C. The Retainer Agreements and Required Records

• Jurisdiction: New York

C. The Retainer Agreements and Required Records

If you decide to accept the case, you must execute certain documents and maintain books and records required by court rules and regulations.

1. Contingency Fee Agreement

If the client wants to hire you on a contingency fee basis, in the First or Second Department you must file a retainer statement with the Office of Court Administration of the State of New York (OCA) within 30 days from the date such retainer or agreement is made.³⁶ The retainer statement filed with the OCA differs from the signed client retainer agreement. A statement filed by mail must be accompanied by a self-addressed, stamped postcard containing the words "Retainer Statement," the date of the retainer and the name of the client. The clerk's office will stamp this card with the case number and return it to you.³⁷

The contingency fee must not exceed the maximum limitations of compensation established by the Appellate Divisions.³⁸ Quantum meruit issues often surface when contingent fees are disputed.³⁹

The contingency fee for medical, dental and podiatric malpractice actions is less than the contingency fee for other negligence cases.⁴⁰ The Forms section at the end of this book contains a sample contingency fee agreement for a medical, dental or podiatric malpractice case.

All of the Appellate Divisions have recently amended their rules on how contingency fee contracts should be written and offered to the clients.⁴¹ These rules are mandatory as to personal injury contingency fee agreements, but do not apply to medical malpractice actions governed by Judiciary Law § 474-a. The client is allowed two options. The first is the traditional net of fees option where the client remains liable for repayment of all costs and expenses, regardless of the outcome of the case. If there is a settlement, the attorney calculates her one-third fee on the net sum remaining after deducting the costs and disbursements for which the client is responsible. Thus, if the settlement was for $100,000, and client costs and disbursements were $10,000, the attorney's one-third fee would be calculated on the net sum of $90,000.

The new second option allow the attorney to pay and remain fully responsible for all costs and disbursements of the case. In return, the attorney now may calculate the attorney's fees off the gross recovery. Thus, in the example above, on a $100,000.00 recovery, the attorney would recoup the costs and disbursements and also calculate the one...