Karasavas v. Gargano

31 Mass. L. Rptr. 624
CourtMassachusetts Superior Court
DecidedFebruary 7, 2014
DocketNo. MICV201001419
StatusPublished

This text of 31 Mass. L. Rptr. 624 (Karasavas v. Gargano) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Karasavas v. Gargano, 31 Mass. L. Rptr. 624 (Mass. Ct. App. 2014).

Opinion

Wilson, Paul D., J.

In 2006 and 2007, Defendant Gargano, a Cambridge lawyer, represented Plaintiff in connection with criminal charges of indecent assault and battery.1 Gargano charged Plaintiff $120,000 for his representation. Plaintiff later decided that the fee was excessive, and filed this lawsuit.

The excessive fee claim was tried to a jury on November 19-21, 2013. I presided over the trial. The jury answered four special questions, finding that Plaintiff and Gargano entered into an agreement under which Gargano would represent Plaintiff; that Gargano agreed to charge for services on an hourly basis; that the $120,000 was an unreasonable fee; and that $90,000 was the portion of the fee that was unreasonable.

Plaintiffs Complaint also contained a damages claim under M.G.L.c. 93A, and a claim for an accounting. Before trial, after discussing the handling of those claims with counsel, I ruled that I would decide those issues myself, based on the evidence at trial.2 That is the purpose of this decision.

Based upon all the credible evidence, I make the following findings of fact and conclusions of law.

Findings of Fact

In 2006, Plaintiff, who had no previous criminal record, was charged in Quincy District Court with five counts of indecent assault and battexy.3 These charges arose from his interactions with two female employees (one in her late teens or early 20s and one in her 50s) in the pizza shop that Plaintiff owned and operated.4 Jay W. Carney, an experienced and respected criminal defense lawyer who testified as an expert witness for Plaintiff, called these charges “serious but not complex.” Carney also testified that Plaintiff could have been charged with these offenses in the Superior Court, and the prosecutor’s decision to keep the case in the District Court indicated that the district attorney’s office had decided that the facts involved in these particular alleged offenses were not serious enough to warrant a Superior Court prosecution. I credit this testimony.

Plaintiff is an immigrant from Greece, who came to this country the age of 30. His wife Effie Karasavas, a Greek immigrant who arrived in this country at the age of 10, was involved in the management of the pizza shop. Effie’s English is considerably better than Plaintiffs. She took the lead in handling the business aspects of the pizza shop, and was heavily involved in Plaintiffs dealings with Gargano.

In their effort to find counsel to represent Plaintiff in connection with the criminal charges, Plaintiff and Effie and Effie’s cousin (whom Gargano represented in the past) met with Gargano and two of his associates in late September 2006. Gargano told Plaintiff to come back after he had received a document from the court about the charges. I disbelieve Gargano’s testimony that he informed Plaintiff at this meeting that representation would cost him $120,000, and find instead that there was no discussion of fees at this brief meeting.

When the court document mentioned by Gargano arrived, Plaintiff brought it to Gargano, in a meeting on October 3, 2006 attended by the same people. Plaintiff explained that this was a first offense. Gar-gano explained that the charges were serious, jail was a good possibility, and defending the case would involve much work by Gargano and his staff. I credit Plaintiffs testimony that Gargano told him that the cost might be “up to $80,000.” I disbelieve Gargano’s testimony that he told Plaintiff that he would not handle the case for less than $120,000. I also disbelieve Gargano’s testimony that he said that the billing arrangement would be a flat fee of $120,000, among other reasons because that testimony is contradicted by the fee agreement that he asked Plaintiff to sign. Instead, I find that there was no discussion about how Gargano’s fees would be calculated.

At this meeting, Gargano presented Plaintiff with a fee agreement, and asked him to sign it. See Trial Exhibit 1. Plaintiff signed the agreement, even though he did not understand it because of his limited ability to read the English language, and Gargano did not explain it to him. Neither Gargano nor anyone else [625]*625from his firm signed the agreement on behalf of the other party, which the signature line identified as “Gargano and Associates, P.C.”5 I disbelieve Gargano’s testimony that he never saw this fee agreement until after the criminal case was concluded, and that the agreement was a “mistake by my office.”

On its second and final page, Plaintiff signed the fee agreement a second time to acknowledge receipt of a copy of the agreement. In fact, Effte asked Gargano for a copy of the agreement, which Gargano promised to provide her at the end of the meeting. Gargano never provided Plaintiff or Effie with a copy of the agreement.

The heading on the agreement stated, “Gargano & Associates General Representation—Hourly Fee.” The introductory section of the agreement defined Gargano and Associates, P.C., as the “Attorney/Firm.”

Paragraph 1 provided that Plaintiff would pay a “$40,000 non-refundable retainer.” Gargano testified that he did not take a non-refundable retainer from Plaintiff because “I don’t believe in it.” I disbelieve this testimony, among other reasons because it is contradicted by the fee agreement, which appears to be a form agreement used by his firm in cases involving hourly billing.

Paragraph 1 of the agreement further provided that the $40,000 retainer would be applied against bills for legal services and costs and disbursements. Paragraph 2 stated that time charges would be billed at a partner rate of $600 per hour, a senior associate rate of $500 per hour, an associate rate of $400 per hour, and a paralegal rate of $100 per hour. According to paragraph 4, time charges would be billed at a minimum of one-quarter of an hour. However, the fee agreement nowhere provided that Gargano or his firm would actually send bills to Plaintiff detailing his charges for time and costs, or showing the application of the retainer against bills for legal services and costs. The fee agreement did state, in paragraph 3, that Gargano might do “[finterim billing” if the retainer was exhausted, and further provided that failure to pay an interim bill promptly “will permit the Attorney/Firm, after notice to the Client, to terminate representation of the Client as permitted by applicable rules and law.” The fee agreement did not specify what information would be contained in an “interim bill.”

When Gargano presented this fee agreement to Plaintiff in October 2006, Plaintiffs expert Carney was charging his criminal defense clients $450 per hour. I credit Carney’s testimony that only a very few lawyers working at large firms engaged in white-collar defense work were charging $600 per hour for criminal defense work in 2006.6

At this meeting, Plaintiff provided Gargano with a check for $40,000. Consistent with the language of the agreement that this was a non-refundable retainer, Gargano deposited that check almost immediately into his firm’s operating account, rather than putting into a client trust account.

About six weeks later, a Gargano associate asked Plaintiff to come to Gargano’s office to meet. Plaintiff assumed that he would be meeting with Gargano to discuss the progress of his case. Gargano was not present, however, being on vacation in the Cayman Islands.

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Related

Guenard v. Burke
443 N.E.2d 892 (Massachusetts Supreme Judicial Court, 1982)
Doucette v. Kwiat
467 N.E.2d 1374 (Massachusetts Supreme Judicial Court, 1984)
In re Fordham
668 N.E.2d 816 (Massachusetts Supreme Judicial Court, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
31 Mass. L. Rptr. 624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/karasavas-v-gargano-masssuperct-2014.