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Warren v. Meyers3/9/2001
In this medical malpractice action that was settled prior to trial, William S. Jones Esq. (Jones), and the Law Office of William A. Gallina, Esq. (Gallina), have petitioned this court pursuant to Judicary Law 475 for a determination on a fee dispute between petitioners and the Offices of Frederick K. Brewington, (Brewington), incoming counsel to the plaintiffs, Earlwin and Dionne Warren. Jones and Gallina claim that they are entitled to a percentage of the contingency fee based on their proportionate share of work performed. Brewington contends that since the Gallina firm never had a valid retainer agreement with the plaintiffs they have no standing to enforce an alleged lien or to claim a fee. Brewington further contends that although Jones was retained by Earlwin Warren, he is not entitled to a fee for his prior representation of the Warrens as a result of his employment by the New York City Transit Authority, which generally prohibits private employment by its counsel. The court determines the matter as follows:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On April 27, 1997 Earlwin Warren executed a retainer agreement with William S. Jones, Esq. whose office is listed as 240 West 138th Street, New York, New York. Jones' retainer agreement provides for a percentage fee based upon any recovery in the action (see Judiciary Law 474-a). Sometime thereafter, Jones brought Earlwin Warren to the Law Office of William Gallina with the intention of having that office assist in the preparation and prosecution of the matter. On or about July 3, 1997, Gallina was allegedly retained by the Warrens, as evidenced by blank retainer statements executed by them and the firm's commencement of work on the case, including correspondence, inter alia, with the Warrens.
On August 20, 1997 the Warrens contacted the Law Offices of Frederick K. Brewington, consulted with him on this matter and executed a consent to change attorney, which form was forwarded that day to the Gallina firm. Thereafter, on August 28, 1997 after an apparent change of heart, the Warrens decided to remain with the Gallina firm and on September 6, 1997, the Gallina firm commenced suit on their behalf.
Thereafter, on December 3, 1997 Earlwin Warren again visited the Brewington office and sought their representation in this matter and on December 5, 1997 both Earlwin and Dionne Warren executed a formal retainer agreement with Brewington's firm. Brewington's office filed a retainer statement with the Office of Court Administration (OCA) as required pursuant to 22 NYCRR 691.20 (1). At that time a disagreement arose between the Gallina firm and the Brewington firm concerning the turnover of the file to the Brewington firm and a determination of the fee arrangement. The Brewington office, by way of order to show cause, moved for an order substituting him as the attorney of record in this matter, directing the Gallina firm to turn over the file, and directing that the determination of legal fees, if any, due to the outgoing attorney, be reserved for the trial court at the conclusion of the action.
By Order dated March 6, 1998, the court (J. Bucaria), granted Brewington's application and directed (1), that the outgoing attorneys deliver the files to Brewington's office, and (2) that outgoing counsel shall have a charging lien on any proceeds resulting from the verdict and/or settlement herein, the specific amount to be determined by the Justice at the time of trial, and if there is a settlement, then by an appropriately noticed hearing.
Prior to trial, Frederick Brewington negotiated a settlement of the instant matter for $500,000, after which Jones and the Gallina office petitioned the court f
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