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Thursday, December 27, 2007

NY Lawyer's Bid to Keep "Gift" Was Naughty, Judge Rules (MORE, CLICK HERE)

New York Lawyer - December 24, 2007
By Anthony Lin
New York Law Journal

A New York judge has shot down a lawyer's claim that his client intended to give him more than $450,000 as a gift rather than as part of his legal fee in a medical malpractice case.

Norman L. Cousins represented Kevin Veneski in a 1998 lawsuit against Queens-Long Island Medical Group, whose care Mr. Veneski was in when he suffered a devastating stroke that left him disabled. The case settled in 2002 for a $3 million lump sum and an annuity yielding $750,000 over the next 20 years.

Mr. Cousins received around $948,000 in legal fees but sought more, claiming that the length and expense of the litigation had left him bankrupt.

But Manhattan Supreme Court Justice Sherry Klein Heitler rejected Mr. Cousin's request in February, finding that the lawyer had already collected over $500,000 more in fees than he was entitled to under his retainer agreement, which allocated him 30 percent only of the first $250,000 of recovery, with his share shrinking to 10 percent of any amount over $1.25 million.

The lawyer moved for reargument on the grounds that he could provide new documents to show that Mr. Veneski intended most of that amount as a gift. Mr. Cousins provided the court with a letter with an attached gift tax form he allegedly sent to his accountant in 2003 as well as a letter allegedly signed by Mr. Veneski stating his intention to make a gift to Mr. Cousins.

But Justice Heitler ruled in a Dec. 12 decision in Veneski v. Queens-Long Island Medical Group. 10011/98, that Mr. Cousins' documents were available and should have been filed with his earlier motion. She said he had provided no reasonable justification for withholding them until his motion to reargue and they were no longer timely.

Even if his documents were timely and authentic, she said, his claimed gift would not be acceptable under state legal ethics rules, which say that, prior to accepting a large, unsolicited gift from a client, a lawyer should urge the client to seek the advice of independent counsel. The rules further state that independent counsel should draw up any instrument for such a gift.

The judge said Mr. Cousins' claimed gift met neither of those requirements, and she said the advice of a disinterested party would be all the more pressing in the case of Mr. Veneski, who had suffered brain injuries in a 1988 car accident even before suffering a stroke.

"Thus the court finds it incredible that Cousins even sought to claim that his client gave him such a large gift absent careful adherence to the procedures outlined in the Code of Professional Responsibility," the judge wrote.

She said a referee would determine how much in improperly collected legal fees Mr. Cousins needed to return to Mr. Veneski.

Large cash gifts to lawyers are also at issue in a lawsuit brought against the law firm Graubard Miller by former client Alice Lawrence, the widow of real estate developer Sylvan Lawrence. The firm had long represented Ms. Lawrence in an estate battle against her brother-in-law.

According to Ms. Lawrence's suit, she was approached in 1998 by Graubard Miller partner C. Daniel Chill, who allegedly said he and two of his partners were entitled to bonuses from her because of the favorable course of litigation. He allegedly described this as a standard practice.

Ms. Lawrence paid $5 million in "gifts" to the three partners, on which she also paid $2.7 million in gift taxes. She is now seeking the return of the gifts as part of a lawsuit in which she is also challenging a 40 percent retainer fee Mr. Chill negotiated with her in the closing months of a two-decades-long litigation for which she already paid Graubard Miller $18 million in hourly fees.

Last month, the Appellate Division, First Department, ruled that the 40 percent contingent-fee agreement between Graubard Miller and Ms. Lawrence was not unconscionable on its face. The panel's 4-1 majority denied Ms. Lawrence's motion to dismiss Graubard Miller's petition to compel payment of the contingent fee and said further proceedings would be needed to determine the propriety of the arrangement.


Anonymous said...

Hooray for Manhattan Supreme Court Judge Sherry Klein Heitler - holy crap, there is hope with a judge like this one.

Anonymous said...

The greedy lawyer should rot in hell.

Anonymous said...

I had an atty that represented me in my divorce, when his partner who originally had it was disbarred and sent to federal prison. The original atty was handling a federal lawsuit for me and had me sign a retainer with no amount stated, because we were close friends for years and he would take his fee from the civil action...which is very common! His rogue partner who inherited it, accepted the original $1500 and never billed or contacted me for over 2 years. After my case was settled, this atty saw me behind a mall and the next day sent me a bill for $2500!He too was on his way to federal prison and was looking for cash for his family! I in turn refused to pay him and i went to the local atty greivance committee...who treated this atty like he was a saint and me like a dog for taking him there! Since i was an OCA employee, i recognized the stink of all three lawyers and of course i lost, even though this atty typed in the $2500 after i signed it and i told the committee this and the fact that this atty was a convicted felon! All of that just made him more sympathetic to his profession! Lawyers altering documents do get away with ripping clients and no other lawyer or lawyer committee will rule in your favor. What a wonderful judge to rule like an ethical and judicial being, even though he too is an atty! Maybe our system can be saved...sooner rather than later!

Anonymous said...

i was Pro-Se in supreme court.
I went before HEitler. She was really fair. The lawyer tried using legal terms to confuse me. Heitler did not by it. She told me in plain english. It was actually funny. They sent me a 2 thick of paper. that amounted to 2 or 3 question. She wanted it broken down. they wanted to make the conference a 2 week thing.
The other side said one story off the record of course. A month later we were back in court. They made the same argument. I told te judge what she said a month earlier. She actually remeberd that what she told us to do was differrent. She did not like the fact that the lawyer was lieying to her. When they made up other stories I told my side she would ask really good question.
They were allways caught. Heitler is No FOOL. I am glad she promoted to the appelate court. I hope she is happy thier. I saw her on the bench on the appelate court. She
looked like she was getting angry when the lawyers were giving her a story. After talking to other attorneys she must not fit in with other lawyers or judges i have seen. If you look at her in court then go to before an other judge you see how incompotent the other judges are. Thier were times she did disagree with. But she did have the sense to ask why I had done that way. The lawyer on the other side was giving her stories that did not fit.
I was told a lot of judge mostly in Civil court bought thier job because they could not make it as a lawyer. I think that is true.
That is not the case with Heitler.

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