Legal Malpractice

Termination, Legal Malpractice and Quantum Meruit

By (Andrew Lavoott Bluestone)

There are some basic rules in legal malpractice litigation about fees.  One of these rules is that an attorney may be terminated at any time by the client, either for cause or without cause.  A corollary rule is that when an attorney is terminated for cause, he is due no compensation. 

That's a pretty stark rule, and admits of little wiggle room.  Nevertheless, in Felix v. Law Office of Thomas F. Liotti, 8395/07;Decided: October 28, 2009; Justice Ute Wolff Lally;NASSAU COUNTY
Supreme Court found a middle path.

"It has already been determined by the order of Justice Diamond dated June 30, 2008 that defendant failed to file a CPL 440 motion as promised in the retainer. Further, in said decision Justice Diamond stated that "the letters attached to defendant's motion to reargue as exhibits that were allegedly received from plaintiff do not indicate plaintiff's consent to ignore the filing of the CPL 440 motion that defendant was retained to prepare and submit to the court."

Plaintiff further claims that defendant failed to file the Nassau County appeal provided for in the Retainer Agreement. Defendant asserts that the Nassau County brief was filed before discharge and submits a copy of the brief showing a date of January 23, 2006 (Exh. F). However, said brief was not served upon the Nassau County District Attorney's office until March 1, 2006 and caused the District Attorney to cross-move the Appellate Division, 2nd Dept. for an order striking said brief as "filed by an attorney who does not represent defendant" (Exh. 7).

Plaintiff seeks a refund of $20,000.00 (see complaint, Exh. 5) arguing that defendant forfeited his entire fee due to his discharge for cause.

At trial plaintiff requested treble damages pursuant to Judiciary Law §487 claiming that defendant deceived this court and committed perjury in claiming to have filed a CPL 440 motion and thus forcing the court (Diamond, J.) to order the Kings County Supreme Court file (People v. Felix, No. 9425/98) and conduct an inspection of same and thereafter making a determination that plaintiff was correct in stating that no CPL 440 motion was filed by defendant. Since plaintiff failed to make such a demand in his pleadings the request is denied as untimely.

Based upon the testimony of plaintiff and defendant and the exhibits the court finds that defendant was discharged for cause on February 8, 2006, and that defendant attempted to file the Nassau County brief on March 1, 2006, although dated January 23, 2006, thirty-five days after discharge.

A client has the absolute right to discharge an attorney at any time with or without cause (Campagnola v. Mulholland, Minion & Roe, 76 NY2d 38; Byrne v. Leblond, 25 AD3D 640).

Where the discharge is without cause, the attorney is limited to recovering in quantum meruit the reasonable value of the services he rendered. However, if the discharge is for cause the attorney has no right to compensation, notwithstanding a retainer agreement (Cheng v. Modansky Leasing Co., Inc., 73 NY2d 454; Teichner v. W & J Holsteins, Inc., 64 NY2d 977; Crowley v. Wolf, 281 NY 59; In the Matter of Terijon Weitling, 266 NY 184).

Here the retainer agreement was for a flat fee. Notably, it specifically stated in paragraph 2: "It is understood that we are not entering into an hourly rate contract, and will not bill on such basis."

Although an attorney discharged for cause is not entitled to any fees, here plaintiff requested in his discharge notice that "all unearned funds be refunded to Rufina Felix promptly (Exh. 2).

Consequently, since the fee agreement had provided for a flat fee of $20,000.00 for two Appellate briefs and one CPL 440 motion, and defendant performed work for only one brief, plaintiff is entitled to a refund of two-thirds of said $20,000.00, to wit $13,333.34."

Full post as published by New York Attorney Malpractice Blog on November 18, 2009 (boomark / email).