Rodriguez v. Custodio, No. 08-4966 (2d Cir. 2010)

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The court issued a subsequent related opinion or order on April 6, 2010.

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08-4966-cv Rodriguez v. Custodio 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2009 4 (Argued: August 25, 2009 Decided: February 18, 2010) 5 Docket No. 08-4966-cv 6 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 WAGNER & WAGNER, LLP, DANIEL J. BAURKOT, ESQ., 41 the Eastern District of New York (John Gleeson, Judge) Non-Party-Appellants, DAYANARA RODRIGUEZ, an infant by her Parents and Natural Guardians, EVELYN CUSTODIO and LEE RODRIGUEZ, EVELYN CUSTODIO, individually, and LEE RODRIGUEZ, individually, Plaintiffs, v. ATKINSON, HASKINS, NELLIS, BRITTINGHAM, GLADD & CARWILE, P.C., Non-Party-Appellee, INTERNATIONAL SALES, INC., INTERNATIONAL GROUP OF COMPANIES, Defendant-Cross-Claimant-Cross-Defendants, TARGET CORPORATION, Defendant-Third-Party-Plaintiffs, ROYAL CONSUMER INFORMATION PRODUCTS, INC., Defendant-Cross-Defendant-Cross-Claimant-ThirdParty-Plaintiffs. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B e f o r e: WINTER, POOLER, and KATZMANN, Circuit Judges. Appeal from an order of the United States District Court for 1 1 determining attorneys fees after an infant compromise hearing. 2 Appellants argue that the district court inappropriately inquired 3 into the fee splitting agreements among the attorneys and then, 4 after concluding a violation of New York Disciplinary Rule 2-107 5 had occurred, erroneously took the amount of fees that would go 6 to plaintiffs original attorney and instead awarded them to the 7 plaintiffs. 8 the district court and issuing the mandate forthwith. 9 evidence that the annuity called for by the settlement had not On September 1, 2009, we issued an order affirming Given 10 been established, we appointed pro bono counsel to represent the 11 plaintiffs in all matters in these proceedings. 12 that an opinion would follow. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Our order stated We now issue this opinion. EDWARD WAGNER (Michael P. Atkinson, on the brief), Wagner & Wagner, LLP, Staten Island, New York (Daniel J. Baurkot, Basking Ridge, New Jersey), for Non-PartyAppellants. STACIE L. HIXON, Atkinson, Haskins, Nellis, Brittingham, Gladd, & Carwile, Tulsa, Oklahoma, for NonParty-Appellees. WINTER, Circuit Judge: Wagner & Wagner, LLP, and Daniel J. Baurkot, Esq., appeal 27 from Judge Gleeson s adoption of Magistrate Judge Mann s Report 28 and Recommendation. 29 After an infant compromise hearing, Judge Mann awarded 30 $107,654.56 in attorneys fees and $49,866.84 in expenses 31 to Atkinson, Haskins, Nellis, Brittingham, Gladd, & Carwile, P.C. 32 (the Atkinson firm or appellees ), and $133,286.60 in 2 1 attorneys fees and $2,378.86 in expenses to Wagner & Wagner, 2 LLP. 3 Wagner s sharing of the fees with Baurkot was not properly 4 disclosed to plaintiffs and Baurkot had performed no services of 5 value in the litigation. 6 sharing agreement was in violation of New York Disciplinary Rule 7 2-107 ( DR 2-107 ).1 8 portion of the fee to the plaintiffs. 9 appeal. She denied an award of fees to Baurkot because Wagner & Therefore, she concluded, the fee The magistrate judge awarded Baurkot s Appellants then took this The Atkinson firm has filed a brief responding to Wagner 10 & Wagner s argument that if we affirm the award to the 11 plaintiffs, the fee splitting agreement between Wagner & Wagner 12 and the Atkinson firm requires a redistribution of fees between 13 the two firms. 14 On September 1, 2009, we issued an order affirming the 15 district court s order. 16 by attorneys who continue to represent the plaintiffs from a 17 judgment in plaintiffs favor and evidence that the annuity 18 called for in the settlement had not been established -- we 19 appointed pro bono counsel to represent the plaintiffs and 20 forbade appellants from contacting plaintiffs except through pro 21 bono counsel. 22 This is that opinion. 23 Given the nature of this appeal -- taken Our order stated that an opinion would follow. BACKGROUND 1 New York modified its disciplinary code effective April 1, 2009, but the revisions would not affect the outcome in this matter. The principles embodied in former DR 2-107 are now contained in Rule 1.5(g)-(h), N.Y. Comp. Codes R. & Regs. tit. 22, § 1200. 3 1 2 a) The Underlying Action After his two-year-old daughter was injured by a paper 3 shredder, Lee Rodriguez contacted Baurkot to discuss legal 4 assistance. 5 after which representatives of Wagner & Wagner met with Rodriguez 6 and his wife, Evelyn Custodio, the mother of the injured girl. 7 During that meeting, plaintiffs retained Wagner & Wagner on a 8 one-third contingency-fee basis to reach a settlement or bring an 9 action on behalf of their daughter and themselves as plaintiffs. On April 4, 2005, Baurkot contacted Wagner & Wagner, 10 Appellants then executed a fee agreement between themselves, 11 providing that Wagner & Wagner would receive two-thirds of any 12 recovered fee and Baurkot would receive the remaining one-third. 13 In 2006, the Atkinson firm, which had experience with 14 similar cases, contacted Wagner & Wagner. After consultation 15 with Baurkot and the plaintiffs, Wagner & Wagner retained the 16 Atkinson firm. 17 Atkinson firm would receive 35% of any contingency fee received, 18 while Wagner & Wagner would receive 65% of the fee, to be shared 19 with Baurkot pursuant to the existing agreement. The retention agreement provided that the 20 Ultimately, the action was brought in the Eastern District, 21 with Wagner & Wagner as the attorneys of record and the Atkinson 22 firm as lead counsel. 23 matter for $975,000.00, that, after the payment of fees, was to 24 fund an annuity in the infant plaintiff s name. 25 b) Attorneys Fee Proceedings This led to an agreement to settle the 4 Pursuant to Local Civil Rule 83.2(a),2 the magistrate judge 1 2 held an infant compromise hearing to review the proposed 3 settlement and award of fees. 4 agreement regarding the sharing of the fee award and the 5 plaintiffs consented to the fee, the judge sua sponte questioned 6 whether DR 2-107 permitted Wagner & Wagner to share its fee with 7 Baurkot. 8 any work in the matter and that his fee was simply a referral 9 fee.3 Although the attorneys were in She expressed concern that Baurkot had not performed This concern arose at least in part, because (i) Wagner & 10 Wagner failed to initially disclose Baurkot s share of the fee to 11 the court and (ii) prior to the disclosure of Baurkot s share in 12 a supplemental petition filed the day before the infant 13 compromise hearing, the magistrate judge had never heard of 14 Baurkot. 15 When the plaintiffs were questioned about their contact with 16 Baurkot, Custodio stated that she could not recall his name. 17 Rodriguez testified that he had spoken to Baurkot once over the 18 phone and had a sense that Baurkot would receive a portion of the 19 fee because he was the first attorney contacted, but that he was 2 Local Civil Rule 83.2(a)(1) provides: An action by or on behalf of an infant or incompetent shall not be settled or compromised, or voluntarily discontinued, dismissed or terminated, without leave of the court embodied in an order, judgment or decree. The proceeding upon an application to settle or compromise such an action shall conform, as nearly as may be, to the New York State statutes and rules, but the court, for cause shown, may dispense with any New York State requirement. 3 The magistrate judge expressed no concern over the division of fees between Wagner & Wagner and the Atkinson firm. 5 1 not sure whether he was going to be working on the case or not. 2 The attorneys from Wagner & Wagner stated only that Baurkot has 3 been involved and been in constant contact with [Wagner & Wagner] 4 throughout the litigation. 5 statements relating to Baurkot s routine involvement in other 6 cases that he had referred to Wagner & Wagner. 7 this record, the magistrate judge requested submissions from 8 Baurkot and Wagner & Wagner regarding the specific services 9 Baurkot provided in the present litigation. 10 They also added conclusory Dissatisfied with Both Wagner & Wagner and Baurkot submitted supplemental 11 affidavits and memoranda of law. Wagner & Wagner also submitted 12 its entire file in the case. 13 first contacted by Rodriguez, they had several other telephone 14 conversations that enabled Baurkot to conduct a preliminary 15 investigation. 16 Wagner & Wagner should become involved in the matter, he 17 introduced Rodriguez to members of Wagner & Wagner over the 18 telephone on August 3, 2005. 19 plaintiffs of the arrangement between himself and Wagner & Wagner 20 during that phone call, and they agreed to it. 21 asserted that he was involved in strategic decisions about the 22 case, including the decision to file the claim in federal court 23 instead of state court and the decision to bring in the Atkinson 24 firm. Baurkot claimed that after he was Baurkot also claimed that once he concluded that According to Baurkot, he advised Baurkot also 25 Edward Wagner, a member of Wagner & Wagner, submitted an 26 affidavit stating that Wagner & Wagner informed plaintiffs of the 6 1 arrangement between Wagner & Wagner and Baurkot during a meeting 2 with the plaintiffs on August 4, 2005, and that the parents 3 agreed to the arrangement. 4 involved in the decision to file suit in federal court and that 5 Baurkot was involved throughout the case, even reminding him of 6 specific facts on one occasion. 7 that he could not describe with greater particularity the amount 8 or type of work performed by Baurkot. 9 He also asserted that Baurkot was However, Wagner acknowledged Wagner & Wagner s file contained several hundred pages of 10 documents, but only four that referred to Baurkot. 11 dealt exclusively with the retaining of Wagner & Wagner and the 12 Atkinson firm and with resultant fee agreements. 13 documents involved constituted legal services on behalf of the 14 plaintiffs. 15 parents consented to the fee-splitting arrangement. 16 These four None of the Nor did any of the documents submitted show the On August 7, 2008, the magistrate judge issued her Report 17 and Recommendation. 18 Wagner and plaintiffs agreed that their retainer agreement 19 provided for a one-third contingency fee, she examined each 20 individual fee request and determined that both Wagner & Wagner s 21 request for fees of $133,286.60, representing two-thirds of 65% 22 of the total one-third contingency fee, and the Atkinson firm s 23 request for $107,654.56 in fees, representing 35% of the total 24 one-third contingency fee, were reasonable. 25 26 After acknowledging that both Wagner & The magistrate judge then denied any portion of the attorneys fees to Baurkot because DR 2-107 prohibited it. 7 1 First, she found that DR 2-107 was violated because plaintiffs 2 never received the required disclosure of the fee-sharing 3 agreement. 4 contentions that they had orally sought and received the required 5 consent. 6 testimony indicating they were unaware that Baurkot would be 7 working on the case. 8 The judge rejected Wagner & Wagner s and Baurkot s Instead, the magistrate judge relied on the plaintiffs Second, the magistrate judge concluded that DR 2-107 was 9 violated because the requirement that either the work done be in 10 proportion to the fee received or that the attorneys agree in a 11 writing to undertake joint responsibility was not met. 12 finding, she relied on several pieces of evidence, including: 13 (i) Wagner & Wagner s initial failure to disclose Baurkot s share 14 of the fee to plaintiffs; (ii) Wagner & Wagner s and Baurkot s 15 failure to show specific work he performed on the case; and (iii) 16 the lack of any documents in Wagner & Wagner s file to 17 corroborate the claim that Baurkot performed services on the 18 case. 19 In so The magistrate judge determined that the portion of the fee 20 claimed by Baurkot should be awarded to the plaintiffs, rather 21 than going to Wagner & Wagner. 22 fee would still find its way to Baurkot if Wagner & Wagner 23 received it, and, moreover, noted that Wagner & Wagner had 24 acknowledged that it considered $133,286.60 fair and adequate 25 compensation for its efforts. 26 She expressed a concern that the Wagner & Wagner and Baurkot filed timely objections to the 8 1 Report and Recommendation. They objected to those parts of the 2 order that determined that Baurkot s portion of the fee should go 3 to plaintiffs. 4 awarded fees because they resulted in a 55.3%/44.7% split between 5 Wagner & Wagner and the Atkinson firm, rather than the agreed 6 upon 65%/35% split. 7 specifically stated that [t]he Wagner Firm, [sic] is not 8 suggesting that the fee to the Atkinson Firm be reduced. . . . 9 What we are stating is that since the fee to the Atkinson Firm is 10 35% of the full one-third contingency fee, the fee to the Wagner 11 Firm should be 65% of the full one-third contingency fee. 12 Gleeson adopted the magistrate judge s Report and Recommendation 13 in full. These objections included an objection to the However, Wagner & Wagner and Baurkot Judge This appeal followed. 14 DISCUSSION 15 In the context of an infant compromise hearing, we review a 16 district court s award or denial of attorneys fees for an abuse 17 of discretion. 18 F.3d 218, 225 (2d Cir. 2009) (per curiam); see also Reiter v. MTA 19 N.Y. City Transit Auth., 457 F.3d 224, 229 (2d Cir. 2006). 20 Appellants argue that the district court erred: See Chen v. Chen Qualified Settlement Fund, 552 (i) when it 21 looked beyond the contingency agreement between Wagner & Wagner 22 and the plaintiffs to the fee splitting agreements among the 23 attorneys; (ii) when it found that DR 2-107 was violated; and 24 (iii) when it granted Baurkot s portion of the fee to the 25 plaintiffs instead of to Wagner & Wagner, thus altering the 9 1 65%/35% proportional division agreed upon by Wagner & Wagner and 2 the Atkinson firm. We disagree. 3 With regard to (i), in an infant compromise hearing, the 4 district court is not confined to the overall award of attorneys 5 fees, and it is not excluded from considering the division of 6 those fees among the various attorneys. 7 broad discretion when conducting an infant compromise hearing. 8 See Local Civil Rule 83.2(a)(1); supra Note 2. 9 both the Local Civil Rules and New York State law grant broad 10 authority to determine the reasonableness of attorney s fees. 11 See Local Civil Rule 83.2(a)(2) ( The court shall authorize 12 payment to counsel for the infant or incompetent of a reasonable 13 attorney s fee and proper disbursements from the amount recovered 14 in such an action, whether realized by settlement, execution or 15 otherwise and shall determine the said fee and disbursements, 16 after due inquiry as to all charges against the fund. ); 17 Goldstein v. St. Luke s-Roosevelt Hosp. Ctr. (In re Goldstein), 18 430 F.3d 106, 111 (2d Cir. 2005) (per curiam) ( [W]hen [the 19 attorney] moved under Local Rule 83.2(b) for approval of the 20 request for fees and costs, he thereby opened up the issue of the 21 quality, or lack thereof, of his representation and the 22 reasonableness of his fees. ); N.Y. Judiciary Law § 474 ( An 23 attorney may contract with the guardian of an infant to 24 prosecute, by suit or otherwise, any claim for the benefit of an 25 infant for a compensation to said attorney dependent upon the 10 District courts have In particular, 1 success in the prosecution of such claim, subject to the power of 2 the court . . . to fix the amount of such compensation. ); White 3 v. DaimlerChrysler Corp., 871 N.Y.S.2d 170, 173-74 (App. Div. 2d 4 Dep t 2008) (noting that under N.Y. Judiciary Law § 474, a 5 contract between the attorney and the infant guardians providing 6 for a contingency fee is to be considered by the judge, but it is 7 not binding). 8 When multiple attorneys are involved in such an inquiry, fee 9 splitting agreements offer no more than non-mandatory guidance 10 because the court is under a duty to evaluate the quantity and 11 quality of the representation by each attorney in order to ensure 12 that the fees are appropriate. 13 Ctr., 724 N.Y.S.2d 795, 796-98 (App. Div. 3d Dep t 2001) (looking 14 beyond the retainer agreement to the fee sharing agreement 15 between the attorneys as well as the amount of work performed by 16 each attorney).4 See, e.g., Ford v. Albany Med. 4 Appellants argue that the district court erred when it relied on Ford, 724 N.Y.S.2d 795, because of statements made by this court in Ballow Brasted. See Ballow Brasted, 435 F.3d at 242 n.7 ( To the extent Ford and Benjamin can be read to conflict, we follow the decision of the Court of Appeals in Benjamin. ). However, those statements were clearly dicta, at least when sought to be applied in the circumstances before us. Ballow Brasted arose as the result of a dispute amongst attorneys outside the context of an infant compromise hearing, see id. at 236-37, in circumstances in which Ford and Benjamin might be read to be in conflict with one another. Compare Ford, 724 N.Y.S.2d at 797-98 (looking into the amount of work performed by the attorneys where a violation of DR 2-107 was alleged) with Benjamin, 650 N.E.2d at 832-33 (refusing to look into the amount of work performed by the attorneys where a violation of DR 2-107 was alleged). In the context of a court determination of attorneys fees during an infant compromise hearing, the cases do not conflict because only Ford is applicable. Compare Ford, 724 N.Y.S.2d at 79697 (arising in the context of a dispute amongst the attorneys during an infant compromise hearing), with Benjamin, 650 N.E.2d at 830 (arising in the context of a dispute amongst the attorneys not during an infant compromise hearing). 11 1 We, therefore, see no reason why a court may not inquire as 2 to the roles played and services provided by each firm. If a 3 firm that plays an active role and provides substantial services 4 seeks a fee that will be shared with a firm that has played no 5 role and provided no services, the fee request may well be 6 unreasonable. 7 Appellants rely on a number of cases to support their 8 argument that consideration of the appropriateness of attorneys 9 fees does not extend to fee-splitting agreements among the 10 attorneys. However, these cases are easily distinguished. 11 Although each determined that it would be inappropriate to alter 12 a fee splitting agreement between attorneys based on a violation 13 of DR 2-107, they all arose in the context of a dispute between 14 the attorneys rather than a dispute arising in the context of an 15 infant compromise hearing. 16 differing interests and impose different obligations on the 17 reviewing courts. 18 Logan, 435 F.3d 235, 236-37 (2d Cir. 2006); Samuel v. Druckman & 19 Sinel, LLP, 906 N.E.2d 1042, 1044-45 (N.Y. 2009); Benjamin v. 20 Koeppel, 650 N.E.2d 829, 830-33 (N.Y. 1995). 21 those cases, Samuel, involved an underlying matter with an infant 22 plaintiff, and even there, the decision was in the context of a 23 declaratory action involving a dispute between the attorneys 24 after the infant compromise hearing. 25 1043-44; cf. Ford, 724 N.Y.S.2d at 796-98 (examining the amount The different contexts involve See Ballow Brasted O Brien & Rusin, P.C. v. 12 Indeed, only one of See Samuel, 906 N.E.2d at 1 of work performed by the attorneys in a fee dispute involving an 2 infant compromise hearing). 3 Therefore, the policies applied in those cases -- i.e., the 4 desire to prohibit efforts by clients or customers to use public 5 policy as a sword for personal gain rather than a shield for 6 public good, Benjamin, 650 N.E.2d at 831 (internal quotation 7 marks omitted); the fact that it ill becomes [attorneys seeking 8 to avoid sharing fees], who are also bound by the Code of 9 Professional Responsibility, to seek to avoid on ethical 10 grounds the obligations of an agreement to which they freely 11 assented and from which they reaped the benefits, id. at 832-33; 12 and the desire to avoid inquir[ing] into the precise worth of 13 the services performed by the parties where the dispute is 14 among attorneys over the enforcement of fee-sharing agreements, 15 id. at 832, -- simply do not apply here. 16 the guiding policy is protection of the infant interests. 17 White, 871 N.Y.S.2d at 173-74. In the present context, See 18 Therefore, the district court did not err in looking beyond 19 the retainer agreement between Wagner & Wagner and the plaintiffs 20 to the actual work performed by the various attorneys. 21 We turn now to whether the court erred in denying fees to 22 Baurkot. DR 2-107 imposes three requirements before a fee may be 23 shared among attorneys: 24 of the other lawyer after a full disclosure that a division of 25 fees will be made ; (ii) [t]he division is in proportion to the (i) [t]he client consents to employment 13 1 services performed by each lawyer, or, by a writing given the 2 client, each lawyer assumes joint responsibility for the 3 representation ; and (iii) [t]he total fee of the lawyers does 4 not exceed reasonable compensation for all legal services they 5 rendered to the client. 6 district court found that a fee award to Baurkot violated both 7 (i) and (ii). 8 9 N.Y. Disciplinary R. 2-107(A). The We agree. With regard to (i), the district court was well within its role as fact finder when it rejected appellants self-serving 10 affidavits and statements, which were notably unsupported by any 11 documentary evidence, in favor of the plaintiffs testimony. 12 Rodriguez s testimony, while indicating a speculative awareness 13 that Baurkot would receive a fee in the case -- Yeah, I have 14 some idea that he was [getting part of the fee] because he was - 15 we first contacted him -- stated that he was unaware that 16 Baurkot would actually be working on the case, in contrast to 17 appellants claims. 18 determining that appellants did not obtain informed consent from 19 the client for the fee-sharing agreement. 20 Therefore, the district court did not err in Nor did the district court err in finding that the second 21 requirement of DR 2-107(A) was not met. 22 demonstrated that Baurkot performed no services of value on the 23 case, and thus the agreed fee division was not in proportion to 24 the services performed by each lawyer. 25 107(A)(2); see also Ford, 724 N.Y.S.2d at 797-98. 14 The evidence N.Y. Disciplinary R. 2Nor did 1 appellants produce a writing given to the client in which each 2 lawyer assumes joint responsibility for the representation. 3 N.Y. Disciplinary R. 2-107(A)(2). 4 properly found that the second requirement of DR 2-107 was also 5 not met. 6 Therefore, the district court Appellants also contend that, even if there was a violation 7 of DR 2-107, it was a prospective violation of technical 8 requirements and curable -- presumably by providing the client 9 with a joint responsibility letter -- before fees have been 10 paid. 11 time requirement, it clearly anticipates compliance with its 12 requirements early on in the representation, as it requires that 13 [t]he client consents to the employment of the other lawyer 14 . . . . 15 undertaking of joint responsibility is difficult (to say the 16 least) to accomplish, other than as a charade, after a settlement 17 with the defendant has been reached. 18 court did not abuse its discretion by not allowing appellants to 19 cure the violation after a settlement and scheduling of an 20 infant compromise hearing. 21 We disagree. While DR 2-107 does not impose an explicit N.Y. Disciplinary R. 2-107(A)(1). Moreover, the Therefore, the district Finally, appellants contend that, after determining that 22 Baurkot was not entitled to attorneys fees because of the 23 violation of DR 2-107, the district court still erred when it 24 distributed those fees to the plaintiffs rather than to Wagner & 25 Wagner. They argue that this altered Wagner & Wagner s agreement 15 1 with the Atkinson firm because the proportion of the fees that 2 went to Wagner & Wagner and to the Atkinson firm respectively did 3 not conform to the agreed-upon 65%/35% split. 4 However, as noted, the district court had broad discretion 5 to determine the value of the services rendered by each attorney, 6 looking to fee-splitting agreements only for non-mandatory 7 guidance. 8 when it determined that Baurkot s fees should not go to Wagner & 9 Wagner because that firm engaged in an ethical violation by The district court did not abuse its broad discretion 10 failing to get the proper consent from the plaintiffs. 11 Disciplinary R. 2-107(A) ( A lawyer shall not divide a fee for 12 legal services . . . unless the rule s requirements are met.). 13 Moreover, there was evidence to support the district court s 14 concern that Baurkot would obtain the money if it was awarded to 15 Wagner & Wagner, given that appellants stressed throughout the 16 proceeding the nature of their collaborative efforts in other 17 cases Baurkot referred to Wagner & Wagner. 18 district court did not abuse its discretion in awarding that 19 portion of the fees to plaintiffs. 20 See N.Y. Therefore, the Appellants further suggest that, having determined that they 21 were not entitled to Baurkot s portion of the fee, the district 22 court nonetheless should not have altered its fee splitting 23 agreement with the Atkinson firm. 24 redistribute the awarded fees to match the agreed upon split, 25 thus reducing the Atkinson firm s fees. As a result, they seek to 16 1 However, a party waives appellate review of a decision in a 2 magistrate judge s Report and Recommendation if the party fails 3 to file timely objections designating the particular issue. 4 Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003); Mario v. P & C 5 Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002). 6 objections to the Report and Recommendation, appellants stated 7 that [t]he Wagner Firm, [sic] is not suggesting that the fee to 8 the Atkinson Firm be reduced. 9 to raise the claim now made but in effect told the district court See In their Such a statement not only failed 10 not to consider the relief now sought. 11 therefore, a waiver. 12 waived, appellants would still not be entitled to a reduction in 13 the fees awarded to the Atkinson firm because the fee-splitting 14 agreement was not binding on the district court. 15 Rule 83.2(a)(2); Ford, 724 N.Y.S.2d at 796-98. 16 That statement was, Moreover, even if the argument had not been We turn to a final matter. See Local Civil Given that Wagner & Wagner and 17 Baurkot appeal from a judgment benefitting their clients while 18 still claiming to represent those clients and given that said 19 judgment found Wagner & Wagner and Baurkot committed ethical 20 violations, the court made various inquiries at oral argument 21 regarding the legal representation given the plaintiffs. 22 answers made it apparent that appellants had not obtained written 23 consent from the plaintiffs for this appeal. 24 the plaintiffs lawyers knew whether the annuity called for in 25 the settlement agreement, the funding of which did not involve 17 The Moreover, none of 1 monies at stake in the present dispute, had been established. As 2 a result, both Wagner & Wagner and the Atkinson firm were ordered 3 to submit letters indicating the status of the annuity. 4 letters indicated that, as of August 27, 2009, the defendants had 5 made the required annuity premium payments, but the annuity had 6 not yet been finalized and issued. 7 Atkinson firm for the delay. 8 Wagner for the delay. These Wagner & Wagner blamed the The Atkinson firm blamed Wagner & 9 Concerned by the overall context of the proceeding and the 10 failure to establish the annuity, we entered an order on August 11 28, 2009, indicating an intent to appoint pro bono counsel to 12 represent the plaintiffs and ordering the law firms not to 13 contact them. 14 affirming the judgment of the district court, directing that the 15 mandate should issue forthwith, and indicating that an opinion 16 would follow. 17 Jr., Esq., to represent the plaintiffs on a pro bono basis and 18 instructed Baurkot, Wagner & Wagner, and the Atkinson firm to 19 communicate with plaintiffs only through the pro bono counsel. 20 Finally, the order remanded to the district court to: 21 inquire into whether the district court s order of September 26, 22 2008, was complied with; (ii) ensure that plaintiffs receive the 23 benefits to which they are entitled; and (iii) take any 24 appropriate remedial and disciplinary actions. On September 1, 2009, we entered an order In that order, we appointed Robert J. Guiffra, 25 18 (i) 1 2 CONCLUSION We affirm the district court s order and order the 3 continuation of representation by pro bono counsel. 4 appeal in this matter should be referred to this panel. 5 party taking the appeal shall notify the Clerk of this provision 6 for reference. 7 8 9 10 11 12 13 14 15 16 19 Any further The

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