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Warren v. Meyers3/9/2001
or a fee hearing. The court requested that the attorneys submit and exchange their records concerning their work performed on the matter, which work was the subject of examination at the hearing held before the Hon. F. Dana Winslow on May 25, June 9 and October 16, 2000.
Retention of Counsel
The court finds that Jones was retained by Earlwin Warren, as evidenced by the written retainer agreement and Warren's and Jones' testimony. Commensurate with Jones' retainer agreement, Earlwin Warren executed hospital record authorizations for Jones and Jones thereafter prosecuted this matter without objection on behalf of both Earlwin and Dionne Warren. On this evidence the court finds that the Jones retainer, executed by Earlwin Warren, is sufficient to establish that Jones had an agreement to represent the Warrens "notwithstanding the absence of a formal retainer agreement including all the parties", to wit, Dionne Warren (see, Haythe & Curley v Harkins, 214 AD2d 361 [1st Dept., April 11, 1995]).
With respect to the Gallina firm, the testimony establishes that Jones brought Earlwin Warren to the Gallina office and introduced him to them. It is undisputed that the Gallina firm, which commenced the action on behalf of the Warrens, was the attorney of record. As such, the Gallina firm continued the prosecution of the case with receipt of the defendants' answers and preparation of the plaintiffs' responses to defendants' discovery demands, all of which involved discussions with the Warrens, inter alia, and was done with Earlwin Warren's knowledge. In fact, evidence was presented that Earlwin Warren requested various copies of the papers from the Gallina office and that much of his dissatisfaction with Gallina's office resulted from that office's failure to adequately respond to those requests.
While it is clear that a direct working relationship had been established between the Gallina firm and the plaintiffs, there is no proof that the Law Office of William Gallina was ever formally retained by the Warrens. The Gallina office presented two signed but otherwise blank retainer statements executed by the Warrens allegedly at the time of their retention but no completed written retainer agreements between the Warrens and the Gallina firm have been shown to exist. On the contrary, Earlwin Warren testified that he did not believe that he ever directly retained the Gallina firm and assumed that Jones, whom he did retain, and the Gallina associate with whom he had been working, Louis Solimano, Esq., were partners.
The court finds that these blank retainer agreements are not probative of the retention issue, and in fact constitute violations of 22 NYCRR 691.20 (a) (4) which mandates that " o attorney shall accept or act under any written retainer or agreement of compensation in which the name of the attorney was left blank at he time of its execution by the client" (see also, Matter of Sachs, 21 AD2d 483 [ten instances of the use of retainer agreements in which the name of the attorney retained was left blank constituted professional malpractice]). Thus, the court is compelled to find that the Gallina Office cannot assert any direct claim to a fee based upon retention by the Warrens in this matter.
However, this is not to say that Gallina is necessarily precluded from sharing in the fee as an agent of Jones, provided the retention of Jones by the Warrens was in compliance with mandatory OCA filing requirements and was otherwise lawful. It is to the particulars of this consideration that the court now turns.
Right of Retained Counsel to Attorneys Fees
Neither Jones nor Gallina filed retainer statements with the OCA at the time of
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