arrangement that existed between Kermisch and Wynn to another day.
The Court is concerned that these matters concerning payment of fees not unduly delay and prejudice Wynn's lawsuit here. Wynn does not now appear to be in a position to pay the entire fee and he disputes Kermisch's entitlement to a fee for the reasons set forth above. I believe the proper course, given the uncertainty surrounding the fee arrangement, is that Kermisch release the file, and all those matters which she has retained, as set forth in her affirmation dated September 26, 1997, on condition that Wynn, or his father, pay into Court the sum of $ 1,500 which will be held by the Court and applied to whatever fee Kermisch is later determined to be entitled to, should that be the case. This sum will not be disbursed without further order of the Court upon resolution of the fee issue either by agreement between the parties or before this Court after the resolution of the underlying action. I strongly recommend that, in the interim, the parties consider agreeing to submit their fee dispute to fee arbitration offered by the Monroe County Bar Association.
I find that in light of the circumstances here, especially where the nature of Kermisch's agreement is very much disputed, payment of the $ 1,500 into Court constitutes sufficient security and collateral to protect whatever retaining lien exists on this file for fees arguably payable to Kermisch. Final resolution of the fee matter, unless resolved by the parties, will be determined by the Court at the conclusion of the case.
I do find that Kermisch may assert a charging lien on the file of Wynn which should provide additional protection for her if plaintiff prevails and if it is determined that Kermisch is entitled to be compensated for her reasonable services from that award.
Apart from her fees, Kermisch claims that she has incurred out-of-pocket expenses in the amount of $ 362.50. Wynn is directed to reimburse Kermisch such sum prior to Kermisch's release of the file. The entire file must be turned over to Wynn within five (5) days of payment of the above-referenced $ 1,500 collateral to the court and payment of the $ 362.50 in costs directly to Kermisch.
Regardless of whether there was a written retainer agreement, it is clear that Kermisch has expended time and effort on the file and, unless it is determined that the fee arrangement was limited to a contingent fee arrangement, she would be entitled to be compensated on a quantum meruit basis, that is, payment for the reasonable value of services rendered.
Attorney Nira T. Kermisch's application for imposition of a retaining lien on the papers and file of her former client, James I. Wynn, Jr., is granted but plaintiff may satisfy and discharge the lien by making payment to the Clerk of Court the sum of $ 1,500 as collateral and security for the retaining lien. Said sum will not be disbursed by the Court until further order of the Court, on notice to all parties.
Upon payment into Court of the $ 1,500 collateral, plus payment directly to attorney Kermisch for disbursements in the amount of $ 332, the retaining lien will be deemed satisfied, discharged and vacated.
Within five (5) days of the completed payments described above, attorney Kermisch is directed to turn over the entire file, as described in her affirmation of September 26, 1997 to plaintiff.
Plaintiff's cross-motion relating to a claim of malpractice is denied.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
November 10, 1997.