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Warren v. Meyers3/9/2001
aff'd. 97 A.D. 2d 715 [NYC corporation counsel attorneys prohibited from private practice]; O'Connell v Abrams, 9970-79, Sup Ct, Albany County 1979 [full time employees of Department of Law of New York State Attorney General's office prohibited from practice of law]; Matter of Klingman v Bartlett, 92 Misc.2d 271, aff'd 64 A.D.2d 1038 [Clerks of NYS Court of Claims prohibited from private practice]), it has not been established, nor has the Brewington office supported the proposition that such a violation of an employment restriction would invalidate an attorney-client relationship between the employee and outside parties or vitiate the right to collect earned attorneys fees. At most, such employment restrictions may create rights in favor of the employer against its employee.
Accordingly, it is the determination of this court that petitioner Jones has a direct right to a fee on the proceeds of settlement in this case and that Gallina is entitled to a share of that fee as an agent of Jones. The next question is whether that fee shall be calculated on the basis of a percentage of the net contingency fee or on the basis of quantum merit for hourly services rendered.
Measure and Method of Calculating Reasonable Attorneys Fees
Where a fee dispute is between attorneys, rather than between a client and former attorney, the rules allow the outgoing attorney to "elect to take compensation on the basis of a presently fixed dollar amount based upon quantum meruit for the reasonable value of services or, in lieu thereof, the outgoing attorney has the right to elect a contingent percentage fee based on the proportionate share of the work performed on the whole case." Lai Ling Cheng v Modansky Leasing Co., Inc., 73 N.Y. 2d 454, 458 (1989).
The Gallina Letter of December 24,1997 clearly indicates that the outgoing Gallina firm elected to be paid on a percentage share of the contingency fee. Gallina asserts that Brewington's office understood this election as evidenced in Frederick Brewington's letter of December 29, 1997, in which he states . . .
"As you your statement that you 'will not turn over the file unless and until. . .[your] percentage share of the contingency fee is agreed to', we agree to allow the Court to handle that matter at the conclusion of the case, if we cannot come to terms at that time. As is the procedure in cases such as this, your percentage of the fee will be directly linked to the amount of work performed and the impact of same on the final outcome of the case." [emphasis added]
The court concludes that "only a tortured reading of the correspondence between the parties would even hint that [Gallina] did anything other than elect a contingent percentage fee of the ultimate recovery" Pearl v. Metropolitan Transportation Authority, 156 A.D. 2d 281, 283 (1989). The court further finds that the language in Judge Bucaria's order, directing that "outgoing counsel shall have a charging lien on any proceeds resulting from verdict and/or settlement. 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," makes clear that the Gallina firm elected to be paid on a percentage share of the contingency fee. cf: Pearl v. Metropolitan Transit Authority, supra. [prior order stated that "the fee of the outgoing attorney is reserved for fixation by agreement or the trial court upon termination of the action, or its settlement, and that said outgoing attorney is to have in the meantime an indeterminate lien against the file. . ." at 282].
It is within the sound discretion of this court to determine the reasonable percentage of attorneys fees to be
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