Opinion
107981/2005.
June 2, 2010.
Plaintiff Marc A. Bernstein, an attorney suspended from the practice of law on April 23, 2009, has moved herein to vacate the December 22, 2009 order of Justice Joan Carey denying him attorney's fees and to set the matter down for a determination as to the fees due him for legal services rendered under the theory of quantum meruit.. Mr. Bernstein is represented by counsel in this application. His former client, Casey Warren as Administratrix of the Estate of her father Richard Warren, and defense counsel were both served with the motion, and while Ms. Warren appeared on the return date, she presented no written opposition.
The motion is supported by an affidavit from Mr. Bernstein and an affirmation from his counsel Michael J. Collesano. Both enumerate the services rendered by Mr. Bernstein to plaintiff before Mr. Bernstein's suspension from the practice of law. Those services included the initial meeting with Mr. Warren (who apparently passed away while the litigation was pending), the investigation of the merits of the case, consultation with an expert, the commencement of the medical malpractice action, depositions and other discovery, and then the securing of a $100,000 settlement offer. Mr. Bernstein discussed the settlement offer with Ms. Warren, but she did not accept it until after Mr. Bernstein's suspension on April 23, 2009.
A pre-trial conference was held by Justice Carey on April 30, 2009 at which time Casey Warren appeared pro se at the recommendation of Mr. Bernstein and advised the Court of Mr. Bernstein's suspension. According to the decision of Justice Carey, the Court then advised Ms. Warren that she needed to obtain letters of administration to proceed with the action further, and another conference date was set. After a series of conferences, Ms. Warren obtained the letters of administration and decided to accept the settlement offer. Apparently, Mr. Collesano had offered to assist Ms. Warren with the paperwork in Surrogate's Court at no charge, but she declined the offer.
As relevant here, Justice Carey states in her decision that she then received a letter request "by an attorney representing Mr. Bernstein, who was looking to be compensated for his work on the case now that it had been settled." A conference was scheduled for December 18, 2009, at which time Ms. Warren appeared, along with an attorney representing Mr. Bernstein. Counsel indicated that he wished to request legal fees in the in the amount of $26,836.60, plus $10,545.68 in disbursements under the rule of quantum meruit. Without giving counsel an opportunity to make a motion to formalize his request, Justice Carey denied the request by written decision dated December 22, 2009, concluding that there was "no qualitative value" to the services rendered by Mr. Bernstein.
Based on Mr. Bernstein's detailed description in these moving papers of the legal services he rendered before his suspension, which details were not rebutted by Ms. Warren or defense counsel, this Court finds that Mr. Bernstein has established his right to hearing based on quantum meruit as to the value of the legal services rendered. As Justice Carey noted in her decision, the reason for Mr. Bernstein's suspension was wholly unrelated to this case. This Court finds that a sufficient showing has been made to suggest that significant services were provided by Mr. Bernstein to the plaintiff before his suspension, and the suspension, standing alone, does not deprive him of the right to receive compensation for the services he rendered while a member in good standing of the Bar. Of course, at that hearing Ms. Warren should be given a full opportunity to examine Mr. Bernstein and give testimony on these issues as well.
A hearing is required to determine the amount of legal fees, if any, to which Mr. Bernstein is entitled. As explained in the oft-cited case of Jordan v. Freeman, 40 AD2d 656 (1st Dep't 1972):
The relevant factors in the determination of the value of legal services are the nature and extent of the services, the actual time spent, the necessity therefor, the nature of the issues involved, the professional standing of counsel and the results achieved.
See also, Schoenau v. Lek, 283 AD2d 200 (1st Dep't 2001). Thus, a framed issue hearing is necessary on the question of the reasonable value of the legal services rendered by Mr. Bernstein to the Warren family. As Mr. Bernstein will soon be serving a prison sentence, that hearing shall be conducted on an expedited basis.
Accordingly, it is hereby
ORDERED that plaintiff's motion is granted to the extent of vacating the December 22, 2009 decision and order of Justice Joan Carey; and it is further
ORDERED that this matter is referred to a Special Referee to hear and report with recommendations on the question of the reasonable value of the legal services rendered by Mr. Bernstein to plaintiff based on quantum meruit except that, in the event of and upon the filing of a stipulation of the parties, as permitted by CPLR 4317, the Special Referee, or another person designated by the parties to serve as referee, shall determine the aforesaid issue; and it is further
ORDERED that a copy of this order with notice of entry shall be served by Mr. Bernstein's counsel upon Ms. Warren, defense counsel, and the Clerk in the Special Referee's Office (Room 119) within 20 days hereof to arrange a date for the reference to a Special Referee for an expedited hearing; and it is further
ORDERED that the parties shall appear for a status conference on Wednesday, December 1, 2010, at 9:30 a.m. at 60 Centre Street, New York, NY in Room 222. In light of this determination, the Court need not address the alternative arguments of quantum meruit or unjust enrichment.
This constitutes the decision and order of the Court.