Summary
refusing to award any attorney compensation on quantum meruit basis because attorney did not produce time records or work product
Summary of this case from Mar Oil, S.A. v. MorrisseyOpinion
October 27, 1988
Appeal from the Supreme Court, Warren County (Mercure, J.).
Plaintiffs hired Andrew F. Capoccia and Andrew F. Capoccia, P.C., to represent them in the underlying action and paid $5,000 pursuant to a retainer agreement. Joseph Cardamone, an associate of Capoccia, handled plaintiffs' file. After this court suspended Capoccia for conduct unrelated to this case (see, Matter of Capoccia, 107 A.D.2d 888, lv denied 64 N.Y.2d 606), plaintiffs requested that Capoccia and Cardamone return their file, submit a bill for services and refund the balance of the $5,000 retainer. Plaintiffs never received any response. Capoccia moved for permission to withdraw as counsel, which Supreme Court granted without prejudice to an application to determine his fee. After securing new counsel, plaintiffs moved to set the fee ( 22 NYCRR 806.9 [b]) and to have Capoccia produce their file. Supreme Court ordered the production of the file and a hearing on the fee. The file apparently has not been produced.
Our references to Capoccia are to him individually and his professional corporation.
At the hearing, it was undisputed that Capoccia performed some work on the underlying action. Plaintiff Suzanne Potts testified that meetings were held with Capoccia and Cardamone and that some pleadings were prepared and served. Cardamone testified that he spent 60 to 70 hours on the case, but did not produce any time sheets or work product. There was no testimony concerning Capoccia's or Cardamone's experience or reputation, the result accomplished, plaintiffs' benefit from the services performed or the fees customarily charged for similar work. On this record, Supreme Court determined that Capoccia failed to satisfy his burden of establishing the value of the legal services performed. Thus, Supreme Court ordered Capoccia to return the $5,000 retainer to plaintiffs.
A suspended attorney is entitled to recover on a quantum meruit basis for services performed prior to suspension ( 22 NYCRR 806.9 [b]). Generally, an attorney seeking counsel fees must establish the value of his services (see, Marine Midland Bank v. Roberts, 102 Misc.2d 903, 905) by showing such factors as the time and skill required, the matter's complexity, his experience, ability and reputation, the client's benefit from the services and the fee usually charged by other attorneys for similar services (see, e.g., Matter of Smith, 131 A.D.2d 913, 914; Matter of Gutchess, 117 A.D.2d 852, 854, lv denied 68 N.Y.2d 609). Some courts, though, have set counsel fees on an incomplete record based on the courts' own assessment of the value of the attorney's services (see, e.g., Jordan v. Freeman, 40 A.D.2d 656, 657). Thus, any fee must reflect the value of the services performed.
In this case, Supreme Court's determination that Capoccia failed to satisfy his burden was proper. As described by Supreme Court, there is insufficient evidence as to the value of Capoccia's services. Furthermore, it is difficult to perceive what value plaintiffs received from Capoccia's work. Although the action was commenced by Capoccia, the file has apparently been lost and, without the records, correspondence, pleadings and other work product in the file, plaintiffs' new counsel must essentially begin anew. Under such circumstances, we agree that plaintiffs are entitled to have the $5,000 retainer returned to them.
Finally, we reject Capoccia's argument that the judgment as against the professional corporation is improper because plaintiffs' notice of motion to set the fee referred only to Capoccia individually and the order is against the "attorney". It is apparent from the record, especially the hearing testimony, that the participants understood that the compensation due Capoccia individually and his professional corporation, both of which are clearly enumerated on the letter specifying the retainer agreement, was at issue.
Order and judgment affirmed, without costs. Mahoney, P.J., Kane, Casey, Weiss and Levine, JJ., concur.