Defendant Holly Whitmore moves, pursuant to CPLR 3211 (a) (1), (2) and (7), for an order dismissing the instant complaint. Plaintiff Sheresky Aronson & Mayefsky, LLP (the Law Firm) cross-moves for an order, pursuant to CPLR 3211 (c), treating defendant's motion to dismiss and its cross motion as motions for summary judgment, and granting summary judgment in its favor.

In 2002, defendant retained the Law Firm to represent her against her former husband in a divorce action, entitled Whitmore v Whitmore (New York State Supreme Court, Suffolk County, index no. 26513/02 [the Divorce Action]). In connection with this representation, on June 12, 2002, defendant and the Law Firm executed a retainer agreement. The retainer [*2]agreement set forth, inter alia, the nature of the representation, how defendant was to be billed and how the representation could be terminated. [Affirmation of Heidi Harris, Esq. in Support of Cross-Motion, Exh. 1]. It also contained a "Premium Fee" clause, which allowed for an additional fee and is the gravamen of the dispute in the instant action. [id.]

The Divorce Action was subsequently settled in accordance with a settlement agreement executed by defendant and her former husband on May 9, 2005, which provided, inter alia, for payment of 100% of the plaintiff's legal fees, which totaled approximately $350,000. [Harris Aff., Exh. 3]. At some juncture during the Law Firm's representation of defendant, defendant agreed to pay the Law Firm a "Premium Fee", i.e., a bonus, of $150,000.00 payable in three payments. [Aff. of Holly Whitmore at ¶5]. The first installment of $50,000 was paid in July 2005. Subsequently, however, defendant notified the Law Firm, inter alia, that "after looking over the total billing figures and [her] after-settlement bonus to the firm of $50,000, [she has] decided [that] this bonus is sufficient and that [she would] not be making any more bonus payments". [Aff. Of David E. Eagan in Support of Motion, Exh. C, Defendant's Correspondence to plaintiff Law Firm dated 5/15/06).

The Law Firm thereafter commenced this action against defendant for breach of the "Premium Fee" clause of the retainer agreement, complaining that defendant failed to pay the second installment of the premium fee in the amount of $50,000 due on May 9, 2006. [Eagan Aff, Exh. A].

Defendant now moves, pursuant to CPLR 3211 (a) (1), (2), and (7), for an order dismissing the instant action. On a motion to dismiss, pursuant to CPLR 3211, the court's task is to determine only whether the facts as alleged, accepting them as true and according plaintiff every possible favorable inference, fit within any cognizable legal theory (Ladenburg Thalmann & Co., Inc. v Tim's Amusements, Inc., 275 AD2d 243 [1st Dept 2000]). Under CPLR 3211 (a) (1), a motion to dismiss based on the existence of a defense founded upon documentary evidence, defendant has the burden of demonstrating that the documentary evidence conclusively resolves all factual issues and that plaintiff's claim fails as a matter of law (Fortis Fin. Servs., LLC v Fimat Futures USA, Inc., 290 AD2d 383 [1st Dept 2002]).

In support of her motion, defendant initially argues that the Law Firm failed to comply with 22 NYCRR 1400.3 (the Matrimonial Rule), which governs matrimonial retainer statements. Specifically, defendant maintains that, pursuant to that Rule, the premium fee arrangement constituted an amendment to the retainer agreement, and was required to be in writing and filed with the Supreme Court in the Divorce Action. Additionally, she maintains that, the "Premium Fee" clause fails to set forth how this additional fee would be triggered and calculated, as required by 22 NYCRR 1400.3 (8). Defendant contends that since the Law Firm failed to comply with the Rule, it is precluded from collecting the additional fee it seeks.

In opposition, the Law Firm essentially argues that the premium fee agreement was not an amendment to the Retainer Agreement. It maintains that since the discussion concerning the premium fee was specifically contemplated by the "Premium Fee" Clause, and the parties' premium fee discussion and resulting agreement by defendant to pay a premium fee did not change, alter or modify the Retainer Agreement, but rather carried out the terms thereof, a new agreement did not need to be filed.

The pivotal issue raised by the parties is whether the Law Firm complied with the matrimonial rules of procedure for attorneys in domestic relations matters, i.e., the Rule, in [*3]connection with its claimed entitlement to the payment of the premium fee agreed to by defendant.

22 NYCRR 1400.3 was " promulgated to address abuses in the practice of matrimonial law and to protect the public'" (Mulcahy v Mulcahy, 285 AD2d 587, 588 [2d Dept], lv denied 97 NY2d 605 [2001], quoting Julien v Machson, 245 AD2d 122, 122 [1st Dept 1997]). The requirement that attorneys execute written retainer agreements with matrimonial clients is found not only in the Rule, but also in Code of Professional Responsibility, in Disciplinary Rule (DR) 2-106 (c) (2) (b), which forbids attorneys from collecting "[a]ny fee in a domestic relations matter ... unless a written agreement is signed by the lawyer and client setting forth in plain language the nature of the relationship and the details of the fee arrangement." It is well settled that an attorney's noncompliance with the Rule generally precludes the attorney's recovery of fees in domestic relations matters (see Ackerman v Gebbia-Ackerman, 19 AD3d 519 [2d Dept], dismissed 6 NY3d 740 [2005]; Bishop v Bishop, 295 AD2d 382 [2d Dept 2002]). The relevant portions of the Rule relied on by the defendant provide as follows:

An attorney who undertakes to represent a party and enters into an arrangement for, charges or collects any fee from a client shall execute a written agreement with the client setting forth in plain language the terms of the compensation and the nature of services to be rendered. The agreement, and any amendment thereto, shall be signed by both client and attorney, and in actions in Supreme Court, a copy of the signed agreement shall be filed with the court with the statement of net worth. ... A copy of a signed amendment shall be filed within 15 days of signing. ...

8. Any clause providing for a fee in addition to the agreed-upon rate, such as a reasonable minimum fee clause, must be defined in plain language and set forth the circumstances under which such fee may be incurred and how it will be calculated.

(22 NYCRR 1400.3 & 1400.3 [8]). The language of this Rule is to be given its plain meaning and "construed according to the fair import of its terms" (City of New York v Land and Building known as 355 West 41st Street, 23 AD3d 183, 185 [1st Dept 2005]).

It is undisputed that the retainer agreement signed by the parties in 2002 was properly filed, and that the Law Firm received payment in full from defendant's ex-husband for its representation of the defendant during the Divorce Action. However, the fee being sought in this action by the Law Firm consists of an additional fee characterized in the retainer agreement as a premium fee, pursuant to the "Premium Fee" clause therein. This clause provides as follows:

We reserve the right to discuss with you at the conclusion of the matter your payment of a reasonable additional fee to us, in excess of the actual time and disbursements, for exceptional results achieved, time expended, responsiveness accorded, or complexity involved in your case. However, no such fee will be charged to you without your consent.

(Retainer Agreement, at 3).

Since this clause provides for an additional fee, in addition to the agreed-upon compensation, it must comply with the requisites of the Rule, which, based on its plain language, clearly requires that any clause for an additional fee must define in "plain language," inter alia, how the additional fee "will be calculated" (22 NYCRR 1400.3 [8]). [*4]

Here, the "Premium Fee" clause merely reserves the Law Firm's right to have a future discussion with defendant regarding the payment of the premium fee. This clause is devoid of any language explicitly setting forth how this fee was to be calculated (22 NYCRR 1400.3 [8]). Additionally, the "Premium Clause" fails to clearly provide the circumstances under which the premium fee "may be incurred" (id.). Although this clause indicates that the payment of an additional fee would be for "exceptional results achieved, time expended, responsiveness accorded, or complexity involved in your case," it does not define in "plain language" how these factors would trigger the additional fee, particularly when the Law Firm was being compensated pursuant to the hourly billing rates set forth in the retainer agreement. Further, an additional fee based on exceptional results could be viewed as a contingent fee, which is clearly prohibited by DR 2-106 (C) (2).^[FN1] Thus, the "Premium Fee" Clause fails to set forth in "plain language" the factors mandated by the Rule (22 NYCRR 1400.3 [8]).

Therefore, in the absence of a properly drafted clause in the matrimonial retainer agreement regarding the additional fee as mandated by the Rule (22 NYCRR 1400.3 [8]), and since the additional fee sought by the Law Firm constitutes a fee related to services rendered in a domestic relations matter which must be in writing (DR 2-106 [C] [2] [b]; 22 NYCRR 1200.11; 22 NYCRR 1400.3 [8]), a supplemental writing amending the clause would be required to be filed with the Supreme Court in the Divorce Action (22 NYCRR 1400.3).

Thus, based upon the omission of the requisite language in the "Premium Fee" Clause as required by the Rule, and the failure of the filing of a writing amending the "Premium Fee" Clause to include the necessary language, the Law Firm failed to comply with the Rule. Accordingly, the Law Firm's noncompliance results in its inability to collect the additional fee they seek in this action (see Bishop v Bishop, 295 AD2d at 383).

In view of the foregoing, this Court need not address defendant's remaining argument for dismissing the complaint based on the statute of frauds. Therefore, that branch of the defendant's motion to dismiss on the grounds that the Law Firm failed to comply with 22 NYCRR 1400.3 and 1400.3 (8) is granted. Thus, the cross motion by defendant Sheresky, Aronson & Mayefsky, LLP for an order, pursuant to CPLR 3211 (c), treating defendant's motion to dismiss and its cross motion as motions for summary judgement, is denied as moot.

Accordingly, it is

ORDERED that the motion by defendant Holly Whitmore for an order dismissing the complaint is granted, and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk of the Court; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly; and it is further

ORDERED that the cross-motion by plaintiff Sheresky, Aronson & Mayefsky, LLP for [*5]an order, pursuant to CPLR 3211 (c), treating defendant's motion to dismiss and its cross motion as motions for summary judgement, is denied; and it is further

ORDERED that within 30 days of entry of this order, defendant shall serve a copy upon plaintiff, with notice of entry.

Dated:

_____________________________

Hon. Doris Ling-Cohan, J.S.C.