Tuesday, December 2, 2008

Nice Work If You Can Get It

In a case that involves claims of unconscionable fees, the New York Court of Appeals affirmed the Appellate Division's determination that the claims could not be resolved by motion to dismiss. The client had sought a revised retainer arrangement in an estate matter after being billed over $18 million in fees. A settlement occurred. The client brought suit to rescind the revised agreement and for return of all fees paid over a 22 year period and also claimed that bonuses and gifts to the lawyers violated attorney ethics rules. The court here held:

In light of the applicable standard of review in resolving a motion to dismiss a petition, we conclude that the facts and circumstances surrounding the revised retainer agreement have not, at this time, been sufficiently developed to determine whether or not the agreement was unconscionable at the time it was made. Petitioner Graubard Miller has not had the opportunity to lay bare admissible proof as to, among other things, whether the revised retainer agreement was fair, reasonable, and fully known and understood by Mrs. Lawrence. Further, appellants have not submitted admissible, conclusive proof that the firm’s petition is somehow deficient and/or that dismissal is otherwise warranted.

(Mike Frisch)


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