Legal Malpractice

All your Questions on Attorney Fees and Legal Malpractice, Answered

By (Andrew Lavoott Bluestone)

Sometimes, the highest court in the State answers the questions, and sometimes its the lowly Civil Court.  In Kushner v Eliopulos ;2010 NY Slip Op 50798(U) ;Decided on May 3, 2010 ;Civil Court Of The City Of New York, Kings County ;Fisher, J. we see a comprehensive decision setting forth all aspects of attorney-client compensation.
 

"[Despite the fact that Defendants failed to sign the retainer agreement, there was an implied promise that Defendants would pay the costs for Plaintiff's legal services. Plaintiff proffered an agreement which the Defendants rejected. The absence of a signed written retainer agreement does not preclude the recovery of legal fees. Minz v. Gold, LLP v. Hart, 48 AD3d 526 (2nd Dept. 2008). An attorney who fails to obtain a written retainer agreement may recover the reasonable value of services rendered on a quantum meruit basis. Seth Rubenstein, PC v. Ganea, 41 AD3d 54 (2nd Dept. 2007); Volosevich v. Nunziata, 2008 NY Slip Op 51697U (NY Sup. Ct. 2008).
 

It is well established that a client may terminate his relationship with an attorney at any time with or without cause. Friedman v. Park Cake, Inc., 2006 NY Slip Op 8171 (1st Dep't 2006); Campagnola v. Mulholl, 76 NY2d 38 (1990). Defendants terminated Plaintiff on April 15, 2009. When an attorney is discharged for cause, the attorney has no right to compensation or a retaining lien, notwithstanding a specific retainer agreement. Id. When an attorney is discharged without cause, the attorney is limited to recovering in quantum meruit for the reasonable value of the services rendered. Id.

An attorney who is discharged without fault has an immediate right to recover the fair and reasonable value of the services rendered, determined at the time of discharge, and computed on the basis of quantum meruit, namely the value of the services. Cohen v. Grainger, Tesoriero & Bell, 81 NY2d 655 (1993); Lai Ling Cheng v. Modansky Leasing Co., 73 NY2d 454 (NY 1989); Reubenbaum v. B. & H. Express, Inc., 6 AD2d 47 (1st Dep't 1958); In re Estate of Montgomery, 272 NY 323 (1936). If a client exercises the right to discharge an attorney after some services are performed, but prior to the completion of the services for which the fee was agreed upon, the discharged attorney is entitled to recover compensation from the client measured by the fair and reasonable value of the completed services. Id. at 454; In re Cooperman, 83 NY2d 465 (1994). In general, factors to be considered include: (1) the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; (2) the lawyer's experience, ability, and reputation; (3) the amount involved and benefit resulting to the client from the services; (4) the customary fee charged for similar services; (5) the contingency or certainty of compensation; (6) the results obtained; and (7) the responsibility involved. Diaz v. Audi of Am., Inc., 2008 NY Slip Op 10118, 2 (2d Dep't 2008); Matter of Thompson, 2009 NY Slip Op 7855, 2 (2d Dep't 2009).

An attorney's alleged violation of a disciplinary rule does not, by itself, give rise to a private cause of action. Steinowitz v. Gambescia, 2009 NY Slip Op 51370U, 2 (NY App. Term 2009). However, in some cases conduct constituting a violation of a disciplinary rule may constitute evidence of malpractice. Steinowitz v. Gambescia, 2009 NY Slip Op 51370U, 2 (NY App. Term 2009). In legal malpractice actions the claimant must establish that "but for" the attorney's negligence the result of the prior case would have been more favorable. Carmel v. Lunney 70 NY2d 169 (1987); Lemke v Zurich N. Am., 2009 NY Slip Op 29545 (NY Misc. 2009). "
 

Full post as published by New York Attorney Malpractice Blog on May 10, 2010 (boomark / email).