December 24, 2010
Withdrawal Granted For Substantial Fianancial Hardship
From the web page of the Rhode Island Supreme Court:
NAIAD Inflatables of Newport, Inc. (NAIAD), engaged the law firm of Duffy & Sweeney, Ltd. (D&S) to defend it in a civil lawsuit brought in 2005 by the plaintiff, Stafford J. King, III. Soon, however, NAIAD became delinquent in its financial obligations to D&S. Concerned with both a large receivable and a looming trial date, D&S filed a motion to withdraw from the case. This motion was unopposed by the client or by opposing counsel. A justice of the Superior Court denied the firm’s motion. On the grounds of abuse of discretion by the hearing justice, the law firm timely appealed.
D&S filed a motion to withdraw based upon NAIAD’s failure to fulfill its financial obligations under the engagement agreement. Supported by an affidavit of counsel, the motion was properly certified and forwarded to all parties of interest in compliance with the Rules of Civil Procedure. Providing its client with ample notice, D&S made numerous requests for payments, sent reminder invoices, and warned NAIAD that D&S—based on a signed engagement agreement between the parties—would seek to withdraw as counsel if the client failed to bring the balance current. Further, D&S informed NAIAD that it would have the right to object before the Superior Court in the event that such a motion was filed. Denying the unopposed motion, the hearing justice cited Article V, Rule 1.16 of the Supreme Court Rules of Professional Conduct, and ruled that granting the motion would have a “materially adverse effect” on the interests of the clients.
In reversing the Superior Court’s denial of counsel’s motion to withdraw, the Supreme Court said that the hearing justice did not accord adequate weight to the hardship and substantial financial burden that would befall D&S if the law firm were required to continue in its representation of a nonpaying client. Moreover, the Court was of the opinion that the law firm’s request to withdraw was not presented at such a critical point in the litigation process that withdrawal would be detrimental to either the court or the client.
The opinion is linked here. (Mike Frisch)
August 26, 2010
Pro Se Attorney Gets Paid
The Oregon Supreme Court has held that a prevailing pro se attotney in a case seeking disclosure of public records is entitled to reasonable attorney's fees:
...we agree with plaintiff that the term "attorney fees," as used in ORS 192.490(3), means the reasonable value of legal services provided by an attorney in seeking the disclosure of public records. Plaintiff is a practicing attorney who performed legal services in pursuit of disclosure of public records, and plaintiff is therefore entitled to recover from defendant the reasonable value of those services, despite the fact that he acted pro se.
July 28, 2010
A Private MatterThe Maryland Court of Appeals has held that fees awarded in debt collection matters are not determined by the lodestar method. Homeowners associations had sought review of fee awards arguing that the method was appropriate. The court here disagreed, noting that the litigation was "strictly a private matter and does not address any broader public ills. " Thus, the starting point in determining an award in a fee-shifting situation is Rule 1.5 of the Rules of Professional Conduct. (Mike Frisch)
July 08, 2010
Flat Fees In D.C.
The Legal Ethics Committee of the District of Columbia Bar has issued an opinion explaining the proper handling of flat fees. the opinion considers the impact of a recent opinion of the D.C. Court of Appeals on the subject. The summary:
In its decision in In re Mance, 980 A.2d 1196 (D.C. 2009), the District of Columbia Court of Appeals held that, absent informed consent from the client to a different arrangement, a lawyer must deposit a flat or fixed fee paid in advance of legal services in the lawyer’s trust account. Under Mance, such funds must remain in the lawyer’s trust account until earned unless the client gives informed consent to a different arrangement. This Opinion provides guidance for the Bar concerning these rulings.
The lawyer and client may agree on how and when the attorney is deemed to have earned some, or all, of the flat fee and thereby entitled to transfer trust funds into the lawyer’s operating account. Such an agreement must bear a reasonable relationship to the anticipated course of the representation and must avoid excessive “front–loading.” A written agreement or a writing evidencing the agreement is strongly recommended but not mandatory. In the absence of any agreement with the client regarding milestones by which the lawyer will have earned portions of the fixed fee, the lawyer will have the burden to establish that whatever funds that have been transferred to the lawyer’s operating account have been earned.
Alternatively, a lawyer may place unearned funds in an operating account provided that the lawyer obtains informed consent from the client as provided in Rule 1.15(e). In order to obtain such consent, the lawyer must explain to the client that the funds may also be placed and kept in a trust account until earned and that placement in an operating account does not affect a lawyer’s obligation to refund unearned funds if the client terminates the representation. The lawyer should also explain the additional protection offered by a trust account. For the lawyer’s and client’s protection, these disclosures should be in writing, but the Rules do not mandate a writing.
The Mance opinion is linked here. (Mike Frisch)
April 14, 2010
"Neither Tortious Nor Criminal" To Bad Mouth Co-Counsel
The dismissal of a suit involving a dispute between attorneys who had jointly represented a client was affirmed by the New York Appellate Division for the First Judicial Department. The court described the claims:
At issue is the propriety of the motion court's dismissal of an attorney's claims under the theories of quantum meruit, as well as tortious interference with advantageous economic relationships. Both plaintiff Robert Steinberg and defendant Stanley Schnapp are attorneys admitted to practice in New York. Non-party Leon Baer Borstein also is an attorney, and was the preliminary executor of the estate of Isi Fischzang.
At least three documents relevant to this appeal appear in the record. In an undated and unsigned writing, Borstein advised that he had retained both Steinberg and Schnapp "as my attorneys with respect to all legal proceedings and asset administration concerning the wills, assets and estate of the late Isi Fischzang." Borstein also prepared a document dated September 2007, and entitled "Contract of Employment of Attorneys at Law." It provided that Steinberg was to serve as "trial counsel for all litigation issues," while Schnapp was designated as "the general counsel for the fiduciary and estate, with respect to all litigation proceedings concerning the wills, assets and estate of the late Isi Fischzang." There is also a June 2007 document, offered in reply papers from Schnapp, and signed by Borstein, in which Borstein also advises that he retained both Schnapp and Steinberg. In none of these documents, or in any other contained in the record, is there any suggestion of privity between Schnapp and Steinberg.
The arrangement among the attorneys did not last long, and on March 12, 2008 Steinberg instituted the action which gives rise to this appeal. He asserted two causes of action against Schnapp for quantum meruit and interference with advantageous economic relationships. In the quantum meruit cause of action he alleged that he had performed professional legal services for Schnapp at Schnapp's "special instance and request," but in connection with the Fischzang estate. He further alleged that he was orally retained by Schnapp, and that Borstein had confirmed the retainer in a writing. The services for which he seeks payment were services performed in conjunction with the estate, including two appearances in Surrogate's Court and negotiations with lawyers representing the decedent's widow.
In the claim for tortious interference Steinberg alleges that he was fired because the "underlying client" (Borstein) had become dissatisfied with the delays in the probate of the estate, but that Schnapp fired Steinberg to shift the blame for the delays to Steinberg. Notably, Steinberg acknowledges that the "underlying client" could have requested his discharge "whimsically or capriciously or for any reason or for no reason, but the discharge would remain without cause.'" His concern that there is an intimation that his termination was "for cause" apparently provides much of the impetus for this litigation.
As an at-will employee of the client, the attorney has no cause of action against co-counsel:
Steinberg intimates in his complaint that Schnapp failed to communicate certain problems concerning the probate of the estate to Borstein, but left Steinberg to incur the client's dissatisfaction. His concerns are amplified in his affidavit in opposition to the motion for summary judgment, in which he suggests that any fees he earned are being withheld as a result of allegations made by Schnapp concerning the quality of his work. The specifics are not offered. At best, Steinberg is suggesting that Schnapp made an inaccurate statement about the quality of Steinberg's work, which statement led Borstein to terminate the attorney relationship, a relationship that is terminable at will, in any event. Such statements would be neither tortious nor criminal.
March 18, 2010
Fee Sharing Agreement Does Not Create Joint Venture
The Maryland Court of Appeals addressed the implications of a fee sharing agreement between two attorneys pursuing a medical malpractice case. Attorney One referred the matter to Attorney Two early in the prosecution of the case. They entered into an arrangement by which the division of fees was based on the "anticipated division of services to be rendered." Attorney Two had primary responsibility and Attorney One was to assist as requested by Attorney Two.
While the claim was in negotiations, Attorney Two advised the clients that they might have a legal malpractice case against Attorney One. The underlying medical malpractice case then settled for $225,000. Attorney Two paid Attorney One one-half of the fee.
Attorney One then sued Attorney Two on a variety of contract and tort theories alleging breach of good faith, fair dealing and disclosure duties. The circuit court granted summary judgment to Attorney Two. The Court of Special Appeals affirmed. Here, the Court of Appeals agreed, concluding that Attorney Two fulfilled her covenant of good faith and fair dealing by delivering to Attorney One his proportionate share of the fee.
The court held that the fee sharing agreement did not establish a joint venture with the resulting fiduciary obligations that would apply to such ventures. The court agreed that the tort claims failed because, among other things, Attorney Two "could not tortiously interfere with an economic relationship to which she was a party." (Mike Frisch)
March 09, 2010
Claims Against Referring Firm Reinstated
A law firm that had represented a client sued the client for unpaid fees. The plaintiff firm also sued the law firm that had referred the client, claiming that the defendant law firm had represented that their clients (the Nassers) guaranteed payment of their fees. Plaintiff appealed the dismissal of claims against the referring law firm.
The New York Appellate Division for the First Judicial Department held that the claims were viable:
The complaint alleges that defendants-respondents represented to plaintiff law firm that they had authority from the Nassers to promise payment of $75,000 of the legal fees incurred by plaintiff's client when, in fact, they lacked the authority to bind the Nassers. Thus, the complaint alleges a viable claim for breach of the implied warranty of authority. The complaint also alleges that defendants-respondents falsely represented to plaintiff law firm that they specifically discussed the subject matter of their authority and representations with the Nassers. Thus, the complaint alleges a viable clam for tortious misrepresentation of authority and assurances of payment.
To the extent the motion court relied on the principle of apparent authority, lack of consideration and the statute of frauds to dismiss these causes of action, such was error. The doctrine of apparent authority is irrelevant because the fourth and fifth causes of action are not seeking to hold the principals (the Nassers) liable on the ground that defendants-respondents had apparent authority from the Nassers to make promises of payment. Rather, these causes of action are seeking to hold the agents, defendants-respondents, liable for contracts or representations they purported to make on behalf of the principal (the Nassers) while acting without authority from the principal. Therefore, the fact that the Nassers never manifested to plaintiff law firm that defendants-respondents were authorized to act on the Nassers' behalf has no bearing on the viability of the fourth and fifth causes of action. Moreover, regardless of whether or not there was consideration running to the Nassers, defendants-respondents can still be held liable for their own tortious conduct in making deliberate misrepresentations of fact that they had authority to make the promises that the Nassers would pay $75,000 of the legal fees incurred by plaintiff's client (see Restatement (Third) of Agency §§ 6.10, 7.01 ). In addition, the statute of frauds does not come into play since the fourth and fifth causes of action are not seeking to enforce the unwritten agreement by the Nassers to pay plaintiff's client's legal fees against the Nassers. These causes of action state a claim against the defendants-respondents regardless of whether there is an enforceable contract with the Nassers.
The sixth cause of action against defendants-respondents for tortious interference with defendant Jacques Nasser's contract with plaintiff law firm to pay $37,500 of the legal fees incurred by plaintiff's client was also improperly dismissed by the motion court. In order for there to be a viable claim there must be a valid contract between Jacques Nasser and plaintiff law firm. Pursuant to General Obligations Law § 5-701(a)(2), every agreement, promise or undertaking which is a special promise to answer for the debt of another is void unless it is in writing. Under a long-standing exception to the statute of frauds, however, the promise need not be in writing if it is supported by new consideration moving to the promisor and beneficial to him, and the promisor has become in the intention of the parties a principal debtor primarily [*3]liable (see Martin Roofing v Goldstein, 60 NY2d 262, 264 , cert denied 466 US 905 ; Carey & Assoc. v Ernst, 27 AD3d 261 ). At the very least, the allegations in the complaint raise an issue of fact concerning whether Jacques Nasser agreed to act as a guarantor in the event plaintiff's client did not pay her legal fees, in which case there was no enforceable contract, or whether in seeking to secure the benefit of the cooperation of plaintiff's client in connection with the lawsuit against him by her employer, Jacques Nasser offered to lift the burden of the obligation to pay legal fees from plaintiff's client and pay the law firm directly, in which case the contract would not be barred by the statute of frauds (see Rowan v Brady, 98 AD2d 638, 639 ). Therefore, the sixth cause of action for tortious interference with contract is reinstated.
Finally, the motion court erroneously dismissed the seventh cause of action against defendants-respondents which alleges tortious interference by defendants-respondents with the attorney-client relationship between plaintiff law firm and its client, defendant Srour. Insofar as the complaint alleges that defendants-respondents, knowing that Srour was represented by plaintiff law firm, met with Srour alone, without informing plaintiff law firm of the meeting, and approximately three days later, Srour discharged plaintiff law firm, it is sufficient at this stage of the proceedings, to state a viable claim, and therefore the seventh cause of action is reinstated.
March 04, 2010
Termination, Not Hints, Triggers Wrongful Discharge Claim
The District of Columbia Court of Appeals affirmed the dismissal of a former law firm associate's claim of failure to accommodate a disability on grounds that the claim was time-barred. However, the court reversed the dismissal of a related claim of wrongful discharge and remanded that claim for trial on the merits.
The associate was hired by the law firm in 2000. While attending a firm trial training program in April 2001, her dominant hand was burned. She suffered extreme pain and medical limits on her activities and took a month leave of absence for treatment. She requested a number of accommodations on her return and alleges that she was told by her supervisor "that if she was still injured, she was 'of no use to anyone.' " After a second leave of several months, she claimed that she was told not to seek substantive billable work until she could work without restrictions. There were further requests for accommodations and performance reviews. The associate attorney received notice of discharge from the firm in late October 2002.
The court here concludes that the statute of limitations for wrongful discharge began to run with the formal termination. Earlier threats or hints of poor performance do not trigger the statute. (Mike Frisch)
February 26, 2010
Incoming 93, Outgoing 7
In an action between two attorneys fighting over the division of a contingent fee, the New York Appellate Division for the First Judicial Department affirmed the lower court's 93-7% split:
The client was injured while a passenger in a car that was involved in a one-car, out-of-state accident. Outgoing counsel argues that having performed the work necessary to obtain the $25,000 offer under the driver's policy, which exhausted the limits of the driver's policy, it performed all the preparatory work that was necessary for incoming counsel's $1,470,000 settlement of the underinsured claim under the client's policy. We reject that argument and find ample support in the record for the Special Referee's implicit finding that outgoing counsel's work contributed very little to the underinsured settlement...
While outgoing counsel prepared a summons and complaint against the driver and sent it to a process server, the next day, after the driver's carrier offered its $25,000 policy and confirmed that there was no excess coverage, outgoing counsel instructed the process server not to serve the driver, and advised the client that the offer should not be accepted without first obtaining the underinsured carrier's consent so as not to jeopardize the underinsured claim that outgoing counsel intended to make. It was incoming counsel, however, that contacted the underinsured carrier's adjuster, who had the authority to give such consent, unlike outgoing counsel, that merely contacted the driver's broker. And it was incoming counsel that resolved the adjuster's concern with underinsured coverage issues, such as whether the driver was a member of the client's household and whether there was additional coverage on other vehicles owned by the driver's family, both conditions to obtaining the underinsured carrier's consent to settlement of the claim against the driver.
Furthermore, unlike outgoing counsel's requests for medical records, incoming counsel's requests were effective, and unlike outgoing counsel, incoming counsel substantiated its investigation of the possibility of a products liability case. Although the action commenced by incoming counsel against the driver may not have been necessary, and although incoming counsel initially sought the wrong type of arbitration against the wrong insurer, these do not appear to have involved undue expenditures of time. We note the parties' stipulation that incoming counsel was to have no claim to the one-third contingency fee on the $25,000 offer.
February 09, 2010
The New York Appellate Division for the First Judicial Department held that a law firm was not entitled to interest on an arbitration award and had acted in contravention of duties regarding entrusted funds. The law firm was awarded $30,000 less than it had claimed but did not disburse the balance to the client. The court concluded that the law firm should not benefit from its conduct:
..[law firm] petitioner is not entitled to post-award, pre-judgment interest since it was holding the $310,000 at issue in escrow and chose not to avail itself of the funds when the arbitrators' award of $280,000 became final. Although petitioner asserts that it could not pay itself from the escrowed funds without respondent's consent and also asserts that appellant never gave its consent, the relevant [ethics] rule...does not require client consent under these circumstances. To the contrary, it provides that the lawyer may withdraw the funds being held upon final resolution of the dispute. Nonetheless, when the award became final, petitioner did not pay itself the amount of the award and transmit the balance (approximately $35,000) to respondent. Rather, in addition to seeking respondent's written authorization for payment of the award from the escrow account, petitioner improperly sought to obtain a benefit from its former client by refusing to transmit the balance unless respondent and its principal executed releases. The balance belonged to respondent and petitioner had no legal claim to it. Accordingly, petitioner was required to "promptly pay" to respondent the funds to which it was entitled after the arbitrators' award became final...
In short, petitioner both deprived itself of the use of the funds awarded to it and deprived respondent of the use of the balance of the funds being held in escrow. Under settled law, petitioner's statutory right to interest is far from absolute. To the contrary, as then Justice Bergan stated for a panel of this Court, "[t]he holder of the judgment may be estopped by equitable considerations, or by his own acts, from enforcing the interest which the statute gives him" ...Given the "special and unique duties" petitioner owed to respondent, including "safeguarding client property and honoring the client['s] interests over [its own]"... we think it would be particularly inequitable to require respondent to pay statutory interest to petitioner and thus recompense petitioner for its own failure to pay itself. (citations omitted)
Because petitioner was holding more than the $280,000 it was awarded by the arbitrators on the date the award became payable, March 13, 2007, respondent is entitled to the balance that would have remained in the escrow account after payment of the award on that date, with interest on such balance from that date. In addition, because Supreme Court erred in awarding interest to petitioner and respondent was thereby required to pay an additional sum to petitioner to satisfy the judgment, respondent is entitled to the amount it paid over $280,000 to satisfy the judgment with interest from the date the sum was paid.
December 15, 2009
No Agreement To Arbitrate
An attorney was hired as "of counsel" of another attorney under a one-year employment contract on November 1, 2005. The contract authorized discharge for cause and had an arbitration clause. The employment relationship had "issues" but extended past the fixed term. Eventually, the employed lawyer was discharged with notice given in August 2007. The parties disagree as to the reasons. The employed lawyer sued the employing lawyer on claims that included wrongful discharge. The employing lawyer moved to dismiss, invoking the arbitration clause.
The Washington State Court of Appeals, Division I held that the there was no basis to conclude that the lawyers agreed to extend the arbitration provision beyond the fixed term:
Where a fixed-term employment contract expires and the employee continues to render the same services provided under the previous agreement, a court will presume that the employee is serving under a new, implied contract having the same terms and conditions as contained in the expired contract. However, where it is clear that the implied contract does not have the same terms and conditions as the earlier agreement, there is no basis
to presume that the contracting parties necessarily renewed any specific term of
the prior agreement. Because the evidence in the record and the pleadings
herein establish that Judith Lonnquist and Reba Weiss did not completely renew
the terms of Weiss's written, fixed-term employment contract after Lonnquist
terminated it, there is no basis to presume that the parties subsequently entered
into an implied agreement to arbitrate Weiss's employment-related claims as was provided for in the terminated contract. Inasmuch as a court cannot compel litigants to arbitrate claims unless they agreed to do so, the trial court correctly denied Lonnquist's motion to compel arbitration. Accordingly, we affirm.
November 24, 2009
Bedrock Of Lawyer-Client Relationship
The New Jersey Appellate Division affirmed in part and reversed in part a judgment awarding the plaintiff law firm for reasonable attorneys' fees and expenses arising out of the representation of the defendant former client. The amount of the awrd was remanded to determine which fees and expenses were incurred pursuant to a retention letter exclusive of sums due under a master retainer agreement. The court sets the stage for its decision:
This case focuses on the attorney-client relationship, especially its bedrock, the retainer agreement. It is a unique and extraordinary association. The attorney-client relationship has been a fertile source for authors over the years. It has spawned books, poems, plays, and movies. Literature on this topic includes fiction and non-fiction, tragedies and comedies. To resolve this case, we are obligated to review the long-established statements and principles of law concerning the attorney-client relationship and to analyse, in particular, the attorney's obligation to his potential client in finalizing the retainer agreement.
The law firm was initially contacted by the client for advice about possible ethics violations of opposing counsel, who represented the Bank of America in litigation against the client. The client signed a retainer agreement that made reference to, but did not append, the firm's master retainer agreement. The client did not see that agreement until seven months after signing the retention latter. The terms imposed by the master retainer agreement were at issue here.
The court held that the master retainer agreement was unenforceable and that fees associated with the law firm's pro se representation of itself may not be recoverable. (Mike Frisch)
November 14, 2009
Modified Fee Agreement Upheld
The Alaska Supreme Court affirmed the grant of summary judgment to a law firm in a dispute over the modification of a fee agreement. The clients were injured when the stairs to their rooms at a resort collapsed. They entered into a contingent fee agreement with the law firm. The agreement provided for a 25% fee if the matter was resolved before a complaint was filed, 33% after the complaint and 40% after the filing of an appeal.
The case was complicated by the bankruptcy of the defendant. The clients and law firm entered into a modified fee agreement and the case eventually settled for slightly over $1.231 million. The clients and law firm had a substantial disagreement over the computation of the fee. As required by ethics rules, the law firm paid the undisputed portion of the client's share and retained the disputed amount in a trust account. The trial court found for the law firm.
Here, the court rejected claims that the amended agreement was improper and violated the rules of professional conduct. The trial court had properly resolved any contract ambiguities against the law firm in awarding judgment and was not clearly erroneous in its interpretation of the phrase "further substantial litigation" in the modified agreement. (Mike Frisch)
November 08, 2009
Too Late To Sue
A plaintiff couple who received a settlement of $829,500 as a share of the settlement of a federal qui tam action paid one-half of the settlement proceeds to the lawyers that had handled the matter pursuant to a contingent fee agreement. The lawyers also were paid $315,000 by the U.S. government. The case settled in May 2004.
In March 2007, the clients brought an action alleging malpractice and other causes of action against the lawyers. The district court concluded that there was no public policy prohibition against the statutory and contingency provisions of the fee agreement. The district court further held that the statute of limitations had run with respect to both claims of malpractice and of concealment regarding the settlement terms. The Montana Supreme Court affirmed the grant of summary judgment to the lawyers concluding that the statute of limitations had expired with respect to each cause of action. (Mike Frisch)
November 02, 2009
Murderer Gets Good Title
The Georgia Supreme Court affirmed a trial court determination that two criminal defense lawyers and their law firm did not engage in conversion by accepting fees for services rendered to a widow later convicted of the murder of her husband.
The suit had been brought by the administrator of the husband's estate based on a Georgia statute that prevents a murderer from financially benefiting from the crime. The court held that the husband passed good title to property inherited by the surviving spouse. The murderer may use what are estate proceeds unless and until there is a judicial condemnation proceeding. The lawyers were properly paid prior to conviction and are not liable to the estate under a conversion theory.
September 19, 2009
Rosh Hashanah Musings on Law and Justice
Posted by Jeff Lipshaw
Once again, I violate the tradition by celebrating the Jewish New Year not in a community (which when I was a member of a conservative congregation in Indianapolis never failed to cheese me off by talking full voice through the services, particularly in the back, something that the more Episcopalian sensibilities of the Reform temple seemed to eliminate) but in this solipsistic morning of musing. I've pulled up to the front (just behind this one) a post written on Yom Kippur in 2006 (can it be three years?) just after we started this blog, when I was visiting at Tulane.
The point of the previous post was what I find difficult about religious ritual, which is the reification of the sense of awe, wonder, and mystery of life, being, and consciousness into a set of rules. (Hence, my appreciation instead for the music.) That's the tension I described three years ago, between kevah - fixed prayer - and kavanah - inspiration.
Not unrelated, I've come to think since then, is the relationship between law and justice, articulated (surprisingly as far as I'm concerned) by Derrida, a view I find grounded, sensible, and moderate (that's the surprise). In a nutshell, law and philosophy are both about the arche, the structure, the polity, the rules, but justice is something else, an-arche, related to a singularity, unreachable, and subject to reification as soon as the sense of justice is embedded in a rule, because rules are not singular but universal. We can't deal with complete anarchy - law is necessary, but equity (in Derrida's terms) deconstructs it. I'm indebted here to the book I'm reading this morning - Demythologizing Heidegger - by John Caputo, formerly at Villanova and now at Syracuse. What Caputo calls Derrida's "scandal" is that Derrida is not wholly without foundational anchor - there is something that is not capable of deconstruction, and that is justice. Of course, if it can't be deconstructed, then is it an ageless and universal truth? Well, no, and there's the paradox. Law is a construct and we can deconstruct it. But "deconstruction is possible insofar as justice is undeconstructible, for justice is what deconstruction aims at, what it is about, what it is." (Caputo, at 193.)
Not surprisingly, this returns me to the relationship between individual judgment and default to authority, something on which I posted mysteriously a week or so ago. Let's go straight to the paradigmatic case of judgment and default to authority, the Akedah story, the binding of Isaac, which is the traditional Torah portion on Rosh Hashanah morning, and thus quite appropriate as the text for this morning's sermon. This was the story that provoked Kierkegaard's Fear and Trembling, of the knife-edge of impossible judgments, caught between conformity to what purports to be authority and what Derrida (through Caputo) describes as "fresh judgment":
What is to be done cannot simply be calculated - it must be judged. Furthermore, a just decision, which is never a merely programmed, calculated application of a rule, is always made in the element of undecidability, must always pass "through the ordeal of the undecidable," in which our respect for the universal trembles before "the unique singularity of the unsubsumable example."
Caputo, at 196, quoting Derrida, "Force of Law: The 'Mystical Foundation of Authority'", 11 Cardozo L. Rev. 919, 961-67 (1990). That's the leap of faith in judgment, that instant of decision that Kierkegaard calls a madness. Or as I said in the abstract to the yet unpublished essay: "Judgments are those things that occur in our minds, privileged to us, beyond authority, external truth-justifications, and power, whether or not we accede, in the solitude of our own minds, to authority, justifications, and power. Lawyering, or advocacy, is an external appeal to authority. It seeks to use argument, largely of origin rather than validity, to vanquish an opponent. It is a social and inter-subjective exercise. When we make judgments, however, we are completely alone." That's particularly true if the God speaking to you is saying that what is just is to slay your child merely to show your obedience to God.
For more on practical judgment, and in particular, facing up to authority that dictates against one's own sense of justice, see Susan Neiman's account and interpretation of the counter-example of the Akedah story, Abraham's bargaining with God to save Sodom and Gomorrah, in her book Moral Clarity.
August 12, 2009
Permissible Fee-Sharing Agreement
The New York Appellate Division for the Second Judicial Department affirmed a trial court damage award in a matter involving the alleged breach of a fee-sharing agreement between attorneys:
"It has long been understood that in disputes among attorneys over the enforcement of fee-sharing agreements the courts will not inquire into the precise worth of the services performed by the parties as long as each party actually contributed to the legal work and there is no claim that either refused to contribute more substantially" (Benjamin v Koeppel, 85 NY2d 549, 556 [internal quotation marks omitted]).
As this case was tried without a jury, this Court's authority is as broad as that of the trial court, and this Court "may render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses" (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [internal quotation marks omitted]). Since the evidence revealed that the client consented to the fee-sharing agreement and the referring attorney, the plaintiff Weinstein, Chayt & Chase, P.C. (hereinafter WCC), performed some of the work, and there was no claim that the referring attorney refused to contribute more substantially, the Supreme Court properly found that the referring attorney was entitled to enforcement of the terms of the agreement (see Benjamin v Koeppel, 85 NY2d at 556).
Furthermore, viewing the evidence in the light most favorable to WCC (see Jacobs v RJAK Enters., 226 AD2d 679), legally sufficient evidence was presented from which the Supreme Court could rationally conclude that the parties entered into an enforceable fee-sharing agreement pursuant to Code of Professional Responsibility DR 2-107(a) (22 NYCRR 1200.12[a]; see Benjamin v Koeppel, 85 NY2d at 556; Cohen v Hallmark Cards, 45 NY2d 493, 499). We note that since the conduct at issue occurred prior to the effective date of the New York Rules of Professional Conduct, this matter is not governed thereby.
July 01, 2009
Boo to Billable Hours
Posted by Jeff Lipshaw
Appellate lawyer and author John Derrick has asked us to put in a link to his book Boo to Billable Hours: A Lawyer's Guide to Better Billing, the contents of which are available on his website for free. We don't usually do commercial endorsements, but, as far as I can tell, free in this case means free. So why not?
Here's the blurb:
THE BILLABLE HOUR dominates the legal profession, but is gradually eating away at its soul. It chills the attorney-client relationship. It penalizes efficient lawyers, while rewarding plodding ones. It leads to arbitrary, irrational, and suspect results, in which time is distorted and sometimes invented. It disconnects the amount that is charged from the value delivered. And it fails to produce what it promises, transparency. Its effects are all the worse in law-ﬁrm pyramids that impose excessive billing requirements. This straight-talking book critically dissects the practice of billing by the hour, examining how time is actually recorded in a variety of contexts that raise ethical as well as practical concerns. The book is not all about criticism. It also advocates alternatives that shift the focus away from time expended and onto value delivered.
May 08, 2009
Pro Bono Attorneys May Receive Attorney's Fees
The Maryland Court of Special Appeals has held that attorney's fees may be awarded in family law cases even though the legal services were performed by a non-profit legal services organization. The court concluded that important policy considerations weigh in favor of such fee awards, here made to the House of Ruth. Relying on language from a Montana case, "the 'principle of providing equal access of justice to all' warrants the award of attorney's fees to persons represented by legal services organizations or a pro bono attorney."
...we hold that a court may, in its discretion and after considering the requisite statutory factors, award reasonable attorney's fees in a case where a party is represented by a non-profit legal services organization, or a pro bono attorney, irrespective of whether a fee agreement exists between the client and the attorney.
April 14, 2009
A Reasonable Fee
An attorney was retained by the father of a deceased child to prosecute a wrongful death action. The father and the lawyer agreed to a 1/3 contingency fee. The case was settled for the defendant's insurance policy limit of $300,000. The attorney had recommended a prompt settlement before lab reports were completed that could have had a negative impact on the value of the case. The mother, who had not participated in the representation, objected to the lawyer's fee to be paid from her statutory share of the settlement proceeds.
The Tennessee Court of Appeals affirmed the trial court's conclusion that the fee was a reasonable one and that the mother was obligated to pay as a passive beneficiary of the lawyer's services. The award was not based on the contingency agreement; rather, the trial court had heard conflicting expert testimony concerning a reasonable fee and concluded that 1/3 was reasonable. (Mike Frisch)