Gangewere v. Bernstein

• Decision Date: 13 November 1961
• Parties: Mary GANGEWERE and Russell Gangewere, her husband, and Russell Gangewere, individually, and Ann Lewis, Plaintiffs, v. Celia BERNSTEIN and William Bernstein, her husband, Defendants.
• Court: U.S. District Court — Southern District of New York

199 F. Supp. 38

Mary GANGEWERE and Russell Gangewere, her husband, and Russell Gangewere, individually, and Ann Lewis, Plaintiffs, v. Celia BERNSTEIN and William Bernstein, her husband, Defendants.

United States District Court S. D. New York.

November 13, 1961.

Baar, Bennett & Fullen, New York City, Milton I. Newman, New York City, of counsel, for plaintiffs.

David E. Winer, New York City, petitioner, pro se. Rivkin & Rosen, New York City, Louis Rivkin, New York City, of counsel.

MacMAHON, District Judge.

These are two motions relating to the substitution of attorneys in a negligence suit. Plaintiffs were referred to David Winer, a New York attorney, by Frank Scerbo, the New Jersey attorney they originally engaged. At that time, Winer was a member of Baar, Bennett & Fullen, who became attorneys of record when the action was filed in this court. Plaintiffs made a contingent fee arrangement with Scerbo, but their, or his, arrangement with Winer and/or his firm are unclear.

Winer, who had handled the case for his firm, withdrew from the partnership on May 1, 1961, and plaintiffs directed the firm to release the files to him. It refused and, as a result, Winer was handicapped in conducting discovery procedures. The clients, having had enough of the dispute, move to substitute a new firm as their attorneys.

A client has an absolute right to replace his attorney, with or without cause. The Flush, 277 F. 25 (2 Cir., 1921), cert. denied, Bulk Oil Transports v. Thompson, 257 U.S. 657, 42 S.Ct. 184, 66 L.Ed. 421 (1922). All the attorneys involved, in recognition of the rule, agree to the substitution. However, both Winer and Baar, Bennett & Fullen claim an attorney's lien for past services and ask that the order of substitution be conditioned on a recognition of that lien.

A discharged attorney, other than one discharged for cause, Matter of Weitling, 266 N.Y. 184, 187, 194 N.E. 401 (1935), has two distinct liens to secure payment for past services: (1) a retaining lien on all the client's property in his possession, and (2) a charging lien upon the client's claim and any recovery which may be obtained. Robinson v. Rogers, 237 N.Y. 467, 470, 143 N.E. 647, 33 A.L.R. 1291 (1924). The New York Judiciary Law, § 475, 29 McKinney's Consol.Laws, c. 30, codifies the charging lien, and this statute applies in this federal court. Nolan v. Hemingway Bros. Interstate Trucking Co., 88 F.Supp. 111, 113 (S.D.N.Y.1950).

When ordering substitution, courts generally compel an attorney to deliver his client's papers to the new attorney. Since this destroys the former attorney's retaining lien, which depends on possession, the order is often conditioned on the plaintiff's giving an undertaking or deposit to secure whatever may be due the replaced attorney. In re San Juan Gold, 96 F.2d 60 (2 Cir., 1938). Here, however, the former attorney's fees are contingent upon plaintiffs' recovering in the action. If plaintiffs lose, no compensation will be due, and there will be no claim for past legal services requiring protection. If plaintiffs win, compensation commensurate with the value of the services rendered will be due, but that claim is adequately protected by the replaced attorney's charging lien which is not disturbed by an order of substitution. Robinson v. Rogers, supra, 237 N.Y. at 472, 143 N.E. 647. A bond or deposit is, therefore, unnecessary. The contingent fee arrangement, however, makes it impossible to ascertain now what amount of money, if any, is due to the discharged attorneys. It is...