terminated the legal services of Eugene Castro. When a client discharges an attorney without cause, the attorney is entitled to recover in quantum meruit the fair and reasonable value of the services rendered, whether that be more or less than the amount provided for in the retainer agreement ( Shalom Toy v Each Every One of Members of NY Prop. Ins. Underwriting Assn., 239 AD2d 196 [1st Dept 1997] citing Lai Ling Cheng v. Modansky Leasing Corp., 73 NY2d 454, 457-458). However, "[w]here the discharge is for cause, the attorney has no right to compensation or a retaining lien, notwithstanding a specific retainer agreement ( Shalom Toy, supra citing Campagnola v. Mulholland, Minion Roe, 76 NY2d 38, 44).
The movant does not state the effective date or the reasons for Eugene Castro's disbarment. There is nothing to indicate whether the termination of Eugene Castro's representation of the plaintiff and his disbarment are independent or related events. In particular, an attorney who is disbarred based on misconduct related to the representation of the client has no right to payment of fees, see ( Schwartz v. Tenenbaum, 7 AD2d 866 [2nd Dept 1959]).
In the absence of any of this information, the court cannot determine whether Eugene Castro may properly receive any compensation at all. In fact the motion papers do not contain sufficient information to warrant a hearing. The application is therefore denied without prejudice. The foregoing constitutes the decision and order of the court