Williams v. Hertz Corp.

75 A.D.2d 766, 427 N.Y.S.2d 825, 1980 N.Y. App. Div. LEXIS 11332

Opinion

Order, Supreme Court, New York County, entered September 25, 1979, which granted plaintiff’s motion to the extent of substituting attorneys, directing the outgoing attorney to turn over his file to the incoming attorney, and awarding an attorney’s lien for work performed, the amount of which is to be determined upon resolution of the action, unanimously modified, on the law and the facts, without costs, to the extent of remanding to Special Term for a hearing to determine whether the outgoing attorney was discharged without cause, and if so, whether he is entitled to compensation, and if so, in what amount, with payment to be deferred and to be made from any recovery in the action, upon the conclusion thereof, without prejudice to plaintiff’s right to apply at that time for a reduction of the compensation should the fee prove disproportionate to the final recovery, and the outgoing attorney is directed to turn over his file to the incoming attorney forthwith, and, appeal from an order, Supreme Court, New York County, entered February 6, 1979, dismissed as academic. Under the circumstances of this case, it would be inequitable for the outgoing attorney to retain the papers in the action, since that would render near impossible the preparation of the case for trial by the incoming attorney. Should it be determined that the outgoing attorney is entitled to compensation, he shall have a lien on the proceeds in that amount. However, an attorney who is discharged for cause or misconduct has no right to the payment of fees and no retaining lien on his client’s papers (Matter of Weitling, 266 NY 184; First Nat. Bank of Cincinnati v Pepper, 454 F2d 626). In view of plaintiff’s claims of discharge for cause, a hearing is in order. Concur—Fein, J. P., Sullivan, Lupiano, Silverman and Carro, JJ.