Current through Register Vol. 46, No. 39, September 25, 2024
(a)
Statements as to retainers; blank retainers.
(1) Every attorney who, in connection with
any action or claim for damages for personal injuries or for property damages
or for death or loss of services resulting from personal injuries, or in
connection with any claim in condemnation or change of grade proceedings,
accepts a retainer or enters into an agreement, express or implied, for
compensation for services rendered or to be rendered in such action, claim or
proceeding, whereby his compensation is to be dependent or contingent in whole
or in part upon the successful prosecution or settlement thereof, shall, within
30 days from the date of any such retainer or agreement of compensation, sign
personally and file with the Office of Court Administration of the State of New
York a written statement of such retainer or agreement of compensation,
containing the information hereinafter set forth. Such statement may be filed
personally by the attorney or his representative at the main office of the
Office of Court Administration in the City of New York, and upon such filing he
shall receive a date stamped receipt containing the code number assigned to the
original so filed. Such statement may also be filed by ordinary mail addressed
to: Office of Court Administration-Statements, P.O. Box 2016, New York, NY
10008. Statements filed by mail must be accompanied by a self- addressed
stamped postal card, containing the words "Retainer Statement", the date of the
retainer and the name of the client. The Office of Court Administration will
date stamp the postal card, make notation thereon of the code number assigned
to the retainer statement and return such card to the attorney as a receipt for
the filing of such statement. It shall be the duty of the attorney to make due
inquiry if such receipt is not returned to him within 10 days after his mailing
of the retainer statement to the Office of Court Administration.
(2) A statement of retainer must be filed in
connection with each action, claim or proceeding for which the attorney has
been retained. Such statement shall be on one side of paper 81/2 inches by 11
inches and be in the following form and contain the following information:
Retainer Statement
_______________________________________
TO THE OFFICE OF COURT ADMINISTRATION
________________________________________________________
)
For office use:
_____________________________________________________
OF THE STATE OF NEW YORK
)
_)___________________________________________________
_____________________________________________________
)
_____________________________________________________
_____________________________________________________
1. Date of agreement as to retainer
_________________________
2. Terms
of compensation _______________________________
3. Name and home address of client
_________________________
4. If
engaged by an attorney, name and office address of retaining attorney
_________________________
_____________________________________________________
_____________________________________________________
5. If claim for personal
injuries, wrongful death or property damage, date and place of occurrence
_________________________
_____________________________________________________
6. If a condemnation or
change of grade proceeding:
(a) Title and
description __________________________________
(b) Date proceeding was commenced
________________________________________________
(c) Number or other designation of the
parcels affected
_______________________________________________________
7. Name, address, occupation and relationship
of person referring the client ______________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
Dated: _______, NY, _______ day of _______, 20
__
Yours, etc.
_____________________________________________________
(Signature of Attorney)
_____________________________________________________
(Attorney Name)
_____________________________________________________
(Office and P.O. Address)
_____________________________________________________
Dist.
_____________________________________________________
Dept.
County
NOTE: CPLR 2104 and 3217 REQUIRE THAT THE ATTORNEY
FOR THE DEFENDANT FILE
A STIPULATION OR STATEMENT OF DISCONTINUANCE WITH THE
COURT
UPON DISCONTINUANCE OF AN ACTION
(3) An attorney retained by
another attorney, on a contingent fee basis, as trial or appeal counsel or to
assist in the preparation, investigation, adjustment or settlement of any such
action, claim or proceeding shall, within 15 days from the date of such
retainer, sign personally and file with the Office of Court Administration a
written statement of such retainer in the manner and form as above set forth,
which statement shall also contain particulars as to the fee arrangement, the
type of services to be rendered in the matter, the code number assigned to the
statement of retainer filed by the retaining attorney and the date when said
statement of retainer was filed.
(4) No attorney shall accept or act under any
written retainer or agreement of compensation in which the name of the attorney
was left blank at the time of its execution by the client.
(b)
Closing statement;
statement where no recovery.
(1) A
closing statement shall be filed in connection with every claim, action or
proceeding in which a retainer statement is required, as follows: every
attorney upon receiving, retaining or sharing any sum in connection with a
claim, action or proceeding subject to this section shall, within 15 days after
such receipt, retention or sharing, sign personally and file with the Office of
Court Administration and serve upon the client a closing statement as
hereinafter provided. Where there has been a disposition of any claim, action
or proceeding, or a retainer agreement is terminated, without recovery, a
closing statement showing such fact shall be signed personally by the attorney
and filed with the Office of Court Administration within 30 days after such
disposition or termination. Such statement may be filed personally by the
attorney or his representative at the main office of the Office of Court
Administration in the City of New York and upon such filing he shall receive a
date stamped receipt. Such statement may also be filed by ordinary mail
addressed to: Statements filed by mail must be accompanied by a self-addressed
stamped postal card containing the words "Closing Statement", the date the
matter was completed, and the name of the client. The Office of Court
Administration will date stamp the postal card, make notation thereon of the
code number assigned to the closing statement and return such card to the
attorney as a receipt for the filing of such statement. It shall be the duty of
the attorney to make due inquiry if such receipt is not returned to him within
10 days after his mailing of the closing statement to the Office of Court
Administration.
The Office of Court Administration-Statements
Post Office Box No. 2016
New York, NY 10008
(2) Each closing statement shall be on one
side of paper 81/2 inches by 11 inches and be in the following form and contain
the following information:
Closing Statement
For office use:
TO THE OFFICE OF COURT ADMINISTRATION
______________________________________________________
OF THE STATE OF NEW YORK
______________________________________________________
1. Code number appearing on Attorney's
receipt for filing of retainer statement.
______________________________________________________
2. Name and present address of client
______________________________________________________
3. Plaintiff(s)
______________________________________________________
4. Defendant(s)
______________________________________________________
5.
(a)If an
action was commenced, state the date: _____, 20___, _____ Court, _____
County.
(b) Was the action disposed
of in open Court?
If not, and a request for judicial intervention was
filed, state the date the stipulation or statement of discontinuance was filed
with the clerk of the part to which the action was assigned
________________________________
If not, and an index number was assigned but no
request for judicial intervention was filed, state the date the stipulation or
statement of discontinuance was filed with the County Clerk
________________________________
6. Check items applicable: Settled (); Claim
abandoned by client (); Judgment ().
Date of payment by carrier or defendant ____ day of
______, 20. . ..
Date of payment to client ____ day of ___,
20__
7. Gross amount of
recovery (if judgment entered, include any interest, costs and disbursements
allowed) $____ (of which $____ was taxable costs and disbursements).
8. Name and address of insurance carrier or
person paying judgment or claim and carrier's file number, if any.
9. Net amounts: to client $ ___; compensation
to undersigned $___; names, addresses and amounts paid to attorneys
participating in the contingent compensation _____.
10. Compensation fixed by: retainer agreement
(); under schedule (); or by court ().
11. If compensation fix by court: Name of
Judge ______ Court ______ Index No. __________ Date of order
__________
12. Itemized statement
of payments made for hospital, medical care or treatment, liens, assignments,
claims and expenses on behalf of the client which have been charged against the
client's share of the recovery, together with the name, address, amount and
reason for each payment
13.
Itemized statement of the amounts of expenses and disbursements paid or agreed
to be paid to others for expert testimony, investigative or other services
properly chargeable to the recovery of damages together with the name, address
and reason for each payment
14.
Date on which a copy of this closing statement has been forwarded to the client
_________, 20___.
NOTE: CPLR 2104 and 3217 REQUIRE THAT THE ATTORNEY
FOR THE DEFENDANT FILE A STIPULATION OR STATEMENT OF DISCONTINUANCE WITH THE
COURT UPON DISCONTINUANCE OF AN ACTION
Dated:
_______________________________________________________
, NY,
_______________________________________________________
day of
, 20__.
Yours, etc.
_______________________________________________________
Signature of Attorney
_______________________________________________________
Attorney's Name
_______________________________________________________
Office and P.O. Address
_______________________________________________________
Dist.
_______________________________________________________
Dept.
County
(If space provided is insufficient, riders on sheets
81/2 inches by 11 inches and signed by the attorney may be
attached.)
(3) A
joint closing statement may be served and filed in the event that more than one
attorney receives, retains or shares in the contingent compensation in any
claim, action or proceeding, in which event the statement shall be signed by
each such attorney.
(c)
Confidential nature of statements.
(1) All statements of retainer or closing
statements filed shall be deemed to be confidential and the information therein
contained shall not be divulged or made available for inspection or examination
to any person other than the client of the attorney filing said statements
except upon written order of the presiding justice of the Appellate
Division.
(2) The Office of Court
Administration of the State of New York shall reproduce in an alternative
format, as that terms is defined in section
104.1(c) of this
Title, all statements filed pursuant to this section by a means that shall
accurately reproduce the original statements in all details thereof, and shall
thereafter destroy the originals so reproduced. Such a reproduction in an
alternative format shall be deemed to be an original record for all purposes,
and an enlargement or facsimile thereof may be introduced in evidence in all
courts and administrative agencies and in any action, hearing or proceeding in
place and stead of the original statement so reproduced, with the same force
and effect as though the original document were presented.
(d)
Deposit of collections;
notice.
(1) Whenever an attorney, who
has accepted a retainer or entered into an agreement as above referred to,
shall collect any sum of money upon any such action, claim or proceeding,
either by way of settlement or after a trial or hearing, he shall forthwith
deposit the same in a special account in accordance with the provisions of
section 603.15 of this Part. Within 15
days after the receipt of any such sum he shall cause to be delivered
personally to such client or sent by registered or certified mail, addressed to
such client at the client's last known address, a copy of the closing statement
required by this section. At the same time the attorney shall pay or remit to
the client the amount shown by such statement to be due the client, and he may
then withdraw for himself the amount so claimed to be due him for compensation
and disbursements. For the purpose of calculating the 15-day period, the
attorney shall be deemed to have collected or received or been paid a sum of
money on the date that he receives the draft endorsed by the client, or if the
client's endorsement is not required, on the date the attorney receives the
sum. The acceptance by a client of such amount shall be without prejudice to
the latter's right in an appropriate action or proceeding, to petition the
court to have the question of the attorney's compensation or reimbursement for
expenses investigated and determined by it.
(2) Whenever any sum of money is payable upon
any such claim, action or proceeding, either by way of settlement or after
trial or hearing, and the attorney is unable to locate a client, the attorney
shall apply, pursuant to Rule 1.15(f) of the Rules of Professional Conduct
(Part 1200 of this Title [Rule 1.15(f)]), to the court in which such action or
proceeding was pending, or if no action had been commenced, then to the Supreme
Court in the county in which the attorney maintains an office, for an order
directing payment to be made to the attorney of the fees and reimbursable
disbursements determined by the court to be due said attorney and to the
Lawyers Fund for Client Protection of the balance due to the client, for the
account of the client, subject to the charge of any lien found by the court to
be payable therefrom.
(e)
Contingent fees in claims and
actions for personal injury and wrongful death.
(1) In any claim or action for personal
injury or wrongful death, other than one alleging medical, dental or podiatric
malpractice, whether determined by judgment or settlement, in which the
compensation of claimant's or plaintiff's attorney is contingent, that is,
dependent in whole or in part upon the amount of the recovery, the receipt,
retention or sharing by such attorney, pursuant to agreement or otherwise, of
compensation which is equal to or less than that contained in any schedule of
fees adopted by this department is deemed to be fair and reasonable. The
receipt, retention or sharing of compensation which is in excess of such
scheduled fees shall constitute the exaction of unreasonable and unconscionable
compensation in violation of any provision of the Rules of Professional Conduct
(Part 1200 of this Title) with respect to conduct on or after April 1, 2009, or
the former Code of Professional Responsibility, as adopted by the New York
State Bar Association effective January 1, 1970, as amended, with respect to
conduct on or before March 31, 2009, unless authorized by a written order of
the court as hereinafter provided.
(2) The following is the schedule of
reasonable fees referred to in paragraph (1) of this subdivision: either,
SCHEDULE A
(i) 50 percent on the first $1,000 of the sum
recovered,
(ii) 40 percent on the
next $2,000 of the sum recovered,
(iii) 35 percent on the next $22,000 of the
sum recovered,
(iv) 25 percent on
any amount over $25,000 of the sum recovered; or,
SCHEDULE B
A percentage not exceeding 33 percent of the sum
recovered. If the initial contractual arrangement between the client and the
attorney so provides, in which event the procedure hereinafter provided for
making application for additional compensation because of extraordinary
circumstances shall not apply.
(3) Such percentage shall be computed by one
of the following two methods, to be selected by the client in the retainer
agreement or letter of engagement:
(i) on the
net sum recovered after deducting from the amount recovered expenses and
disbursements for expert testimony and investigative or other services properly
chargeable to the enforcement of the claim or prosecution of the action;
or
(ii) in the event that the
attorney agrees to pay costs and expenses of the action pursuant to Judiciary
Law section 488(2)(d), on the gross sum recovered before deducting expenses and
disbursements. The retainer agreement or letter of engagement shall describe
these alternative methods, explain the financial consequences of each, and
clearly indicate the client's selection. In computing the fee, the costs as
taxed, including interest upon a judgment, shall be deemed part of the amount
recovered. For the following or similar items there shall be no deduction in
computing such percentages: liens, assignments or claims in favor of hospitals,
for medical care and treatment by doctors and nurses, or of self-insurers or
insurance carriers.
(4)
In the event that claimant's or plaintiff's attorney believes in good faith
that Schedule A, above, because of extraordinary circumstances, will not give
him adequate compensation, application for greater compensation may be made
upon affidavit with written notice and an opportunity to be heard to the client
and other persons holding liens or assignments on the recovery. Such
application shall be made to the justice of the trial part to which the action
had been sent for trial; or, if it had not been sent to a part for trial, then
to the justice presiding at the trial term calendar part of the court in which
the action had been instituted; or, if no action had been instituted, then to
the justice presiding at the trial term calendar part of the Supreme Court for
the county in the judicial department in which the attorney who filed the
statement of retainer, pursuant to this section, has an office. Upon such
application, the justice, in his discretion, if extraordinary circumstances are
found to be present, and without regard to the claimant's or plaintiff's
consent, may fix as reasonable compensation for legal services rendered an
amount greater than that specified in Schedule A, above; provided, however,
that such greater amount shall not exceed the fee fixed pursuant to the
contractual arrangement, if any, between the client and the attorney. If the
application be granted, the justice shall make a written order accordingly,
briefly stating the reasons for granting the greater compensation; and a copy
of such order shall be served on all persons entitled to receive notice of the
application.
(5) The provisions of
this subdivision shall not apply to an attorney retained as counsel in a claim
or action for personal injury or wrongful death by another attorney, if such
other attorney is not subject to the provisions of this section in such claim
or action, but all other subdivisions of this section shall apply.
(6) Nothing contained in this subdivision
shall be deemed applicable to the fixing of compensation for attorneys
representing infants or other persons, where the statutes or rules provide for
the fixation of such compensation by the court.
(7) Nothing contained in this subdivision
shall be deemed applicable to the fixing of compensation for attorneys for
services rendered in connection with the collection of first-party benefits as
defined by section
5102 of the
Insurance Law.
(8) The provisions
of paragraph (2) of this subdivision shall not apply to claims alleging
medical, dental, or podiatric malpractice. Compensation of claimant's or
plaintiff's attorney for services rendered in claims or actions for personal
injury alleging medical, dental or podiatric malpractice shall be computed
pursuant to the fee schedule in Judiciary Law, section 474-a.
(f)
Preservation of records
of claims and actions.
Attorneys for both plaintiff and defendant in the
case of any such claim or cause of action shall preserve, for a period of seven
years after any settlement or satisfaction of the claim or cause of action or
any judgment thereon or after the dismissal or discontinuance of any action,
the pleadings and other papers pertaining to such claim or cause of action,
including, but not limited to, letters or other data relating to the claim of
loss of time from employment or loss of income; medical reports, medical bills,
X-ray reports, X- ray bills; repair bills, estimates of repairs; all
correspondence concerning the claim or cause of action; and memoranda of the
disposition thereof as well as cancelled vouchers, receipts and memoranda
evidencing the amounts disbursed by the attorney to the client and others in
connection with the aforesaid claim or cause of action and such other records
as are required to be maintained under section
603.27 of this
Part.
(g)
Omnibus
filings in property damage claims or actions.
Attorneys prosecuting claims or actions for property
damages are permitted to make semi-annual omnibus filings of retainer
statements and closing statements.
