Opinion
No. 25750/08.
2012-03-2
Shamim NAWAZ, Plaintiff, v. Slawomir D. BORYCZKA, Royal Luxury Limo Inc., Vadim Tchoukanine, and Irina Tchoukannina, Defendants.
Jason L. Paris, Esq., Paris & Chaikin, PLLC, New York.
FRANCOIS A. RIVERA, J.
By order to show cause, filed on November 16, 2011 under motion sequence number three, Paris & Chaikin, PLLC (hereinafter P & C), plaintiff's counsel, has moved pursuant to 22 NYCRR 603.13(b) for leave to share legal fees with Resnick & Binder, P.C. (hereinafter R & B), plaintiff's prior counsel, for legal services R & B performed before its principal members were disbarred. The motion is unopposed.
MOTION PAPERS
Plaintiff's order to show cause consists of an attorney's affirmation, and two exhibits labeled A and B. Exhibit A is an affidavit signed by Serge Binder, one of the principals of R & B. Exhibit B is a copy of this court's September 9, 2011 order denying plaintiff's prior request for relief.
LAW AND APPLICATION
The instant motion papers demonstrate the following facts. Resnick & Binder, P.C., initiated and litigated this instant action for damages due to personal injury on behalf of plaintiff Shamim Nawaz. Thereafter, P & C substituted R & B as plaintiff's attorney of record and entered into a fee sharing agreement with R & B. In accordance with that agreement P & C was to receive 33 1/3% of the net legal fees collected in the instant action for legal work performed prior to their substitution and subsequent disbarment.
Plaintiff eventually settled the action for $12,500.00. P & C is seeking court permission to disburse $1,501.12 to R & B, which represents 33 and 1/3% of the net legal fee, plus $210.00 in disbursements incurred by R & B. This amount is currently in P & C's New York State Interest on Lawyer Account (“IOLA”).
The movant made a prior request for the exact same relief in motion sequence number two. By order of this Court dated September 9, 2011, that request was denied without prejudice for failure to show that the disbarment of R & B was unrelated to its representation of the plaintiff. The instant motion is supported by an affidavit by Serge Binder, one of the principal attorneys of R & B, in which he avers that the disbarment of the principals of R & B was unrelated to the representation of the plaintiff in the underlying action.
The Rules and Regulations of the Appellate Divisions, 22 NYCRR 603.13(b), provide, in pertinent part, that “[a] disbarred, suspended or resigned attorney may not share in any fee for legal services performed by another attorney during the period of his removal from the bar,” although he may “be compensated on a quantum meruit basis for legal services rendered and disbursements incurred by him prior to the effective date of the disbarment or suspension order or of his resignation.” “The amount and manner of payment of such compensation and recoverable disbursements shall be fixed by the court on the application of either the disbarred, suspended or resigned attorney or the new attorney, on notice to the other as well as on notice to the client.” 22 NYCRR 603.13(b).
Further, a disbarred attorney forfeits his entire fee if his misconduct relates to his representation in the matter for which the fees are sought (Decolator, Cohen & DiPrisco, LLP v. Lysaght, Lysaght & Kramer, P.C., 304 A.D.2d 86, 91 [2d 2003] ). “It is well settled that [a]n attorney who engages in misconduct by violating the Disciplinary Rules is not entitled to legal fees for any services rendered' “ (Pessoni v. Rabkin, 220 A.D.2d 732, 633 N.Y . S.2d 338 [2d 1995] citing Matter of Winston, 214 A.D.2d 677 [2d 1995] ).
In this case, the order to show cause notified both R & B and plaintiff Shamim Nawaz of applicant's request for relief. Applicant has therefore properly satisfied the notice requirement of 22 NYCRR 603.13(b). Applicant has also provided the affidavit of Serge Binder, one of the principals of R & B, who has sworn that the firms' disbarment was in no way related to the Nawaz matter. Applicant has therefore, at the very least, made a prima facie showing that R & B's misconduct did not relate to the matter at hand, and consequently, that it need not forfeit its rights under the agreement.
The court must now determine what amount of compensation for R & B would be consistent with “quantum meruit.” Black's Legal Dictionary (5th Ed., 1979, p. 1119) defines “quantum meruit” to be “as much as he deserved.” In Rosenzweig v. Gomez, 250 A.D.2d 664, 664 (2d 1998), the court, in assessing such amount, held that the amount should be based upon evidence of the time and skill required in that case, the complexity of the matter, the attorney's experience, ability, and reputation, the client's benefit from the services, and the fee usually charged by other attorneys for similar services.
In the instant case, the movant failed to provide the following facts: when R & B initiated this action; when its principal attorneys were disbarred and for what reason; when P & C substituted for R & B as attorneys of record; and when the fee-splitting agreement was consummated. The movant also failed to describe the work that R & B accomplished prior to its disbarment; and, how this work helped plaintiff ultimately secure a judgment in her favor.
The court must therefore consider, what role, if any, the fee-splitting agreement should play in determining quantum meruit recovery. In Padilla v. Sansivieri, 31 AD3d 64, 65 (2d 2006), the court held that a disbarred attorney's entitlement to legal fees are capped by the rule of quantum meruit, and no private agreement as to compensation is binding on the court. An award in quantum meruit should in all cases reflect the court's assessment of the qualitative value of the services rendered, made after weighing all relevant factors considered in valuing legal services. An agreement as to compensation is one such factor.
Utilizing, the Rosenzweig factors as guidance, the Padilla court observed that incoming and outgoing counsel's agreement concerning the apportionment of a contingency fee was “some evidence of, inter alia, the parties' own assessment of their respective contributions” ( Padilla at 66). Distinguishing a prior ruling which limited quantum meruit recovery to an hourly rate (Casey v. Ruffino, 306 A.D.2d 304 [2d 2003] ), the court concluded that “[n]either controlling case law nor the plain meaning of the phrase quantum meruit precludes the calculation of compensation to a disbarred attorney as a portion of a contingent fee” ( Padilla at 67).
Similarly, in Decolator, Cohen & DiPrisco, LLP v. Lysaght, Lysaght & Kramer, P.C., 304 A.D.2d 86, 92 (2d 2003), the court held that entitling the original disbarred attorney to a percentage of a contingency fee based on “the proportionate share of the overall services it performed before the disbarment of its principals is consistent with 22 NYCR § 603.13(b).”
However, even if this court were to interpret Rosenzweig and Decolater to plainly authorize a fee-splitting agreement with a now disbarred law firm, it would still need to know what R & B's “overall services” consisted of in order to determine quantum merit compensation. In this instant case, applicant has left the court to guess what work R & B actually provided. Common sense also dictates that an arrangement with a now disbarred law firm should be subject to at least a minimal degree of scrutiny, particularly when applicant seeks an order from the court not merely to enforce the agreement—which incidentally, the court must find to be consistent with public policy—but to authorize distribution of funds pursuant to its alleged terms. Movant's motion papers, simply assert that P & C entered into an agreement with R & B, which may or may not have been put into writing, and which occurred at an undisclosed date, sometime before R & B's disbarment. The motion is also unopposed, thus leaving the court with only “one set of facts” concerning an agreement which implicates matters of professional responsibility and legal ethics. In its discretion, the court finds that movant's papers, by themselves, are insufficient to authorize payment pursuant to the agreement.
Nonetheless, the court may take judicial notice of its own records and published court decisions. ( See, Wachovia Bank, N.A. v. Otto N. Williams, 17 Misc.3d 1127(A) [NY Sup.2007] citing Matter of Khatibi v. Weill, 8 AD3d 485 [2d 2004] ). A review of the public records shows that on July 30, 2009 David Resnick and Serge Binder, principal attorneys at R & B, pleaded guilty to filing false personal income tax returns, in violation of Tax Law § 1804(b), a class E felony (see Matter of Resnick, 73 AD3d 75 [2d 2010]; Matter of Binder, 74 AD3d 54 [2d 2010] ). “An attorney convicted of a felony is automatically disbarred ... “Conviction” is defined as the “entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of such instrument” (CPL 1.20 [13] )” (Matter of Delany, 87 N.Y.2d 508, 512 [1996] ).
More relevant to the quantum meruit determination, the court's records indicate that as attorneys of record, R & B filed a summons and complaint and several affidavits of service prior to July 30, 2009—the date of their disbarments.
At the very least, quauntum meruit entitles an attorney to an hourly rate ( see, Decolator, at 92). R & B's work-product, accessible and verifiable by the court's own records, evinces that R & B committed a fair amount of time to the Nawaz matter. Even if R & B charged plaintiff the most modest of hourly rates, it would still be entitled to $1,501.12 in fees. Therefore, the court concludes that compensation of $1,501.12 to R & B is appropriate on a quantum meruit basis and is consistent with 22 NYCRR § 603.13(b).
Plaintiff's counsel is granted to leave to provide said amount to R & B.
The foregoing constitutes the decision and order of this court.