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PAOLILLO v. AMERICAN EXPORT ISBRANDTSEN LINES

October 14, 1969

Salvatore PAOLILLO, Plaintiff,
v.
AMERICAN EXPORT ISBRANDTSEN LINES, INC., Defendant


MacMahon, District Judge.


The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

This is an application by Rolnick, Ezratty & Huttner for an order fixing their fee for services rendered by them in the above case. The matter is the usual one, attorneys working on a contingent fee who were discharged and other attorneys substituted to complete the case.

 The applicable principles are few and not difficult to apply. The client always has the right to discharge his attorney, even without cause. "When this happens, the attorney is entitled to compensation, determined by quantum meruit, whether that be more or less than that provided in the contract or retainer between the attorney and client." *fn1" The outgoing attorneys have the option of taking a fixed dollar amount compensation, presently determined on a basis of quantum meruit, or, instead, of taking a contingent amount or percentage also based on quantum meruit but with the amount or percentage determined in an ancillary proceeding at the conclusion of the case. Payment on either basis is in satisfaction of a charging lien upon the client's claim and any recovery which may be obtained under Section 475 of the Judiciary Law of the State of New York, 29 McKinney's Consol.Laws of New York, c. 30, art. 15, § 475. *fn2" The charging lien is not disturbed by an order of substitution or by any settlement between the parties. *fn3"

 The question presented, therefore, is what is the reasonable value of the services rendered by the applicants? The factors to be considered in answering this question are set out in Canon 12 of the Canons of Professional Ethics of the American Bar Association. They are: (1) time; (2) standing of the lawyer at the bar; (3) amount involved; (4) benefit to the client and (5) skill demanded. *fn4"

 Taking these factors seriatim, we are met at the threshold with the fact that the applicants did not keep time records, although they did keep a diary of work done. Failure to keep time records is understandable, since they were retained on the basis of a contingent fee. It is regrettable, nonetheless, for any attorney who might be required to have the amount of his fee fixd by a court should keep accurate and current records of work done and time spent. *fn5" The diary records are exceedingly cryptic and vague and of almost no help in providing us with a sound basis for time estimates. We are left, therefore, with little more than our own experience of the time and skill required for the performance of the work shown in the diary.

 The applicants were retained by plaintiff on April 5, 1966 on a 33 1/3% contingent fee arrangement to bring an action under the Jones Act for two claims for personal injuries sustained on board the S.S. Constitution on two separate occasions, November 9, 1965 and February 22, 1966. *fn6" Both claims were based on stereo-type "slip and fall" accidents; the first on a wet, soapy deck and the second on grease. However, plaintiff did sustain injuries to his right leg in the first fall and to his right leg and right elbow and wrist in the second.

 In June 1966, the applicants prepared and filed a routine Jones Act complaint, asserting the usual claims for negligence and unseaworthiness. The applicants continued to represent plaintiff for approximately 17 months, but they took no further legal steps whatever by way of discovery or otherwise. Nor did they do any legal research or prepare any memoranda of law or fact up to the time they were discharged on September 7, 1967.

 This omission of pretrial procedures is neither blameworthy nor unusual, for these simple personal injury cases involve minimal factual preparation and virtually no legal research. Not all motion is progress. Our experience teaches that in simple personal injury cases, discovery and pretrial procedures, however lauded by some, are often overworked, unnecessary and useless. Much of the lawyer's effective work consists not in endless courtroom appearances or formal pretrial procedures but in careful investigation of his case, and he is entitled to be fairly compensated for his efforts in or out of court.

 Thus, here applicants did confer once with defendant's claim agent but received no settlement offer. They did, however, obtain maintenance which was apparently uncontested. They also attempted unsuccessfully to obtain disability benefits for plaintiff from the State of New Jersey. We think a maximum of 18 hours of lawyer's time is reasonable for this work, including preparing and filing the complaint.

 In addition, applicants filed a retainer, took a few photographs of the scene of the accidents, received a medical record, prepared a history for submission to doctors, sent plaintiff to two doctors, boarded the vessel five times, interviewed five witnesses, took the statement of one of them, obtained hospital records, received reports from examining doctors and conferred with plaintiff on 21 occasions. We think a reasonable time for this work is about 25 hours of lawyer's time.

 The remainder of the diary consists of about 80 entries of routine correspondence, largely of a clerical nature, which would require little more from a lawyer, in some instances, than a direction to his secretary, for example, to send the maintenance check due for a certain period to the client, or to send medical charts to an examining physician. We think on the average each of these letters would take no more than five minutes, more or less, of lawyer's time and therefore estimate the time spent on correspondence as about seven hours.

 Based on the foregoing, we estimate the applicants spent a total of 50 hours of lawyer's time on this case.

 The services rendered by a law firm, however, are not limited to those performed by lawyers. We think it is fair to assume that for every hour spent by a lawyer at least another hour is spent by clerical help. This is rather obvious when we think of a lawyer dictating a letter to a stenographer, who must spend time as she takes dictation, transcribes her notes and mails the letter.

 In addition, law firms are also required to employ bookkeepers, switchboard operators and receptionists and to carry other items of overhead, such as rent, libraries, files, telephone, lights etc. The firm is entitled to be fairly compensated for these services. We will take these auxiliary ...


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