Opinion
601955/05.
November 4, 2009.
In this case, plaintiff, Lapidus Associates, LLP, seeks recovery of $89,532.84 for attorneys' fees, costs and disbursements against defendants. Defendants have interposed a counterclaim, for excessive fees, for $175,000.
Plaintiff moves for an order, pursuant to CPLR 3212, granting summary judgment in its favor on its first, second and third causes of action, dismissing defendants' affirmative defenses and counterclaim and directing entry of judgment against defendants for $89,532.84 (seq 002). Defendants move, pursuant to CPLR 3124 and 3104, to compel discovery and to appoint a referee to manage discovery (seq 003).
In the complaint, plaintiff alleges that Reiver, on behalf of himself and defendants, retained plaintiff's predecessor as counsel. Plaintiff further alleges that it performed all of its obligations, and that defendants were regularly billed for legal services and made payments on the bills, but still owe plaintiff $89,532.84 for legal fees, costs and disbursements that, after demand, they have failed to pay. In the first cause of action, plaintiff alleges that it tendered an account stated to defendants, with a balance of $89,532.84, no part of which defendants objected to or paid, although demanded. In the second cause of action, plaintiff seeks $89,532.54 for what it states is the reasonable value of the legal services, costs and disbursements. In the third cause of action, plaintiff alleges that there is due and owing from defendants $89,532.84, representing the agreed value of legal services, costs and disbursements. In each of the three causes of action, plaintiff alleges that there is interest owed as of September 2, 2003.
In the Verified Answer and Counterclaim, dated June 22, 2005, defendants admit that they "hired plaintiff to perform certain legal services and pay reasonable legal fees and costs" (PI. Mov. Aff., Exh. 2, at 2). Defendants otherwise effectively deny all of the complaint allegations, and assert affirmative defenses of failure to state a cause of action, laches, waiver and estoppel. In their counterclaim, defendants allege that plaintiff breached its fiduciary duties to ethically, fairly and reasonably bill for its services, consistent with the Code of Professional Responsibility (the Code). Specifically, defendants allege that plaintiff's fees were excessive, it did not submit reasonable bills for its services, and that it overbilled. Defendants seek recovery of greater than $175,000 for what they allege were unreasonable, excessive legal fees and costs.
The summary judgment standards are well settled. The movant must establish the cause of action or defense by submitting evidentiary proof in admissible form '"sufficiently to warrant the court as a matter of law in directing judgment"' ( Zuckerman v City of New York, 49 NY2d 557, 562 (1980] [citation omitted]). Failure to do so "requires denial of the motion, regardless of the sufficiency of the opposing papers" ( Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). When such a showing has been made by the movant, then to defeat summary judgment "the opposing party must 'show facts sufficient to require a trial of any issue of fact' (CPLR 3212, subd [b])" ( Zuckerman, 49 NY2d at 562). On a summary judgment motion, the evidence must be viewed in a light most favorable to the nonmoving party ( Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931, 932).
As evidence to meet its burden as movant, plaintiff submits the affidavit of its principal, Steven R. Lapidus. Lapidus affirms that the first time he was made aware of defendants' unwillingness to pay plaintiff's bills was when defendants answered and made a malpractice allegation in a separate non-payment litigation that plaintiff brought against defendant Reiver and another, concerning a separate underlying litigation in which they were also represented by plaintiff (the Dencorp Matter). The underlying litigation in this matter (the Elizabeth Street Matter), involved a diverted partnership opportunity claim. There is no dispute that the Elizabeth Street Matter ended successfully for defendants.
The Dencorp Matter (Index No. 601954/05 [Sup Ct, NY County]) involved plaintiff's attempt to recover legal fees for representing defendants Reiver and Dencorp Investments, Inc. The complaint in the Dencorp Matter was filed on May 31, 2005. In the Dencorp Matter, the defendants moved for summary judgment dismissing the complaint, arguing that plaintiff should be required to forfeit its fees because it violated the Code. The motion was denied. The parties have agreed to join this case with the Dencorp Matter for discovery.
Plaintiff submits the affidavit of Josephine McFarlane concerning the preparation of the plaintiff's bills. McFarlane avers that monthly bills were mailed to the invoice address on the invoice billing date, with no bill that she sent to defendants ever returned. McFarlane also avers that she prepared the bills with time sheets provided to her by Lapidus, inputting the handwritten notes into a computer whenever he handed her a time sheet. McFarlane states that she generated a draft invoice on a monthly basis, that Lapidus reviewed thereafter, either instructing her to send the bill out, or to make changes that Lapidus also reviewed before mailing.
Plaintiff also submits copies of the invoices for the Elizabeth Street Matter, dated from October 2, 2003 through March 29, 2005, and a letter from Lapidus to Reiver requesting payment. The bills reflect that certain payments were made on the account, including a payment of $150,000 in December 2004. The last charges on the matter were included in an invoice dated March 1, 2005.
In opposition to the motion, defendants argue that the account stated should be impeached because (1) plaintiff's fees were unreasonable and it overcharged and double billed; (2) plaintiff did not keep adequate, original, contemporaneous time records; and (3) plaintiff failed to disclose an unethical fee sharing agreement among the attorneys who worked on the case. Defendants argue that this conduct violated 22 NYCRR 1200.21 (DR 2-107 [A] [1]) and 22 NYCRR 1200.46 (DR 9-102 [D] [9] and DR 9-102 [D] [10]). Defendants further argue that these violations preclude plaintiff from recovering legal fees, or raise a fact issue as to whether plaintiff's alleged failure to fully disclose its fee-sharing arrangement is a fraud or mistake sufficient to impeach the account stated. Defendants also argue that the motion should be denied because they have not had adequate discovery, with their efforts to obtain discovery hampered by plaintiff.
This court is mindful that, effective April 1, 2009, the Code was replaced by the Rules of Professional Conduct, but there is no dispute that the alleged violations were of the Code.
An account stated is an agreement to which parties have come "regarding the amount due on past transactions" ( Rodknson v Haecker, 248 NY 480, 485). The elements of the claim are: the existence of a debtor-creditor relationship, a mutual examination of the claims of the respective parties, the striking of a balance, and an express or implied agreement that the party against whom the balance is struck will pay the debt ( Bank of New York-Delaware v Santarelli, 128 Misc 2d 1003 [County Ct, Greene County [1985]; see Parker Chapin Flattau Klimpl v Daelen Corp., 59 AD2d 375 [1st Dept 1977]). An account stated claim concerns a debt owed independent of the original obligation ( Duane Reade v Cardinal Health, Inc., 21 AD3d 269 [1st Dept 2005], with the rationale for permitting a recovery that, through their conduct, the parties have demonstrated an agreement as to the balance of indebtedness ( see Interman Industrial Products v R. S. M. Electron Power, 37 NY2d 151, 153-154). Thus, a party who receives an account for services rendered and thereafter either fails to timely object to the account, or makes partial payments on it, will be bound on the account, unless fraud, mistake or other equitable considerations are shown to impeach what is otherwise presumed a conclusive settlement ( Morrison Cohen Singer and Weinstein, LLP v Waters, 13 AD3d 51 [1st Dept 2004] [either partial payment or retention of invoices without objection may give rise to an account stated]; Rosenman Colin Freund Lewis Cohen v Edelman, 160 AD2d 626 [1st Dept 1990], appeal denied 77 NY2d 802 [1991] [account stated where there was agreement to pay and failure to object within reasonable period of time]).
A party meets the initial burden of establishing entitlement to judgment as a matter of law on an account stated claim by showing that invoices were sent to a client using a regular office mailing procedure ( Morrison Cohen Singer Weinstein, LLP v Brophy, 19 AD3d 161, 162 [1st Dept 2005]) and "by establishing, with admissible evidence, the receipt and retention of bills without objection within a reasonable time" ( LD Exch. v Orion Telecom. Corp., 302 AD2d 565 [2d Dept 2003], or partial payment of bills ( Waters, 13 AD3d at 52). The burden then shifts to the defendant to prove fraud, mistake, or that it never accepted the account stated ( see Romeo v Bimco Indus., 57 AD2d 947 [2d Dept 1977]). Unsubstantiated, conclusory allegations that objections were made to bills and "bald conclusory allegations of fraud, mistake and other equitable considerations are insufficient to defeat a motion for summary judgment on an account stated"(Cohen Tauber Spievak Wagner, LLP v Alnwick, 33 AD3d 562, 562 [1st Dept 2006] [citation and internal quotation marks omitted]; see also Walter, Conston, Alexander Green, P.C. v Vintage Creations, Ltd., 203 AD2d 203 [1st Dept 1994] [unsubstantiated objection not sufficient to defeat summary judgment]).
The parties do not dispute that there is an attorney-client relationship, that plaintiff rendered services on the Elizabeth Street Matter to defendants, or that the invoices submitted here for services were periodically mailed to defendants throughout the underlying litigation, and retained by them without objection until the service of their answer in this case, in June of 2005, or in the Dencorp Matter, in which the complaint was filed on May 31, 2005. Defendants also made partial payment of $150,000 on the account, in December 2004, as well as two previous smaller payments. Accordingly, plaintiff has met its summary judgment burden on the account stated claim.
In opposition, defendants submit Reiver's affidavit, in which he avers that $160,243.75 has been paid on the invoices attached to plaintiff's moving papers, and that the balance is $89,532.84. Reiver further avers that he was not informed at any time that Lapidus and another attorney who worked on the underlying matter, Robert Fass, were sharing fees, or that they would not make and maintain original, contemporaneous time records to support their billing (Time Records), but that had he been so informed, he would not have engaged Lapidus or anyone associated with him.
Regarding plaintiff's record keeping, defendants maintain that if plaintiff did not keep original or contemporaneous Time Records in a medium wherein the document's image cannot be altered without detection, they have violated DR 9-102 (D) (9) and DR 9-102 (D) (10). Reiver contends that computer entries do not constitute Time Records because they can be altered without detection, and the source of the computer-generated documents does not exist. Defendants' argument is unpersuasive. DR 9-102, which primarily involves a lawyer's receipt and handling of client funds, does not require the preservation of an attorney's handwritten notes or time sheets, but only of bills ( see DR 9-102 [D] [5]). Defendants do not argue that plaintiff has not maintained photocopies of the bills.
Defendants argue that in the absence of Time Records to support the billing, the court will have to assess the reasonable value of the services provided in the underlying matter. Defendants maintain that this value was less than the $249,776.59 billed by plaintiff, because the underlying case involved a summary judgment motion and appeal alone, without extensive discovery. Defendants have not succeeded on their Time Records argument, however. They also ignore that "[w]here there is an account stated, it is unnecessary to separately establish the reasonableness of the fees" ( Tunick v Shaw, 45 AD3d 145, 149 [1st Dept 2007]).
Plaintiff's assertion that the reasonableness of a fee is "not challengeable" once an account has been stated is not accurate, as "[i]t is recognized that the courts possess the traditional authority to supervise the charging of fees for legal services under the courts' inherent and statutory power to regulate the practice of law [citation omitted]" ( Collier, Cohen, Crystal Bock v MacNamara, 237 AD2d 152, 152-153 [1st Dept 1997]). As discussed below, however, defendants' argument that the fees were unreasonable is unsupported.
Defendants' counsel also avers that he has attached a list of billing entries for 285.5 hours of services, for which plaintiff billed defendants $114,271, that are vague, appear repetitive, and for which plaintiff has failed to present documentation to clarify the meaning and reasonableness. The list of billing entries, apparently generated by defendants' counsel, is not admissible evidence. In any event, on an account stated, and "the creditor is not required to allege or prove all the details which gave rise to the debt" ( Chisholm-Ryder Co. v Sommer Sommer, 78 AD2d 143, 145 [4th Dept 1980]).
While defendants suggest that the charges were unreasonable and that there was double billing, they do not support this bald assertion with admissible evidence, but submit what appears to be their current attorney's compendium of billing charges and dates. Defendants also do not assert that they protested or objected to the bills, or to plaintiff's correspondence demanding payment. Reiver also does not dispute that he acknowledged in writing, to another attorney, that he intended to pay Lapidus the amount due him (Pl. Mov. Aff., Exh. F [Reiver letter to Meisel]). There is no explanation as to the great interval of silence between these occurrences and the unsubstantiated objections now raised. Having failed to timely protest the accounts, and having made partial payments on them, defendants may not with unsubstantiated, bald assertions protest and object to the bills here ( Shea Gould v Burr, 194 AD2d 369, 371 [1st Dept 1993] ["failure to object to the unitemized bill for a period of five months suffices to give rise to an account stated, especially in view of the partial payment made"]).
Defendants also argue that the bills for Fass's work were not submitted to them on a timely basis. The court agrees, and notes that the delay was as long as eight months, raising concerns as to the accuracy of the bills. However, defendants offer this objection at this late juncture in opposition to this motion and do not claim that they earlier protested the untimeliness.
Defendants argue that the court should order "plaintiff to produce original and contemporaneous time records to verify numerous charges of a dubious nature" (Def. Memo. of Law, at 10), but these assertions are without a specific supporting argument as to why any entry is of a dubious nature.
Defendants also argue that because of the fiduciary relationship inherent in the attorney-client relationship, "accounts may be rendered without reasonable expectation that they will be scrutinized before they are accepted" (Def. Memo. of Law, at 9, quoting Corr v Hoffman, 256 NY 254, 266 [involving accounts in a partnership dispute]). The law on accounts stated, well established in attorneys' fee recovery cases, is grounded on the premise that a client is required to object to bills within a reasonable time after receipt, or the law will generally conclude acceptance of them. Defendants' contention that there should be no reasonable expectation that a client will scrutinize an attorney's bill is unsupported, and would turn account stated law on its head.
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.
(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.
There is no contention here that the defendants were provided with a writing in which the involved attorneys assumed joint responsibility for the representation.
(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.
Defendants submit what they state was the retainer agreement for this action. That agreement states that Lapidus would be principal attorney representing Reiver on the underlying matter, together with Fass and Walter Goldsmith. The letter also advised Reiver that "other attorneys in our firms may assist in connection with matters relating to their respective fields of expertise" (Def. Op Aff., Exh. A [emphasis supplied]). The billing rates stated are from $390.00 to $395.00 hourly. Defendants argue that the retainer agreement does not fully disclose that one attorney was to receive a portion of the other's billable fees, and that what was disclosed therein was less than full, was materially misleading, and did not allow the client to assess its significance, making it meaningless.
While the retainer agreement states that it was for the Dencorp Matter, defendants submit it as the retainer agreement for this matter. The court deems this defendants' acknowledgment that there was no "significant change in the scope of services to be provided" when plaintiff provided litigation services to defendants in the Elizabeth Street Matter ( 22 NYCRR 1215.1).
Defendants state that if Lapidus or plaintiff received a portion of Fass's hourly billing, then when Lapidus and Fass were talking with one another, or jointly performing the same tasks, over the course of the underlying litigation, Lapidus would have received, in addition to his own billing fees, $43,176.30 of Fass's billing. Defendants argue that Lapidus and Fass should be required to disclose the full extent of their fee sharing arrangement, including producing all relevant documents to reveal whether plaintiff's conduct was in defendants' best interests, or predominantly for plaintiff's pecuniary gain. Defendants acknowledge that case law concerning disclosure of attorneys' fee-splitting arrangements does not reflect that the actual terms, or percentages of the split, must be disclosed to clients, but argue that these cases involve fee disputes between lawyers, with the client fully informed of the fee division. Defendants further contend that plaintiff's conduct denied them the opportunity to make an assessment as to the time and cost effectiveness of representation, which would have allowed them to determine the quality of the representation.
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 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. 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 Rules may be accessed electronically at: courts.state.ny.us/rules/jointappellate/NY Rules of Prof Conduct.pdf. The changes in disclosure requirements are discussed in Davis, Expert Analysis Professional Responsibility, FEES: NEW RULES AND NEW CASES, NYLJ, May 4, 2009, col 3. Another source of information on the changes is, Simon, Comparing the New NY Rules of Professional Conduct To the NY Code of Professional Responsibility, New York Professional Responsibility Report, which may be reviewed at www.nyprr.com/New-NY-Rules-of-Professional-Conduct.php.
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). 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 that plaintiff's fee sharing agreement violates DR 2-107.
Turning back to the invoices, whether a bill has been held for a sufficient time without objection sufficient to give rise to an inference of assent is a fact question, unless only one inference is possible ( Yannelli, Zevin Civardi v Sakol, 298 AD2d 579, 749 [2d Dept 2002]; see e.g. Shea Gould, 194 AD2d at 371 [finding client's failure to object to the unitemized bill for a period of five months gave rise to an account stated). For the invoices dated through December 31, 2004, the only inference possible is that an account was stated between the parties. In light of previous sporadic payment pattern evidenced by the invoices, and that no partial payment was made on the March 2005 invoice (#10331 for $1,896.00), the timeliness of defendants' objection remains a fact issue as to that invoice.
Defendants argue that summary judgment should be denied because discovery in this case has been hindered by plaintiff's combative and resistant attitude to requests to bring documents to depositions, and to questions posed, such that very little discovery concerning this matter has actually been conducted. The only discovery that defendants seek, however, relates to the fee sharing agreement and to time records and ledgers and journals that show how monies paid by the defendants and other clients were allocated and disbursed. Defendants' arguments concerning the fee-sharing arrangement and Time Record issues have been disposed of as a matter of law, with the facts necessary to make the determination. Defendants have not adequately supported their arguments for other discovery sufficient to grant their motion.
Furthermore, the court need not address plaintiff's contention that defendants' opposition should not be considered because they failed to raise the disciplinary rules issue in the answer. The use of an unpleaded defense in a summary judgment motion is not prohibited as long as the opposing party is not taken by surprise and does not suffer prejudice thereby ( see Rogoff v San Juan Racing Assn., 54 NY2d 883, 885; Rosario v City of New York, 261 AD2d 380 [2d Dept 1999]). Plaintiff had the opportunity to address defendants' contentions with its reply and, in any event, has been aware of these contentions throughout this lawsuit and the Dencorp Matter, eliminating surprise and prejudice.
While the court is finding in favor of plaintiff on its motion, its review of the invoices reveals that the December 31, 2004 invoice shows a previous balance of $175,364.09, to which was added a charge of $50,016, for Fass's services, resulting in a total of $225,380.59. Plaintiff represents that a $150,000 payment was made in December that was allocated toward the Elizabeth Street Matter, and that the invoices have a notation stating that a $150,000 payment was made toward the balance, but the running total was reduced by only $137,743.75. Thus, instead of a remaining running balance of $75,380.59 ($225,380.59-$150,000 = $75,380.59), the remaining running balance as of December 31, 2004 was recorded as $87,036.84, presumably in error. The $87,036.84 balance appears to have been carried over to the next invoice erroneously. In addition, the court finds that the invoices contain three duplicative entries for the period from September 8-10, 2003 of, respectively, 1.10 hours (9/8/03); 1.9 hours (9/9/03); and 1.0 hours (9/10/03). Accordingly, the court is deducting the $1,579.50 billed to defendants for those entries. For the aforementioned reasons, plaintiff is entitled only to partial summary judgment in its favor for $73,801.09.
If this is a misreading of the total, plaintiff is, of course, not precluded from bringing the matter to the court's attention through reargument.
While the court is granting partial summary judgment on the account stated claim, the plaintiff has not adequately addressed its other causes of action, and thus has not met its burden to demonstrate that it is entitled to summary judgment on them. In addition, as to the remaining March 2005 invoice, which is not subject to summary disposal as an account stated cause of action, plaintiff is not entitled to the presumption that the charge is reasonable. Plaintiff also has not demonstrated that it is entitled to dismissal of the affirmative defenses or the counterclaim as to that invoice amount.
The last issue for consideration is defendants' application for discovery as relates to the March 2005 invoice and for referral to a Special Referee for discovery. The court will address these requests at the parties' next discovery conference, and defendants' motion is thus denied without prejudice.
Accordingly it is,
ORDERED that the plaintiff's motion for summary judgment is granted in part and the Clerk of the Court is directed to enter judgment in favor of plaintiff and against defendants in the amount of $73,801.09, together with interest as prayed for allowable by law at the rate of 9% per annum from the date of February 1, 2005, until the date of entry of judgment, as calculated by the Clerk, and thereafter at the statutory rate, together with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs; and it is further ORDERED that the defendants' cross motion for discovery is denied without prejudice.
While in its complaint plaintiff requests interest from the date of the first services provided in 2003, it fails to demonstrate why it would be entitled to interest from that period in light of defendants' substantial payment on the invoices in December 2004.
This Constitutes the Decision and Order of the Court.