Petition for Writ of Certiorari — Lubart v. Collins
Supreme Court brief1991
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e
ee Supreme Court, U.S,
QO=-1529 FILED
APR 4 1991
CASE NUMBER OFFICE OF THE CLERK
[IN THE SUPREME COURT OF THE UNITED
STATES
OCTOBER, 1990 TERM
RICHARD W. LUBART,
PETITIONER,
V.
COLLINS, COLLINS AND DINARDO, P.C.
APPEAL OF RICHAKD W. LUBART
ON WRIT OF CERTIOKARL TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
PETITION FOR CERTIORARI
RICHARD W. LUBART
ATTORNEY FOR PETITIONER
1297 BEACON STREET
POST OFFICE BOX 719
BROOKLINE, MA 02146
617-566-5551
€
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QUESTIONS PRESENTED FOR REVIEW
I
Is the holding of this court announced
in Hensley v. Eckerhart, 461 U.S. 424
(14984), that the "most useful starting
point for determining the amount of a
reasonable fee is the number of hours
reasonably expended on the litigation
multiplied by a reasonable hourly rate",
Id. at 433, applicable to ae fee
determination made by a United States
District Court, pursuant to the laws of
the State of New York, apportioning a
contingent fee between plaintiff's
current and previous’ counsel in an
action under the Federal Employers’
Liability Act?
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Is the holding of this court announced
in Hensley y. Eckernart, 461 U.S. 424
(1983), that the "product of reasonable
hours times a reasonable rate does not
end the inquiry. There remain other
considerations that may lead the
district court to adjust the fee upward
or downward, including the important
factor of ‘the results obtained' ", Id.
alt 434, applicabie Lo a fee
determination made by a United States
District Court, pursuant to the laws of
the State of New York, apportioning a
contingent fee between plaintiff's
Current and previousS counsel in an
action under the federal Employers'
Liability Act?
If
Is the holding of this court announced
in Hensley ov. Eckerhart, 461 U.S. 424
(1943), that the fee applicant "should
maintain billing time records in a
manner that will enable a reviewing
court to identify distinct claims", ld.
at Its applicable Lo a fee
determination made by a United States
District Court, pursuant to the laws of
the State of New York, apportioning a
contingent fee between plaintiff's
Current and previous counsel in an
action under the Federa! Employers'
Liability Act?
LIST OF ALL PARTIES TO THE PROCEEDING IN
THE COURT WHOSE JUDGMENT IS SOUGHT TO BE
REVIEWED
Thomas E. Lipani, plaintiff in the
underlying Federal Employers' Liability
Act action.
Amtrak, @efendant in the underlying
Federal Employers' Liability Act action.
Richard W. Lubart, plaintiff's attorney.
Collins, Collins and DiNardo, P.C.,
plaintiff's previous attorney and
Statutory lien holder pursuant to New
York Judiciary Law § 475.
Pay
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TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW
LIST OF ALL PARTIES TO THE PROCEEDING IN
THE COURT WHOSE JUDGMENT IS SOUGHT TO BE
REVIEWED
4
TABLE OF CONTENTS
5
TABLE OF AUTHORITIES
:
THE OPINIONS BELOW
8
STATEMENT OF THE GROUNDS Ol WHICH THE
JURISDICTION OF THE COURT IS INVOKED
R
THE DATE OF THE JUDGMENT SOUGHT TO BE
REVIEWED
8
THE DATE OF ANY ORDER RESPECTING A
REHEARING
9
THE STATUTORY PROVISION BELIEVED TO
CONFER ON THIS COURT JURISDICTION TO
REVIEW THE JUDGMENT IN QUESTION BY WRI"
OF CERTIORARI
9
STATUTE INVOLVED IN THIS CASE
10
NEW YORK JUDICIARY LAW § 475
10
STATEMENT OF THE CASE
ll
FACTS MATERIAL TO THE CONSIDERATION OF
THE QUESTIONS PRESENTED
BASIS FOR FEDERAL JURISDICTION IN THE
COURT OF FIRST INSTANCE
25 |
13
ARGUMENT
14
CONCLUSION
APPENDIX
26
DECISION OF THE U.S. DISTRICT COURT
Al
DECISION OF THE COURT OF APPEALS
Al7
DECISTON OF THE COURT OF APPEALS ON
PETITION FOR REHEARING
A27
TABLE OF AUTHORITIES
Blanchard v. Bergeron,
109 S.Ct. 939 (1989)
18-19
Blum _v. Stenson,
465 U.S. 886 (1984)
17
Cherner v. Transitron Electronic Corp.,
221 F.Supp 55 (D.Mass. 1963)
21
City of Detroit v. Grinnell Corp.,
495 F.2d 448 (CA2 1974)
20
Commissioner, Immigration and
Naturalization Service v. Jean,
110 S.Ct. 2316 (1990)
19
Hensley v. Eckerhart,
461 U.S. 424 (1983)
bA-i9, 2i,2 23; 25
Johnson v. Georgia Highway Express,
488 F.2d 714 (CAS 1974)
17
Pennsylvania v. Delaware Valley
Citizens' Council for Clean Air,
106 S.Ct. 3088 (1986).
17-18
THE OPINIONS BELOW
The opinion of the United States
District Court for the Southern District
of New York and the opinion of the
United States Court of Appeals for the
Second Circuit have not been reported.
STATEMENT OF THE GROUNDS ON WHICH THE
JURISDICTION OF THE COURT IS INVOKED
The United States Court of Appeals for
the Second Circuit has failed vo follow
the holdings of Hensley _v. _Eckerhart,
461 U.S. 424 (1983).
THE DATE OF THE JUDGMENT SOUGHT TO BE
REVIEWED
The date of the order of the United
States Court of Appeals for the Second
Circuit is November 21, 1990.
THE DATE OF ANY ORDER RESPECTING A
REHEARING
The date of the order respecting a
rehearing sought to be reviewed is
January 4, 1991.
THE STATUTORY PROVISION BELIEVED TO
CONFER ON THIS COURT JURISDICTION TO
REVIEW THE JUDGMENT IN QUESTION BY WRIT
OF CERTIORARI
The jurisdiction of this court is
invoked pursuant to 28 U.S.C. § 1254(1).
STATUTE INVOLVED IN THE CASE
NEW YORK JUDICIARY LAW § 475
"The attorney who appears for a party
has a lien upon his client's cause of
action, cCiaim or counterclaim, which
attaches to a verdict, report,
determination, decision, judgment or
final order in his client's favor, and
tne proceeds thereof in whatever hands
they may come; and the lien cannot be
affected by any settlement between the
Parties before or after judgment, final
Order or determination. The court upon
the petition of the client or attorney
may determine and enforce the lien.
10
STATEMENT OF THE CASE
FACTS MATERIAL TO THE CONSIDERATION OF
THE QUESTION PRESENTED
On February 29, 1984 plaintiff,
Thomas E. Lipani, was injured in an
accident at defendant Amtrak's’ Penn
Coach Yard in Philadelphia, Pa.,
involving defendant's locomotive 739.
Plaintiff retained Collins, Collins
and DiNardo, P.C. ("CC & D" or "the
Collins firm") during December 1984.
"CC & D" filed a complaint on January
30, 1985. The case was dismissed by the
court, subject to being reopened for
good cause on April 7, 1987. Sometime
after the case was dismissed Collins,
Collins and DiNardo obtained a $50,000
offer from defendant.
Plaintiff discharged CC & D_ on
November 18, 1989 and, has retained
11
Richard W. Lubart from that date to the
present. The matter was settied in
April, 1990 for $120,000.
On April 9, 1990, plaintift filed a
motion requesting that the lien held by
the outgoing attorney, CC & D, by virtue
of Jud. L. § 475, be discharged since
the outgoing attorney had been
discharged for cause.
An evidentiary hearing was heard on
plaintiff's motion on May 16, 1990. At
the hearing Collins, Collins and DiNardo
hrought their file on this case to the
court but failed to introduce any
records regarding the number of hours
expended.
Collins, Collins and DiNardo also
introduced evidence showing efforts,
which were unsuccessful, to get
plaintiff his job back at Amtrak.
After the evidentiary hearing held
on May 16, 1990, The Honorable Thomas P.
Griesa ruled from the bench that CC & D
Should receive half of the fee.
BASIS FOR FEDERAL JURISDICTION IN THE
COURT OF FIRST INSTANCE
Federal jurisdiction in the United
States District Court was pursuant to
the Federal Employers' Liability Act.
13
ARGUMENT
i
Is tne holding of this court announced
in Hensley v. Eckernart, 461 U.S. 424
(1943), that the "most useful starting
point for determining the amount of a
reasonable fee is the number of hours
reasonably expended on the litigation
multiplied by a reasonable hourly rate",
ld. at 433, applicable to a fee
determination made by a United States
District Court, pursuant to the laws of
the State of New York, apportioning a
contingent fee between plaintiff's
Current and previous counsel in an
action under the Federal! Employers'
Liability Act?
14
I]
Is the holding of this court announced
in Hensley v. Eeckerhart, 461 U.S. 424
(1983), that the "product of reasonable
hours times a reasonable rate does not
end the inquiry. There remain other
considerations that may lead the
district court to adjust the fee upward
or downward, including the important
factor of ‘the results obtained' ", Id.
at 434, applicable to a fee
determination made by a United States
District Court, pursuant to the laws of
the State of New York, apportioning a
contingent fee between plaintiff's
Current and previous counsel in an
action under the Federal Employers'
Liability Act?
15
111
Is the holding of this court announced
in Hensley v. Eckerhart, 401] U.S. 424
(1983), that the fee applicant "should
maintain billing time records in a
manner that will enable a reviewing
court to identify distinct claims", ld.
at 437, applicable to a fee
determination made by a United States
District Court, pursuant to the laws of
the State of New York, apportioning a
contingent fee between plaintiff's
Current and previous counsel in an
action under the Federal Employers'
Liability Act?
The above described holdings of this
court have been reaffirmed on several
occasions.
16
In the Civil Rights Attorney's Fee Act
case of Blum _v. Stenson, 465 U.S. 686
(1984) Justice Powell wrote:
"The initial estimate of a reasonable
attorney's fee is properly calculated by
multiplying the number of nours
reasonably expended on the litigation
times a reasonable hourly rate." Id. at
888.
In the Clean Air Act case of
Pennsylvania Vv. Delaware Valley
Citizens' Council for Clean Ajir, 106
S.Ct. 3088 (1986) Justice White wrote:
"We first addressed the question of the
proper manner in which to determine a
‘reasonable' attorney's fee in Hensley
v. Eckerhart, 461 U.S. 424, 1903 S.Ct.
1933, 76 L.Ed. 2d 40 (1983). We there
adopted a hybrid approach that shared
elements of both Johnson lv. Georgia
17
Highway Express 488 F.2d 714 (1974)] and
the lodestar method of calculation.
'The most useful starting point for
determining the amount of a reasonable
fee is the number of hours’ reasonably
expended on the litigation multiplied by
a reasonable hourly rate. This
Calculation provides an objective basis
On which to make an initial estimate of
the value of a lawyer's services.' 461
U.S. at 433, 103 $§.Ct. at 1939."
Pennsylvania Vv. Delaware Valley
Citizens' Council for Clean Air, - 106
S.Ct. 3088, 3097 (1986)
In the Civil Rights case of Blanchard v.
Bergeron, 109 S.Ct. 939 (1989) Justice
White wrote:
"Hensley v. Eckerhart, 461 U.S. 424, 103
S.Ct. 1933, 76 L.Ed.2d 40 (1983),
directed lower courts to make an initial
18
estimate of reasonable attorney's fees
by applying prevailing billing rates to
the hours reasonably expended on
successful Claims." Blanchard vy.
Bergeron, 109 S.Ct. 939, 944 (1989).
In the Equal Access to Justice Act case
of Commissioner, Immigration and
Naturalization Service v. Jean, 110
S.Ct. 2316 (1990) this court, in an
Opinion by Justice Stevens, adopts for
EAJA purposes, the Hensley standard of
considering “the relationship between
the amount of the fee awarded and the
results obtained." Commissioner,
Immigration and Naturalization Service
¥. vean, 110 §.Ct. 2316, 2321 an. 10
(1990).
The argument in favor of demanding that
the calcuiation of just compensation
19
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begins with consideration of the hours
spent was well stated by the Judge Moore
in an private antitrust class action:
"The starting point of every fee award,
Once it is recognized that the court's
role in equity is to provide just
compensation for the attorney, must be a
Calculation of the attorney's services
in terms of the time he has expended on
the case. Anchoring the analysis to
this concept is the only way of
approaching the problom that can claim
objectivity, a claim which is obviously
vital to the prestige of the bar and the
courts."
City of Detroit v. Grinnell Corp., 495
F.2d 448, 470 (CA2 1974).
Judge Wyzanski of the District of
Massachusetts wrote in a shareholder's
Class action case:
20
,
"Yet unless time spent and skill
displayed be used as a constant check on
applications for fees there iS a grave
danger that the bar and bench will be
brought into disrepute. .. .
Cherner v. Transitron Electronic Corp.,
221 F. Supp. 55, 61 (D. Mass. 1963).
Chief Justice Burger's concurring
Opinion in Hensley v. Eckerhart, supra
gives further insight into the logic of
requiring detailed records of the time
and services for which fees are sought:
"I read the Court's opinion as requiring
that when a lawyer seeks to have his
adversary pay the fees of the prevailing
party, the lawyer must provide detailed
records of the time and services for
which fees are sought. It would be
inconceivable that the prevailing party
Should not be required to establish at
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least aS much to Support a claim under
42 U.S.C. § 1988 as a lawyer would be
required to show if his own client
Challenged the fees. A district court
may not, in my view, authorize the
payment of attorney's fees unless the
attorney involved has established by
Clear and convincing evidence the time
and effort claimed and shown that the
time expended was necessary to achieve
the results obtained.
A claim for legal services presented by
the prevailing party to the losing party
pursuant to § 1988 presents quite a
different situation from a bill that a
lawyer presents to his own client. In
the lawyer case, the attorney and client
nave presumably built up a relationship
of mutual trust and respect; the client
has confidence that his lawyer has
exercised the appropriate 'billing
22
judgment' . . . and unless challenged by
the client, the billing does not need
the kind of extensive documentation
necessary for a payment under § 1988.
That statute requires the losing party
in a civil rights action to bear the
costs of his adversary's attorney and
there is, of course, no relationship of
trust and confidence between the adverse
parties. As a result, the party who
seeks payment must keep- records in
sufficient detail that a neutral judge
can make a fair evaluation of the time
expended, the nature and need for the
service, and the reasonable fee to be
allowed."
Hensley v. Eckerhart, 461 U.S. 424, 440-
441, 103 S.Ct. 1933, 1943 (1983).
In this case the petitioner, Richard W.
Lubart, has a contingent fee agreement
23
with plaintiff Thomas E. Lipani.
Collins, Collins and DiNardo,
plaintiff's previous counsel seeks to
receive its share of petitioner's fee.
Clearly no relationship of trust and
confidence exists between petitioner and
Collins, Collins and DiNardo.
Therefore, it would be appropriate,
applying Chief Justice Burger's
reasoning, to require detailed records
of the time and services for which fees
are sought.
The judge in this case could not have
given any consideration to the hours
expended by Collins, Collins and DiNardo
Since no hours were documented or even
estimated. He gave no consideration to
the results obtained by Collins, Collins
and DiNardo, a $50,000 settlement offer,
versus the $120,000 settlement obtained
24
by Richard W. Lubart He failed to make
any adjustment due to the failure of
Collins, Collins and DiNarde to keep
time records.
CONCLUSION
This court should grant this’ petition
for a writ of certiorari to order the
U.S. District Court for the Southern
District of New York to reconsider this
matter applying the holdings of Hensley
Vv. Eckerhart.
Respectfully submitted,
y
J. BES ee
Lise LP
' RICHARD W. LUBART
25
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APPENDIX
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UNITED STATES DISTRICT_ COL
SOUTHERN DISTRICT OF NEW }
THOMAS E. LIPANI,:
Plaintiff,
V. : 85 Civ. 0836 .P.G.)
AMTRAK, :
Defendant. :
THE DECISION OF THE DISTRICT COURT
Just a minute. I don't think we're
getting anywhere. We've got two lawyers
who got involved in this. I'm going to
make a ruling and we'll get it over
with.
We need to bring this matter to a
conclusion. This is a very unfortunate
Struggle over a fee. This is an action
which brought by an injured railroad
worker in early 1985.
Al
The plaintiff, Thomas Lipani, had been
represented by an attorney, whose name
does not appear in the record, after his
accident in 1984. But by the time of
the suit he was represented by Collins,
Collins, and DiNardo of Buffaioc. That
firm represented him until late i489 at
which time Mr. Lipani discnarged
Collins, Collins’ and DiNardo and
retained Richard W. Lubart of Brookline,
Massachusetts. Mr. Lubart arranged a
settlement of his claim with defendant
Amtrak for $120,000.
Mr. Lipani is obligated to pay about
$1300 in expenses off the top of that
$120,000 leaving approximately $118,700.
The agreement with Mr. Lubart is to have
a third of that represent the fee and
for purposes of discussion I'l! ignore
A2
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the $1300 deduction and say that we are
dealing with one-third of $1¢0.,000 or
approximately $40,000.
The present motion involves the Question
of whether the firm of Collins, Collins
and DiNardo is entitled to any part of
that fee of $40,000.
Mr. Lubart asserts that the Collins firm
is entitled to nothing since that firm
was discharged for cause and _ had
performed in a woefully deficient
manner.
The Collins firm claims that it is
entitled to at least 50 percent of the
$40,000 fee. The Collins firm asserts
that there was no just cause for its
being terminated and that it performed
A 3
its duties in a throughly prou!tecsional
and competent manner.
On the basic question of whether the
Collins firm performed its protessional
obligations I find emphatically that it
did. This does not mean that Mr. Lipani
did not have the right to discharge the
Collins firm. But the discharge of the
Collins firm cannot justly be regarded
as having been the result of
deficiencies in performance on that
firm's part.
The ,record abundantly shows the Collins
firm investigated the case thoroughly
and obtained sufficient discovery and
evaluated the case realistically.
I know a good deal about the case
through my own dealings with it over a
A4
SE
Substantial period of time. What
happened with the case, from the
plaintiff's standpoint, was that the
case had very subStantial prot:iems as
far as liability and also as tv damages
and the Collins firm came to a judgment
fairly early in the course of the
litigation that was a very sound
judgment; and that was that there should
be every effort to have the plaintiff
return to either his old job at Amtrak
or to another job appropriate to his
abilities .
I know from conferences with the
attorneys of the earnest, Sincere and
active efforts on the part of both the
Collins firm and counsel for. the
railroad to achieve this end.
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Mr. Lipani is now in his wate 4Os.
Obviously at the time of the accident he
waS somewhat younger and it was the
judgment of the Collins firm anc it was
a sound judgment that there we a great
advantage to plaintiff both ecu:.comically
and as far as his welfare a» «a human
being in trying to see that he got back
to work.
It is rare that I have seen attorneys in
personal injury cases work as earnestly
for such a desirable end over so
considerable a period of time. Starting
at least in 1986 and perhaps earlier,
there were all kinds of attempts
sponsored by the attorneys to have
plaintiff qualify for a return to work
either in his old job or in a substitute
job.
Aé
Now, aS far as the court was corcerned,
the case was placed on suspense at one
point and then in the spring vu! ‘87 it
was dismissed subject to being :«vpened.
Beginning almost immediately «= 'er the
dismissal of the cases the
conditional dismissal of the i,t, the
Collins firm was in correspondence with
the court apprising the court of the
efforts to settle the case and of the
efforts to have plaintiff return to his
job.
Without going into detail, there was
correspondence and there were
conferences with the court reflecting
the fluctuations in the relationships
between the plaintiff and the railroad
in the effort to settle the case.
‘
At one time there was a request Lu have
the case restored to the active docket
and have a trial. Then there was a
request to have the trial of tie case
adjourned in order to work i «6 the
settlement and this matter went back and
forth in correspondence and in
conference,
If this were a matter of being dilatory,
of somehow attempting to create an
appearance of activity where none was
actually occurring, obviously that would
be a very serious matter. But this was
not the case here. I am absolutely
confident, as I have indicated, that
what waS going on waS a most serious and
good faith effort to settle the case and
have the plaintiff return to a very
advantageous job.
A8g
An unfortunate circumstance aru: as far
as the court record was concerned
because although the Collins ‘!irm _ had
requested that the case _ bl: restored
formally to the active docket, ‘1S was
not done.
I very much regret such a circumstance.
But this was in no way the fault of the
Collins firm.
Twice the plaintiff himself visited the
court and contrary to what he had been
told by the Collins firm he found that
the case had not been restored to the
active docket. This was one of the
principal reasons for a misunderstanding
between plaintiff and the Collins firm
leading to the termination of the
Collins firm .
Ag
eee
I say this with a desire to take full
responsibility for the deficiencies of
the court. On the other hand. !| don't
want to exaggerate this. The itcdication
are that the plaintiff was acd/sised of
the basics of what was going or and the
plaintiff was certainly vividly aware of
the efforts to place him back on his job
and he was participating in those
efforts.
Certainly some confusion was engendered
by the failure to have the court record
in the best shape. But it is not a
Situation where plaintiff was really
kept in the dark about what was
happening.
The railroad made a $50,000 offer to
settle at some point. The case was not
settled for that. It was the position
A 10
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of the railroad that if any substantial
amount of the money was paid in
settlement, all efforts to tave_ the
plaintiff return to his job wou:u cease
and the plaintiff would have to "evign.
The Collins firm consistently tcok the
position that if there was to be a
settlement with the resignation of
plaintiff, the settlement would nave to
be in the $400,000 area.
As I Say, the plaintiff became
dissatisfied with the Collins firm in
| late 1989, discharged the Collins firm
and brought in Richard W. Lubart from
Brookline, Massachusetts.
The quality of Mr. Lubart's work is not
really before the court. One factor,
however, which is relevant is although
All
Mr. Lubart was offered access to _ the
file of the Collins firm and was offered
the opportunity to review the entire
file in Buffalo, Mr. Lubart never took
advantage of that opportunity.
Therefore Mr. Lubart really did not know
what the Collins firm had done or not
done. Mr. Lubart really did not know if
there was anything in the Collins firm's
file which would be an advantage to him
in dealing with the case.
Mr. Lubart accumulated various
materials, and apparently extensive
materials, from his client and from
other sources but he never found out
what was in the Collins firm's file.
This has a bearing on the present
application of Lubart to deny the
Collins firm any fee. He never saw the
file of the Collins firm until
approximately 6:30 P.M. today in the
last stages of this motion.
He has made extensive comment about the
failure of the Collins firm to obtain
production of certain maintenance
records of the locomotive in question.
This waS an entirely frivolous
accusation.
Document discovery waS requested on a
timely basis by the Collins firm and
those requests related to whatever
maintenance records existed. None were
produced because none existed even at
the time of a very early and timely
request.
A 13
—
Now, Mr. Lubart managed to settle the
case for $120,000. And the plaintiff
has resigned and will never return to
work for Amtrak. Tre plaintiff has no
job.
I'm not in any sense criticizing the
$120,000 settlement. But it is clear
that Mr. Lubart was willing to
compromise further than the Collins firm
waS willing to compromise, both in
respect of the amount of the settlement
and in respect to the prospects of
plaintiff's employment by Amtrak.
Perhaps that compromise was all to the
good. In any event, it has been made.
But under no circumstances does the
settlement indicate that the work of the
Collins firm was fruitless or
incompetent.
The Collins firm has made a Substantial
contribution to the ultimate outcome of
the litigation and deserves to be
compensated.
Mr. Lubart has made a substantial
contribution to the outcome of the
litigation and deserves to be
compensated.
It is my ruling that the fee of
approximately $40,000, and it's a little
less than $40,000 is to be split 50-50
between Mr. Lubart and the Collins firm.
This may be somewhat less than the
Collins firm deserves. But I do not
feel able to justly and fairly refine
A 15
the relevant positions of the two sets
of lawyers in such a way as to arrive at
some different adjustment.
There was a Suggestion by the Collins
firm that they might be entitled to as
much as 90 percent of the fee. I think
that would be quite unfair to Mr. Lubart
and in any event, all that can be done
here is to make a rough estimation.
The 50 - 50 split is what I've arrived
at.
A 16
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUI1
At a stated Term of the Unitec States
Court of Appeals for the Second VUircuit,
held at the United States Courthouse in
the City of New York, on the 21:1 day of
November, one thousand nine hundred
ninety.
PRESENT: HONORABLE ELLSWORTH A. ¥AN
GRAAFEILAND,
HONORABLE JOHN M. WALKER,
JR.,
CIRCUIT JUDGES.
HONORABLE RAYMOND J. DEARIE,
DISTRICT JUDGE.
A117
ies
THOMAS E. LIPANI, :
Plaintiff-Appellant,
V. . : 90-7610
AMTRAK, :
Defendant-Appellee.
Appeal from the United States district
Court for the Southern District of New
York.
This cause came on to be heard on the
transcript of record from the United
States District Court for the Southern
District of New York, and was argued by
counsel for both sides.
UPON CONSIDERATION WHEREOF, it is now
hereby ordered, ‘adjudged, and decreed
that the judgment of said district court
be and it hereby is AFFIRMED.
A 18
1. Richard Lubart, Esq. appeals trom a
decision of the Hon. Thomas !. Griesa
denying his motion to discharge the
Outgoing attorney's lien of tne firm
Collins, Collins & DiNardo F.C., and
ordering him to pay fifty percent of the
net fee in the underlying case to the
Collins firm.
2. In 1984, plaintiff Thomas E. Lipani
was injured during the course of his
emplcyment with defendant Amtrak. He
thereafter retained the Collins firm on
a contingent fee basis to represent him
in his Federal Employer's Liability Act
Suit against Amtrak. After five years
of intermittent litigation and attempts
to settle plaintiff's claim, which
included attempts to return plaintiff to
a job at Amtrak, the Collins firm was
discharged on November 19, 1989, and on
A 19
January 9, 1990, plaintiff retained Mr.
Lubart on a contingent fee basis. In
April, 1990, plaintiff's case was
settled for $120,000 and a waiver of his
employment rights with Amtrak.
Believing that he was not obligated to
pay any portion of his fee to _ the
Collins firm, Mr. Lubart made his motion
to discharge the Collins firm's lien.
3.Mr. Lubart argues that the Collins
firm's attorney's lien, under N.Y. Jud.
L. sec. 475, was terminated when the
case was dismissed on April 7, 1987.
However, the case, which had been on the
Suspense docket, was dismissed subject
to being reopened for good cause,
pursuant Judge Griesa's administrative
procedures. Thereafter, the Collins
firm continued its efforts to settle the
case. When settlement prospects seemed
A 20
dim, the Collins firm on several
occasions requested that the case be
returned to the active docket and a
trial date set. Inadvertently, however,
the case was not formally restored to
the active docket before the collins
firm was discharged. Under these
circumstances, it is clear that the
Collins firm continued to vigorously
represent the plaintiff up until the
time of their discharge, as Judge Griesa
so found, and therefore the conditional
dismissal in April, 1987 does not effect
their lien.
4.Mr. Lubart next contends that’ the
Collins firm was discharged for cause,
for failure to prosecute diligently the
action, and thereby was not entitled to
any compensation. See Poltronieri v.
Talasco, 204 N.Y.S. 613, 615 (2d Dep't
A21
1960), aff'd, 215 N.Y.S. 2d 509 (1961);
Artim v. Artim, 486 N.Y.S. 2d 328, 328-
29 (2d Dep't 1985); Lai Ling Cheng v.
Modansky Leasing Co.,541 N.Y.S. 2d 742,
T4H4 (Ct. App. 1989). After conducting a
hearing involving testimony by the
plaintiff and defendant's attorney and
argument by Joseph DiNardo of the
Collins firm and Mr. Lubart, = and
reviewing the Collins firm's case file,
Judge Griesa found that the firm had
performed its professional obligations.
The court noted that the Collins firm
investigated the case throughly,
obtained sufficient discovery,
realistically evaluated the plaintiff's
Claim and determined that establishing
liability and damages in court might be
difficult, and came to the sound
conclusion that a strong effort should
be made to have the plaintiff return
A 22
—EE
either to his old job or tu another
position at Amtrak. The court found
that the Collins firm worked diligently
to settle the case and to nave the
T
plaintiff return to a job. The court
noted that although the plainti!! became
dissatisfied with the Collins firm, the
discharge cannot be regarded as having
been the result of deficiencies on the
part of the Collins firm. This finding
was consistent with the plaintiff's
testimony at the hearing. We see no
basis for disturbing the court's finding
that the Collins firm was not discharged
for cause and was therefore entitied to
compensation for the reasonable value of
its services.
5. Finally, Mr. Lubart challenges’ the
court's allocation of fifty percent of
the net fee to the Collins firm. Judge
A 23
Griesa found that both the Collins firm
and Mr. Lubart had made "substantial
contributions" to the ultimate outcome
of the litigation, and decided that a
50-50 split was appropriate, noting that
the evidence of their relative
contributions was not sufficiently clear
to justify a more precise allocation.
This determination was proper. When
Successive counsel are involved in a
dispute over fee allocation, the
Outgoing attorneys may elect a
contingent percentage fee based on the
proportionate share of the work
performed on the whole case, which can
be determined at the conclusion- of the
case based on the amount of the recovery
and the relative contributions of the
lawyers to the case. Lai Ling Cheng,
541 N.Y.S. 2d at 744-45, Lubart's claim
that detailed, contemporaneous’ time
A 24
records were required to Support’ the
Collins firm's claim for compensation,
based on New York State Ass'n _ for
Retarded Children v. Carey, 711 fF. ed
1136, 1147-48 (2d Cir. 19393), is
unavailing, as the Carey decision
addresses the court-ordered award of
attorney's fees to a pervailing party,
and does not address the proportionate
allocation of a contingent fee between
successive counsel for one party.
6. Although we dismiss each of each of
Mr. Lubart's challenges to the district
court's decision his arguments, both to
the district court and to this court,
are non-frivolous, and we believe, not
imposed for an improper purpose.
Accordingly, the Collins firm's request
to this court for sanctions (misstated
as under Ruie ae Fed. R. Civ. Pes
instead of Rule 38, Fed. R. App. P.) is
denied. Moreover, we doubt that’ the
imposition of Rule 11 sanctions in the
district court wouid be appropriate.
7. The decision of the district court is
affirmed.
/s/ Ellsworth A Van Graafeiland
ELLSWORTH A. VAN GRAAFEILAND
/s/ John M. Walker, Jr.
JOHN M. WALKER, JR.
/s/ Raymond J. Dearie
RAYMOND J. DEARIE
A 26
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated term of the United States
Court of Appeals for the Second Circuit,
held at the United States Courthouse, in
the city o* New York, on the 4th day of
January, one thousand nine hundred and
ninety-one.
THOMAS E. LIPANI,
Plaintiff-Appellant,
Vv. : 90-7610
AMTRAK, :
Defendant, :
A petition for rehearing containing a
Suggestion that the action be reheard in
banc having been filed herein by
appellant Thomas E. Lipani.
A27
Upon consideration by the panel that
heard the appeal, it is
Ordered that said petition for rehearing
is DENIED.
It is further noted that the suggestion
for rehearing in bane has been
transmitted to the judges of the court
in regular active service and to any
Other judge that heard the appeal and
that no such judge has requested that a
vote be taken thereon.
/s/ Elaine B. Goldsmith
ELAINE B. GOLDSMITH
CLERK
A28
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.