Wiggins v. KopkoWiggins v. Kopko
Upon learning that Kopko had drafted a letter to the client advising him of the partnership‘s dissolution and soliciting him as a personal client, plaintiff telephoned the client, discussed the deteriorating relationship between himself and Kopko and warned the client that fee issues might result if he signed a retainer agreement with Kopko. Angered by this call, the client wrote a letter stating that he was discharging plaintiff and the partnership and retaining Kopko, followed—apparently after consultation with Kopko—by a second letter stating that he had discharged plaintiff, the partnership and Wiggins & Masson “for cause.” Plaintiff thereafter executed a consent to withdraw himself, the partnership and Wiggins & Masson from the malpractice action and to substitute Kopko. The action was later tried before a jury, resulting in a substantial award.
Seeking a share of the legal fee in this and other actions, plaintiff served Kopko with a demand to produce documents, including the client‘s complete file. Kopko objected and sought a protective order, asserting, as to the malpractice action, that plaintiff had been discharged for cause and was not entitled to a fee. Plaintiff then moved to compel disclosure. Following a hearing, Supreme Court issued an order that, as pertinent here, granted plaintiff‘s motion for disclosure of the client‘s file upon finding that the client‘s discharge of plaintiff was ineffective, that neither the partnership nor Wiggins & Masson was discharged for cause, and that plaintiff was entitled to compensation on the partnership‘s behalf by quantum meruit. Kopko appeals.2
Parties in a civil action are entitled to “full disclosure of all matter material and necessary” (
Kopko contends that plaintiff was discharged for cause due to alleged misconduct in his call to the client. However, without regard to whether the call constituted misconduct—which we do not decide—we agree with Supreme Court that the relevant inquiry is whether the partnership was discharged for cause. The client originally retained Wiggins & Masson—not plaintiff individually—and when Kopko later assumed primary responsibility for the malpractice litigation, he did so on behalf of the partnership or its predecessors, which continued to act as counsel of record in the malpractice action until Kopko was substituted shortly before the trial. Plaintiff was not counsel of
We therefore agree with Supreme Court that plaintiff is entitled to share in the fee obtained in the malpractice action on the partnership‘s behalf. However, we disagree with the further conclusion that the amount should be determined on the basis of quantum meruit. As against a client, a discharged attorney is entitled to a fee determined on a quantum meruit basis at the time of discharge, but different rules apply where, as here, the fee dispute is between attorneys (see Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454, 457-458 [1989]). In such circumstances, an outgoing attorney may choose to receive immediate compensation on a quantum meruit basis at discharge or to receive a share of a contingent fee based on a proportionate share of the work he or she performed; if no such election is made at the time of discharge, the attorney is presumed to have elected a contingent fee (see Matter of Cohen v Grainger, Tesoriero & Bell, 81 NY2d 655, 658-660 [1993]; Matter of Benjamin E. Setareh, P.C. v Cammarasana & Bilello Esqs., 35 AD3d 600, 601 [2006]; Connelly v Motor Veh. Acc. Indem. Corp., 292 AD2d 332, 333 [2002]; see also Buchta v Union-Endicott Cent. School Dist., 296 AD2d 688, 689 [2002]). Here, Supreme Court found that plaintiff elected quantum meruit compensation in a July 2011 memorandum of law. Even assuming that an election could be made in this manner, it would have been untimely, as the discharge had occurred more than a year earlier. Nothing in the record reveals that an election as to payment of fees was made at or near the time of discharge. Accordingly, as counsel of record, the partnership is presumed to have elected a contingent fee computed according to the proportionate share of work that was performed on its behalf and that of its predecessor firms before the June 2010 substitution of Kopko, to be divided as appropriate between the partners
Finally, we reject Kopko‘s contention that plaintiff and the partnership waived a fee by failing to petition the court for a lien pursuant to
Mercure, J.P., Spain and McCarthy, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as provided that the legal fee payable to defendant Wiggins & Kopko, LLP is to be determined on a quantum meruit basis; matter remitted to the Supreme Court for determination of the fee in accordance with this Court‘s decision; and, as so modified, affirmed.