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Following an eight-year family battle over the ownership rights to 700,000 photographs by Sam Shaw and his son Larry, a Manhattan Supreme Court judge ordered liens against the photos in favor of the opposing attorneys to ensure they will be paid for their services. However, Justice Emily Jane Goodman ruled that the attorneys were entitled only to the “reasonable value” of their work — not their contracted rates — and she declined to extend the liens to the proceeds of an insurance claim filed to recover for damages the photos suffered while in storage during the family dispute. Goodman referred the issue of determining reasonable value to a special referee. Sam Shaw was a celebrity photographer best known for his photographs of Marilyn Monroe. The images are valued at approximately $3 million. The attorneys’ claims totalled $1.6 million. The underlying action began in 1994. Sam Shaw, who shot the majority of the 700,000 photos, initiated a $100 million suit against his son Larry, also a photographer. The elder Shaw alleged that his son wrongfully appropriated approximately 200,000 of his images. His son contended that he had taken the vast majority of those photos himself. In 1999, approximately halfway through the litigation, the elder Shaw died. His two sisters, Edith Shaw Marcus and Meta Shaw Stevens, continued the litigation on his behalf. “On June 5, 2002, after eight years of hearings, motions, appeals, stays, changes of counsel, spin-off actions and referrals of most of the issues” to a judicial hearing officer, wrote Justice Goodman in Tunick v. Shaw, 11636/03, “the Shaw action was finally settled by a Stipulation of Settlement.” The two sisters and their nephew agreed to combine the 200,000 photos that were in the possession of the younger Shaw with 500,000 that had remained in the possession of his father, and to form a single collection. DISPUTED VALUE The value of the photos at issue, however, is subject to dispute. Approximately 500,000 of the photographs, placed in storage by a court-appointed receiver, were damaged by chemical exposure. The receiver filed a $2 million claim with its insurer, Reliance Insurance Co., which promptly filed for bankruptcy. The value of that claim, now pending before the New York State Liquidation Bureau, is likely to be halved under state law. After the settlement, both sides began disputing with their attorneys over fees. The attorneys who were awarded the liens expressed frustration with both Goodman’s decision and their former clients. The attorneys questioned the judge’s awarding fees of “reasonable value,” her exclusion of the insurance claim from the liens, and her decision, as part of a proceeding that has stretched out over more than a decade, to set yet another round of hearings. The attorneys said that the submitted bills represented fair assessments of the work provided. “There was a lot of sacrifice that went along with this case,” said Michael J. Marino, a solo practitioner who assisted Jeffrey Tunick in his representation of Larry Shaw and now represents Tunick in the ongoing action. “Frankly, it’s mind-boggling, insulting and frustrating that our client isn’t lying on our floor begging us to take money from him,” said Marino who, like Tunick, is a Nyack, N.Y.-based solo practitioner specializing in commercial litigation. In his motion, Tunick asked for a charging lien of $557,000 to be fixed against the collection and the insurance claim. William Greenablat, the Manhattan solo attorney who represented the sisters, sought a $1 million lien. The outcome of those motions turned on Justice Goodman’s determination of whether the attorneys efforts resulted in the creation of a new interest for their clients or, conversely, merely the protection of an existing interest. The prerequisites for the issuance of such liens are that “as a result of the attorney’s efforts, (1) the client must assert a claim (2) which results in proceeds (3) payable to or for the benefit of the client,” wrote Goodman, quoting In re Schick, 215 BR 13. At issue was whether the interests in the collection, which merged the photos held by the son with those held by the sisters and provide both sides with an interest in the conglomeration, were “as a result of the attorney[s'] efforts.” ATTORNEY’S IMPACT Goodman ruled that both Larry Shaw’s and his two aunts’ interests in the collection resulted from their attorneys’ efforts. Therefore, both sides’ attorneys were entitled to charging liens. “As a result of Tunick’s efforts, a single Collection of all of these images was created by the Settlement, and, as a result of the Settlement, Larry obtained a 50 percent interest in the entity that owns the entire Collection of 700,000 photographic images, as well as agency and marketing rights.” Goodman added that Greenablat’s efforts also resulted in the sisters’ “affirmatively obtain[ing]” an interest. However, Goodman added, Judiciary Law �475 required the amount of fees to be referred to a special referee. “My gut instinct is to go and appeal,” said Marino. Greenablat said that he would look into whether an appeal could be pursued simultaneously with special referee proceedings. Larry Shaw’s new counsel, solo practitioner Saul Rudes, said the decision to appeal is up to his client. The attorney for Stevens and Marcus, the latter’s son David Marcus, did not return a call seeking comment.

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