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 injury or
for property damages, or for death or loss of services resulting from personal
injuries, due to negligence or any type of malpractice 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 only addressed to:
Office of Court
Administration--Statements
Post Office Box No. 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 For office
use:
TO THE OFFICE OF COURT
ADMINISTRATION
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
________
Print Attorney's Name or
________
Type 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 only
addressed to:
Office of Court
Administration--Statements
Post Office Box No. 2016
New York, NY 10008
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.
(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.
5
(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 fixed 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 reasons 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: CRPLR 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
________
Print Attorney or ________
Type 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 except upon written order of the
presiding justice of the Appellate Division. (See subdivision [g] of this
section.)
(2) The
Office of Court Administration of the State of New York shall reproduce in an
alternative format, as that term 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
691.12 of this Part. Within 15
days after the receipt of any such sums 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 subdivision f-1 of section 1200.46 of the
Disciplinary Rules of the Code of Professional Responsibility 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 Lawyer's 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, or loss of services resulting from personal injury or
for property or money damages resulting from negligence or any type of
malpractice, 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 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 provisions of the Rules of Professional Conduct as set forth
in Part 1200 of this Title, 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
$1000 of the sum recovered;
(ii) 40 percent on the next $2000 of
the sum recovered;
(iii) 35 percent on the next $22,000 of
the sum recovered; or
(iv) 25 percent on any amount over
$25,000 of the sum recovered; or
SCHEDULE B
(v) A percentage not exceeding
331/3 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 on the net sum recovered after deducting from the amount recovered
expenses and disbursements for expert medical testimony and investigative or
other services properly chargeable to the enforcement of the claim or
prosecution of the action. 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 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 of paragraph (2) of this subdivision; 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 subdivision (e) of this section 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 subdivision
(e) of this section 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
subdivision (e) of this section 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 article XVIII 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 section
474-a of the
Judiciary Law.
(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 date 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 canceled 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 rule 1.15 of Part 1200 of this Title.
(g) Special authorization to
divulge retainer and closing statements filed by attorneys. Pursuant to
paragraph (c)(1) of this section, the presiding justice of the Appellate
Division of the Supreme Court in the second judicial department does hereby
order that, without his further specific order, the clerk of the said Appellate
Division and the Office of Court Administration of the State of New York,
jointly and severally, are authorized to permit any agent or representative of
the Treasury Department or of the district director of internal revenue of the
United States, upon the presentation of written authorization from a
supervising official or head in the office of said department or district
director, to examine and copy any retainer or closing statement heretofore or
hereafter filed by any attorney in the office of the said clerk or the Office
of Court Administration of the State of New York, in accordance with said rules
regulating the conduct of attorneys and counselors at law.
(h) Omnibus filings in
property damage actions or claims. Attorneys prosecuting actions or claims for
property damage may make semi-annual omnibus filings of retainer statements and
closing statements.
