Theroux v. Theroux

• Decision Date: 30 December 1988
• Citation: 536 N.Y.S.2d 151,145 A.D.2d 625
• Parties: June THEROUX, Respondent, v. George THEROUX, Defendant; Epstein & Greebel, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 151

536 N.Y.S.2d 151

145 A.D.2d 625

June THEROUX, Respondent, v. George THEROUX, Defendant Epstein & Greebel, Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 30, 1988.

Epstein & Greebel, Mineola (Elliot M. Epstein and Madeleine L. Kane, of counsel), appellant pro se.

Giorgi and DePoto, Syosset (Robert M. DePoto, of counsel), for respondent.

Before MOLLEN, P.J., and BROWN, RUBIN and KOOPER, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, the plaintiff's former attorneys, Epstein & Greebel, appeal from an order of the Supreme Court, Suffolk County (Abrams, J.), dated October 2, 1987, which, inter alia, denied their motion to impose and enforce a charging or retaining lien and directed the plaintiff to pay them a further counsel fee of only $3,500.

ORDERED that the order is affirmed, without costs or disbursements.

In this matrimonial action, the appellants--the plaintiff's former attorneys--moved for an order fixing the value of their services on a quantum meruit basis and enforcing a retaining lien on their client's papers or imposing a charging lien on any equitable distribution award or counsel fee award granted to the plaintiff upon resolution of the action. The appellants' compensation claim is predicated upon the unpaid balance of fees due them for services rendered prior to their dismissal without cause. The appellants allege that as a result of their services, a stipulation of settlement was effected, whereby the defendant would purchase the plaintiff's 50% equitable interest in the parties' condominium for the sum of $70,000. The condominium, which was owned by the plaintiff and the defendant as tenants by the entirety, was the only significant marital asset.

This relatively simple, albeit contested, matrimonial action involved no issues of custody or visitation. Before the court could sign the proposed divorce judgment, which incorporated but did not merge the terms of the stipulation of settlement, the defendant died. At the time of the instant motion to fix attorneys' fees, the court had granted the motion by the executor of the decedent's estate for an order providing that the proposed divorce judgment be signed, nunc pro tunc, as of October 27, 1986. The divorce judgment does not provide for any counsel fee award.

The fee sought by the appellants amounts to $17,496, representing $26,408 in accumulated billings less $8,912 in payments made by the plaintiff. The plaintiff and the appellants stipulated that the question of the reasonable value of the legal services would be decided on the papers submitted to the court rather than have a hearing conducted on that issue. In disposing of the motion, the court concluded that the reasonable value of the discharged attorneys' services, including disbursements, amounted to $12,412. The court directed the plaintiff to pay a further counsel fee of $3,500, representing the balance of compensation due the appellants, and denied the appellants' application to secure the payment with a retaining lien or charging lien.

Since the court determined that the appellants were not entitled to the enforcement of a retaining lien on the plaintiff's file or the imposition of a charging lien on any proceeds to be received by the plaintiff upon resolution of the action, the appellants contend, for the first time on appeal, that the court was without authority to summarily determine the value of their services in the context of the instant motion. We disagree.

A client has an absolute right to discharge an attorney at any time. If the discharge is without cause before the completion of services, then the amount of the attorney's compensation must be determined on a quantum meruit basis (see, Teichner v. W & J Holsteins, 64 N.Y.2d 977, 979, 489 N.Y.S.2d 36, 478 N.E.2d 177; Ventola v. Ventola, 112 A.D.2d 291, 292, 491 N.Y.S.2d 736; Shelbourne Garage v. Licht, 34 A.D.2d 563, 309 N.Y.S.2d 850). Additionally, an attorney's rendition of services and expenditure of disbursements on behalf of a client entitles him to a common-law retaining lien on the client's file. A retaining lien remains in force until the client's account is paid in full and is dependent only upon the attorney's continued possession of papers irrespective of the outcome of the litigation involved (Steves v Serlin, 125 A.D.2d 780, 781, 509 N.Y.S.2d 666). Consequently, "where a client requests that papers in the possession of his former attorney be returned to him, and the attorney asserts a claim for compensation for services rendered, the attorney is entitled to a determination fixing the value of his services, and the amount so fixed must be paid or otherwise secured to the attorney before any such turnover may be enforced" (Rosen v. Rosen, 97 A.D.2d 837, 468 N.Y.S.2d 723; Ventola v. Ventola, supra, 112 A.D.2d at 292, 491 N.Y.S.2d 736). Whether the fee so fixed shall be presently payable or secured by a lien on the cause of action rests in the sound discretion of the court (see, Shelbourne Garage v. Licht, supra ). In contrast, when the assistance of the court is not requested to compel the turnover of papers, as here, we have held that the discharged attorney is relegated to commencing a plenary action to recover the reasonable value of his services (see, Shatzkin v. Shahmoon, 19 A.D.2d 658, 242 N.Y.S.2d 72; see also, White v. White, 107 Misc.2d 551, 435 N.Y.S.2d 535). In this case, however, the appellants and the plaintiff consented to the court summarily determining the reasonable value of the appellants' services in this matrimonial action, cognizant that the plaintiff had never asked the appellants to return her papers or requested the aid of the court to compel the turnover of her file. This is not a case where the court lacked subject matter jurisdiction to determine the value of the legal services on a quantum meruit basis. Moreover, the court has traditional authority to regulate the charging of fees for legal services under its inherent and statutory power to regulate the practice of law (Matter of First Nat. Bank of East Islip...