Opinion
March 22, 1954.
Bertram S. Futterman, as substituted attorney for plaintiff.
Philip Bareish, as retiring attorney for plaintiff.
The attorney to be substituted has the right to compensation on a quantum meruit basis. If he were to request a percentage, the amount of compensation could be determined at the conclusion of the case. However, he does not request a percentage but a reasonable fee in a definite amount, to which he is entitled, as he need not speculate upon the outcome of the case in the hands of another attorney. When he agreed to take the case on a contingency basis he was, so to speak, speculating upon the result of his own legal services. He is not required to make his compensation contingent upon the outcome of the case if he is not to continue as attorney.
The right to substitution is, of course, immediate and absolute. The motion is granted to the extent of substituting Bertram S. Futterman, Esq., as attorney for the plaintiff Felix Maysonett in place and stead of Philip Bareish, Esq. ( Matter of Weitling, 266 N.Y. 184.) Such substitution shall be without prejudice to the retaining lien of the retiring attorney upon papers, pleadings and exhibits in his possession and also to his charging or statutory lien upon the cause of action and the proceeds of any recovery by suit, settlement or otherwise, and the retiring attorney shall receive notice of further proceedings in order that he may protect any lien which he may have. The retiring attorney shall be required to exhibit to the substituted attorney and to permit the latter to make copies of any papers, pleadings and exhibits in his possession, and these shall also be produced by the retiring attorney if necessary for use at the trial. The question of the lien of the retiring attorney and of the amount thereof may be arranged by agreement or may be determined, if the parties consent, by a reference to the official referee of this court or by means of a plenary action. Any further order which may be necessary to implement the provisions of the present order may be submitted at the foot hereof, and for that purpose the motion is reserved.