No Reimbursement

The New York Appellate Division for the Third Judicial Department affirmed the denial of compensation from the state’s client protection fund

Following a jury trial in October 2007, petitioner was convicted of rape in the third degree. Petitioner then fired his trial counsel and hired attorney Robert Feldman to represent him in an effort to have his conviction overturned through postconviction motions and/or an appeal. In November 2007, Feldman filed a CPL 330.30 motion on petitioner’s behalf, arguing that vacatur was required due to trial counsel’s failure to advise petitioner regarding his right to testify at the rape trial. In April 2008, as the motion remained pending, petitioner fired Feldman and retained new counsel. New counsel then proceeded to represent petitioner at an evidentiary hearing held on the pending CPL 330.30 motion filed by Feldman, and Feldman was called to testify at said hearing. That motion was granted, and petitioner’s conviction was vacated. Following a new trial, petitioner was acquitted of the charges. Thereafter, petitioner asked Feldman to refund the $30,000 tendered pursuant to their retainer agreement, and Feldman refused. Thus, petitioner commenced two actions against Feldman, seeking recovery under various legal theories. These actions were consolidated and proceeded to trial, after which the jury found Feldman liable to petitioner for breach of contract and malpractice, among other things.

Petitioner then sought and was denied reimbursement from the Lawyers Fund for Client Protection

Here, the record reflects that petitioner hired Feldman to challenge his criminal conviction and that Feldman filed a CPL 330.30 motion on his behalf. Although petitioner fired Feldman before that motion was decided, it is undisputed that Feldman prepared and filed the motion through which petitioner ultimately obtained relief. Inasmuch as Feldman rendered at least some of the services for which he was retained, respondent’s determination that petitioner failed to establish that Feldman made a misrepresentation or false promise to provide legal services in exchange for the legal fee advanced is supported by a rational basis (see 22 NYCRR 7200.8 [e] [1]; see also 22 NYCRR 7200.8 [e] [3] [i], [ii]). As respondent determined, petitioner’s claim is more properly characterized as either malpractice or a fee dispute, neither of which is eligible for reimbursement (see 22 NYCRR 7200.8 [d]; Matter of Saferstein v Lawyers’ Fund for Client Protection, 30 AD3d 653, 655 [3d Dept 2006], lv dismissed & denied 7 NY3d 887 [2006]; Matter of Plater v O’Sullivan, 294 AD2d 719, 719 [3d Dept 2002], lv denied 98 NY2d 611 [2002]).

Petitioner also argues that he provided sufficient evidence to establish that he is owed a refund because the jury in his civil suit against Feldman awarded petitioner $10,000 for Feldman’s breach of the retainer agreement. We note, however, that such award accounted for only a portion of the $30,000 legal fee tendered. While damages caused by a breach of contract may be awarded based on a party’s failure to fully perform under a contract (see generally 36 NY Jur 2d, Damages § 32), such a “failure to perform or complete a legal engagement” does not, without more, establish an eligible claim for reimbursement (22 NYCRR 7200.8 [e] [2]). As petitioner failed to provide satisfactory evidence of an eligible claim, respondent’s determination is supported by a rational basis, and nothing in this record suggests that such determination was arbitrary and capricious or an abuse of discretion (see Matter of Plater v O’Sullivan, 294 AD2d at 719). Petitioner’s remaining contentions have either been rendered academic for the foregoing reasons or they have been reviewed and lack merit.

(Mike Frisch)