The end of the relationship can come from any number of reasons, but the end is reached either before or at the end of the underlying litigation.

<strong>Termination by client</strong>

It is the general rule in the United States, and the rule in New York that an attorney’s representation of a client may be terminated at any time by the client, either for good cause or for no cause. Analysis of a client’s termination of the attorney’s retention [hereinafter "termination"] starts with determination of whether the termination was for good cause or for no cause.

While the difference between "for cause, good cause, or cause" for termination and "no cause" has been endlessly debated, a "for cause" termination may be based upon misconduct which manifestly does not rise to the level of attorney malpractice.

<strong>Where the discharge is for
cause,the attorney has no
right to compensation</strong>

Where the discharge is for cause, the attorney has no right to compensation. This rule exists regardless of the terms of a retainer or other agreement between the attorney and the client. Traditional contract principles are not always applied to govern disputes between attorneys and clients.

Where the discharge is for cause, the attorney has no right to compensation or a retaining lien, regardless of pleading or stated defenses. "This rule is well calculated to promote public confidence in the members of an honorable profession whose relation to their clients is personal and confidential." "An attorney discharged for cause has no right to a fee or a retaining lien."

<strong>Where the discharge is without
cause, the attorney is limited
to recovering in quantum meruit</strong>

"When an attorney is discharged without cause, the attorney is entitled to recover compensation from the client measured by the fair and reasonable value of the services rendered whether that be more or less than the amount provided in the contract or retainer agreement." This rule, set forth by the Court of Appeals exists as a matter of law, whether pled or not, and whether set forth as an affirmative defense or not.

Where the discharge is without cause, the attorney is limited to recovering in quantum meruit the reasonable value of the services rendered. The courts clearly "possess the traditional authority to "supervise the charging of fees for legal services," pursuant to their "inherent and statutory power to regulate the practice of law."

<em>Quantum meruit</em> means "as much as he deserved, and is premised upon the finding of an implied promise to pay as much as he reasonable deserved." If it is determined that the termination was without cause, recovery should be determined to be an amount which "they reasonably deserved."

The Court of Appeals has found that where the discharge is without cause, as a matter of law, the attorney is limited to recovering the reasonable value of the services rendered, in quantum meruit.

"<strong>Cause" is not the
equivalent of "malpractice"</strong>

Good cause for termination is not the same as malpractice. Attorney malpractice, defined as a deviation from good and accepted practice, which proximately damaged the party, in which, but for the negligence of the attorney there would have been a different or better result is not the same as good cause for termination.

<strong>"Termination for cause"</strong> has arisen in many situations in which malpractice was not even discussed, much less claimed. For example, substantial delays in prosecuting the case or failing to bring the action until 2 days before the statute of limitations is sufficient; failure timely to obtain medical records is similarly sufficient .

Failure to retain an expert is similarly sufficient . "Employment [which] contravenes specific legal requirements is sufficient, as is abandonment of a case, ; or a conflict of interest; a refusal personally to try a case ; or a failure to disclose a settlement offer are all these examples misconduct which resulted in termination for cause, with no fee to the attorney. They do not amount to malpractice, however.

Termination for cause threshold lies well below any question of malpractice. As an example, Dagny Management Corp.,supra, is instructive. Friction between the client and the attorney grew over the management of the settlement funds, in which the attorneys frustrated, but did not destroy, the settlement. The Appellate Division determined that the "firm’s interference with the client’s right to settle constitutes misconduct sufficient to rise to a level warranting discharge for cause and forfeiture of its fee", citing De Luccia v. Village of Monroe, 180 AD2d 897 [3d Dept, 1992]

The difference flows logically from the question of damages is that in malpractice there is a positive claim for damages, over and above fee considerations from attorneys; in the question of termination for cause, there can be but a reduction of the fees paid, but no positive claim for damages. The heightened burden for malpractice logically accompanies the heightened possibility of damages.

It is the general rule in the United States, and New York that the client, either for good cause or for no cause, may terminate an attorney’s representation at any time. While the difference between "for cause" and "no cause" has been endlessly debated, a "for cause" termination may be based upon misconduct which does not rise to the level of attorney malpractice.

Where the discharge is for cause, the attorney has no right to compensation, regardless of the agreement between the attorney and the client. Traditional contract principles are not always applied to govern disputes between attorneys and clients. Where the discharge is for cause, the attorney has no right to compensation or a retaining lien. When discharged without good cause, compensation is measured by the fair and reasonable value of the services rendered whether that is more or less than the amount provided in the contract or retainer agreement. The attorney is limited to recovering in <em>quantum meruit</em>.

The courts possess authority to supervise fees for legal services. Quantum meruit means, "as much as he deserved, premised upon an implied promise to pay as much as reasonable. Put in short, quantum meruit is the fair and reasonable value of the services rendered, which may be more or less than the amount provided in the contract or retainer agreement. It is determined by taking into consideration the character of the services, the nature and importance of the litigation, the degree of responsibility, the amount or value involved, the length of time spent, the ability, skill and experience required, the character, qualifications and standing of the attorney and the results achieved. The recovery is not limited to the amount billed or the original terms of the retainer agreement, and may be less or more than the amount, which might have been recovered under a contingency fee.

Attorney malpractice arises in matrimonial settings too. In another recent successful case, Plaintiff -wife had a history of suicide attempts, which were one of the bases of husband’s claim of cruel and inhuman treatment. Plaintiff had a history of psychiatric hospitalizations. Days after her release, her attorney and she attended a court hearing on custody, which turned into a settlement of the entire divorce. At the time, she was still on psychotropic medication, and only days out of the in-patient hospitalization. This attorney malpractice matter was settled for $350,000.

Attorney malpractice case arise in unexpected circumstances and may be more vital and valuable than expected. Analysis of the four elements of attorney malpractice is required to determine whether a case exists, and may successfully be prosecuted. As always, the elements are: professional relationship, deviation, proximate cause [including the "but for" element,] and damages.

The City of New York, the Health & Hosptials Corporation, individual hospitals.  The ownership and place of service of a summons and complaint, as well as a notice of medical malpractice have long been a trap for the unwary.

NOTE:  The New York Law Journal reports that "starting April 30, 2007 service of process and notice of claims must be filed in Room 650 at 346 Broadway at the new HHC Office of Legal Affairs Medical Litigation Unit."

Don’t serve the notice or the summons in the wrong place!

Here is a Florida case whcih discusses the obligation between attorneys on a fee split, and the difference between an attorney split and a fee owed by the client.  Here, attorney 1 referred the case to attorney 2, and was then terminated.  Result?  Attorney 2 owes a specific percentage to Attorney 1.

"An appellate court has ruled that two Miami lawyers should split a contingency fee award based on their written fee agreement — even though one lawyer was fired by the client on the advice of the other lawyer before the case was won.

A 4th District Court of Appeal panel unanimously ruled April 2 that Scott Jay, who referred a legal malpractice case to Warren Trazenfeld, is entitled to 25 percent of the $218,000 fee Trazenfeld won as part of a $485,000 judgment in Broward Circuit Court in 2003.

Trazenfeld had argued that Jay was not entitled to any fees because he thought that when his client terminated Jay, the fee agreement was voided. Jay’s only claim, he said, was based on quantum meruit, meaning that payment should be based on the reasonable value of services provided. But Jay was not even entitled to that, Trazenfeld said, because Jay had not kept complete time records of his work.

Broward Circuit Judge Robert Lance Andrews agreed with Trazenfeld. But the 4th DCA panel rejected that argument. First, it said case precedent holds that the quantum meruit rule was inapplicable because it applies to the client’s obligation, not to co-counsel’s obligation.

"The written fee agreement provides that co-counsel are jointly owed the fee," the panel wrote. "And because the contract did not specify otherwise, the division of the fee would ordinarily be equal."

The panel also rejected Trazenfeld’s argument about the time records.

"Here, where the fee agreement effectually makes the division, it would serve no purpose to keep such records to establish the share of each," the panel wrote. "In this kind of joint representation, counsel may recognize from the beginning of their undertaking that the amount of time spent by either will not control the division. … As long as such a division is not unreasonable and does not violate the regulatory rules of the Florida Bar, there is no good reason why courts should resort to time records to divide the fee."

Read this:

"After a Preston Hollow, Texas, neighbor complained that his son’s pet donkey was a loud nuisance, Dallas lawyer C. Gregory Shamoun brought the donkey, known as Buddy, into a courtroom on Wednesday to attempt to prove to a jury that the burro’s not. When the suit went to trial on Wednesday, Buddy was the first witness.

Although Buddy clearly couldn’t testify, Shamoun says he wanted the jury to see that Buddy is his 7-year-old son’s well-behaved pet.

Cantrell’s attorney, Chandler, confirms that Buddy wasn’t noisy in the courtroom.

"The donkey did behave. It was a nice donkey, as donkeys go, I suppose," says Chandler, of Chandler & Chandler in Dallas.

Seider says he allowed Buddy to appear in court as a witness, because Cantrell had pleaded in his counterclaim that Buddy was a nuisance.

"He behaved perfectly. They led him in, and the jury observed him for a minute or two, and then he went peaceably away," Seider says, adding that Shamoun assured him that if Buddy made a mess in the courtroom, he would clean it up. "

Here is a legal malpractice case in which it is alleged that defendant attorney spoke with the upcoming judge at at coctail party, and was told that the judge would let plaintiff have only 5 days of trial.  As a result, it is alleged that plaintiff settled the case rather than try it in so short a period?

Unthinkable?  "Four years after Cox Smith Matthews settled a suit on behalf of plaintiff Total Clean LLC for $4.5 million, the firm is defending itself in a case brought by its former client. Total Clean, a family business established to operate a truck wash, has sued the San Antonio-based firm and one of its shareholders in Bexar County, Texas’ 37th District Court. At a mediation held five days before the trial, McElhaney allegedly told Nami family members "that they had to settle the case because they could not effectively go to trial with the five-day trial limitation," according to the petition. "Believing McElhaney that the federal judge would permit Total Clean to put on only a small part of its case, and therefore essentially prevent it from effectively putting on its case, the family agreed to settle. … "

"We are alleging that the lawyer [McElhaney] told the client that the judge said he would only permit a very short trial and that is why [the client] settled," says Smoot. "My client is adamant. He [Bobby Nami] would not have settled except for the fact that he was told he would only have a five-day trial."

If you think that this is a unique case, take a look at Totura v. Sullivan Papain Block now before the AD2, AD No. 2006-3886  fully briefed.  The allegation there is that the attorney told his client the judge spoke at a bar meeting and told him to settle or face dismissal at trial.

This case falls in the "just can”t explain it" category.

Attorney represents plaintiff and obviously had problems.  Client sues attorney in legal malpractice, and attorney defaults on trial.  He then defaults on inquest of which he had notice.  He then fails to do anything about a settled judgment.

Only after entry of judgment does he try to vacate.  His efforts unsuccesful.  "After the defendant failed to appear on the scheduled trial date, he was notified that the case would be placed on the calendar one week later for an inquest on damages. Moreover, after the defendant’s efforts to vacate his defaults proved unsuccessful, he was given notice, on or about April 13, 2004, that judgment would be entered against him on or after May 1, 2004. Under these circumstances, the defendant has no grounds to complain of lack of notice pursuant to CPLR 3215(g)(1).

Finally, the court properly determined that the judgment was not entered in violation of 22 NYCRR 202.48(a) (see Funk v Barry, 89 NY2d 364). "

Here is a reported case in which the case against defendant was dismissed after openings.  This occurrence is rare, rare, rare.  Worse yet, plaintiff suffered complete dismissal at the end of plaintiff’s case.  What was counsel doing and thinking??

"Plaintiff’s opening statement failed to make out a prima facie case of negligence against the driver of the car involved in the alleged accident. Therefore, there could have been no finding of liability against the car’s owner, defendant Diaz, since any liability on his part would have been derivative of the driver’s (Vehicle and Traffic Law § 388[1]). Accordingly, the court properly dismissed the action as against Diaz immediately after opening statements (see Giroux v Snedecor, 178 AD2d 802 [1991]).

The complaint against the City was properly dismissed at the close of evidence. Even if the City created the bump to which plaintiff attributes the accident in which he was injured, there was no competent evidence that the bump was hazardous at the time of its creation (see Bielecki v City of New York, 14 AD3d 301 [2005]). The trial court properly precluded the testimony of plaintiff’s expert, since there was no showing that the proposed testimony would clarify an issue [*2]involving professional or technical knowledge beyond the ken of the typical juror (see GMAC Commercial Credit v Mitchell-B.J. Ltd., 272 AD2d 51 [2000]).