Plaintiff Michael Kushner brought this action against Defendant Christopher Eliopulos and Defendant Linda Eliopulos, to recover fees for legal services provided on behalf of Linda Eliopulos. Plaintiff is suing in quantum meruit for two thousand two hundred and eighty seven dollars ($2,287.00) based on the number of hours he devoted to Defendant Linda Eliopulos' defense in the underlying criminal action. A trial was held before this Court on April 7, 2010. After considering and evaluating the trial evidence and upon weighing and assessing the credibility of the witnesses, the Court makes the following findings of fact and conclusions of law.

Defendants, both attorneys, concede that they secured Plaintiff's legal services to represent Defendant Linda Eliopulos in a criminal matter. Defendants allege that Plaintiff was terminated for cause because, as a result of Plaintiff's negligent representation, they were forced to terminate him and secure alternative counsel. Alternatively, Defendants question the amount of time Plaintiff billed for representation. Defendants counterclaimed against Plaintiff for [*2]intentional infliction of emotional distress, breach of contract, and breach of professional responsibility.

The parties agree that Plaintiff was engaged by Defendant Christopher Eliopulos on Saturday, January 10, 2009, when he telephoned Plaintiff to secure representation for his wife, Defendant Linda Eliopulos, after she was arrested. At the time of the initial consultation, Plaintiff informed the Defendants that his fee would be five thousand dollars ($5,000.00). Plaintiff proceeded to represent the Defendants. Plaintiff prepared and submitted a retainer agreement to the Defendants on January 30, 2009. Defendants never executed the retainer agreement and never submitted payment to Plaintiff.

The authority of an attorney begins when the attorney is retained. Stone v. Bank of Commerce, 174 U.S. 412 (U.S. 1899). The creation of the relationship of attorney and client by contract is essential to the right of an attorney to recover compensation for his services. Jecies v. Matsuda, 503 F. Supp. 580 (S.D.NY 1980). The retainer agreement may be express or implied and thus no formal contract is necessary to create an attorney-client relationship as it may be implied from the conduct of the parties. Haythe & Curley v. Harkins, 214 AD2d 361 (1st Dep't 1995). Therefore, despite the fact that Defendants failed to sign the retainer agreement, there was an implied promise that Defendants would pay the costs for Plaintiff's legal services. Plaintiff proffered an agreement which the Defendants rejected. The absence of a signed written retainer agreement does not preclude the recovery of legal fees. Minz v. Gold, LLP v. Hart, 48 AD3d 526 (2nd Dept. 2008). An attorney who fails to obtain a written retainer agreement may recover the reasonable value of services rendered on a quantum meruit basis. Seth Rubenstein, PC v. Ganea, 41 AD3d 54 (2nd Dept. 2007); Volosevich v. Nunziata, 2008 NY Slip Op 51697U (NY Sup. Ct. 2008).

Here, Defendant Christopher Eliopulos engaged Plaintiff on behalf of Defendant Linda Eliopulos. It is clear from the testimony that Defendant Christopher Eliopulos contacted Plaintiff on a Saturday, explained the circumstances of the arrest, sought Plaintiff's advice, and authorized Plaintiff to handle the matter. Plaintiff proceeded to contact the police precinct and appeared in court on behalf of Defendant Linda Eliopulos. The Court accepts the credible testimony of Plaintiff regarding his services that included: preparation for Defendant Linda Eliopulos' arraignment, an appearance at the arraignment, retrieval of Defendant Linda Eliopulos' personal belongings from the police precinct, the making of necessary phone calls regarding the case, and driving Defendant Linda Eliopulos' to the train station to return home.

It is well established that a client may terminate his relationship with an attorney at any time with or without cause. Friedman v. Park Cake, Inc., 2006 NY Slip Op 8171 (1st Dep't 2006); Campagnola v. Mulholl, 76 NY2d 38 (1990). Defendants terminated Plaintiff on April 15, 2009. When an attorney is discharged for cause, the attorney has no right to compensation or a retaining lien, notwithstanding a specific retainer agreement. Id. When an attorney is discharged without cause, the attorney is limited to recovering in quantum meruit for the reasonable value of the services rendered. Id. In the instant matter, the evidence does not support a determination that Plaintiff was discharged by his clients for cause on the grounds of neglect. Instead, through the submission of phone logs and e-mails into evidence, the record supports the fact that Plaintiff adequately represented Defendant Linda Eliopulos, laid out a defense, advised Defendant Linda Eliopulos on how to proceed, and followed up on the progress of the case. [*3]Plaintiff kept the Defendants informed of the matter, complied with the client's request for information, informed the client of on-going developments, and explained matters to the client to permit the client to make decisions regarding their representation. There is no indication that Plaintiff ever neglected his clients' defense. Therefore, Defendants did not establish a basis for depriving Plaintiff counsel of his fee.

An attorney who is discharged without fault has an immediate right to recover the fair and reasonable value of the services rendered, determined at the time of discharge, and computed on the basis of quantum meruit, namely the value of the services. Cohen v. Grainger, Tesoriero & Bell, 81 NY2d 655 (1993); Lai Ling Cheng v. Modansky Leasing Co., 73 NY2d 454 (NY 1989); Reubenbaum v. B. & H. Express, Inc., 6 AD2d 47 (1st Dep't 1958); In re Estate of Montgomery, 272 NY 323 (1936). If a client exercises the right to discharge an attorney after some services are performed, but prior to the completion of the services for which the fee was agreed upon, the discharged attorney is entitled to recover compensation from the client measured by the fair and reasonable value of the completed services. Id. at 454; In re Cooperman, 83 NY2d 465 (1994). In general, factors to be considered include: (1) the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; (2) the lawyer's experience, ability, and reputation; (3) the amount involved and benefit resulting to the client from the services; (4) the customary fee charged for similar services; (5) the contingency or certainty of compensation; (6) the results obtained; and (7) the responsibility involved. Diaz v. Audi of Am., Inc., 2008 NY Slip Op 10118, 2 (2d Dep't 2008); Matter of Thompson, 2009 NY Slip Op 7855, 2 (2d Dep't 2009).

In applying these criteria to the facts at hand, the Court finds the fees submitted by Plaintiff to be fair and reasonable. Plaintiff performed substantial work on the matter including representation, defense strategy, and investigation. Plaintiff's representation included investigatory work concerning the underlying criminal matter, including speaking with store security about the incident and reviewing store video tape, phone calls and emails with Defendants, phone calls with the District Attorney's office, and phone calls with experts in anticipation of testimony at trial. Plaintiff also appeared at Defendant Linda Eliopulos' arraignment. Based on the foregoing, the hours that Plaintiff counsel spent on this case are reasonable given: (1) the time and labor required, (2) the skill required to handle the problems presented, (3) the benefit resulting to the client from the services, (4) the customary fee charged for similar services, and (5) the results obtained. Plaintiff submitted a "Description of Services" which was admitted into evidence at trial as Plaintiff's Exhibit 1. The Court credits Plaintiff with 9.0 hours of legal services and awards two thousand two hundred and fifty dollars ($2,250.00) for attorney's fees.

Defendants counter-claimed for intentional infliction of emotional distress, breach of contract, and breach of professional responsibility. Defendants failed to offer any evidentiary or testimonial proof to substantiate their counter-claims. In order to recover based on the intentional infliction of emotional distress, Defendants must establish that Plaintiff's conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and was utterly intolerable in a civilized community. See Marmelstein v. Kehillat, 2008 NY Slip Op 5767 (2008). Defendants were unable to establish such a claim.

With respect to breach of contract, the failure to perform constitutes a breach of contract. [*4]22A NY Jur Contracts § 429. Defendants never entered into a written agreement with Plaintiff and Defendants did not establish that Plaintiff failed to perform with respect to any oral agreements reached by the parties. Therefore, the Court finds that Plaintiff is not liable for breach of contract.

Defendants also allege that Plaintiff breached his professional responsibility and that Plaintiff willfully violated the following New York Rules of Professional Conduct: Rule 1.3 : Diligence, Rule 1.4: Communication, Rule 1.16:Declining or Terminating Representation, and Rule 8.4: Misconduct. An attorney's alleged violation of a disciplinary rule does not, by itself, give rise to a private cause of action. Steinowitz v. Gambescia, 2009 NY Slip Op 51370U, 2 (NY App. Term 2009). However, in some cases conduct constituting a violation of a disciplinary rule may constitute evidence of malpractice. Steinowitz v. Gambescia, 2009 NY Slip Op 51370U, 2 (NY App. Term 2009). In legal malpractice actions the claimant must establish that "but for" the attorney's negligence the result of the prior case would have been more favorable. Carmel v. Lunney 70 NY2d 169 (1987); Lemke v Zurich N. Am., 2009 NY Slip Op 29545 (NY Misc. 2009).

In the instant case, the factual assertions made by Defendants are insufficient to support a claim for legal malpractice. Despite the fact that Defendants never executed the retainer agreement and never submitted payment to Plaintiff, Plaintiff continued to represent the Defendants until they terminated him on April 15, 2009. Even if the Defendants had plead a counterclaim of malpractice, the evidence presented at trial does not offer factual support for maintaining a malpractice claim against Plaintiff. Plaintiff represented Defendant Linda Eliopulos at her arraignment, laid out a defense, followed up on the matter, and never missed a court appearance. Defendants were unable to prove that Plaintiff was negligent in his duties. Accordingly, Plaintiff's counter-claim for breach of professional responsibility is dismissed.

In summary, judgment in favor of Plaintiff in the amount of two thousand two hundred and fifty dollars ($2,250.00). Defendant's counter-claims for intentional infliction of emotional distress, breach of contract, and breach of profession responsibility are dismissed.

This constitutes the decision and order of this Court.

E N T E R,

Dated: May 3, 2010__________________

Hon. Pamela L. Fisher

Judge, Civil Court