This matter concerns awarding counsel fees to an attorney who was suspended from the practice of law prior to the completion of the work performed for the client.

The underlying action involved a claim for serious injuries resulting from a motor vehicle accident, a cause of action covered by New York's No Fault Insurance Law. When Plaintiff was suspended he transferred the matter to another attorney. Apparently the client was dissatisfied with this substitution and sought his own new counsel, Defendants in this instant action. Both Plaintiff and Defendants represented the client on a contingency fee basis.

At the hearing it was shown that the underlying claim had been marked off the calendar while under the control of Plaintiff, and eventually was dismissed after one year while under the control of Defendants. Defendants had the matter restored to the calendar, were involved in two pre-trial motions, and prepared for trial. Defendants' counsel, the member of the firm who actually worked on the case, testified that he personally spent approximately 80 hours on the matter, and other members of the firm spent approximately another 40-50 hours on the case.

On the eve of trial the matter was settled for $7500, and Defendants received slightly more than $2000 as their fee. Defendants also received $722 in disbursements that were attributable to Plaintiff. At the fee hearing the parties stipulated to Defendants turning over the $722 in disbursements to Plaintiff.

Plaintiff testified that he spent approximately 50 hours working on the underlying action. However, although Plaintiff referred to documents while testifying to refresh his recollection, he neither proffered nor introduced documents to support his allegations of time spent. Further, Plaintiff never introduced any evidence of his normal hourly fee at the time in question. Plaintiff requested $2000 as his fee under a theory of quantum meruit. [*2]

A disbarred or suspended attorney may be compensated on a quantum meruit basis for the legal services rendered, as well as for disbursements which the attorney may have incurred prior to the effective date of the disbarment or suspension. N.Y. Comp. R. & Regs. Tit. 22, sec. 691.10(b). In order to be awarded such fees, the attorney must present evidence of the time spent on the case, the complexity of the matter, the attorney's skill, and the benefit the client received from his work. Rosenzweig v. Gomez, 250 A.D. 2d 664, 672 N.Y.S. 2d 907 (2d Dept. 1998).

In the Second Department, the court must determine the fee to which the suspended attorney is entitled on a quantum meruit basis, without reference to the work performed by successor counsel. See Potts v. Hines, 144 A.D. 2d 189, 534 N.Y.S. 2d 507 (2 Dept. 1988). This is mandated by the controlling case on this issue, Casey v. Ruffino, 306 A.D. 2d 304, 760 N.Y.S. 2d 537 (2d Dept. 2003).

In the instant matter, the only evidence upon which the court may make this determination is the testimony of the suspended attorney unsupported by documentary evidence. The Plaintiff also failed to provide, either by testimony or by documentation, the rate of his hourly fee at the time the work was performed.

At the hearing, contradictory evidence was presented as to the quality of Plaintiff's work, and some testimony indicated that, due to Plaintiff's Bill of Particulars, the client was damaged in being unable to pursue certain claims. However, once again, this allegation was based solely on the testimony of the Defendants' counsel.

Based on the insubstantial evidence presented at the hearing, the court determines that the value of Plaintiff's services prior to his suspension from the practice of law, based on the hours allegedly spent, the complexity of the matter, and the alleged benefit to the client, is $1000. Therefore, the court awards Plaintiff the sum of $1000 as the quantum meruit value of his services, plus the $722 in disbursements stipulated to by the parties.

Dated: May 27, 2004

__________________________

EILEEN N. NADELSON, J.C.C.