You are here: / / DEFENDANT ATTORNEY COULD NOT ACT AS BOTH BROKER AND ATTORNEY IN THE SALE...
,

DEFENDANT ATTORNEY COULD NOT ACT AS BOTH BROKER AND ATTORNEY IN THE SALE OF A BUSINESS, RETAINER AGREEMENT UNENFORCEABLE, FEES ALREADY PAID MUST BE RETURNED (SECOND DEPT).

The Second Department determined Supreme Court properly found the defendant attorney’s retainer agreement unenforceable and properly ordered the attorney to disgorge the $65,000 fee which had been paid. The attorney had agreed to acted as both a broker and attorney in the sale of a business. The sale was not completed:

​

… [T]he plaintiffs established, prima facie, that the defendants acted as both attorney and broker in connection with the possible sale of the plaintiff company … , and that the retainer agreement provided for a contingency fee to compensate them in the event a sale of the company was completed. In opposition, the defendants failed to raise a triable issue of fact … . Accordingly, the Supreme Court properly determined that the retainer agreement is unenforceable because it created a nonconsentable conflict of interest under the Rules of Professional Conduct (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7[a][2]; NY St Bar Assn Comm on Prof Ethics Op 1015 [2014] … ). The fact that the defendants are seeking to recover under the hourly fee provision of the retainer agreement, instead of the contingency fee provision, does not alter this result. The conflict created by the contingent fee existed during the representation, regardless of whether a sale of the business was ultimately completed. Accordingly, upon renewal, the Supreme Court properly awarded the plaintiffs summary judgment dismissing the defendants’ first counterclaim to recover fees under the retainer agreement.

An attorney who violates a disciplinary rule may be discharged for cause and is not entitled to fees for any services rendered … .Here, the plaintiffs discharged the defendants for cause based on their nonconsentable conflict of interest in violation of Rules of Professional Conduct (22 NYCRR 1200.0) 1.7 … ). Thus, upon renewal, the Supreme Court properly awarded the plaintiffs summary judgment dismissing the defendants’ second counterclaim to recover in quantum meruit. Further, although the first cause of action is styled as one to recover damages for breach of fiduciary duty, it does not seek damages allegedly caused by such a breach, but merely for disgorgement of fees already paid … . Accordingly, upon renewal, the Supreme Court properly awarded the plaintiffs summary judgment on the first cause of action, in effect, to disgorge fees which had already been paid … . Jay Deitz & Assoc. of Nassau County, Ltd. v Breslow & Walker, LLP, 2017 NY Slip Op 05940, Second Dept 8-2-17

 

ATTORNEYS (DEFENDANT ATTORNEY COULD NOT ACT AS BOTH BROKER AND ATTORNEY IN THE SALE OF A BUSINESS, RETAINER AGREEMENT UNENFORCEABLE, FEES ALREADY PAID MUST BE RETURNED (SECOND DEPT))/BROKERS (ATTORNEYS, DEFENDANT ATTORNEY COULD NOT ACT AS BOTH BROKER AND ATTORNEY IN THE SALE OF A BUSINESS, RETAINER AGREEMENT UNENFORCEABLE, FEES ALREADY PAID MUST BE RETURNED (SECOND DEPT))/CONFLICT OF INTEREST (ATTORNEYS, DEFENDANT ATTORNEY COULD NOT ACT AS BOTH BROKER AND ATTORNEY IN THE SALE OF A BUSINESS, RETAINER AGREEMENT UNENFORCEABLE, FEES ALREADY PAID MUST BE RETURNED (SECOND DEPT))

You might also like
PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT).
THE DEFECT, A PROTRUDING BOLT UNDER THE HANDRAIL IN A STAIRWAY, WAS TRIVIAL AND NONACTIONABLE, THE $650,000 VERDICT SHOULD HAVE BEEN SET ASIDE (SECOND DEPT).
Although Plaintiff Could Not Establish a Valid Mechanic’s Lien, Supreme Court Should Have Allowed the Action to Proceed As If it Were Brought As a Breach of Contract
A LAWSUIT ALLEGING NONCONSENSUAL SEXUAL TOUCHING PURSUANT TO THE ADULT SURVIVORS ACT (CPLR 214-J) NEED NOT ALLEGE PLAINTIFF’S INTIMATE PARTS WERE TOUCHED BY THE DEFENDANT TO STATE A CAUSE OF ACTION; IT IS ENOUGH THAT THE COMPLAINT ALLEGE PLAINTIFF WAS TOUCHED UNDER CIRCUMSTANCES WHICH AFFORDED THE DEFENDANT SEXUAL GRATIFICATION (SECOND DEPT).
Under the Terms of the Lease and the Related Guaranty of Payment, the Guarantor Was Required to Pay Liquidated Damages in an Amount Equal to the Rent for the Unfinished Term of the Lease Even After the Tenant Was Evicted and the Landlord Had Regained Possession of the Property
A GENERAL AWARENESS THAT WATER COULD COLLECT ON THE FLOOR OF THE LAUNDRY ROOM WAS INSUFFICIENT TO DEFEAT DEFENDANT’S EVIDENCE OF A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION IN THIS SLIP AND FALL CASE.
RECORD DOES NOT DEMONSTRATE DEFENSE COUNSEL WAS MADE AWARE OF A JUROR’S COMPLAINTS ABOUT THE DELIBERATIONS AND THE CONTENTS OF A NOTE FROM THE JURY; THE FOR CAUSE CHALLENGES TO TWO JURORS SHOULD HAVE BEEN GRANTED; DNA TESTING OF GUM DISCARDED BY THE DEFENDANT WHILE IN CUSTODY WAS PROPER (SECOND DEPT).
Defective Release Did Not Trigger 90-Day Clock for Payment of Settlement Amount

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

ALTHOUGH THE DEFENDANT INDENTURE TRUSTEE DID NOT OWE PLAINTIFFS A FIDUCIARY... SUPREME COURT SHOULD HAVE GRANTED PLAINTIFF MORE TIME TO FILE PAPERS OPPOSING...