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Decided on May 6, 2008
Supreme Court, Nassau County

1366/08

Attorneys:
Edelman Krasin & Jaye PLLC, Plaintiff
Dell & Little, LLP, Defendant
Antonio I. Brandveen, J.

The petitioner, as incoming counsel, seeks an order compelling the respondents to surrender and turn over the case files referenced here. The respondent pro se opposes the application. The underlying matters involves four separate personal injury matters.
The petitioner's counsel states, in an affirmation dated January 22, 2008, the petitioner law firm has been retained on January 9, 2008, as attorney in the underlying matters following the initial retention of the respondent as counsel based on contingency fee agreements. The petitioner's counsel asserts each of the plaintiffs signed retainer agreements with the petitioner, as well as the requisite consent to change attorney forms, and they discharged the respondent as counsel by letter. The petitioner's counsel avers all of the matters are in a pre-litigation stage. The petitioner's counsel states the petitioner contacted the respondent by sending the signed consent to change attorney forms and client letters, and followed up with several telephone messages requesting the clients' case files and an itemization of any expenses and disbursements. The petitioner's counsel reports the respondent replied to the petitioner that the respondent did not intend to surrender the client's case files, and were raising an objection to the discharge and the substitution of counsel.
The respondent's counsel states, in an opposition affirmation dated February 19, 2008, [*2]the respondent is in no way attempting to thwart nor otherwise impair the clients' right to change attorneys and cancel the contracts of retainer. However, counsel asserts there are issues and factual circumstances which indicate the consents to change with respect to the subject files were not executed without some overreaching and coercion by an employee of the petitioner. The respondent's counsel points out at least two of the clients who signed the consents were contacted by an employee of the petitioner, and each of those clients feels the representations made to them with respect to changing counsel were inappropriately done. The respondent's counsel asserts all of the substitutions were procured by a single employee of the initially of the petitioner and then respondent , to wit Alan Zarate, who left the petitioner's employ approximately in September 2007, and became employed by the respondent. The respondent's counsel avers Zarate, an non-attorney, apparently became unhappy with working for the respondent in December 2007, because of a Christmas bonus which was less than an amount received from the petitioner. The respondent's counsel claims, while Zarate who was an employee-at-will at the respondent, and unencumbered by any confidentiality or a non-compete agreement, apparently returned to the petitioner's employment solely for the solicitation of clients from the respondent. The respondent's counsel points to the affidavits of Joe Rivera and Jose Miguel Iglesias, each dated February 12, 2008. The respondent's counsel notes each of these affiants felt manipulated into substituting the petitioner based upon Zarate's representations. The respondent's counsel also notes receiving substitutions on the files of Lorack & Evelyn McLeod, Yoni Rodriguez, Henry Sanchez, by f/n/g Jose Sanchez, Rafael Torres and Maria Espinal, each of these individuals brought to the respondent by Zarate, but it appears Zarate with the consent and approval of the petitioner has deliberately and improperly solicited these clients. The respondent's counsel maintains, at least two of these clients have attested they are happy with the respondent, and they wish to revoke the substitutions, so the respondent is hesitant to surrender the files which may have been improperly solicited in violation of the Judiciary Law. The respondent's counsel submits there is no reason for the respondent to turn over files of clients which may have been procured in violation of the Judiciary Law. The respondent's counsel requests the relief sought by the petitioner be denied.
The petitioner's counsel states, in a reply affirmation dated March 4, 2008, two of the clients returned to the respondent, and the petitioner withdraws the application with respect to those case files, specifically the plaintiffs, Jose Rivera and Miguel Iglesias, so the application only concerns the surrender of two client files, to wit plaintiffs Morena Jurado and Jose Alfaro. The petitioner's counsel states the petitioner denies the respondent's assertions contained in its counsel's opposing affirmation, and provides details of the affirmant's chronicle regarding contact with Zarate. The petitioner's counsel welcomes the opportunity to explore all of the reckless allegations aimed at the petitioner and petitioner's attorney, and consents to a fact finding hearing if the Court is so inclined.
This Court has carefully reviewed and considered all of the parties' papers on this application. The Court notes the petitioner withdrew the application with respect to those case files of Rivera and Iglesias, so the instant application only concerns the surrender of the client files of Jurado and Alfaro. "Under New York law a client may discharge an attorney at [*3]any time, with or without cause (Matter of Montgomery, 272 NY 323, 326, 6 NE2d 40; Reubenbaum v. B. & H. Express, 6 AD2d 47, 48, 174 NYS2d 287 [Breitel, J.] )" (Lai Ling Cheng v. Modansky Leasing Co., Inc., 73 NY2d 454, 457, 541 NYS2d 742 [1989]).
Where, as here, the issue is primarily or exclusively between the attorneys and not as between the client and attorney, the outgoing attorney has the right to elect whether he will take his compensation on the basis of a presently fixed quantum meruit dollar amount, or whether, still on the basis of quantum meruit, he will take a contingent percentage to be determined at the conclusion of the case (Paulsen v Halpin, 74 AD2d 990; Reubenbaum v B. & H. Express, 6 AD2d 47; Kern v Karnbach, 27 AD2d 954)
Cordes v. Purcell, Fritz & Ingrao, 89 AD2d 870, 453 NYS2d 237 [2nd Dept, 1982].
An attorney who is discharged without cause possesses a common-law retaining lien on the client's file in his or her possession, which secures the attorney's right to the reasonable value of the services performed (see Lai Ling Cheng v. Modansky Leasing Co., 73 NY2d 454, 458, 541 NYS2d 742, 539 NE2d 570; see also Manes v. Manes, 248 AD2d 515, 669 NYS2d 899). "An attorney's retaining lien must be respected" (Andreiev v. Keller, 168 AD2d 528, 563 NYS2d 88), and in the absence of exigent circumstances, the attorney should not be compelled to surrender the client's file until an expedited hearing has been held to ascertain the amount of the attorney's fee (see Markard v. Markard, 206 AD2d 512, 615 NYS2d 280; Fields v. Casse, 182 AD2d 738, 582 NYS2d 738; Andreiev v. Keller, supra )
Eighteen Associates, LLC v. Nanjim Leasing Corp., 297 AD2d 358, 746 NYS2d 599 [2nd Dept, 2002].
The petitioner has failed to establish the existence of exigent circumstances which would require the immediate surrender of respondent's legal file. It would be inappropriate for the Court to direct the respondent to turn over the files before conducting a hearing to determine the appropriate compensation to which the respondent is entitled (see Eighteen Associates, LLC v. Nanjim Leasing Corp., supra ). The respondent has not exercised the right to elect whether to take compensation on the basis of a presently fixed quantum meruit dollar amount, or whether, still on the basis of quantum meruit to take a contingent percentage to be determined at the conclusion of the cases (see generally Lelekakis v. Kamamis, 8 AD3d 630, 778 NYS2d 904 [2nd Dept, 20024]).
Accordingly, the petition is dismissed.
So ordered.
Dated: May 6, 2008
E N T E R:
J. S. C.

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