15-1227 

Hoffman v. Morel

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 12th 3 day of April, two thousand sixteen. 

4 

5 PRESENT: 

6 DENNIS JACOBS, 

7 PETER W. HALL, 

8 GERARD E. LYNCH,

9 Circuit Judges. 

10 _____________________________________ 

11 

12 Agence France Presse, 

13 

14 Plaintiff-Counter-Defendant,

15 

16 v. 15-1227 

17 

18 Daniel Morel, 

19 

20 Defendant-Counter-Claimant21 Counter-Defendant-Appellee, 

22 

23 Getty Images, Inc., 

24 

25 Defendant-Counter-Claimant26 Counter-Defendant, 

27 

28 ABC Inc., CBS Broadcasting Inc., 

29 Turner Broadcasting System, Inc., 

30 

31 Defendants-Counter-Defendants, 

32 
2 

1 Washington Post Company, 

2 

3 Counter-Claimant-Counter-Defendant, 

4 

5 v. 

6 

7 Barbara Hoffman, Esq., application to enforce charging lien 

8 and other requests, 

9 

10 Applicant-Appellant. 

11 _____________________________________ 

12 

13 FOR APPLICANT-APPELLANT: BARBARA T. HOFFMAN, ESQ., 

14 pro se, New York, New York.

15 

16 FOR APPELLEE MOREL: JOSEPH T. BAIO (Emma J. James, 

17 on the brief), Willkie Farr & 

18 Gallagher LLP, New York, New 

19 York. 

20 

21 Appeal from an order of the United States District Court for the Southern District of New 

22 York (Nathan, J.). 

23 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

24 DECREED that the order of the district court is AFFIRMED.

25 Appellant Barbara Hoffman, a lawyer appearing pro se, appeals from a district court order 

26 awarding her attorney’s fees in the amount of $164,580.70. Hoffman moved pursuant to New 

27 York Judiciary Law § 475 (“section 475”) to fix the value of her charging lien on an underlying 

28 judgment in favor of her former client in quantum meruit. We assume the parties’ familiarity 

29 with the underlying facts, the procedural history of the case, and the issues on appeal. 

30 “We review a district court’s award of attorney’s fees for abuse of discretion.” Cabala v. 

31 Crowley, 736 F.3d 226, 229 (2d Cir. 2013); see also Sequa Corp. v. GBJ Corp., 156 F.3d 136, 149 

32 (2d Cir. 1998). A district court’s factual findings, “including those based on documentary 

33 evidence and inferences drawn from other facts,” are reviewed for clear error, and may only be 
3 

1 reversed when the reviewing court is “‘left with the definite and firm conviction that a mistake has 

2 been committed.’” Garcia v. Teitler, 443 F.3d 202, 211 (2d Cir. 2006) (quoting United States v. 

3 U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). 

4 An attorney who has been discharged without cause has three remedies—a retaining lien, a 

5 charging lien, and a plenary action in quantum meruit; these remedies are cumulative, not 

6 exclusive. Levy v. Laing, 843 N.Y.S.2d 542, 544 (App. Div. 1st Dep’t 2007) (citing Butler, 

7 Fitzgerald & Potter v. Gelmin, 651 N.Y.S.2d 525, 527 (App. Div. 1st Dep’t 1997)); see also

8 Universal Acupuncture Pain Servs., P.C. v. Quadrino & Schwartz, P.C., 370 F.3d 259, 264 n.6 (2d 

9 Cir. 2004). Section 475, which “governs attorneys’ charging liens in federal courts sitting in New 

10 York,” Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 448 (2d Cir. 1998), 

11 provides that, “[f]rom the commencement of an action, . . . the attorney who appears for a party has 

12 a lien upon his or her client’s cause of action, . . . which attaches to a verdict, report, determination, 

13 decision, award, settlement, judgment or final order in his or her client’s favor, and the proceeds 

14 thereof in whatever hands they may come . . . .” N.Y. Jud. Law § 475. 

15 “A charging lien . . . is equitable in nature, and the overriding criterion for determining the 

16 amount of a charging lien is that it be ‘fair.’” Sutton v. N.Y.C. Transit Auth., 462 F.3d 157, 161 

17 (2d Cir. 2006) (citations omitted) (quoting Cohen v. Grainger, Tesoriero, & Bell, 622 N.E.2d 288 

18 (N.Y. 1993)). When determining a section 475 charging lien on a quantum meruit basis, 

19 “[a]mong the factors to be considered . . . are the difficulty of the matter, the nature and extent of 

20 the services rendered, the time reasonably expended on those services, the quality of performance 

21 by counsel, the qualifications of counsel, the amount at issue, and the results obtained (to the 

22 extent known).” Sequa Corp., 156 F.3d at 148. 
4 

1 Upon review, we conclude that the district court did not abuse its discretion by reducing 

2 Hoffman’s requested hourly rate and estimated hours worked to calculate a presumptively 

3 reasonable fee. The district court’s consideration of the hourly rate referenced in the retainer 

4 agreement was reasonable. See Crescent Publ’g Grp., Inc. v. Playboy Enters., 246 F.3d 142, 151 

5 (2d Cir. 2001). Furthermore, although there is no bar to Hoffman’s reliance on reconstructed 

6 records to serve as the basis for compensation, the district court did not abuse its direction by 

7 reducing the claimed number of hours reasonably required for the representation in view of the 

8 imprecise nature of Hoffman’s accounting. See F.H. Krear & Co v. Nineteen Named Trustees, 

9 810 F.2d 1250, 1265 (2d Cir. 1987) (“[T]he burden is on counsel to keep and present records from 

10 which the court may determine the nature of the work done, the need for it, and the amount of time 

11 reasonably required; where adequate contemporaneous records have not been kept, the court 

12 should not award the full amount requested.” (citing cases)). 

13 “The award of [prejudgment] interest is generally within the discretion of the district court 

14 and will not be overturned on appeal absent an abuse of that discretion,” except where such interest 

15 is awarded “as a matter of right” under New York law. New England Ins. Co. v. Healthcare 

16 Underwriters Mut. Ins. Co., 352 F.3d 599, 603 (2d Cir. 2003). Section 5001(a) of the New York 

17 Civil Practice Law and Rules provides that prejudgment interest is mandatory except “in an action 

18 of an equitable nature.” N.Y. C.P.L.R. 5001(a). New York case law holds that prejudgment 

19 interest is mandatory with respect to a quantum meruit cause of action, see, e.g., Tesser v. Allboro 

20 Equip. Co., 904 N.Y.S.2d 701, 705 (App. Div. 2d Dep’t 2010); Ogletree, Deakins, Nash, Smoak & 

Stewart, P.C. v. Albany Steel, Inc., 663 N.Y.S.2d 313, 315 (App. Div. 3d Dep’t 1997),1 21 which is a 

22 claim sounding in quasi-contract, Hudson View II Assocs. v. Gooden, 644 N.Y.S.2d 512, 516 

 

1 But see Precision Founds. v. Ives, 772 N.Y.S.2d 116, 120 (App. Div. 3d Dep’t 2004) (asserting, 

without analysis, that prejudgment interest is discretionary on quantum meruit claims). 
5 

1 (App. Div. 1st Dep’t 1996). However, a section 475 charging lien is “equitable in nature.” 

2 Sutton, 462 F.3d at 161. 

3 Hoffman did not bring a plenary action in quantum meruit; and she cites no authority 

4 suggesting that the use of quantum meruit to set the amount of her charging lien affects its 

5 equitable nature, or that prejudgment interest is mandatory on such a claim. Therefore, Hoffman 

6 can neither demonstrate that prejudgment interest must be awarded “as a matter of right” nor that 

7 the district court abused its discretion by not awarding interest. 

8 We have considered all of Hoffman’s remaining arguments and find them to be without 

9 merit. Accordingly, we AFFIRM the order of the district court. 

10 FOR THE COURT: 

11 Catherine O’Hagan Wolfe, Clerk