Legal Malpractice

Account Stated Meets Legal Malpractice and a Change in the Rules

By (Andrew Lavoott Bluestone)

The rules concerning fee-sharing, and the precision of detail which must be given to a client. have changed.    Now, one must be precise in the percentages between attorneys, lest a violation of the rule lead to the Court denying attorney fees at a later stage of the proceedings.

In Lapidus & Associates LLP v. Elizabeth Street Inc., 601955/05;Decided: November 4, 2009;Decided on November 4, 2009 ;Supreme Court, New York County ;Goodman, J.  we see he difference between the old rule and the new:

"Defendants also contend that the account stated has been impeached because Lapidus engaged in an unethical and undisclosed fee-sharing agreement with Fass that violates DR 2-107 (A). DR 2-107(A) provides:

"(A) A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of the lawyer's law firm, unless:

(1) The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made. [*6]

(2) The division is in proportion to the services performed by each lawyer or, by a writing given the client, each lawyer assumes joint responsibility for the representation.[FN6]

(3) The total fee of the lawyers does not exceed reasonable compensation for all legal services they rendered the client."

Defendants argue that in the Dencorp Matter, the facts suggest that Fass was being paid less than he was being billed to defendants. This conclusion is based on Fass's deposition testimony that he was paid $273.00 per hour from plaintiff. The submitted invoices demonstrate, and it is undisputed, that plaintiff billed Reiver $390.00 per hour for Fass's work, including for his communications with Lapidus. "

"With the adoption of the Rules of Professional Conduct (the Rules) in April of this year, New York is now among the states that wisely require that the percentage fee split be disclosed to [*7]a client (see section 1.5 [g] [2] of the Rules). However, representation in this action occurred in 2003-2005, when the Code, and specifically DR 2-107, did not so state, and was not interpreted as requiring such detailed disclosure.[FN8] In instances, such as here, where all of the involved attorneys worked on the case, the court has uncovered no New York authority or expert commentary suggesting that attorneys are required to provide the level of disclosure for which defendants advocate. In fact, according to an expert commentator, DR 2-107 was intended to address referral situations, prevent unreasonable fees to a client and to ensure that the client was made aware of the identities of attorneys working on his or her case and there has never been a controversy as to fee sharing where a lawyer works on a case (Simon, New York Code of Professional Responsibility Annotated, at 402-405 [2007 ed]; see also Lapidus & Associates, LLP v Reiver, 2008 WL 909670, 2008 NY Misc LEXIS 2577 [Sup Ct, NY County 2008] [discussing DR 2-107 extensively]).

The retainer letter submitted by defendants indicates that more than one firm would be working on the case, and identifies the attorneys that would be working on the matter. As payments were to be made only to the plaintiff law firm, and defendants do not contend that it was their understanding that any of the involved attorneys or firms would not receive payment, the only reasonable inference to be drawn is that the attorneys or firms working on the case would be sharing in the fees paid by plaintiff. While defendants may have benefitted from knowing the percentage split, DR 2-107 has not been interpreted to require this level of disclosure.

Concerning the proportionality requirement of DR 2-107, in fee-splitting disputes between attorneys, the Court of Appeals has stated that "courts will not inquire into the precise worth of the services performed by the" attorneys (see Benjamin v Koeppel, 85 NY2d 549, 556 [1995]). Defendants argue that courts should employ greater scrutiny when, as here, the dispute is between an attorney and a client. But defendants also effectively suggest that each attorney should be paid just what was billed to the client for his or her work, but, as discussed extensively in the Dencorp Matter, fee-sharing arrangements where one attorney receives a larger cut than others are not prohibited under the Code.

Finally, "fee forfeitures are disfavored" (Benjamin, 85 NY2d at 553), and "the courts are especially skeptical of efforts by clients or customers to use public policy as a sword for personal gain rather than a shield for the public good'' (id. [citation and internal quotation marks omitted]). While a more expansive interpretation of the DR 2-107 would perhaps permit defendants to avoid paying their legal fees, defendants do not make persuasive arguments as to why the interpretation they seek is justified. Consequently, while the court is pleased that the Code has been changed in a way that may benefit some clients, defendants present no basis for a finding [*8]that plaintiff's fee sharing agreement violates DR 2-107. "

Full post as published by New York Attorney Malpractice Blog on December 03, 2009 (boomark / email).