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Warren v. Meyers3/9/2001
their retention. An attorney's failure to file a retainer statement or agreement has been held to bar recovery of a fee (see, e.g., Potruch, P.C. v Berson, 261 AD2d 494 [retainer agreement in a matrimonial matter as required pursuant to 22 NYCRR 1200.11 (c)(2)(ii)]; Rabinowitz v Cousins, 219 AD2d 487 [retainer statement in a medical malpractice action pursuant to 22 NYCRR 603.7]). However, both Jones and the Gallina office filed retainer statements nunc pro tunc with the OCA [22 NYCRR 691.20 (a) (1) & (3)] on May 23, 2000, prior to the commencement of the fee hearing. It is the determination of this court that such filing, though late, is sufficient to preserve the right to recover a legal fee otherwise earned. cf. Matter of Abreu, 168 Misc. 2d 229 at 234 [a six year delay in filing a retainer statement due to law office failure was held not to bar a claim for recovery of a legal fee.]
In his affidavit filed with the OCA, Jones identifies himself as the "referring attorney" to Gallina. Gallina's retainer statement, provides that the firm was engaged by another attorney; namely, Jones. The Code of Professional Responsibility, DR 2-107, permits an attorney to share a fee with a non-partner or associate attorney provided, inter alia, the client consents after full disclosure that a division of fees will be made. The Warrens clearly knew that Mr. Solimano of the Gallina firm was acting in their behalf at Mr. Jones request and for compensation, despite a lack of clarity, perhaps, concerning the precise nature of the relationship between the two attorneys. There is nothing about Jones' retention of Gallina, per se, that would deprive either one to a right to reasonable compensation.
Brewington argues that the Jones retention was nevertheless unlawful because of Jones' alleged inability to accept legal employment as a result of the terms of his employment by the New York City Transit Authority (NYCTA). Brewington has submitted a revised policy/instruction document, number 6.41.2, issued April 19, 2000, and a memorandum from Martin B. Schnabel, Vice President & General Counsel of the NYCTA Department of Law, dated June 30, 2000, which states, in pertinent part, that
"it has been, and remains, the policy of the Law Department that attorneys are strictly prohibited from regularly engaging in the outside practice of law. In no event may an attorney hold himself or herself out to the public as available for professional retainers. Dual employment applications will therefore be acted upon favorably only to the extent that they relate to the handling, on a non-recurring basis, of isolated matters on behalf of family members or close social acquaintances and can be accomplished in their entirety in a manner and during a time frame which does not conflict with ones representation of the Authorities."
Even assuming that this policy was in effect at the time of Jones' retention (a fact which has not been established to the court's satisfaction), it does not operate to render an otherwise valid retainer agreement void for purposes of determining entitlement to an attorneys fee. While it is well recognized that such restrictions on employment by governmental or quasi-governmental agencies are enforceable (Flood v Kennedy, 12 N.Y. 2d 345 [Police department rule prohibiting moonlighting]; Matter of McDonald, 174 A.D.2d 942 [district attorney prohibited from engaging in private practice]; Matter of Lazarus, et al., 129 Misc. 2d 982 [counsel employed by Worker's Compensation Board prohibited from private practice]; Matter of Goldstein v Bartlett, 92 Misc.2d 262, aff'd. 64 A.D. 2d 956 [Law secretaries prohibited from private practice]; Civil Serv. Bar Assoc. v Schwartz, 114 Misc. 2d 849,
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