Cruciata v. Mainiero, Supreme Court, New York County, January 14, 2011.
Facts: Plaintiff contended that she did not owe Defendant attorney, her former counsel, the legal fees he collected from her in the underlying divorce action since he, allegedly, never provided her with a statutorily compliant retainer agreement.
Issues: Is an attorney entitled to legal fees if he fails to provide the required retainer agreement under 22 NYCRR 1400.3 – the statute applicable to New York family and divorce lawyers? What qualifies as a "statutorily compliant" retainer agreement?
Ruling: As to the first question, no. As the Court observed, pursuant to the governing case law in New York, simple non-compliance is sufficient to preclude an attorney from recovering any fees.
Here, however, the Court found that Mainiero had served a conforming retainer. The Court based its holding on the following factors: (a) the retainer was signed by Mainiero and Cruciata; (b) it specified the work to be completed by Mainiero and the amounts to be charged for the work.
The Court found that such an agreement clearly sets forth the intention of the parties, and therefore, extrinsic circumstances and varying interpretations would not be considered. Accordingly, the Court denied Plaintiff’s motion to recoup her legal fees from Mainiero.
Lesson: In New York written, signed retainers are a must. The agreement should spell out the scope of the attorney’s duties, along with the fees to be charged. Note that this particular statute contains a requirement not discussed in this case: "In actions in Supreme Court, a copy of the signed agreement shall be filed with the court with the statement of net worth."