145 A.D.2d 625 | N.Y. App. Div. | 1988
— In a matrimonial action, the plaintiffs former attorneys, Epstein & Greebel, appeal from an order of the Supreme Court, Suffolk County (Abrams, J.), dated October 2, 1987, which, inter alia, denied their motion to impose and enforce a charging or retaining lien and directed the plaintiff to pay them a further counsel fee of only $3,500.
Ordered that the order is affirmed, without costs or disbursements.
In this matrimonial action, the appellant — the plaintiffs former attorneys — moved for an order fixing the value of their services on a quantum meruit basis and enforcing a retaining lien on their client’s papers or imposing a charging lien on any equitable distribution award or counsel fee award granted to the plaintiff upon resolution of the action. The appellant’s compensation claim is predicated upon the unpaid balance of fees due them for services rendered prior to their dismissal without cause. The appellant alleges that as a result of their services, a stipulation of settlement was effected, whereby the defendant would purchase the plaintiffs 50% equitable interest in the parties’ condominium for the sum of $70,000. The condominium, which was owned by the plaintiff and the defendant as tenants by the entirety, was the only significant marital asset.
This relatively simple, albeit contested, matrimonial action involved no issues of custody or visitation. Before the court could sign the proposed divorce judgment, which incorporated but did not merge the terms of the stipulation of settlement, the defendant died. At the time of the instant motion to fix attorney’s fees, the court had granted the motion by the executor of the decedent’s estate for an order providing that the proposed divorce judgment be signed, nunc pro tune, as of October 27, 1986. The divorce judgment does not provide for any counsel fee award.
The fee sought by the appellant amounts to $17,496, repre
Since the court determined that the appellant was not entitled to the enforcement of a retaining lien on the plaintiff’s file or the imposition of a charging lien on any proceeds to be received by the plaintiff upon resolution of the action, the appellant contends, for the first time on appeal, that the court was without authority to summarily determine the value of their services in the context of the instant motion. We disagree.
A client has an absolute right to discharge an attorney at any time. If the discharge is without cause before the completion of services, then the amount of the attorney’s compensation must be determined on a quantum meruit basis (see, Teichner v W & J Holsteins, 64 NY2d 977, 979; Ventola v Ventola, 112 AD2d 291, 292; Shelbourne Garage v Licht, 34 AD2d 563). Additionally, an attorney’s rendition of services and expenditure of disbursements on behalf of a client entitles him to a common-law retaining lien on the client’s file. A retaining lien remains in force until the client’s account is paid in full and is dependent only upon the attorney’s continued possession of papers irrespective of the outcome of the litigation involved (Steves v Serlin, 125 AD2d 780, 781). Consequently, "where a client requests that papers in the possession of his former attorney be returned to him, and the attorney asserts a claim for compensation for services rendered, the attorney is entitled to a determination fixing the value of his services, and the amount so fixed must be paid or otherwise secured to the attorney before any such turnover may be enforced” (Rosen v Rosen, 97 AD2d 837; Ventola v Ventola, supra, at 292). Whether the fee so fixed shall be presently payable or secured by a lien on the cause of action rests in the sound discretion of the court (see, Shelbourne Garage v Licht, supra). In contrast, when the assistance of the court is not requested to compel the turnover of papers, as here, we have
It is noteworthy that ”[a]n attorney with a [retaining] lien on a file which no one wants is like a garage mechanic with an abandoned junk car in his possession” (see, White v White, supra, at 554). Since the plaintiff never requested the turnover of her file, the court did not abuse its discretion in declining to enforce the appellant’s common-law retaining lien. Nor was it an improvident exercise of discretion, under the circumstances of this case, to make the attorney compensation award immediately payable rather than securing payment by imposing a charging lien on any equitable distribution award or counsel fee award granted to the plaintiff upon resolution of this matrimonial action (cf., Rosen v Rosen, supra; Ventola v Ventola, supra).
A charging lien, codified in Judiciary Law § 475, is based upon the equitable doctrine that an attorney should be paid out of the proceeds of the judgment procured by him and the lien exists independent of possession of the file (see, Matter of Desmond v Socha, 38 AD2d 22, 24, affd 31 NY2d 687; White v White, supra). A charging lien does not attach to an award of alimony and maintenance (see, Rosen v Rosen, supra; Turner v Woolworth, 221 NY 425). Moreover, where the attorney’s services do not create any proceeds, but consist solely of
Finally, upon the facts of this case, we find no basis to disturb the court’s exercise of its discretion in fixing the fair and reasonable value of the appellants’ services, including disbursements, at the aggregate sum of $12,412. In determining the reasonableness of the appellant’s compensation claim for services rendered, the court took into account all relevant factors (see, Matter of Freeman, 34 NY2d 1; Matter of Potts, 213 App Div 59, 62, affd 241 NY 593; Matter of Peerless Sales Corp., 104 AD2d 892, lv denied 64 NY2d 605; Kyle v Kyle, 94 AD2d 866, 867, lv denied 60 NY2d 557). The award was appropriate, particularly in view of the results obtained, the time required for the work performed, the simplicity of the case, and the limited financial resources of the matrimonial litigants. Mollen, P. J., Brown, Rubin and Hooper, JJ., concur.