January 28, 2011
With Or Without Cause
The New York Appellate Division for the First Judicial Department reversed an order dismissing the claim of discharged counsel for a share of fees:
It appears that plaintiffs discharged appellants less than five months after the action was commenced. Whether or not appellant was investigating and conducting discovery as to other potential defendants, as appellant claims, cannot be discerned from the record. The parties submitted starkly contrasting versions of the events which led to appellant's discharge. The general rule is that a hearing is required to determine if an attorney was discharged for cause or without cause before the completion of his services (see Hawkins v Lenox Hill Hosp., 138 AD2d 572 ). It is not clear from the record whether or not the motion court ever provided appellant with the opportunity to present and cross-examine witnesses. Accordingly, the matter is remanded for a hearing before the motion court to determine the issue of whether or not appellant was discharged for cause.
The fee entitlement claim was brought in the underlying civil case rather than as a separate action. (Mike Frisch)
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