Friday, March 25, 2016

An attorney's charging lien.

Practice point:  The attorney fulfilled an obligation under the retainer agreement to obtain a judgment on the plaintiff's behalf, and the judgment included a specific award of attorneys' fees and expenses. The Supreme Court determined that those fees were reasonable based upon the amount of time the attorney spent on the case, and the Appellate Division found no basis to vacate the attorney's charging lien against the award of attorneys' fees and expenses specified in the judgment.

However, the Appellate Division found that the plaintiff submitted evidence in support of its contention that it thereafter discharged the attorney for cause, owing to his delay and recalcitrance in seeking enforcement of the judgment. The attorney failed to adduce evidence to raise a triable issue of fact to rebut the plaintiff's claim. Therefore, the Appellate Division determined that the Supreme Court should have granted that branch of the plaintiff's motion which was to vacate a charging lien pursuant to Judiciary Law § 475 for any sums recovered from the defendants in excess of the fees originally awarded.

Student note: A client has an absolute right, at any time, to terminate the attorney-client relationship by discharging the attorney, with or without cause. If an attorney's representation terminates on mutual consent, and there has been no misconduct, no discharge for just cause, and no unjustified abandonment by the attorney, the attorney maintains the right to enforce the statutory lien. If the discharge is for cause, the attorney has no right to compensation, notwithstanding a specific retainer agreement. If there are conflicting claims as to whether an outgoing attorney was discharged with or without cause, there must be a hearing to resolve the dispute.

Case:  CPMI, Inc. v. Kolaj, NY Slip Op 01795 (2d Dep't 2016)

Here is the decision.

Monday's issue: Theories of liability and supplemental bills of particulars in a medical malpractice action.