In 1999, plaintiff Glenn Gelband, Esq. ("plaintiff" or "Mr. Gelband") commenced this action in Supreme Court, New York County by summons and complaint for breach of an oral agreement to share a legal fee based on a joint representation in an underlying wrongful death action filed in the Supreme Court, Suffolk County, in the matter of Roseanne Carbone v. Sandra Jeanne Enterprises, Inc., Index No. 25636/94 ("Wrongful Death Action"). Defendant Paul C. Matthews ("defendant" or "Mr. Matthews") interposed an answer essentially denying the allegations of the complaint.

By Decision and Order dated May 6, 2004, the Hon. Marcy S. Friedman, J.S.C., transferred this action from Supreme Court to the Civil Court of the City of New York pursuant to CPLR § 325(d).

In 2005, plaintiff moved to compel defendant to comply with his Demand for Discovery and Inspection dated July 29, 2004. (Plaintiff's Exhibit "22"). By Decisions and Orders dated January 13, 2005 and September 19, 2006, the Hon. Debra Samuels, J.C.C. and the Hon. Manuel Mendez, J.C.C., directed defendant to provide plaintiff with items one through six and eight. As a result of defendant's failure to comply with the above orders, the Hon. Saliann Scarpulla, J.C.C., by Decision and Order dated March 14, 2007, precluded defendant from offering evidence at trial as to items one through six and eight contained in plaintiff's Demand for Discovery and Inspection dated July 29, 2004. (Plaintiff's Exhibit "22").

The trial was conducted on August 6, 2007. Post-trial memoranda of law were submitted on September 10, 2007.

Plaintiff testified on his own behalf. Defendant testified and called Nicholas Guiliano ("Mr. Guiliano") as a witness, who was the opposing counsel in the Wrongful Death Action. This Court credits the testimony of the defendant's witnesses over the plaintiff's witness.

On August 29, 1993, Pasquale Carbone ("Mr. Pasquale") chartered a fishing vessel, the "Sandra Jeanne," owned by Sandra Jeanne Enterprises, Inc. and operated by the captain, Charles Forman and his son, Michael Forman. Mr. Carbone was accompanied by his two sons and a friend, Eugene R. Assendorf ("Mr. Assendorf"). When the "Sandra Jeanne" was approximately fifty miles off the coast of Montauk, Mr. Carbone fell over the side of the boat. The crew of the "Sandra Jeanne" attempted, but were unsuccessful in saving Mr. Carbone. Another vessel, the Bluejacket, arrived and retrieved Mr. Carbone who had lost consciousness. Mr. Carbone was taken aboard the Bluejacket and CPR was initiated. Mr. Carbone was later pronounced dead at the University Hospital of Stony Brook. ("Plaintiff's Exhibit "9").

On September 2, 1993, Roseanne Carbone ("Ms. Carbone"), the wife of the decedent, executed a retainer agreement retaining the plaintiff to commence a wrongful death action. (Plaintiff's Exhibit "1"). Without informing the plaintiff, Ms. Carbone thereafter also executed a retainer agreement retaining the defendant as an attorney in the same wrongful death action.^[FN1] (Defendant's Exhibit "B"). Both retainer agreements provided for a contingency fee of thirty-three and one-third percent of the sum recovered.

It is uncontroverted that between September 1993 and May 1994, plaintiff initiated his investigation by interviewing a few witnesses and gathering preparatory documents such as the Suffolk County Office of Medical Examiner Report of Autopsy dated August 30, 1993 (Plaintiff's Exhibit "14"), the Town of Southampton Death Report dated September 25, 1993 (Plaintiff's Exhibit "9"), and the United States Coast Guard Investigation Report dated May 5, 1994 (Plaintiff's Exhibit "11"). However, defendant had conducted his own independent investigation with insignificant or no participation by plaintiff. Defendant had also obtained the relevant documents himself and interviewed the needed witnesses that were crucial to the prosecution of the Wrongful Death Action. [*3]After May 2004, plaintiff played no role in the Wrongful Death Action.

It appears that the defendant exclusively prosecuted the Wrongful Death Action. Specifically, defendant defended a proceeding in the United States District Court, Eastern District of New York in Uniondale, New York, requesting an order exonerating the Formans from liability or, alternatively, limiting the recovery to the $65,000 value of the vessel ("Federal Court Action"). In May 2004, defendant deposed the crew of the "Sandra Jeanne," Charles Forman and his son, Michael Forman. On September 20, 1994, the Hon. Arthur D. Spatt, U.S.D.J., dismissed the Federal Court Action without prejudice to Roseanne Carbone commencing a wrongful death action in the New York State Supreme Court. Thereafter, defendant commenced the Wrongful Death Action in Supreme Court, Suffolk County, on behalf of Ms. Carbone. Defendant was present when Mr. Carbone's children were interviewed by the Southampton Police Department. Defendant contacted and interviewed witnesses such as Mr. Assendorf and the emergency medical technicians that applied CPR to Mr. Carbone, as well as Commander Viehwig, the Officer in Charge of Marine Investigation for the US Coast Guard District and Lt. Cammillucci, the investigating officer in charge of the investigation in Mr. Carbone's death.

Defendant is an acknowledged expert in maritime law, practicing in this area for over forty years. The Wrongful Death Action was settled solely due defendant's expertise and vast knowledge of maritime law. Defendant testified convincingly that the essential ingredient of Ms. Carbone's claim against the Formans was their failure to take prompt and proper steps to rescue Mr. Carbone after he fell into the water. Defendant learned during his investigation that the "Sandra Jeanne" was equipped with a Svertlik Rescue Platform which would have enabled the Formans to rescue Mr. Carbone. The defense argued that such a platform was not intended for rescues of this kind, but was only to be used when the boat was sinking. To counter such an argument, defendant obtained an expert on survival at sea, Wayne E. Williams ("Mr. Williams"), a retired Air Force Pilot, and former Commandant of the U.S. Air Force Sea Survival School. Mr. Williams reported that such a platform was designed to rescue someone from the water and would have allowed Mr. Carbone to be retrieved from the water within five minutes. Mr. Guiliano testified that Ms. Carbone had a difficult case on liability which was overcome by the expert's opinion and the sympathy of Ms. Carbone and her children. In addition, since Mr. Carbone was wealthy, even a minimal award would have exhausted the proceeds of the $500,000 insurance policy, potentially exposing the insurance carrier to a "bad faith" claim. Based on the above, defendant convinced Mr. Guiliano to surrender the remaining bulk of the insurance policy in the sum of $441,800. On December 24, 1996, the Hon. Harry E. Seidell, J.S.C., issued an Amended Order approving the compromise of the Wrongful Death Action in the sum of $441,800, including a legal fee of $109,731 to defendant. (Plaintiff's Exhibit "19").

There are multiple rules governing the sharing of compensation by attorneys including Judiciary Law § 491, the Code of Professional Responsibility Disciplinary Rule 2-107 ("DR 2-107") codified as 22 NYCRR § 1200.12, and Ethical Consideration 2-22 ("EC 2-22").

Judiciary Law § 491 prohibits sharing of compensation with non-attorneys but otherwise generally permits "an agreement between attorneys and counselors-at-law to divide between themselves the compensation to be received."

DR 2-107(a) provides specific parameters for the division of legal fees among lawyers as [*4]follows:

(a)A lawyer shall not divide a fee for legal services with another lawyer who is not a partner or associate of the lawyer's law firm, unless:

(1)The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made.

(2)The division is in proportion to the services performed by each lawyer or, by a writing given to the client, each lawyer assumes joint responsibility for the representation.

(3)The total fee of the lawyers does not exceed reasonable compensation for all legal services they rendered the client.

EC 2-22 also reaffirms the parameters of DR 2-107 as follows:

Without the consent of the client, a lawyer should not associate in a particular matter another lawyer outside the lawyer's firm. A fee may properly be divided between lawyers properly associated if the division is in proportion to the services performed by each lawyer or, by a writing given to the client, each lawyer assumes joint responsibility for the representation and if the total fee is reasonable.

The ethical standard emanating from the above rules to establish a joint representation can be broken down into two elements: (1) client knowledge of a joint representation in writing or constructive knowledge; and (2) the attorneys must have shared the legal work entailed. Excelsior 57th Corp. v Lerner, 160 AD2d 407, 553 NYS2d 763 (1st Dept 1990); Robert P. Lynn, Jr., LLC v Purcell, 40 AD3d 729, 835 NYS2d 664 (2d Dept 2007); Carter v Katz, Shandell, Katz and Erasmous, 120 Misc 2d 1009, 465 NYS2d 991 (Sup Ct Queens County 1983, Hyman, J.)

In this case, the client, Ms. Carbone, was not called to testify. However, it can be adduced from the testimony of the plaintiff and defendant that Ms. Carbone knew of their representation. In fact, Ms. Carbone signed two retainer agreements at different times retaining both parties to represent her in prosecuting the Wrongful Death Action. While the joint representation is not seriously contested, the terms of an agreement for joint representation is hotly disputed.

Mr. Gelband testified that in or about September 20, 1993, he orally agreed to a joint representation in consideration of a split of the legal fees of 68% for Mr. Matthews and 32% for himself. While Mr. Gelband has written correspondence that Mr. Matthews and he "would work together," there is no written evidence confirming or memorializing the specific terms of representation, such as the respective tasks and legal responsibilities as well as the manner of compensation. (Plaintiff's Exhibit "4" ). No competent evidence was provided to explain this glaring deficiency.

On the other hand, Mr. Matthews strenuously denied that he orally agreed to split the compensation with Mr. Gelband. In fact, Mr. Matthews credibly testified that he reduced his compensation from thirty-three and one-third percent to twenty-five percent of the recovery in order for Ms. Carbone to pay Mr. Gelband directly for the legal services rendered in the Wrongful Death Action. This Court acknowledges the fact that Mr. Matthews stated he also reduced his fee because infants were involved in the Wrongful Death Action. There could be mutually exclusive, valid [*5]reasons for Mr. Matthews to reduce his fee. Both reasons may account for the reduction in the contingency fee.

Essential Element of "Meeting of the Minds"

Necessary to Establish an Enforceable Contract

There must be an "objective meeting of the minds" to establish an enforceable contract. Express Industries and Terminal Corp. v New York State Department of Transportation, 93 NY2d 584, 589, 693 NYS2d 857, 860 (1999). "In order for a breach of contract to exist, there must be a meeting of the minds for the agreement said to have been breached." Miranco Contracting, Inc. v Perel, 29 AD3d 873, 816 NYS2d 516, 516-517 (2d Dept 2006). A "mere agreement to agree, in which a material is left for future negotiations, is unenforceable." Joseph Martin, Jr., Delicatessen, Inc. v Schumacher, 52 NY2d 105, 109, 436 NYS2d 247, 249 (1981) (the failure to agree on the amount or consideration for future rental or sale is unenforceable).

In this regard, plaintiff has failed to meet his burden of proof to demonstrate that the parties had a "meeting of the minds" concerning their alleged agreement as to the fee splitting in the Wrongful Death Action. Unlike the Carter case, plaintiff and defendant did not have a prior course of dealing to establish the fee sharing agreement. The credible evidence herein presented establishes that Mr. Matthews never agreed to the fee splitting arrangement that Mr. Gelband had allegedly proposed. The more persuasive testimony elicited is that Mr. Matthews reduced his retainer fee from thirty-three and one-third percent to twenty-five percent to enable Ms. Carbone to compensate Mr. Gelband herself. While Mr. Gelband may be entitled to be compensated from Ms. Carbone for the reasonable value of his legal services, plaintiff neither named Ms. Carbone in this action nor alleged a cause of action for quantum meruit. See Donohue v Minicucci, 174 AD2d 1013, 572 NYS2d 171 (4th Dept 1991) (the trial court improperly entered a judgment for legal services based on a joint representation where the plaintiff failed to allege a cause of action for quantum meruit in the complaint).

Based on the preponderance of the credible evidence, plaintiff has failed to demonstrate that defendant breached an oral agreement to share a legal fee based on joint representation. The clerk is hereby directed to enter a judgment dismissing this action.

The foregoing constitutes the decision and order of this Court. Courtesy copies of this decision and order have been mailed to counsel for the parties.

Dated:New York, New York/S/

September 26, 2007Hon. Shlomo S. Hagler, J.C.C.