Opinion
1651-11
08-09-2011
Stephanie D. Harris, Plaintiff, v. Michael H. Joseph, P.L.L.C., Defendant.
, J.
Plaintiff brought this small claims proceeding to recover four thousand dollars ($4,000.00) requesting return of an unused retainer, for punitive damages and for legal witness fees. The defendant counterclaimed for one thousand dollars ($1,000.00) for a balance due on a retainer.
It is uncontested that plaintiff hired defendant on February 25, 2011 as an attorney for her nephew regarding a criminal case (felony) pending in New Rochelle City Court. A retainer was signed by the parties whereby plaintiff agreed to pay defendant three thousand five hundred dollars ($3,500.00) for all pre indictment work and two hundred dollars ($200.00) per hour for work after an indictment. Defendant had an associate attend the first appearance on the case on February 28, 2011 and had the matter set down for a SCI (Superior Court Information) conference. The matter was adjourned to April 15, 2011 for control.
On March 31, 2011, by way of letter from new counsel the defendant was discharged. The Court has determined that the discharge was without cause. In such an instance the defendant would be entitled to payment on a "quantum meruit" basis. The rule of quantum meruit recognizes the a client may at any time discharge her attorney for any reason satisfactory to her, however, its does not permit her to avoid paying her attorney for the reasonable value of legal services performed by the attorney (In Matter of Fanny E. Krooks v Conrad, 257 NY 329 (1931)). In fixing an award of legal fees in quantum meruit, the court should consider "evidence of the time and skill required in that case, the complexity of the matter, the attorney's experience, ability, reputation, and the client's benefit of services" (Padilla v Sansivieri, 31 AD3d 64 (2d Dept 2006) (citing Rosenzweig v Gomez, 250 Ad2d 664 (1998); Code of Professional Responsibility DR 2-106 (B) [22 NYCRR 1200.11(B)]). Further, the court may also take into consideration the agreement between the parties; though not binding on the court or determinative of the quantum meruit value of legal services, it is some evidence of, inter alia, the parties' own assessment of their respective contributions (Id.; see also Paulsen v Halpin, et al., 74 AD2d 990 (4th Dept 1980)).
Defendant alleged that he was required to attend the April 15, 2011 Court appearance to be formally relieved as counsel. He also justifies this post discharge time by noting that he owes a duty to his client, plaintiff's nephew, to appear until formally relieved as counsel. Overall, with two (2) Court appearances and out of Court work, the defendant alleges six and a half hours (6 ½) hours work. Defendant also stated that he should be paid at three hundred and fifty dollars ($350.00) per hour because the hourly rate noted in the retainer is a reduced rate set because of the fixed fee for pre indictment work.
Plaintiff alleges that after the appearance of the associate in Court on February 28, 2011, her family became dissatisfied with defendant. Plaintiff alleges that she verbally discharged defendant on March 7, 2011. She believes defendant's office did nothing of note and spent minimal time on the case. Plaintiff believes that defendant's refusal to return the retainer should result in a punitive award.
After hearing the testimony of the parties and judging their credibility, I find for plaintiff in the sum of one thousand two hundred dollars ($1,200.00). Defendant appropriately provided six and a half hours (6 ½) of work on the file. He properly went to Court on the matter until being formally relieved. It is well settled that a defendant in a criminal proceeding is entitled to be represented by counsel of his own choosing so long as there is no need to appoint counsel for him because of inability on his part to pay counsel (People v Brandau, 189 NYS2d 818, mot for rearg den. 191 NYS2d 97). However, this right is not absolute and it is within the discretion of the trial court whether or not to replace his attorney particularly when doing so would entail a delay of the proceedings (People v Gibson, 137 AD2d 553 (2d Dept 1988). Accordingly, it was proper for Mr. Joseph to appear on April 15, 2011, with defendant, and be relieved as counsel on the express consent of the defendant. Defendant will be credited with six and a half (6 ½) hours of services at the retainer rate of two hundred dollars ($200.00). His request for a higher rate of three hundred and fifty dollars ($350.00) is denied.
Defendant is to pay plaintiff the one thousand two hundred dollars ($1,200.00) within fourteen (14) days of receipt of this decision or a judgment is to be entered.
The above complies with this Court's statutory charge to do substantial justice between the parties.
The above constitutes the Decision and Order of the Court.
Dated: Mount Vernon, New York
Hon. Adam Seiden
Associate City Judge of Mount Vernon
To:
Stephanie D. Harris
Michael H. Joseph, P.L.L.C.