McCORD v. THE STATE OF NEW YORK, #2008-029-038, Claim No. 106136, Motion No.
M-75505
Attorney’s motion to be relieved as counsel denied. His desire to avoid
advancing the costs of trial, specifically $20,000.00 in expert witness fees,
was not sufficient grounds to be relieved since the retainer agreement did not
require claimants to advance such costs.
Case Information
UID:
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2008-029-038
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Claimant(s):
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CHERYL DIANE McCORD, individually and as Administratrix Ad Prosequendum of the ESTATE OF KIANA WILSON, Deceased; FRANK McCORD, Individually, and EBONY WILSON, a minor child, by her guardian FRANK McCORD
1 1.The caption has been amended to reflect the only proper defendant.
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Claimant short
name:
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McCORD
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Footnote (claimant name)
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Defendant(s):
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THE STATE OF NEW YORK
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Footnote (defendant name)
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Third-party
claimant(s):
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Third-party
defendant(s):
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Claim number(s):
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106136
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Motion number(s):
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M-75505
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Cross-motion
number(s):
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Judge:
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STEPHEN J. MIGNANO
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Claimant’s
attorney:
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STEPHEN R. KRAWITZ, LLCBy: Stephen R. Krawitz, Esq.
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Defendant’s
attorney:
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ANDREW M. CUOMO, ATTORNEY
GENERALBy: Belinda A. Wagner, Assistant Attorney General
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Third-party
defendant’s attorney:
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Signature date:
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September 12, 2008
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City:
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White Plains
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Comments:
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Official citation:
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Appellate results:
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See also (multicaptioned
case)
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Claimants’ counsel has moved for an order permitting him to withdraw as
counsel and permitting claimants sufficient time to secure substitute counsel,
in effect requesting an adjournment of the trial scheduled for September 16,
2008. The issue first came to the court’s attention during the week of
August 25, 2008 when claimants’ counsel telephoned the court and advised
that he wished to make an application to withdraw. Counsel was directed to
appear before the court on September 2, 2008, along with defense counsel and
claimants Cheryl Diane McCord and Frank McCord. After discussion on the record,
counsel was directed to submit a written application to the court no later than
September 10. Claimant Frank McCord, speaking on-the-record on behalf of all
claimants, expressed his opposition to the requested relief. Defendant took no
position on counsel’s application to withdraw and did not object to an
adjournment of the impending trial date. She has submitted an affirmation to
that effect. The court adjourned the trial, advising the parties that it would
likely be rescheduled for February or March 2009. In rendering this decision on
counsel’s application for leave to withdraw, the court has considered the
notice of motion and accompanying affirmation and two exhibits,
defendant’s affirmation, and the transcript of the September 2, 2008
proceedings.
The underlying claim arises from the tragic drowning death of seven-year-old
Kiana Wilson on July 21, 2001 at Sebago Beach in Harriman State Park. The
instant claim, alleging State negligence as a proximate cause of her death, was
filed on May 29, 2002, by the Law Office of Marc F. Desiderio, Loel H. Seitel,
Esq. of counsel, representing claimants.
On February 13, 2007, Mr. Seitel filed a note of issue and the parties were
subsequently advised by the court that trial was scheduled for February 13,
2008. In October 2007 the court became aware that Mr. Desiderio and Mr. Seitel
were experiencing personal legal problems that would prevent their representing
claimants in this case.
[2] At the court’s
direction, the Clerk of the Court contacted claimants advising that their
attorneys had been suspended from the practice of law and that they should
either arrange for new counsel to contact the court or do so themselves. At the
same time, the court adjourned the trial from February 13, 2008 to September 16,
2008.
On June 24, 2008, incoming counsel Stephen R. Krawitz (hereinafter
“movant”) of the eponymous law firm advised the court that he had
been substituted as counsel for claimants, enclosing a Consent to Change
Attorney duly executed on March 3, 2008. Thereafter, the court scheduled a
pre-trial conference for August 11, 2008, which was subsequently adjourned to
September 4, 2008. As recounted above, Mr. Krawitz telephoned the court the
week before the conference advising that he wished to withdraw. The September
2, 2008 appearance and subsequent written motion ensued.
In support of his motion, movant asserts that he agreed to represent claimants
in reliance on certain representations made to him by Mr. Seitel that turned out
to be untrue. In particular, he states that he was led to believe that the file
contained expert reports on the issue of defendant’s negligence and on the
cause of death when, in fact, there were no such reports. The file did contain
the name of Gerry Dworkin, identified as an expert on beach safety. When movant
contacted Mr. Dworkin, he was advised that he had an outstanding bill of $650
and would require an additional $3,500 to conduct a complete review and render a
report and an additional $7,500 to appear at trial. Movant also contacted a
professor of medicine at the University of Florida in Gainesville who he
describes as an expert in drowning deaths and obtained a preliminary report at a
cost of $1,750. This physician would require a fee of $10,000 to travel to New
York and testify at trial.
Movant is unwilling to pay these expert witness fees. He advises that
claimants do not have the funds with which to pay such fees (which is not
disputed) and he seeks to be relieved as counsel for that reason. He stated at
the September 2, 2008 court appearance:
“I talked to the McCords about this about a week ago advising them that I
was not going to come up with this money myself and that if they wish to
proceed, they could either decide to come up with the money on their own, or I
would have to make a motion to be relieved as I was not going to be fronting
this [sic] expert fees on their behalf and I was never advised that that would
be the case.”
(Transcript, p 6).
When the court inquired as to the retainer agreement language concerning
payment for expert witnesses, movant responded:
“The retainer agreement says that we fund the case up to the time of trial
and then the trial experts are paid for by the client.”
(Id., p 8). Movant further stated that the retainer agreement with the
original counsel contained the same terms.
Although movant received the case file from Mr. Seitel in March or April of
2008, he did not advise the court that he had no expert witness reports and was
not in a position to try the case for that reason until three weeks prior to
the September 16 trial date. Asked by the court why he waited until the eve
of trial, movant responded:
“I was given a sense from [Mr. Seitel] that all this information really
just needed me to contact the experts and they’d send me the reports. And
then sending them to Ms. Wagner would result in a miraculous resolution of this
case.”
(Id., p 12). The “miraculous resolution”, i.e., a settlement
of the case, was not to be because defendant, as is its right, is not willing to
settle.
Claimants have a different interpretation of their retainer agreements with the
Desiderio firm and with movant. Frank McCord stated:
“My understanding when we signed with them whatever the cost was they
would put the cost out and they would get it back at the end of the case. That
was our understanding.”
(Id., p 17).
Movant has submitted the two retainer agreements. Examination of their terms
compels the conclusion that Mr. McCord’s interpretation is correct and
movant’s representation to the court was erroneous.
The original agreement with the Desiderio firm, dated August 8, 2001, provides
for a legal fee of 33 1/3% of any recovery, and states that the
“percentage shall be computed on the net sum recovered after deducting
from the amount recovered expenses and disbursements for expert testimony and
investigative or other services properly chargeable to the enforcement of the
claim or prosecution of the action” (Exhibit A). There is no other
mention of litigation costs or expert witness fees.
Movant’s retainer agreement, dated October 1, 2007, also provides for a
one-third contingent fee on the net recovery, not including disbursements.
Under the heading “Disbursements,” the agreement provides:
“In the event there is no recovery, except as may be otherwise specified
above, the client shall not be obligated to pay the attorneys a fee for their
services, but the client shall reimburse the attorneys for all
disbursements made in connection with the institution and prosecution of the
claim. For example, these disbursements include the filing fees for the case,
medical and hospital report fees, fees for depositions, fees for doctors and
other experts who may testify on your behalf in court; investigation
services and fees such as the taking of witness statements; photographs;
computer research and work processing time; long distance telephone calls,
photocopying; postage; Federal Express; messenger services, travel expenses, and
FAX fees.”
(Exhibit B, emphasis supplied).
On its face, the retainer agreement provides exactly the opposite of
movant’s in court representation that the attorneys are responsible for
disbursements up to the time of trial and the clients are responsible for trial
witness fees. Rather, it states that the client shall reimburse
counsel for such expenses at the conclusion of the litigation. The
plain meaning is that counsel is responsible to pay such expenses in the first
instance, subject to reimbursement either out of the proceeds, if any, or
otherwise. There is no other meaning of the word “reimburse” and
this is not a case where arguably ambiguous contract language requires analysis
and interpretation by this court.
Equally clear is that the foregoing facts provide no basis for counsel to be
relieved from his professional responsibility to represent claimants,
particularly given the impending trial date.
“An attorney may withdraw from representing a client for good and
sufficient cause (see, Code of Professional Responsibility DR2-110 [C]
[6] [22 NYCRR 1200.15 (c) (6)]; Heinike Assocs. v Liberty Natl. Bank, 142
AD2d 929). This includes irreconcilable differences between the attorney and the
client with respect to the proper course to be pursued in litigation
(see, Mullins v Saul, 130 AD2d 634, 636; Sansiviero v
Sanders, 117 AD2d 794)”(Winters v Rise Steel Erection Corp.,
231 AD2d 626 - 627 [2d Dept 1996]).
“Good cause exists where the conduct of the client renders it unreasonably
difficult for the attorney to properly represent the client. 22 NYCRR
1200.15(c)(1)(iv) [Code of Professional Responsibility DR2-110(c)(1)(iv)]. See,
Green v. Gasparini, 24 AD3d 505 (2nd Dept. 2005); and Walker v. Mount
Vernon Hosp., 5 AD3d 590 (2nd Dept. 2004). Sufficient cause for withdrawal
has also been found to exist if the client fails or refuses to pay attorney's
fees or expenses necessary to carry on the litigation.”
(Volosevich v Nunziata, 20 Misc 3d 1131(A) [Sup Ct, Nassau Co
2008]).
Movant has not presented good cause for the relief he requests.
[3] Although the New York State Bar Association
Committee on Professional Ethics has noted that an attorney may request that a
client advance litigation expenses, the client may choose not to do so and,
unless the client had previously agreed to pay such expenses, the client’s
refusal to pay expenses in advance is not grounds for an order relieving counsel
of his obligation to represent his client:
“Where the client does not refuse ultimate liability for litigation
expenses, but does refuse to pay expenses in advance, such refusal, absent an
agreement requiring advance payment, would not be in deliberate disregard of
an obligation and would not be a basis for permissive withdrawal under DR
2-110(C)(1)(f).”
(NY State Bar Ass’n, Ethics Op. 93-653, emphasis supplied).
As noted, the claimants herein made no agreement to pay any litigation
expenses, including expert witness fees, in advance of trial.
[4] Their agreement with counsel was
specifically to the contrary: that counsel would advance such expenses, subject
to reimbursement following the conclusion of the case. Movant’s
speculative anticipation that claimants will be unable to reimburse him should
there be no recovery does not constitute good cause for the requested relief.
It appears that movant agreed to represent claimants on the assumption that the
case would be settled without requiring trial. However, in agreeing to
represent claimants under the submitted retainer agreement, he assumed the risk
that the case would not be settled and would have to be tried. Whatever
representations or misrepresentations were made to him by former counsel are
irrelevant to any issue before this court. Counsel’s obligations arise
from the terms of his retainer agreement and from the Code of Professional
Responsibility, not from his understanding of how the case would likely be
resolved.
The court also notes that permitting counsel to withdraw at this stage of the
litigation, where the note of issue has been filed for some time and two trial
dates have already been adjourned due to problems caused by claimants’
attorneys, would be severely prejudicial to claimants regardless of the ultimate
result. They are entitled to have this matter heard and seven years is long
enough to wait for a disposition.
For the foregoing reasons, the motion for leave to withdraw is denied. The
court does note that claimants are free to consent to a substitution of new
counsel should they so desire. Likewise, counsel and claimants are free to
negotiate and consent to removal of present counsel. In either event, it will
remain counsel’s obligation to communicate such result to the court.
Trial is rescheduled to commence on March 10, 2009 at 9:30 a.m.
September 12, 2008
White
Plains, New York
HON. STEPHEN J. MIGNANO
Judge of the Court of
Claims
[2].See Press Release dated September 28, 2007,
United States Attorney’s Office, Southern District of Florida,
“Attorneys Sentenced on Money Laundering Conspiracy and Obstruction of
Justice Charges.”
(http://miami.fbi.gov/dojpressrel07/mm20070928b.htm)
[3].Although not referenced by movant, his
retainer agreement also states: “This law firm takes this matter subject
to investigation and reserves the right to terminate this attorney-client
relationship for any reason, at any time.” The law is clear that such a
provision “does not override the requirement in the Code of Professional
Responsibility that it show the requisite ‘good and sufficient
cause’ for withdrawal” (
Willis v Holder, 43 AD3d 1441 [4th
Dept 2007; see also
J.M.
Heinike Assocs. v Liberty National Bank,
142 AD2d 929 [4th Dept 1988]).
[4].Cases that find good cause for withdrawal
based on a client’s failure to pay fees or expenses uniformly involve a
breach of an agreement to pay such fees and/or expenses, obviously not the case
here.
