Wiggins v. Kopko

• Decision Date: 04 April 2013
• Citation: 2013 N.Y. Slip Op. 02312,105 A.D.3d 1132,962 N.Y.S.2d 776
• Parties: Walter J. WIGGINS, Respondent, v. Edward E. KOPKO et al., Appellants.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 1132

962 N.Y.S.2d 776

2013 N.Y. Slip Op. 02312

Walter J. WIGGINS, Respondent,

v.Edward E. KOPKO et al., Appellants.

Supreme Court, Appellate Division, Third Department, New York.

April 4, 2013.

Seth J. Peacock, Ithaca, for appellants.

Holmberg, Galbraith, Van Houten & Miller, Ithaca (Dirk A. Galbraith of counsel), for respondent.

Before: MERCURE, J.P., SPAIN, McCARTHY and GARRY, JJ.

GARRY, J.

Appeal from an order of the Supreme Court (Cerio Jr., J.), entered January 17, 2012 in Tompkins County, which, among other things, granted plaintiff's motion to compel certain disclosure.

In October 2004, a client retained the law firm of Wiggins & Masson, LLP, in which plaintiff was a partner, to represent him in a legal malpractice action on a contingency fee basis. Plaintiff thereafter retained defendant Edward E. Kopko to work on this action. Kopko became the attorney with primary responsibility for the action, and eventually entered into a partnership agreement with plaintiff, forming defendant Wiggins & Kopko, LLP (hereinafter referred to as the partnership).¹ Disagreements later arose and, in May 2010, plaintiff commenced this action seeking a judgment dissolving the partnership and compelling Kopko to pay certain legal fees.

Upon learning that Kopko had drafted a letter to the client advising him of the partnership's dissolution and soliciting him as a personal client, plaintiff telephoned the client, discussed the deteriorating relationship between himself and Kopko and warned the client that fee issues might result if he signed a retainer agreement with Kopko. Angered by this call, the client wrote a letter stating that he was discharging plaintiff and the partnership and retaining Kopko, followed—apparently after consultation with Kopko—by a second letter stating that he had discharged plaintiff, the partnership and Wiggins & Masson “for cause.” Plaintiff thereafter executed a consent to withdraw himself, the partnership and Wiggins & Masson from the malpractice action and to substitute Kopko. The action was later tried before a jury, resulting in a substantial award.

Seeking a share of the legal fee in this and other actions, plaintiff served Kopko with a demand to produce documents, including the client's complete file. Kopko objected and sought a protective order, asserting, as to the malpractice action, that plaintiff had been discharged for cause and was not entitled to a fee. Plaintiff then moved to compel disclosure. Following a hearing, Supreme Court issued an order that, as pertinent here, granted plaintiff's motion for disclosure of the client's file upon finding that the client's discharge of plaintiff was ineffective, that neither the partnership nor Wiggins & Masson was discharged for cause, and that plaintiff was entitled to compensation on the partnership's behalf by quantum meruit. Kopko appeals. ²

Parties in a civil action are entitled to “full disclosure of all matter material and necessary” (CPLR 3101[a] ), a discretionary determination based on “usefulness and reason” ( Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 [1968];see Murphy v. Hamilton, 90 A.D.3d 1294, 1295, 934 N.Y.S.2d 595 [2011];DG & A Mgt. Servs., LLC v. Securities Indus. Assn. Compliance & Legal Div., 78 A.D.3d 1316, 1318, 910 N.Y.S.2d 242 [2010] ). We find no abuse of discretion here. Whether the client's file in the malpractice action is material and necessary to plaintiff's action depends on whether plaintiff or the partnership are entitled to a share of the malpractice action fee, which in turn depends on the reason for the discharge. A client may discharge his or her attorney at any time, with or without cause, but the discharged attorney only forfeits the right to compensation for services rendered when discharged for cause ( see e.g. Teichner v. W & J Holsteins, 64 N.Y.2d 977, 979, 489 N.Y.S.2d 36, 478 N.E.2d 177 [1985];Matter of Stevens, 252 A.D.2d 654, 655, 675 N.Y.S.2d 182 [1998] ). A determination that an attorney was discharged for cause may be based on negligence or misconduct, such as substantial delay in prosecuting an action or interference with a client's attempts to settle a case; more is required than a client's “general dissatisfaction” with the attorney's performance ( De Luccia v. Village of Monroe, 180 A.D.2d 897, 899, 580 N.Y.S.2d 91 [1992];see Campagnola v. Mulholland, Minion & Roe, 76 N.Y.2d 38, 43–44, 556 N.Y.S.2d 239, 555 N.E.2d 611 [1990];Matter of Stevens, 252 A.D.2d at 656, 675 N.Y.S.2d 182;Dagny Mgt. Corp. v. Oppenheim & Meltzer, 199 A.D.2d 711, 712–713, 606 N.Y.S.2d 337 [1993] ). The client's statement in the second letter that the discharge was “for cause” is not dispositive, as the determination requires an objective legal analysis of the attorney's conduct and the client's reasons for terminating the employment ( see Dagny Mgt. Corp. v. Oppenheim & Meltzer, 199 A.D.2d at 712–713, 606 N.Y.S.2d 337;De Luccia v. Village of Monroe, 180 A.D.2d at 899, 580 N.Y.S.2d 91).

Kopko contends that plaintiff was discharged for cause due to alleged misconduct in his call to the client. However, without regard to whether the call constituted misconduct—which we do not decide—we agree with Supreme Court that the relevant inquiry is whether the partnership was discharged for cause. The client originally retained Wiggins & Masson—not plaintiff individually—and when Kopko later assumed primary responsibility for the malpractice litigation, he did so on behalf of the partnership or its predecessors, which continued to act as counsel of record in the malpractice action until Kopko was substituted shortly before the trial. Plaintiff was not counsel of record in the malpractice action, and so could not be discharged from that role ( see generally Rodriguez v. City of New York, 66 N.Y.2d 825, 827–828, 498 N.Y.S.2d 351, 489 N.E.2d 238 [1985] ).³ Further, we find no reason to disturb Supreme Court's determination that neither the partnership nor Wiggins & Masson was discharged for cause. Essentially, the client testified that he had discharged plaintiff because he was angry about plaintiff's “distasteful” telephone call. However, from the balance of the testimony, it is clear that the client was pleased with the prior services he had received from the partnership and its predecessors ( see De Luccia v. Village of Monroe, 180 A.D.2d at 899, 580 N.Y.S.2d 91), specifically including those services rendered by Kopko prior to the substitution.

We therefore agree with Supreme Court that plaintiff is entitled to share in the fee obtained in the malpractice action on the partnership's behalf. However, we disagree with the further conclusion that the amount should be determined on the basis of quantum meruit. As against a client, a discharged attorney is entitled to a fee determined on a quantum meruit basis at the time of discharge, but...