Smart v Adams

[*1] Smart v Adams 2004 NY Slip Op 51068(U) Decided on September 21, 2004 Supreme Court, Dutchess County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 21, 2004
Supreme Court, Dutchess County

JOHN SMART and CARMELLA SMART, Plaintiffs,

against

DALE F. ADAMS and TARA STEVENS ADAMS, Defendants.



000878/2002



Richard G. Monaco, Esq.

Attorney for Plaintiff

PO Box 116

South Salem, NY 10590

Daniels & Porco

Attorneys for Defendants

517 Route 22

Pawling, NY 12564-0668

James D. Pagones, J.

Counsel for defendants Dale and Tara Adams move for leave to withdraw as their attorneys. On this application, movant has not set forth any of the grounds for mandatory withdrawal as articulated in 22 NYCRR §1200.15(b). 22 NYCRR §1200.15(c) provides the basis for permissive withdrawal by an attorney: "Except as stated in DR 2-110(A), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client or if:(1) The client:(I) Insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law.(ii) Persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent.(iii) Insists that the lawyer pursue a course of conduct which is illegal or prohibited under the disciplinary rules.(iv) By other conduct renders it unreasonably difficult for the lawyer to carry out employment effectively.(v) Insists, in a matter not pending before a tribunal, that the lawyer engage in conduct which is contrary to the judgment and advice of the lawyer but not prohibited under the disciplinary rules.(vi) Deliberately disregards an agreement or obligation to the lawyer as to expenses or fees.[*2](vii) Has used the lawyer's services to perpetrate a crime or fraud.(2) The lawyer's continued employment is likely to result in a violation of a disciplinary rule.(3) The lawyer's inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal.(4) The lawyer's mental or physical condition renders it difficult for the lawyer to carry out the employment effectively.(5) The lawyer's client knowingly and freely assents to termination of the employment.(6) The lawyer believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal."

On this application, counsel avers that defendants "refuse to enter into a new retainer agreement following this Courts (sic) determination that our prior retainer agreement was invalid."

My decision and order dated May 11, 2004 determined that the amount of fees charged by moving counsel to the defendants was excessive and that counsel's letter of engagement did not comport with the requirements of 22 NYCRR §1215.1 in that it failed to advise the defendants that they had a right to arbitrate fee disputes. Consequently, I determined that the failure of counsel to provide required fee arbitration language in the letter of engagement precluded them from seeking fees from defendants over and above those already collected in the amount of $14,396.00. I observed "since defendants have no further liability to the law firm of Daniels & Porco for the unpaid balance due on their account stated, they will not be damaged in any amount over and above the amount they have already paid, to wit: $14,396.00." Based on the affidavit of David A. Daniels submitted in support of this motion, three attorneys from movant's firm nonetheless attempted to circumvent the decision and order of this Court and to obtain a "new" retainer agreement apparently in an effort to collect additional fees which I had already determined they were not entitled to collect. Counsel's affidavit in support of this application fails to articulate any of the grounds for permissive withdrawal. The Court notes that the clients have not deliberately disregarded an agreement or obligation to the lawyer as to expenses or fees and instead have simply relied upon the decision and order of this Court regarding the limitation of their liability to counsel. Movant suggests that the clients' conduct renders it unreasonably difficult for the lawyer to carry out his employment effectively. However, counsel has averred that his clients simply have refused to engage in conduct suggested by counsel which would circumvent the unequivocal order of this Court. It is reasonable to believe that the attorney client relationship has broken down as alleged by movant but that is not the result of any course of conduct by the clients articulated in 22 NYCRR §100.15(c)(1). In the absence of any of the [*3]specified grounds for permissive withdrawal, I cannot grant the relief requested even though logic dictates that it is unlikely that movant can effectively represent defendants in any further proceeding. Of course, my determination herein does not preclude the defendants from discharging Daniels & Porco as their attorney. Because defendants have failed to respond to this motion, I am unable to divine their intent in that regard. Therefore, it is ordered that the motion of Daniels & Porco to be relieved as attorneys for defendants is denied without prejudice.

The Court read and considered the following documents upon this application:

PAGES NUMBERED 1.

ORDER TO SHOW CAUSE..............................................1 - 2 Affidavit - David A. Daniels...................................1 - 2

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

September 21, 2004

E N T E R

HON. JAMES D. PAGONES, A.J.S.C.

To:Richard G. Monaco, Esq.

Attorney for Plaintiff

PO Box 116

South Salem, NY 10590

Daniels & Porco

Attorneys for Defendants

517 Route 22

Pawling, NY 12564-0668

Donald Cappillino, Esq., Referee

Cappillino & Rothschild, LLP

7 Broad Street

PO Box 390

Pawling, NY 12564 [*4]

Dale and Tara Adams

29 Schrade Road

Carmel, NY 10512

Smart v. Adams, 9.21.04