These consolidated petitions arise out of a legal fee dispute resulting from Andre Pickering (AP) & Cisne Pickering (CP) hiring Merium Malik, Esq. (Malik) to perform legal services for them in regards to an immigration matter, for which they paid a total of $13,357.50.

The parties initially submitted the dispute to arbitration and on September 20, 2018, an arbitration award was issued finding that Mr. & Mrs. Pickering were entitled to a refund in the amount of $10,357.50.

On October 25, 2018, Malik commenced a proceeding under Index Number 26244-18 seeking a trial de novo.

On November 16, 2018, Mr. & Mrs. Pickering commenced a proceeding seeking to confirm the arbitration award, and seeking additional fees/damages of $23,700.00.

Th court held a joint trial on both proceedings on September 6, 2019. At the close of the trial Malik withdrew her request for a judgment against the Pickerings, and the court reserved decision.

In the fall of 2017, Mr. & Mrs. Pickering, who are residents of the British Virgin Islands, were in New York. During this period, two hurricanes caused significant devastation to their country. Their home was damaged and their children remained in the British Virgin Islands under distress. Mr. & Mrs. Pickering decided they would like to remain in the United States legally and to bring their children to live with them here so the children would be safe.

On or about October 10, 2017, CP met with Malik and retained her. Malik advised Mr. & Mrs. Pickering to file separate asylum applications to increase their chances of winning and stated that each application would cost a $6500 flat fee.

CP gave Malik an initial retainer of $10,000 (Ex 3), and Mr. & Mrs. Pickering both signed retainer agreements with Malik (Exs A-4 & A-5).

On October 13, 2017, CP returned to Malik's office, with her husband, to pay Malik the balance of the requested fee, an additional $3357.50.

CP credibly testified that as soon as Malik obtained this second payment she advised CP for the first time that devastation from a hurricane would not be sufficient to obtain asylum and that more substantial facts would need to be alleged in order for an asylum application to be successful.

On or about November 22, 2017, Mr. & Mrs. Pickering no longer wished to proceed with the applications. They felt that Malik had given them misinformation and had mislead them, and they asked for a refund. Malik agreed to review how much of the retainer they were entitled to get back, and refund them an appropriate amount.

Pursuant to 22 NYCRR 137.0 The New York State Fee Dispute Resolution Program was established to provide " ... for the informal and expeditious resolution of fee disputes between attorneys and clients through arbitration and mediation."

Pursuant to 22 NYCRR 137.2 "... the arbitration award shall be final and binding unless de novo review is sought as provided in Section 137.8 ...".

22 NYCRR 137.8 provides:

A party aggrieved by the arbitration award may commence an action on the merits of the fee dispute in a court of competent jurisdiction within 30 days after the arbitration award has been mailed. If no action is commenced within 30 days of the mailing of the arbitration award, the award shall become final and binding.

The issue for the court to determine is how much if any refund is due to Mr. & Mrs. Pickering. After a review of all the testimony and the documents submitted the court agrees with the arbitration findings that Malik had not earned the right to keep anything beyond $3000 for the work done. The court finds that Malik completely failed to justify a fee of an additional $10,000. Malik offered no testimony about her skills, background or experience.

Malik offered only cursory testimony about the 90 hours of work she alleges was done on this matter. Malik did not differentiate between hours spent by her staff as opposed to herself. Malik acknowledged she maintained no business records of the amount of time she allegedly spent working on the case. The court finds that Malik's hours were intentionally inflated. For example in February of 2018 Michelle Shofler claimed there ere approximately 65 hours total rather than the 90 Malik claimed at trial (Ex 2).

Additionally, Malik appeared to act in an unprofessional manner with Mr. & Mrs. [*2]Pickering as evidenced in her October 10, 2018 email to them, where she threatened them about costs and lengthy delays she alleged would accompany her request for a trial de novo. Malik stated in pertinent part:

We have received the arbitration award and it is asking us to pay $10,357.50. We want to let you know that we will be filing for a trial de novo. This means that we will be rejecting the fee dispute. We will be filing the proper paperwork for a trial de novo in New York civil court.

When we commence this action we are going to ask for a jury trial and we will have several court appearances in downtown Manhattan, New York, which will require your presence. There are going to be multiple court appearances and multiple conferences during this process, which will go on for years. The entire process will be costly to you in terms of flights, time and money spent.

"When a client is seeking the return of funds already paid to the attorney, the attorney does not need to show substantial compliance with 22 NYCRR 1400.3, but only that the fees paid were properly earned (Law Office of Sheldon Eisenberger v. Blisko, 106 AD3d 650, 652)."

Here Malik failed to show that any fees beyond $3000 were properly earned.

Based on the foregoing, the clerk is directed to enter judgment in favor of Cisne Pickering and Andre Pickering in the amount of $10,357.50 plus costs and interest from September 20, 2018.

All other claims asserted herein are dismissed.

This constitutes the decision and order of the court.