with Morgan Guaranty. The Account was set up to receive the proceeds of a global settlement of plaintiff's claims against the insurers of its losses. Defendant's appropriation to himself was without authority and overreached plaintiff's representative, and in effect took Sr. Monson unawares on February 2, 1984 in a purported post-distribution to himself of the money, and a purported accounting of the monies withdrawn from the Escrow Account. Morrissey thereby obtained an unconscionable acknowledgment of the abstraction of such sum from the escrow account of fees not due. Defendant even failed to furnish a copy of the document of February 2, 1984 on the pretext that the client wanted to preserve secrecy for the recovery obtained in the settlement.
In summary, the factual issue in this case is: how much time did the defendant reasonably spend on the retainer involved in accordance with the terms of the written retainer agreement? The Court is handicapped by the utter failure of the defendant to maintain appropriate time records. However, upon an evaluation of all of the facts and circumstances, it is the Court's finding that the defendant reasonably and necessarily performed 1200 hours of services for the plaintiff to be reasonably compensated at $ 200 an hour for the plaintiff, for a total compensation to Morrissey of $ 240,000, from which should be deducted the fees of $ 61,000 previously paid to him, leaving a net overpayment of $ 807,675.38. The other members of The Team -- Spyrou and Hamilton -- have been paid and are not asserting any further claim against
In making the determination, the fee hereby awarded is fair and reasonable. The Court has considered a reasonable estimate of the time and labor required and furnished, the novelty and difficulty of the questions involved and the skill requisite to perform the legal services properly; the likelihood, if apparent to the client, that the acceptance of the particular employment would preclude other employment by the lawyer; the fee customarily charged in the locality for similar legal services rendered on an hourly basis; the amount involved and the results obtained; the time limitations imposed by the client or by the circumstances; the nature and length of the professional relationship with the client; the experience, standing, reputation and ability of the lawyer or lawyer's performing the services; and that the fee arrangement was fixed on a time basis and not a contingent basis.
As stated the Court determines that Morrissey is entitled, a reasonable compensation, to the sum of $ 200 an hour for services of 1200 hours, or a gross award of $ 240,000 to Morrissey less the $ 61,000 heretofore paid, netting $ 179,000. In as much as the Court finds that Morrissey unauthorizedly and wrongfully withdrew for purported legal fees aggregating $ 986,675.38 from the Escrow Account, leaving a Morrissey indebtedness and overpayment of $ 807,675.38 ($ 986,675.38 less $ 240,000 for services, but including $ 61,000 heretofore paid).
The Court approves the disbursements received by Morrissey in the sum of $ 14,619.96.
Defendant's Request for Rule 11 Sanctions -- Reserved by Judge Cedarbaum
At the very outset of defendant's Post-Trial Memorandum of Law, counsel described this action as a vicious, unfounded and unfair attack against an honest and dedicated member of the Bar stating "The Honorable Miriam G. Cedarbaum of this Court already rejected and reserved sanctions with respect to the central claim in plaintiff's original complaint. After Judge Cedarbaum rejected plaintiff's next two proposed pleadings --."
Thereafter, at pages 3, 4, 9, 10, 11, 30, 60 and 61, defendant's counsel continues to refer to the fact that, according to Sr. Monson, the first page of the critical February 2, 1984 "letter agreement" was allegedly "switched," and "the accompanying statement was not present when he (Sr. Monson) signed the document, which charge was rejected and potential sanctions reserved by Judge Cedarbaum of this Court after she found that such a prejudicial claim of forgery had no basis whatsoever." Further, says defendant's counsel, Sr. Monson's allegation was "directly contradicted by the forensic evidence of professional document examiners, as well as the draftsman of that document, and that in light of the Second Circuit's decision in Calloway v. Marvel Entertainment Group, 854 F.2d 1452c (2d Cir. 1988), rev'd in part sub-nom Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 107 L. Ed. 2d 438, 110 S. Ct. 456 (1989), potential sanctions should be reserved" for Judge Cedarbaum in compliance with her direction.
Concluding, defendant's counsel states "defendant will make the appropriate application directly to Judge Cedarbaum with respect to her reservation of sanctions with regard to plaintiff's baseless assertions of the 'switched-page' theory."
During the trial, this Court repeatedly stated that the question of Rule 11 sanctions would be submitted to and reserved for determination by Judge Cedarbaum.
The counterclaim is dismissed.
For the reasons discussed supra, of the total $ 986,675.28 wrongful withdrawals by defendant and wrongfully retained, plaintiff shall recover the net sum of $ 807,675.38.
In compliance with Fed.R.Cir. P.58, the clerk is directed to enter judgment for plaintiff in said sum of $ 807,675.38, together with prejudgment interest at the rate of 9% per annum commencing February 2, 1984, and with costs. See NYCPLR §§ 5001, 5002, AND 5004.
No attorneys fees are granted.
The counterclaim is dismissed.
Post-judgment proceedings of defendant's request for Rule 11 sanctions are hereby reserved for and submitted to Judge Cedarbaum for her determination.
Bernard Newman, U.S.D.J. by designation
Dated. New York NY
January 24, 1992