Opinion
October 31, 1955.
On January 22, 1955, appellant sustained injuries as the result of defendants' alleged negligence. On January 26, 1955, respondent was retained as her attorney to recover damages for the injuries suffered. On April 14, 1955, appellant retained a new attorney. On May 10, 1955, an order was made substituting the new attorney for respondent, the amount of the latter's lien being referred to an official referee to hear and determine. On June 13, 1955, the Official Referee fixed respondent's lien at 12 1/2% of the recovery. On September 20, 1955, the action for personal injuries was settled. This is an appeal from the order of the Official Referee fixing respondent's lien. Order reversed, without costs, and matter remitted to the Official Referee to fix respondent's lien either in a specified dollar amount or as a percentage of the amount of the settlement. A client may discharge an attorney at any time, even without cause. In such event, the discharged attorney is entitled to be paid a fixed sum on a quantum meruit basis, despite the fact that his original retainer may have been on a contingent basis. ( Matter of Krooks, 257 N.Y. 329.) The lien of the discharged attorney may not be fixed on a percentage basis over objection. ( Martucci v. Brooklyn Children's Aid Soc., 284 N.Y. 408; Matter of Tillman, 259 N.Y. 133; Rich v. Railway Express Agency, 248 App. Div. 594; Matter of Korn [Cutler], 255 App. Div. 870.) Where the plaintiff is only a nominal appellant, and the dispute is between the discharged attorney and the new attorney, the discharged attorney may waive his right to have the amount of his lien fixed on a lump sum basis and may elect to have his lien fixed on a contingent percentage basis. ( Friedman v. Gordon, 260 App. Div. 1023, affd. 285 N.Y. 630; Taylor v. Hentschel Bros., 273 App. Div. 972. ) In such case, the proper practice is to compel the discharged attorney to elect, at the time the order for substitution is made, either to have his compensation then fixed at a specified amount or to have his fee fixed at a percentage basis at the conclusion of the case. ( Carroll v. Sertner, 280 App. Div. 859; Buckley v. Surface Transp. Corp., 277 App. Div. 224. ) Since the action for personal injuries has been settled, the amount and character of the work performed, and the contribution of each attorney, may now be more accurately ascertained and the services of each evaluated. Wenzel, Acting P.J., MacCrate, Schmidt, Beldock and Ughetta, JJ., concur.