Legal Malpractice

A Messy Criminal Conviction-Legal Malpractice Case

By (Andrew Lavoott Bluestone)

Plaintiff is arrested and retains attorneys to represent him.  Plaintiff bails himself out and uses the bail receipt to pay the attorneys.  At issue here is whether he endorsed the bail receipt over to the attorneys to cover a minimum fee, and whether pleading guilty is a "'disposition" or whether pleading guilty and being sentenced is necessary.  In any event, there can be no legal malpractice case since plaintiff cannot show "actual innocence".

 So, in Shields v Carbone ; 2010 NY Slip Op 08661 ;Decided on November 24, 2010 ; Appellate Division, Third Department we see:
 

"Supreme Court erred in ordering plaintiff to release bail proceeds directly to O & A. By statute, when bail is exonerated, it "shall . . . be refunded to the person who originally deposited such money," less statutory fees (General Municipal Law § 99-m [1]; see Balter v County of Wyoming, 70 AD2d 1051 [1979]). While a person who posts bail can assign the right to receive the bail proceeds, O & A did not provide proof of a perfected transaction between Carbone and O & A through which Carbone intended to vest in O & A a present right to his bail proceeds (cf. Zeman v Falconer Elecs., Inc., 55 AD3d 1240, 1241 [2008]; Mele v Travers, 293 AD2d 950, 951 [2002]). The retainer agreement provides that Carbone "agrees to sign the cash bail over to" O & A and Carbone did give O & A the original bail receipt, but there is no written assignment and Carbone did not endorse the bail receipt over to O & A. Without proof of an assignment, the court should have directed plaintiff to release the bail proceeds to Carbone, the original depositor of those funds (compare Herman v State of New York, 126 Misc 2d 1019, 1020-1022 [1984]).

Supreme Court did not need to address Carbone's cross motion to compel disclosure. O & A cross-moved for summary judgment only on its breach of contract cross claim against Carbone, and the disclosure at issue dealt with its quantum meruit claim. Disclosure was stayed pending a determination of the dispositive motions (see CPLR 3214 [b]), and the demanded disclosure was irrelevant to those motions. Thus, Carbone was not entitled to have its motion to [*4]compel determined prior to the court issuing the order that is on appeal (see CPLR 3212 [f]).

Supreme Court should not have granted O & A's cross motion for summary judgment against Carbone on its breach of contract cause of action. We disagree with Carbone's arguments that the retainer agreement is invalid or unenforceable. The agreement does not contain an illegal contingency fee or nonrefundable retainer, but instead includes a minimum fee, which is allowed by law (see Matter of Cooperman, 83 NY2d 465, 476 [1994]; Rules of Professional Conduct rule 1.5 [d] [1], [4] [22 NYCRR 1200.0]). Pursuant to the agreement, that fee is "to be paid at the time of the disposition of the case" if the firm obtained a "disposition or resolution." The agreement also contains information concerning hourly rates, which would apply if the firm was not involved in obtaining a disposition or resolution (such as if Carbone discharged O & A prior to a disposition). Here, O & A represented Carbone through the entry of a guilty plea to one count of the indictment in exchange for a negotiated sentence. Carbone discharged O & A after the plea, however, and retained new counsel prior to sentencing. The new counsel moved to withdraw the plea, then represented Carbone at sentencing. The phrase "disposition or resolution" is ambiguous, as it could refer to the guilty plea, which constitutes a conviction (see CPL 1.20 [13]), or the sentencing, which results in a judgment of conviction (see CPL 1.20 [15]). This ambiguity creates a question of fact concerning whether O & A obtained a "disposition or resolution" of Carbone's criminal case so as to entitle it to the minimum fee, or whether Carbone discharged the firm prior to a disposition or resolution such that O & A can only recover a fee on an hourly basis. Thus, further proceedings are necessary on O & A's breach of contract cause of action. "

Full post as published by New York Attorney Malpractice Blog on November 29, 2010 (boomark / email).