Buchheit v. Buchheit

• Decision Date: 27 April 2020
• Docket Number: 2017-11179
• Citation: 127 N.Y.S.3d 253 (Table),67 Misc.3d 1217 (A)
• Parties: John R. BUCHHEIT, Plaintiff, v. Patricia A. BUCHHEIT, Defendant.
• Court: New York Supreme Court

67 Misc.3d 1217 (A)

127 N.Y.S.3d 253 (Table)

John R. BUCHHEIT, Plaintiff,

v.Patricia A. BUCHHEIT, Defendant.

2017-11179

Supreme Court, Monroe County, New York.

Decided on April 27, 2020

PATRICIA A. BUCHHEIT, Plaintiff Pro Se

THE GLENNON LAW FIRM,P.C, For the Lienor, The Glennon Law Firm, P.C., Peter J. Glennon,Esq., Laura K. Figueras,Esq., 160 Linden Oaks, Rochester, New York 14625

Richard A. Dollinger, J.

Matrimonial litigants — often dissatisfied with just the process of divorce much less the result — frequently complain about its costs but, as most often happens, the fees in attorney time and effort are often directly proportional to the litigants' demands — reasonable or otherwise on both sides — during the process.

When the process ends and the attorney achieves a noteworthy and hard-fought result, a litigant's lament about the fees is silenced if the fees are reasonable and driven by a client initiated and demanded strenuous legal effort.

Such is the case in this instance.

In this matter, after a long fought resolution of a divorce matter, the substituted attorney — who joined the fray shortly before trial and spent seven months in a complicated wrangle over post-settlement conduct and allegations of fraud — moved to withdraw as the wife's counsel. As part of that application, the law firm asserted a charging lien against the proceeds of an equitable distribution to his client, the former wife. This Court, in an order dated December 23, 2019, granted the charging lien, as well as a lien for the another law firm that had previously represented the wife. The Court, without resolving the underlying factual issues involved in the law firm's representation of the former wife, ordered that a distributive award to be paid to the wife from her former husband should be escrowed in the trust account of the former's husband's attorney until the Court could resolve the lien questions. Thereafter, the wife filed an order to show cause, seeking an order referring the charging lien to arbitration through the Monroe County Bar Association, and ordering the law firm of the former husband not to release the escrowed funds until the arbitration was complete. The law firm cross-moved to confirm the amount of the lien — $64,933.95 plus interest — and seek its transfer out of escrow to the former wife's former counsel.

In this longstanding matter, a short history of the litigation provides a backdrop of the fee requested and the existing lien. This matter was scheduled for trial in March, 2019. The day of trial, the wife's former counsel moved to withdraw. The current lienor was substituted as counsel on what can only be described as "not just the eve of trial," but in "the 11th hour and 50th minute" before trial. Importantly, at the time the law firm was retained, the wife signed a retainer agreement with her new firm. The agreement gives the firm the right to assert a charging lien, for unpaid legal fees and disbursements, on any property awarded to the wife as a result of equitable distribution. The agreement also contained a provision that in the event of a dispute over fees, the client had a right to arbitration pursuant to court rules. 22 NYCRR 137.1(b)(2). The new law firm expended significant time getting, as their lead counsel describes "up to speed" a euphemism that many litigators understand when given a last-second demand for "all hands on deck" to staff an imminent trial.

A multi-day trial ensued, involving experts and valuations. The trial lasted for five full days: three spent in trial, and two spent in settlement discussions in lieu of trial, culminating with a settlement stipulation on the record in late March, 2019.¹ However, the final divorce judgment was not entered until September, 2019. In the intervening six months, a blizzard of litigation ensued encompassing suspected hidden assets and other actions. Seven motions or cross-motions were brought after the negotiated settlement was reached on March 27, 2019. The law firm contends that the wife requested the filing of all of her post-trial motions, as well as all opposition to former husband's post-trial motions. There is no evidence that the wife did not authorize all of these applications and all the papers and arguments submitted in opposition to the husband's applications. In short, as the attorney describes the wife's conduct after the stipulation, the wife "made it clear that she wanted to stand up and fight, even after settlement."

In addition, at least part of the post-stipulation litigation was a result of the wife's conduct. It is undisputed that the wife removed approximately $24,000 of her husband's separate funds from a still-jointly-titled investment account after the wife had already received her half share of this account. These actions complicated what was already a complicated and highly contentious post-settlement divorce scramble. As the post-settlement and judgment issues continued, the firm's lead attorney noted the wife frequently contacted the attorney, which resulted, at her request, in the attorney speaking to her more frequently to explain, reassure, and reason with her, sometimes multiple times in the same day. There is no evidence that the wife disputes that these conversations — a frequent occurrence in difficult divorce matters between attorney and clients — resulted in more fees. Based on the papers before this Court, there is no credible evidence that the wife ever contested the reasonableness of the fees or her responsibility to pay until the end of the representation.

As a result of the numerous motions and the attorney's frequent communications with his client, the wife accrued significant fees after the parties entered the stipulation. The law firm's time record indicate that the wife incurred additional attorney's fees of $41,591.82, between March 27, 2019 — the date was matter was settled by a stipulation — and November 22, 2019 -- the date the firm forwarded its then-final bill to the wife. The total fees, now sought as a charging lien, total $64,933.95.

1. The wife's claim for fee arbitration

In her motion before this Court, the wife argues that the fees requested by her former counsel are subject to arbitration under pertinent court rules. The wife filed a request for arbitration and while the law firm contends that the filing was untimely, the Court need not consider that issue. The fee arbitration rules for attorneys provide that resort to arbitration is only required if the amounts in dispute involve a sum of less than $1,000 or more than $50,000. 22 NYCRR 137.1(b)(2). Eiseman Levine Lehrhaupt & Kakoyiannis, P.C. v. Torino Jewelers, Ltd. , 44 AD3d 581 (1st Dept 2007). The rules do allow the arbitration program to take jurisdiction over a fee dispute beyond the jurisdictional limit if the parties consent. 22 NYCRR 137.1(b)(2) (an arbitral body "may hear disputes involving other amounts if the parties have consented"). Based on the facts before this Court, the amount is disputed exceeds $64,000 and exceeds the jurisdictional limit in the rules. In addition, it is undisputed that the law firm, in an exchange of correspondence with the administrator of the arbitration program, never consented to the arbitration and informed the administrator that the fee dispute was before Supreme Court.

In one other aspect, any deferral to arbitration is unwarranted. The law firm included in its retainer...