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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 12 th day of April, two thousand sixteen. 3 4 PRESENT: 5 DENNIS JACOBS, 6 PETER W. HALL, 7 GERARD E. LYNCH, 8 Circuit Judges

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_____________________________________ 10 11 Agence France Presse, 12 13 Plaintiff-Counter-Defendant, 14 15 v. 15-1227 16 17 Daniel Morel, 18 19 Defendant-Counter-Claimant20 Counter-Defendant-Appellee, 21 22 Getty Images, Inc., 23 24 Defendant-Counter-Claimant25 Counter-Defendant, 26 27 ABC Inc., CBS Broadcasting Inc., 28 Turner Broadcasting System, Inc., 29 30 Defendants-Counter-Defendants, 31 322 Washington Post Company, 1 2 Counter-Cl aimant-Counter-Defendant, 3 4 v. 5 6 Barbara Hoffman, Esq., application to enforce charging lien 7 and other requests, 8 9 Applicant-Appellant. 10

_____________________________________ 11 12 FOR APPLICANT-APPELLANT: BARBARA T. HOFFMAN, ESQ., 13 pro se, New York, New York. 14 15 FOR APPELLEE MOREL: JOSEPH T. BAIO (Emma J. James, 16 on the brief), Willkie Farr & 17 Gallagher LLP, New York, New 18 York. 19 20 Appeal from an order of the United States Di strict Court for the Sout hern District of New 21 York (Nathan, J.). 22 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 23

DECREED that the order of the district court is AFFIRMED

. 24 Appellant Barbara Hoffman, a lawyer appearing pro se, appeals from a district court order 25 awarding her attorney’s fees in the amount of $164,580.70. Hoffman moved pursuant to New 26 York Judiciary Law § 475 (“section 475”) to fix th e value of her charging lien on an underlying 27 judgment in favor of her former client in quantum meruit. We assume the parties’ familiarity 28 with the underlying facts, the procedural history of the cas e, and the issues on appeal. 29

“We review a district court’s aw ard of attorney’s fees for abus e of discretion.” Cabala v. 30 Crowley, 736 F.3d 226, 229 (2d Cir. 2013); see also Sequa Corp. v. GBJ Corp., 156 F.3d 136, 149 31 (2d Cir. 1998). A district court’s factual findings, “including those based on documentary 32 evidence and inferences drawn from other facts,” are reviewed for clear error, and may only be 333 reversed when the reviewing court is “‘left with the de finite and firm convict ion that a mistake has 1 been committed.’” Garcia v. Teitler, 443 F .3d 202, 211 (2d Cir. 2006) ( quoting United States v. 2 U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). 3 An attorney who has been discharged without cause has three remedies —a retaining lien, a 4 charging lien, and a plenary action in quantum meruit; these remedies are cumulative, not 5 exclusive. Levy v. Laing, 843 N.Y.S.2d 542, 544 (App. Div. 1st Dep’t 2007) (citing Butler, 6 Fitzgerald & Potter v. Gelmin, 651 N.Y.S .2d 525, 527 (App. Div. 1st Dep’t 1997)); see also 7 Universal Acupuncture Pain Servs., P.C. v. Quadrino & Schwartz, P.C., 370 F.3d 259, 264 n.6 (2d 8 Cir. 2004). Section 475, which “governs attorneys’ ch arging liens in federal courts sitting in New 9 York,” Itar-Tass Russian News Agency v. Ru ssian Kurier, Inc., 140 F.3d 442, 448 (2d Cir. 1998), 10 provides that, “[f]rom the commencement of an acti on, . . . the attorney who appears for a party has 11 a lien upon his or her client’s cause of action, . . . which attaches to a verdict, report, determination, 12 decision, award, settlement, judgment or final order in his or her client’s favor, and the proceeds 13 thereof in whatever hands they may come . . . .” N.Y. Jud. Law § 475. 14 “A charging lien . . . is equitable in nature , and the overriding criterion for determining the 15 amount of a charging lien is th at it be ‘fair.’” Sutton v. N. Y.C. Transit Auth., 462 F.3d 157, 161 16 (2d Cir. 2006) (citations omitted) (quoting Cohe n v. Grainger, Tesoriero, & Bell, 622 N.E.2d 288 17 (N.Y. 1993)). When determining a section 4 75 charging lien on a quantum meruit basis, 18 “[a]mong the factors to be considered . . . are the difficulty of the matter, the nature and extent of 19 the services rendered, the time reasonably expended on those services, the quality of performance 20 by counsel, the qualifications of counsel, the amount at issue, and the results obtained (to the 21 extent known).” Sequa Corp., 156 F.3d at 148. 224 Upon review, we conclude that the district court did not ab use its discretion by reducing 1 Hoffman’s requested hourly rate and estimated hours worked to calculate a presumptively 2

reasonable fee. The district court’s consideration of the hourly rate referenced in the retainer 3 agreement was reasonable. See Crescent Publ’g Grp., Inc. v. Playboy Enters., 246 F.3d 142, 151 4 (2d Cir. 2001). Furthermore, although there is no bar to Hoffman’s reliance on reconstructed 5 records to serve as the basis for compensation, th e district court did not abuse its direction by 6 reducing the claimed number of hours reasonably required for the representation in view of the 7 imprecise nature of Hoffman’s accounting. See F.H. Krear & Co v. Nineteen Named Trustees, 8 810 F.2d 1250, 1265 (2d Cir. 1987) (“[T]he burden is on counsel to keep and present records from 9 which the court may determine the nature of the work done, the need for it, and the amount of time 10 reasonably required; where adequa te contemporaneous records ha ve not been kept, the court 11

should not award the full amount requested.” (citing cases)). 12 “The award of [prejudgment] interest is genera lly within the discretion of the district court 13 and will not be overturned on appeal absent an abuse of that discretion,” except where such interest 14 is awarded “as a matter of right ” under New York law. New England Ins. Co. v. Healthcare 15 Underwriters Mut. Ins. Co., 352 F.3d 599, 603 (2d Cir. 2003). Section 5001(a) of the New York 16 Civil Practice Law and Rules provides that prejudgment interest is mandatory except “in an action 17 of an equitable nature.” N.Y. C.P.L.R. 5001( a). New York case law holds that prejudgment 18 interest is mandatory with respect to a quantum meruit cause of action , see, e.g., Tesser v. Allboro 19 Equip. Co., 904 N.Y.S.2d 701, 705 (App. Div. 2d Dep’ t 2010); Ogletree, Deakins, Nash, Smoak & 20 Stewart, P.C. v. Albany Steel, Inc., 6 63 N.Y.S.2d 313, 315 (App. Div. 3d Dep’t 1997), 1 which is a 21 claim sounding in quasi-contract, Hudson Vi ew II Assocs. v. Gooden, 644 N.Y.S.2d 512, 516 22

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 (App. Div. 1st Dep’t 1996). However, a section 475 charging lien is “equitable in nature.” 1 Sutton, 462 F.3d at 161. 2 Hoffman did not bring a plenary action in quantum meruit; and she cites no authority 3 suggesting that the use of quantum meruit to se t the amount of her charging lien affects its 4 equitable nature, or that prejudgment interest is mandatory on such a claim. Therefore, Hoffman 5 can neither demonstrate that prejudgment interest must be awarded “as a ma tter of right” nor that 6

the district court abused its disc retion by not awarding interest. 7

We have considered all of Hoffman’s remain ing arguments and find them to be without 8 merit. Accordingly, we AFFIRM the order of the district court. 9

FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11