M.E. v. S.G.

• Decision Date: 11 July 1984
• Parties: In the Matter of M.E., Petitioner, v. S.G., Respondent.
• Court: New York Family Court

Page 539

478 N.Y.S.2d 539

124 Misc.2d 851

In the Matter of M.E., Petitioner, v. S.G., Respondent.

Family Court, New York City,

New York County.

July 11, 1984.

Jeffrey M. Steinitz, Brooklyn, for petitioner.

Jerome M. Becker, New York City, for respondent.

Ira Richard Bennett, New York City, for petitioner (Outgoing).

DECISION

JACK TURRET, Judge:

This is a paternity proceeding. An order of filiation was entered on July 8, 1983. Prior to there being a hearing set on the issue of support, counsel for the petitioner-mother sought the permission of this court to withdraw by Order to Show Cause dated April 11, 1984. It was alleged that the mother was not only uncooperative, but had harassed her lawyer and his family to the point where he could no longer continue as her counsel. The application to withdraw was granted when the mother appeared with new counsel of her own choosing.

An attorney with just cause may withdraw from a case and may recover for his services rendered. (Goldman v. Rafel Estates, 269 A.D. 647, 58 N.Y.S.2d 168; Schwartz v. Jones, 58 Misc.2d 998, 297 N.Y.S.2d 275; § 321 C.P.L.R.). Petitioner's relieved counsel has made an application for counsel fees payable by respondent pursuant to Sec. 536 F.C.A. Petitioner's new counsel has requested court ordered turnover of relieved counsel's papers relating to this matter. Relieved counsel is seeking a lien prior to said turnover and has subpoenaed various materials of the respondent and his companies claimed as necessary to discover the extent of respondent's finances so as to properly set counsel fees. Respondent's attorney moved to quash these subpoenas.

Counsel Fees/Lien

When an attorney is discharged without cause or voluntarily withdraws for just cause, he is entitled to a lien. This lien takes two forms. The first, a common-law possessory lien, allows the attorney to keep a client's papers or assets until his fee is paid. The other, a statutory lien (§ 475 Judiciary Law), is a lien against monies recovered for a client by the attorney's efforts in litigation (Levitas v. Levitas, 96 Misc.2d 929, 410 N.Y.S.2d 41).

Generally, where the outgoing attorney asserts a retaining lien for legal services rendered and refuses to release the clients' papers in his possession in the face of a request for turnover of such papers, the attorney is entitled to a summary determination, fixing the value of his services. That sum must be paid or otherwise secured before any turnover may be enforced (Levitas, supra ). However, Levitas, supra and other reported cases cited by relieved counsel, ¹ supporting this interpretation of the law, are distinguishable herein.

Most of the cases relied on by the relieved attorney are matrimonial cases. It is proper that a statutory lien be granted or fees be paid prior to a turnover of papers in a matrimonial case. This is for said attorney's protection as the case could be settled by the parties, depriving the attorney of his fee (see; Goldstein, supra; Levitas, supra.). In matrimonial cases, § 237 of the Domestic Relations Law and § 438 of the Family Court Act, grant statutory authority to award counsel fees at any stage of the proceeding. The instant case is a paternity proceeding. As such, a relieved attorney cannot be deprived of his fee by an out of court settlement. A paternity proceeding may only be settled with the court's approval (§ 516 F.C.A.). The court will not lose jurisdiction over this respondent until the order fixing support for the child is made. Respondent has extensive business interests in this jurisdiction.

The real party at interest here is the child.

(I)t must be remembered that while an order of filiation may effect the economic and other pragmatic aspects of the relationship between the adult parties, the primary purpose of filiation proceedings is the 'protection of the welfare of out-of-wedlock children.' (Lock v. Fisher, 104 Misc.2d 656, 660 citing Matter of J. Children, 50 A.D.2d 890, 891 appeal dismissed 39 N.Y.2d 741 ).

It is in the child's interest this action proceed expeditiously. Only the least complicated phase of this proceeding has been completed, the determination of paternity (due to the advent of the H.L.A. test and in light of the particular circumstances of this case.) The question of support, having the most direct bearing on the child's welfare, has yet to be resolved. Questions of custody/visitation may yet arise. These are the issues the court should be addressing at this time. A multiplicity of hearings regarding the same subject matter is to be avoided. The issue of support involves the means of both parents. (Sec. 545 F.C.A.). The issue of counsel fees to the attorney for the prevailing party involves the question of whether "he or she is unable to pay such counsel fees" (Sec. 536 F.C.A.).

Generally, "piecemeal" applications for counsel fees are frowned upon (In re Rosenblum's Will, Sur., 137 N.Y.S.2d 479). A trial court is granted wide latitude in controlling the conduct of a trial (Feldsberg v. Nitschke, 49 N.Y.2d 636, 427 N.Y.S.2d 751, 404 N.E.2d 1293; Spodek v. Lasser Stables, 89 A.D.2d 892, 453 N.Y.S.2d 706). Where as here, relieved counsel's right to compensation is amply protected (§ 516 F.C.A.), circumstances warrant moving the case forward on all issues and avoiding a separate hearing on the outgoing attorneys fee. When the court has concluded all hearings, attorney's fees will be fixed in the discretion of the Court (§ 536 F.C.A.). Relieved counsel will turn-over all of his former client's...