Opinion
04 Civ. 3024 (BSJ) (MHD).
June 16, 2005
MEMORANDUM ORDER
Plaintiff Aurelio Miller and his first attorney, Anthony C. Ofodile, came to a parting of the ways midway through the litigation of Miller's Title VII lawsuit against his former employers. That rupture has triggered a fee dispute that has led Mr. Ofodile to withhold his case files from plaintiff's new attorney, Irene Donna Thomas, Esq., and also triggered a demand by plaintiff that Mr. Ofodile be deemed to have been terminated for cause and hence not entitled to any compensation, including reimbursement for out-of-pocket expenses.
Based on our knowledge of the case, including extensive contact with plaintiff and Mr. Ofodile during pre-trial conferences and a settlement conference, as well as the testimony of Mr. Miller taken in connection with the current dispute, we can readily determine that Mr. Ofodile was not terminated for cause. He performed professionally throughout his representation of Mr. Miller, and the relationship terminated for other reasons. These reasons included the client's frustration with the failure of the lawsuit to meet what seemed to be his unrealistic expectations, the client's equally unrealistic demands to control the details of how counsel performed his job (even though the attorney went to unusual lengths to accommodate those demands), and a personality clash between these two individuals.
We conducted an evidentiary hearing on April 27, 2005 to address plaintiff's contention that his attorney was terminated for cause.
Apart from complaining about Mr. Ofodile's performance, plaintiff seeks to excuse himself from any responsibility either for fees or for expenses by arguing that the retainer agreement prepared by the attorney and signed by him was defective, in that it did not comply with 22 NYCRR § 1215.1. As we understand the argument, plaintiff contends that the retainer agreement was deficient because it did not specify an hourly rate or other details as to what plaintiff might owe in the event that he terminated counsel in mid-litigation, and it did not mention the availability of arbitration in the event of a fee dispute. (See Pltff's Memorandum of Law Opposing Award of Attorney's Fees at
These arguments are meritless. The cited regulation requires that the letter of engagement must include an "explanation of attorney's fees to be charged, expenses and billing practices." 22 NYCRR § 1215.1(b)(2). The retainer in this case involved a one-third contingency fee, with the client responsible for expenses, and the letter of engagement specified these arrangements. The regulation does not require an explanation of what fees may be determined to be payable in the event that the client terminates the arrangement; indeed, that decision depends upon an assessment after the fact as to the reasonable value of the attorney's services.
As for the arbitration question, the regulation states that "where applicable, [the letter of engagement] shall provide that the client may have a right to arbitrate fee disputes under Part 137 of this Title." 22 NYCRR § 1215.1(b)(3). The regulation itself does not specify when its requirement is applicable and instead refers to Part 137 of the rules of the chief administrator of the New York courts. That set of provisions indicates generally that a client may ask for arbitration, and that "the client may consent in advance to submit fee disputes to arbitration under this Part." 22 NYCRR § 137.2. The arbitration program does not apply in a number of circumstances, among them, "claims involving substantial legal questions, including professional malpractice and misconduct" and "disputes where the fee to be paid by the client has been determined pursuant to statute or rule . . . [or] has been determined pursuant to a court order." 22 NYCRR § 137.1(b) (3) (5).
It is not clear whether plaintiff is contending that his dispute with Mr. Ofodile is subject to arbitration. He has not sought such arbitration and has merely argued that he should be absolved from paying the attorney anything, even for expenses. We see no basis for granting plaintiff such a windfall.
First, the dispute between Miller and Ofodile is not subject to arbitration, since plaintiff has premised his resistance to payment on his former attorney's asserted malpractice and other misconduct. Second, there is no basis for depriving an attorney of a fee for services rendered, much less requiring him to bear the expense of the litigation, merely because the retainer agreement, otherwise entirely adequate, does not contain a pro forma reference to the possibility that some forms of fee dispute — but not the type actually in issue here — may be subject to arbitration at the client's request.
It is also not at all clear that a dispute in the midst of a litigation that involves a question of the availability of a retaining lien is itself arbitrable. The ultimate determination of fees will take place at the conclusion of the lawsuit (whether through arbitration or otherwise) and is distinct from the question of the attorney's right to a lien at present as a condition to release of the file and his right to be reimbursed for expenses (which is not part of the fee).
This point is entirely distinct from the notion that a court may limit or deny recovery of fees to an attorney who has never provided a retainer agreement to the client describing his fees.
In sum, Mr. Ofodile is not ineligible for fees under his retainer agreement with plaintiff or by virtue of his performance in this lawsuit. He also is entitled to be reimbursed for the expenses that he has advanced in this litigation on plaintiff's behalf and is entitled to retain his files until paid those expenses.
As for the amount of the expenses, Mr. Ofodile has submitted an accounting reflecting unpaid expenses totaling $4,177.10. (See April 26, 2005 letter from Anthony C. Ofodile, Esq. to Irene Donna Thomas, Esq.). Plaintiff has not attempted to dispute this calculation, and we therefore deem it to be correct.
CONCLUSION
For the reasons noted, we reject plaintiff's contention that his former attorney, Mr. Ofodile, was terminated for cause or that any alleged deficiencies in his retainer agreement with plaintiff preclude Mr. Ofodile from recovering fees or reimbursement for expenses that he has advanced for plaintiff. We direct that he may assert a retaining lien on the case files until paid his expenses, which total $4,177.10.