Opinion
# 2014-015-483 Claim No. 120373 Motion No. M-84379
03-03-2014
VIRGINIA BOOTH, as administrator for the Estate of DANA BOOTH, deceased v. THE STATE OF NEW YORK
Law Offices of Elmer Robert Keach, III, PC By: Elmer Robert Keach, III, Esquire Leventhal & Klein, LLP By: Jason Leventhal, Esquire and Brett H. Klein, Esquire Honorable Eric T. Schneiderman, Attorney General By: Belinda A. Wagner, Esquire Assistant Attorney General, No Appearance
Synopsis
Motion for imposition of a charging lien was granted.
Case information
| UID: | 2014-015-483 |
| Claimant(s): | VIRGINIA BOOTH, as administrator for the Estate of DANA BOOTH, deceased |
| Claimant short name: | BOOTH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120373 |
| Motion number(s): | M-84379 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Law Offices of Elmer Robert Keach, III, PC By: Elmer Robert Keach, III, Esquire Leventhal & Klein, LLP By: Jason Leventhal, Esquire and Brett H. Klein, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Belinda A. Wagner, Esquire Assistant Attorney General, No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | March 3, 2014 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant's counsel, Elmer Robert Keach, III, PC, moves by Order To Show Cause to be relieved as counsel for the claimant and for the imposition of a charging lien pursuant to Judiciary Law § 475.
The instant claim was filed on behalf of Virginia Booth as administrator of the estate of Dana Booth seeking damages for the alleged negligence of the Department of Corrections and Community Supervision in failing to timely summon medical assistance for the decedent, a prison inmate at Eastern Correctional Facility, following an asthma attack. Although the Law Offices of Elmer Robert Keach, III, PC was not retained by formal agreement with the claimant, there is no dispute that he was requested by the law firm of Leventhal and Klein, LLP, to serve as co-counsel and both law firms appear on the claim as counsel for the claimant.
Mr. Keach states that after litigating the case for two years, and performing substantially all of the work, he became concerned regarding the lack of a written fee agreement and repeatedly advised the Leventhal firm that he wanted a retainer agreement signed by the claimant. With the trial scheduled for Monday October 7, 2013, Mr. Keach e-mailed the Leventhal firm and insisted upon a retainer agreement with the claimant (Keach's Exhibit S). Mr. Leventhal responded on Thursday, October 3, 2013, as follows:
"We should do an addendum to our retainer adding you as an attorney to share in the 1/3 attorney fee with Leventhal & Klein, LLP. The division of the fee between the attorneys will be agreed upon by the attorneys at the conclusion of the respective litigations" (id.).
Having no assurance that he would be adequately compensated for his work in this matter, Mr. Keach refused Mr. Leventhal's proposed addendum deferring the division of the fee until after the conclusion of the litigation and called claimant directly to inform her of the situation. According to Mr. Keach, he informed the claimant that he had "done all of the substantive work on her case (and was doing all of the substantive preparation for trial), that [he] had been demanding the provision of a fee agreement from [his] co-counsel over the course of several months, that [he] was ethically required to have such a fee agreement, and that [he] wanted her to sign a retainer agreement and fee agreement with [him] on the Monday before trial" (Keach's affirmation dated November 8, 2013, ¶ 9). According to Mr. Keach, the claimant refused to sign such an agreement and was "confused and upset regarding the entire situation" (id.).
By letter to the Court dated October 4, 2013, sent by fax after the close of business, the Leventhal firm advised the Court as follows: "Mr. Keach and my firm have developed irreconcilable differences which prevent us from working as co-counsel, and which culminated in Mr. Keach's discharge - with Ms. Booth's authorization - late this afternoon. As Mr. Keach was claimant's lead trial counsel for next week's trial, we hereby request a continuance" (Keach's Exhibit U). Both Mr. Keach and members of the Leventhal firm appeared for trial on Monday, October 7, 2013, together with the claimant, and advised the Court that Mr. Keach had been discharged. The request for an adjournment of the trial was granted and the instant application followed.
Mr. Keach avers that he performed substantially all of the work on the case, including drafting the claim, preparing and reviewing discovery materials, attending 16 examinations before trial over a course of seven days and preparing and serving various trial subpoenas in preparation for trial. According to Mr. Keach, the only work performed by the Leventhal firm consisted of representing the claimant at her examination before trial and participating in a few telephone conferences regarding the claim. In addition, Mr. Keach states that he paid all of the litigation expenses, which total $10,332.62.
While the Leventhal firm does not oppose Mr. Keach's application to withdraw as counsel for the claimant, it does oppose his request for the imposition of a charging lien. In this regard both Messrs. Leventhal and Klein aver that from the time of Mr. Keach's engagement it was verbally agreed "that the attorneys would account for their time expended in this litigation, and at the conclusion of the proceedings, the attorneys would agree on a division of fees between Mr. Keach and Leventhal and Klein based on the proportionate share of the legal work performed by each attorney, as well as on the fact that Leventhal & Klein was Claimant Booth's retained counsel, supervising and directing the litigation" (Klein affirmation, ¶ 8; see also Leventhal affirmation ¶ 5). They contend that Mr. Keach's demands for his own retainer agreement with the claimant were unreasonable and improper in light of their agreement to share attorneys' fee, albeit in only an unspecified proportion at the conclusion of the case. Leventhal and Klein contend further that Mr. Keach's conduct in calling the claimant in an attempt to secure a retainer agreement from her directly was misconduct warranting the denial of Mr. Keach's application for a charging lien. In this regard Leventhal and Klein indicate, based upon information provided to them by the claimant (see Booth's affidavit, ¶ 9), that Mr. Keach falsely stated:
"that he had done all of the work involved with her claim, that Leventhal & Klein were not competent to represent Ms. Booth as they had done no work for Ms. Booth, and that he needed Ms. Booth to sign his retainer agreement. Ms. Booth further informed me that Mr. Keach told her that my firm was not returning his telephone calls and emails, which, as evidenced by the emails that were exchanged on the previous day, is a blatant lie" (Klein affirmation, ¶ 26).
Citing the Rules of Professional Conduct (22 NYCRR 1200.0) rule 8.4 (c) prohibiting a lawyer from engaging "in conduct involving dishonesty, fraud, deceit or misrepresentation," Leventhal and Klein contend that Mr. Keach's request for a charging lien should be denied.
A lawyer may withdraw from representing a client if "the lawyer's inability to work with co-counsel indicates that the best interest of the client likely will be served by withdrawal" (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16 [c] [8]). Given the acrimony between co-counsel in the instant matter, withdrawal is clearly appropriate. Moreover, it is well-settled that a client has "an absolute right, at any time, with or without cause, to terminate the attorney-client relationship by discharging the attorney" (Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 43 [1990]; Jacobson v Sassower, 66 NY2d 991, 993 [1985] ). In her affidavit the claimant indicates that she terminated the attorney-client relationship with the Law Offices of Elmer Robert Keach, III, PC. Thus, movant's application to withdraw as counsel for the claimant is granted, on the conditions set forth below.
Mr. Keach also seeks to establish a charging lien with respect to his expenses and services previously rendered in this matter. A charging lien comes into existence upon commencement of the action pursuant to Judiciary Law § 475 (City of Troy v Capital Dist. Sports, 305 AD2d 715, 716 [3d Dept 2003]; Matter of Dresner v State of New York, 242 AD2d 627, 628 [2d Dept 1997], lv granted 91 NY2d 807 [1998], appeal dismissed 91 NY2d 1001 [1998]). A charging lien "is a vested property right created by law" which gives the attorney an equitable ownership interest in his or her client's cause of action (LMWT Realty Corp. v Davis Agency, 85 NY2d 462, 467 [1995]). Thus, the lien attaches to any judgment or settlement reached in favor of the former client and is therefore contingent upon a successful outcome in the case (id.; Schneider, Kleinick, Weitz, Damashek & Shoot v City of New York, 302 AD2d 183, 188 [1st Dept 2002]; Butler, Fitzgerald & Potter v Gelmin, 235 AD2d 218, 219 [1st Dept 1997]). A charging lien may be applicable not only in cases in which the attorney is discharged, but where he or she justifiably withdraws (Delaj v Jameson, 51 AD3d 450, 451 [1st Dept 2008], lv dismissed 11 NY3d 816 [2008]; Matter of Lambrou v Lambrou, 252 AD2d 797, 798 [3d Dept 1998]). "Where the discharge is without cause, the attorney may recover the reasonable value of his or her services in quantum meruit"(Schultz v Hughes, 109 AD3d 895, 896 [2d Dept 2013]). Conversely, where the discharge is for cause, the attorney forfeits his or her fee and is not entitled to a charging lien (id.).
Inasmuch as the circumstances giving rise to the instant application, as set forth above, establish Mr. Keach's withdrawal is justified, the burden shifted to the claimant to establish that her discharge of Keach was for cause (De Luccia v Village of Monroe, 180 AD2d 897, 899 [3d Dept 1992]). "A determination that an attorney was discharged for cause may be based on negligence or misconduct, such as substantial delay in prosecuting an action or interference with a client's attempts to settle a case" (Wiggins v Kopko, 105 AD3d 1132, 1134 [3d Dept 2013]). Neither a general dissatisfaction nor inconsequential mistakes warrant the conclusion that the discharge was for cause so as to require forfeiture of the fee (id., Matter of Wapner, Koplovitz & Futerfas v Solomon, 7 AD3d 914, 916 [3d Dept 2004]; De Luccia v Village of Monroe, 180 AD2d at 899). Here, it is undisputed that the relationship between co-counsel became increasingly hostile as Mr. Keach's work on the case increased and his efforts to obtain a retainer agreement remained unfulfilled. In the Court's view, this is not the type of conduct warranting a discharge for cause or forfeiture of the fee. Nor did his telephone call to the claimant regarding his desire for a retainer agreement constitute misconduct so as to warrant forfeiture of his fee. Notably, although Mr. Keach's representation of the claimant without a letter of engagement or written retainer agreement was imprudent and a violation of 22 NYCRR 1215.1, the failure to comply with this rule does not preclude him from recovering legal fees (Notrica v North Hills Holding Co., LLC, 105 AD3d 826 [2d Dept 2013]; see also Seth Rubenstein, P.C. v Ganea, 41 AD3d 54, 60-64 [2d Dept 2007]).
Accordingly, movant's application to withdraw as counsel for the claimant and for the imposition of a charging lien for the fair and reasonable amount of services rendered and expenses incurred in this litigation is granted. Insufficient documentary evidence has been submitted, however, to enable the Court to determine the reasonableness of the amount of the lien sought (see generally Jacobson v Sassower, 66 NY2d 991 [1985]; Matter of Wapner, Koplovitz & Futerfas v Solomon, 7 AD3d 914 [3d Dept 2004]; Kahn v Kahn, 186 AD2d 719 [2d Dept 1992]). Accordingly, in the event of a recovery by the claimant, a hearing to determine the amount of Mr. Keach's charging lien will be scheduled.
The Law Offices of Elmer Robert Keach, III, PC, having submitted sufficient evidence that service of the order to show cause, together with supporting papers, was effected on both the claimant and all counsel of record, it is hereby
ORDERED, that upon compliance with the conditions hereinafter set forth, movant's application to withdraw as counsel for the claimant and for the imposition of a charging lien is granted; and it is further
ORDERED, that within fifteen (15) days of the filing of this Decision and Order, withdrawing counsel shall provide the law firm of Leventhal & Klein, LLP, with claimant's file, if he has not already done so, by personal delivery or certified mail, return receipt requested. Counsel shall thereafter file an affidavit of compliance with the Clerk of the Court and, it is further
ORDERED that the movant shall be relieved as counsel for claimant upon receipt of the affidavit of compliance in the Office of the Clerk of the Court of Claims.
March 3, 2014
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Order to show cause dated December 15, 2013;
Affirmation of Elmer Robert Keach III dated November 8, 2013 with exhibits;
Affidavit of Maria Dyson sworn to November 8, 2013;
Supplemental Affirmation of Elmer Robert Keach, III dated December 3, 2013with exhibits;
Memorandum of Law of Jason Leventhal dated January 16, 2014;
Affirmation of Jason Leventhal dated January 16, 2014 with exhibits;
Affirmation of Brett H. Klein dated January 16, 2014 with exhibits;
Affidavit of Virginia Booth sworn to January 16, 2014
Reply affirmation of Elmer Robert Keach, III dated January 21, 2014 with exhibits;
Supplemental affidavit of Maria Dyson sworn to January 21, 2014;
Affirmation of Sarmili Saha dated January 24, 2014.