Oversight Does Not Extinguish Fee Claim In Lawyer-Lawyer Dispute

If you are a New York attorney and wish to be paid under a contingency fee agreement in a medical malpractice action, it is prudent to file the agreement with the Office of Court Administration in a timely manner –within 30 days.

That lesson emerges from a case decided yesterday by the New York Appellate Division for the Second Judicial Department.

Lawyer One retained Lawyer Two to assist in the litigation. When the case was resolved, Lawyer Two contended that Lawyer One had shortchanged him.

Lawyer Two had inadvertantly failed to file the required papers. Fortunately for him, the court excused the lapse:

In exercising its discretion to extend the time to file the subject retainer statement pursuant to CPLR 2004, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the person opposing the motion. Here, the reason for the delay, in effect, [Lawyer Two’s law office failure, was an isolated, inadvertent mistake and there is no prejudice to [Lawyer One], as the remaining contractual contentions will be resolved in connection with any separate plenary action that may be commenced. Accordingly, the Supreme Court providently exercised its discretion in permitting the filing of a retainer statement nunc pro tunc by extending the time to do so for “good cause” shown (citations omitted)

(Mike Frisch)