This is an action to recover $15,000.00 in legal fees by plaintiff for the services he provided to defendant Corinne Roberts before she discharged plaintiff and retained the services of defendant Rappaport, Glass, Green, Levine, LLP (hereinafter "defendant law firm"). The defendants contend that the plaintiff was discharged for cause and is not entitled to a legal fee. Alternatively, defendant law firm contends that if plaintiff should be permitted to participate in a legal fee, his compensation should be based on quantum meruit, pursuant to an hourly rate.

The plaintiff testified at trial that defendant Roberts retained him on February 19, 2004, to represent her in connection with the injuries she sustained as a result of another vehicle accident on January 20, 2004. Defendant Roberts testified that an 18-wheel Mack Pensky truck smashed into the side of her vehicle; the truck was registered to an out of state company. Defendant Roberts claimed that she sustained injuries to her neck, lower back, hip and knee. And that she did not return to work for one year. Plaintiff's retainer agreement with defendant Roberts was based on a contingency fee percentage of 33.33% of any gross amounts recovered by settlement. Although the plaintiff filled out an OCA retainer statement, it appears he never filed it with the office of Court Administration.

The plaintiff, a solo practitioner, testified that he was admitted to practice law in New York in 1992. He is also admitted to practice in Federal court, but was uncertain at trial as to whether he was admitted into the Eastern or Southern District of New York. He claimed that his practice consisted primarily of representing people who have purportedly violated traffic and penal laws as well as people who sustained personal injuries as a result of accidents. He maintained that he is winding down the personal injury portion of his practice. The plaintiff claimed that he charged clients between three and four hundred dollars an hour. Although the plaintiff did not submit any evidence to support his contention that he charges this amount, he averred that he arrived at that approximation based upon a breakdown of his 2005 federal [*2]income tax returns, which stated a yearly gross income of $648,000.00; at trial the plaintiff divided that amount into fifty-two weeks, one week, one day and one hour. The Court does not accept the plaintiff's gross income as a methodology to determine his hourly rate.

The plaintiff never commenced an action on behalf of defendant Roberts, nor did he conduct any pre-action discovery. He testified that he never commenced an action in federal court, that he did not know how to file a claim in federal court, and that he has never commenced a personal injury action. He claimed at trial that it was his office policy not to file a summons and complaint for a period of time from six months to a year from the date of the particular accident. The plaintiff testified that over a fourteen year career he has tried five to ten cases to verdict.

With respect to defendant Roberts, the primary work he claims he and a paralegal performed on her behalf consisted of preparing and sending out letters to various medical facilities and doctors to obtain Roberts' medical records and reports, assisting Ms. Roberts with filling out no-fault and disability forms, phone calls to obtain the proper information and documentation for those forms, and phone calls to the insurer of the offending truck. Plaintiff testified that all of that work took between 21 to 24 hours. However, the plaintiff failed to submit any evidence at trial, e.g., contemporaneous time records, which would substantiate his claims of the hours worked or the type of work performed or who performed the work.

The plaintiff received an offer of $25,000.00 from the insurer to settle any potential claim the plaintiff had against the trucking company. He testified during cross-examination that he did not remember if he had ever asked defendant Roberts what sum she wanted to settle the case. Moreover, he admitted during cross examination that he did not fully understand the extent and seriousness of defendant Robert's knee injury. It is undisputed that defendant Robert rejected the $25,000.00 settlement offer.

On October 7, 2004, Ms. Roberts retained the services of defendant law firm in substitution of plaintiff's services. Ms. Roberts and plaintiff both testified that they never had a conversation with the other regarding the possibility of substituting plaintiff, or any reasons for wanting to do so. She never sent the plaintiff any correspondence expressing any criticism of the plaintiff's conduct or performance. Ms. Roberts, did, however, testify that she was dissatisfied with plaintiff's services because she believed her case to be worth more than the $25,000.00 plaintiff had originally negotiated. The defendant law firm paid the plaintiff $500.00 for his disbursements even though he never provided an itemized list of his costs prior to the transfer of defendant Roberts' file.

Plaintiff was notified by regular mail and by fax of defendant law firm's substitution by letter date October 14, 2004. The defendant law firm requested that plaintiff cease working on defendant Roberts' file. The plaintiff testified that he never received that notification. The plaintiff apparently continued to negotiate with the trucking company's insurer and conveyed to defendant Roberts by two day priority mail on October 19, 2004, a new offer of $45,000.00 he had received that day. Defendant Roberts testified that the plaintiff used her former boyfriend to contact her about the offer and to "go back to" the plaintiff. She never spoke to the plaintiff about that settlement offer and testified that she was upset with the plaintiff for having her former boyfriend call and attempt to contact her after she had retained new counsel. Defendant Roberts was also upset that the plaintiff purportedly withheld from her two no-fault checks for lost wages totaling $3,000.00.

Matthew Zullo, in his testimony on behalf of defendant law firm, stated that he valued [*3]defendant Roberts' case at over "six figures" because of the lesions in Roberts' injured knee. Their retainer agreement was also on a one-third contingency basis. Mr. Zullo, who claims he has tried over 200 personal injury cases during his nineteen year career, quickly moved to file a summons and complaint in the United States District Court for the Eastern District on the basis of diversity jurisdiction since the offending "truck was an out of state vehicle." Soon thereafter, defendant Roberts accepted a settlement offer of $60,000.00, against the recommendation of Mr. Zullo, because she needed to have bills paid and support her family. Mr. Zullo testified that although he did not keep time records or charge defendant Roberts by the hour, he worked between twenty and twenty-five hours on her case. The gross contingent fee on the settled case is $20,000.00. Mr. Zullo argued at trial that the plaintiff's conduct after he was discharged was offensive and undermined defendant Roberts and violated Disciplinary Rules of the Code of Professional Responsibility.

"A client has the absolute right to discharge an attorney at any time, with or without cause (see Matter of Cohen v. Grainer, Tesoriero & Bell, 81 NY2d 655, 658; Campagnola v. Mulholland, Minion & Roe, 76 N.Y.2de 38, 43; Lai Ling Cheng v. Modansky Leasing Co., 73 NY2d 454, 457; Teichner v. W & J Holsteins, 64 NY2d 977, 979). As against the client, where the discharge is without cause the outgoing attorney is limited to recovering in quantum meruit the reasonable value of the services rendered (see Matter of Cohen v. Grainger, Tesoriero & Bell, supra at 658; Campagnola v. Mulholland, Minion & Roe, supra at 44; Lai Ling Cheng v. Modansky Leasing Co., supra at 457-458; Teichner v. W& J Holsteins, supra at 979). If the outgoing attorney is discharged for cause, the attorney is not entitled to any fee, notwithstanding a specific retainer agreement (see Campagnola v. Mulholland, Minion & Roe, supra at 44; Teichner v. W & J Holsteins, supra at 979). But when the dispute is between attorneys, as here, the rules are somewhat different. The discharged attorney may elect to receive compensation immediately based on quantum meruit or on a contingent percentage fee based on his or her proportionate share of the work performed on the whole case (Matter of Cohen v. Grainger, Tesoriero & Bell, supra at 658)" (Byrne v. Leblond, 25 AD3d 640, 641-642).

The Appellate Division, Second Department, recently noted in Padilla v. Sansivieri, ___ AD3d ___, ___ NY2d ___, 2006 NY Slip Op 3744 [2nd Dept. May 9, 2006], that the phrase quantum meruit ("as much as he deserves"), has been used by appellate courts "as a shorthand manner of describing [attorney] compensation other than on a contingent fee basis." The Court held that quantum meruit compensation is not limited to a calculation based on the number of hours worked multiplied by a reasonable hourly rate. "In fixing an award of legal fees to [an attorney] in quantum meruit, the court should consider evidence of the time and skill required in that case, the complexity of the matter, the attorney's experience, ability and reputation, the client's benefit from the services, and the fee usually charged by other attorneys for similar services' (Rosenzweig v. Gomez, 250 AD2d 664)" (Padilla v. Sansivieri, ___ AD3d ___, ___ NY2d ___, 2006 NY Slip Op 3744 [2nd Dept. May 9, 2006]). Moreover, the Court recognized that the calculation of an award of legal fees as a portion of a contingent fee based upon the relative contributions of the lawyers, and the calculation of an award of legal fees based on an hourly rated, "are both properly fixed as quantum meruit determinations" [citations omitted] and "the relevant factors to be weighed are equally applicable." These factors also include, in addition to those set forth in Padilla, the contingency or certainty of compensation, the results obtained and the responsibility charged (see, Morgan and Finnegan v. Howe Chemical Company, Inc., 210 AD2d 62; Matter of Potts, 213 App. Div. 59, 62, aff'd 241 NY 593; Code of [*4]Professional Responsibility, DR 2-106). A quantum meruit fee cannot be based exclusively on a percentage of the settlement offer that the attorney obtained for his client (Byrne v. Leblond, supra at 642; Ruggiero v. R.W. Gross Plumbing and Heating, Inc., 226 AD2d 984,985).

Neither party called any attorneys as witnesses to testify about the above cited factors.

The Court will first determine whether defendant Roberts discharged the plaintiff for just cause. "Attorney-client relationships frequently end because of personality conflicts, misunderstandings or differences of opinion having nothing to do with any impropriety by either the client or the lawyer" (Klein v. Eubank, 87 NY2d 459, 463). The reasons given by defendant Roberts as to why she discharged the plaintiff show only a general dissatisfaction with his performance. Consequently, defendant Roberts failed to establish any misconduct at the time of discharge which rises to the level of a discharge for cause and forfeiture of plaintiff's legal fee (see Smerda v. City of New York, 7 AD3d 511, 512).

The question of whether the plaintiff violated the Code of Professional Responsibility (see, e.g., DR1-102, DR2-110) is best left for determination by a different tribunal. The Court also determines as a preliminary matter that since the plaintiff did not elect at the time of his discharge to receive compensation immediately based on quantum meruit, he opted by inference to have his fee measured by a percentage of the recovery based on his proportionate share of the work performed on the whole case (Matter of Cohen v. Grainger, Tesoriero & Bell, supra at 658-660; Lai Ling Cheng v. Modansky, supra at 458-459).

Accordingly, based upon the credible evidence and testimony adduced at trial, and after applying all of the relevant factors cited above, which the Court is required to take into account in assessing the value of the legal services provided to defendant Roberts by the plaintiff, the Court finds that the plaintiff's proportionate share of the net contingent percentage fee in this action is 25% and awards that amount to the plaintiff (see, Brown v. Governale, ___ AD3d ___, ___ NYS2d ___, 2006 NY Slip Op 3707 [2nd Dept., May 9, 2006]; Matter of Gary E. Rosenberg, P.C. v. McCormack, 250 AD2d 679). The defendant is directed to submit to the clerk of the Civil Term, on notice to the plaintiff, a judgment constituting 25% of the net contingent fee.

The foregoing constitutes the decision, order and judgment of this Court.

_____________________________

Hon. Gary F. Knobel

District Court Judge

Dated: June 30, 2006

cc: William D. Shanahan, Esq.

Matthew J. Zullo, Esq.

Hauppauge, NY 11749 [*5]

No.(631) 293-2300 - ext. 120