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In a case of apparent first impression, a Brooklyn judge has ruled that an attorney who failed to obtain a signed retainer agreement is entitled to keep his client’s $7,500 retainer, even though his failure to comply with state laws regarding such agreements precludes him from recovering the remainder of his fees. “An attorney is required in every case to either provide his client with a written letter of engagement or to enter into a signed written retainer agreement with the client,” Civil Court Judge Arlene P. Bluth wrote in Lewin v. The Law Offices of Godfrey G. Brown, 9456/05. Bluth noted that there are exceptions to the retainer rule, NYCRR �1215, though none applied in Lewin. Nonetheless, an attorney’s failure to comply with NYCRR �1215, Bluth added, “does not entitle the client to a return of legal fees where the services have already been rendered.” The plaintiff, Natalie Lewin, hired Brooklyn-based solo practitioner Godfrey Brown to represent her relative, known as “A.B.” in the decision, who had been arrested on drug charges in New Mexico. Lewin and Brown orally agreed that she would pay him $15,000 to handle the case in its entirety, half of which Lewin paid up front. After Brown negotiated and completed a plea agreement for A.B., Lewin initiated her claim against the attorney, seeking to disgorge the payment she had made to him. Lewin alleged that Brown did not provide the services for which she contracted. He failed to answer a pretrial motion, she alleged, and failed to appear in court on the motion return date. Lewin also claimed that Brown provided her with neither a written retainer agreement nor a letter of engagement. Brown denied Lewin’s charges, arguing, among other things, that he believed he had executed a written retainer agreement, as is his practice, though he was unable to produce one. The court found that Brown did not execute an agreement, but awarded him the $7,500 retainer anyway. Bluth ruled that Brown performed the work as contracted. “This Court finds that defendant rendered the services that he was retained to render — that is, he represented A.B. through the end of the case,” the judge wrote. Noting that Brown negotiated a sentence of 19 to 24 months rather than the maximum sentence of 74 months, Bluth added, “In fact, it is not difficult to conclude that defendant’s skillful representation made the prosecutor re-evaluate his position, and defendant was able to obtain a very favorable plea.” The success of Brown’s advocacy notwithstanding, his failure to complete a retainer agreement precluded him from collecting the $7,500 remaining under his oral agreement with Lewin. “An attorney’s failure to comply with [NYCRR] Section 1215.1 precludes him from recovering fees for legal services performed for the client,” Bluth ruled. However, in an issue not previously addressed by New York courts, Bluth ruled that the NYCRR did not require Brown to return legal fees when services had already been rendered. Bluth based her decision on precedent from matrimonial decisions, “where the attorney-client relationship is subject to even stricter rules regarding written retainers, designed to prevent abuses of clients who are in a particularly vulnerable stage.” Violation of the matrimonial statute that requires a written retainer agreement can result in disciplinary sanctions, Bluth noted, citing Feder, Goldstein, Tanenbaum & D’Errico v. Ronan, 761 N.Y.S. 2d 463. Nonetheless, even in that context courts have held that the failure to execute an agreement does not warrant the return of fees paid for already performed services. “It follows, then, that the same rule should apply here,” the judge concluded. “Therefore, although defendant failed to either provide plaintiff with a letter of engagement or execute a signed retainer agreement with her, he is not required to return the $7,500 she paid him for legal services.” Reached by phone yesterday, Brown said, “I honestly thought I’d done an agreement with her.” He also said he had no intention of pursuing the rest of the agreed payment. “$7,500 is not that big of a deal to me,” he said. Lewin represented herself.

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