| Gahagan v Gahagan |
| 2008 NY Slip Op 04649 [51 AD3d 863] |
| May 20, 2008 |
| Appellate Division, Second Department |
| Robert Gahagan, Plaintiff, v Betsy Gahagan, Appellant.Jaspan Schlesinger Hoffman LLP, Nonparty Respondent. |
—[*1] Jaspan Schlesinger Hoffman LLP, Garden City, N.Y. (Steven R. Schlesinger and Lisa M.Golden of counsel), nonparty respondent pro se.
In an action for a divorce and ancillary relief, the defendant appeals from a judgment of theSupreme Court, Nassau County (Ross, J.), entered January 22, 2007, which, upon an order of thesame court entered December 6, 2006, in effect, granting, without a hearing, the cross motion ofthe defendant's former attorneys, the law firm of Jaspan Schlesinger Hoffman LLP, for a charginglien against her in the sum of $135,316.69, is in favor of Jaspan Schlesinger Hoffman LLP, andagainst her in the sum of $135,316.69.
Ordered that the judgment is reversed, on the law, with costs, the order entered December 6,2006 is vacated, and the matter is remitted to the Supreme Court, Nassau County, for furtherproceedings consistent herewith.
"[An] . . . attorney is precluded from seeking fees from his or her client wherethe attorney has failed to comply with 22 NYCRR 1400.3, which requires the execution andfiling of a retainer agreement that sets forth, inter alia, the terms of compensation and the natureof services to be rendered" (Bishop v Bishop, 295 AD2d 382, 383 [2002], quotingMulcahy v Mulcahy, 285 AD2d 587 [2001]; see Kayden v Kayden, 278 AD2d202 [2000]). Likewise, an attorney's failure to provide written, itemized bills at least every 60days pursuant to 22 NYCRR 1400.2 will also preclude collection of a fee (see Wagman v Wagman, 8 AD3d263 [2004]; Julien v Machson, 245 AD2d 122 [1997]). The failure to abide by these[*2]rules, "promulgated to address abuses in the practice ofmatrimonial law and to protect the public, will result in preclusion from recovering such legalfees" (Julien v Machson, 245 AD2d 122, 122 [1997]; see Behrins & Behrins vSammarco, 305 AD2d 346, 347 [2003]; Mulcahy v Mulcahy, 285 AD2d 587[2001]).
In this case, the Supreme Court improperly fixed the value of a charging lien in favor of thelaw firm of Jaspan Schlesinger Hoffman LLP (hereinafter the law firm), the defendant's formerattorneys, and against the defendant, at the sum of $135,316.69, without a determination as towhether the law firm complied with 22 NYCRR 1400.2 and 1400.3.
Accordingly, we remit this matter to the Supreme Court, Nassau County, for a hearing and anew determination thereafter on the issue of attorney's fees. Fisher, J.P., Florio, Angiolillo,Dickerson and Belen, JJ., concur.