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KIN CHEUNG WONG v. KENNEDY

May 23, 1994

KIN CHEUNG WONG, Plaintiff,
v.
MICHAEL KENNEDY, P.C. and MICHAEL KENNEDY, Defendants.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 Plaintiff Kin Cheung Wong ("plaintiff" or "Mr. Wong") moves the court Pursuant to Fed. R. Civ. P. 56, seeking an order (1) granting him partial summary judgment in the amount of $ 75,000, and (2) directing defendants Michael Kennedy, P.C. and Michael Kennedy ("defendants") to provide a complete accounting of certain funds he deposited in escrow with them. For the reasons described below, the motion for partial summary judgment is granted to the extent that the court declares unenforceable the retainer agreement executed by the parties, and defendants are ordered to provide a more detailed accounting for a portion of the funds deposited in escrow.

 Plaintiff commenced this action by filing a Complaint on December 7, 1993; jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. ยง 1332. The underlying facts are as follows. In July 1990, plaintiff retained defendants to represent him in connection with a criminal proceeding captioned United States v. Wong, 89-CR-679 (ILG). Compl. P 6. Plaintiff and defendants entered into a written retainer agreement (the "Retainer Agreement"), which provided that plaintiff would pay defendants a legal fee in the amount of $ 225,000 "as and for all legal services rendered and to be rendered in connection with" the litigation, "up to and including ten (10) weeks of trial." Affidavit of Edward I. Sussman in Support of Motion, Sworn to Apr. 15, 1994 ("Sussman Aff.") Ex. C (emphasis added). More specifically, the Retainer Agreement required that $ 75,000 of the fee be paid "immediately upon signing of this agreement," and that $ 150,000 be paid two weeks prior to the date of trial. Sussman Aff. Ex. C. In the event that the trial lasted more than ten weeks, the Retainer Agreement provided that Mr. Wong would pay "a weekly trial fee" of $ 12,500 per week up to and including fifteen weeks of trial, and a weekly trial fee of $ 10,000 should the trial last more than fifteen weeks. Sussman Aff. Ex. C. In addition, the Retainer Agreement, which bore the caption and docket number of the criminal proceeding, contained the following provision:

 
It is further agreed and understood that KIN CHEUNG WONG is retaining the legal services of the law office of MICHAEL KENNEDY, P.C. for legal representation in the United States District Court for the Eastern District of New York under the above captioned present or superseding indictment. The legal fee does not include an appeal (either interlocutory or final) or retrial (through mistrial or otherwise) or any proceedings other than those immediately and normally attendant to this District Court action.

 Sussman Aff. Ex. C.

 The Retainer Agreement further provided that the legal fee did not include any expenses incurred in the defense of the criminal action, and that plaintiff would pay defendants an additional $ 10,000 upon the signing of the agreement, which funds were to be placed in escrow and used "as necessary" to defray expenses incurred on behalf of Mr. Wong and his co-defendants during the criminal proceeding. Sussman Aff. Ex. C. Finally, the Retainer Agreement stated as follows:

 
In the event that the legal services of the law office of MICHAEL KENNEDY, P.C. are terminated by KIN CHEUNG WONG prior to trial, any fee actually paid on or prior to the date of such termination shall be deemed earned and no part thereof shall be refundable. If however, such legal services are terminated because of an unforeseen event, then KIN CHEUNG WONG agrees to be billed at the rate of TWO HUNDRED FIFTY DOLLARS (U.S.) ($ 250.00) per hour for services actually rendered.

 Sussman Aff. Ex. C (emphasis added).

 Defendants, who are appearing pro se in this matter, allege that the Retainer Agreement was entered into after extensive negotiations among defendants and three attorneys named Ronald Garnett, Lawrence Schoenbach and Dixon Tang (an attorney in Hong Kong), beginning in late May 1990. Affidavit of Michael Kennedy, Sworn to May 6, 1994 ("Kennedy Aff.") P 1. Mr. Kennedy describes the negotiations more specifically as follows:

 
I spent many hours during this time giving the Hong Kong lawyer information about myself and negotiating a retainer agreement. I was told that the case would definitely be tried and that no deal was possible. I was also told that the trial could last up to ten weeks. Mr. Wong wanted my assurance that I would personally try the case and not some associate. He also wanted my assurance that I had time to devote to pre-trial work: many meeting with clients at prison would be necessary, obtaining discovery, preparing motions, particularly, suppression, reviewing discovery with client, and possibly going to Hong Kong for investigation.

 Kennedy Aff. P 3. Accordingly, defendants allege that the $ 75,000 to be paid upon the execution of the Retainer Agreement was understood by all parties -- including Mr. Wong -- to be a "general retainer" that was deemed "earned when paid." *fn1" Kennedy Aff. P 5. Moreover, defendants allege, the $ 250 per hour figure provided in the Retainer Agreement was understood by all parties to be applicable only if Mr. Kennedy became unavailable due to an unforeseen event; the figure "was by no means intended as rate for the performance of legal services. On the contrary, the $ 250.00 rate was a reduction of [Mr. Kennedy's] prevailing hourly rate intended to compensate the client for [his] unavailability." Kennedy Aff. P 5.

 The Retainer Agreement ultimately was executed in July. Kennedy Aff. P 4. It is undisputed that defendants received $ 75,000 upon the execution of the Retainer Agreement, in addition to the $ 10,000 to be placed in escrow. Defendants allege that they thereafter appeared on behalf of plaintiff at his arraignment on July 31, 1990, at which time a motion schedule was set for the month of September. *fn2" Kennedy Aff. P 6. Defendants allege that they did extensive work during the month of August reviewing discovery and extradition materials, meeting with Mr. Wong and generally preparing for trial, Kennedy Aff. PP 6-8; plaintiff alleges that Mr. Kennedy met with Mr. Wong on only two occasions, and ...


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