There is a long history of doctor-lawyer litigations. Often there seems to be a disconnect between the world-views of the protagonists. Lawyers may seem avaricious and doctors naive and pedantic. In Dubrow v Herman & Beinin 2017 NY Slip Op 31545(U) July 21, 2017 Supreme Court, New York County Docket Number: 651605/2016 Judge: Ellen M. Coin a doctor is terminated just before he turns 64. He hires attorneys to sue for age discrimination. The case is lost. Focus of the case is on the billing practices of the attorneys.
“On March 1, 2013, defendants filed a lawsuit against BIMC and others in this court, entitled Alan Dubrow v Beth Israel Medical Center, et al., Index No. 151877/2013 (the BIMC Action). The complaint in the BIMC Action alleged, among other claims, a cause of action for age discrimination under the New York City Human Rights Law. In July 2014, BIMC filed a motion for summary judgment. Oral argument was held on November 6, 2014. In October 2015, Dr. Dubrow retained new counsel. On December 14, 2015, the BIMC Action was dismissed in its entirety by the Hon. Debra A. James. Justice James held that Dr. Dubrow had not established a prima facie case of employment discrimination based on age, even under the law’s extremely low threshold, and that she concurred with the defendants “that there is no evidence that age played any role whatsoever in defendants’ decision to terminate plaintiff’ (Herman moving affirmation, Ex. E, Decision at 7). By letter dated December 23, 2015, plaintiff’s new counsel requested an itemization of the legal fees that Dr. Dubrow paid to defendants. This action was commenced on March 14, 2016. The complaint alleges that Dr. Dubrow paid defendants “a monetary retainer over $3000″ in September 2012 (Cmplt., ,-i 7), and a total of$176,500 in legal fees. Dr. Dubrow paid this amount, despite the fact that defendants never provided him with a written retainer agreement, in violation of 22 NYCRR 1215; never provided the plaintiff with any billing statements for the hours that they worked; and never provided any explanation of how the amount collected was fair and reasonable for the legal services that were rendered. Dr. Dubrow sues to recover the $176,500 paid to defendants based on breach of contract, conversion and legal malpractice, and also seeks $500,000 in punitive damages.”
“The first cause of action alleges that the $176,500 Dr. Dubrow paid to defendants was a retainer for work performed in the BIMC Action, and that said retainer was to be used in the prosecution of the case and debited on an hourly basis of $300 per hour, as counsel’s time was expended. It was further allegedly understood that all retainer funds not exhausted would be returned to Dr. Dubrow after the BIMC Action was resolved. ”
” By this motion, defendants neither dispute the existence of an oral contract to perform legal services on Dr. Dubrow’s behalf, nor explain the circumstances surrounding the seventeen alleged voluntary payments by Dr. Dubrow or how these amounts were calculated. Dr. Dubrow may not have asked for an itemized bill from defendants at the time he was being asked to pay legal fees, but he certainly did so in December 2015. By court rule effective April 15, 2013, a client is “entitled to request and receive a written itemized bill from [the] attorney at reasonable intervals” (22 NYC RR § 1210 .1 ). The court interprets this rule as requiring an attorney to provide a client with an itemized bill, even after the representation has been concluded and after payment from the client has been forthcoming. “[A]s a matter of public policy, courts pay particular attention to fee arrangements between attorneys and their clients” (Jacobson v Sassower, 66 NY2d 991, 993 ). Even where it is the client who commences an action to recover a portion of attorney’s fees that have already been paid, it is the attorney who must shoulder the burden of demonstrating the fair and reasonable value of the services rendered (id.). Defendants maintain that the “voluntary payment doctrine” bars Dr. Dubrow’s complaint. “That common-law doctrine bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law” (Dillon v U-A Columbia Cablevision of Westchester, 100 NY2d 525, 526 ). “The onus is on a party that receives what it perceives as an improper demand for money to ‘take its position at the time of the demand, and litigate the issue before, rather than after, payment is made'” (DRMAK Realty LLC v Progressive Credit Union, 133 AD3d 401, 403 [I st Dept 2015], quoting Gimbel Bros. v Brook Shopping Ctrs., 118 AD2d 532, 535 [2d Dept 1986]). In view of the fact that defendants admittedly failed to furnish Dr.Dubrow with a written retainer agreement and never once sent him an itemized bill documenting the hours spent on the BMIC Action, Dr. Dubrow may very well establish that the seventeen payments he made, totaling $176,500, were not made “with full knowledge of the facts.” However, such a factual ruling is completely inappropriate on a motion to dismiss pursuant to CPLR 321 l(a). “