II .

On June 4, 1997, King filed a complaint against Fox in the United States District Court for the Southern District of New York alleging that the one-third fee agreement with Fox was unconscionable, claiming breach of fiduciary duty, unjust enrichment, undue influence, conversion, and attorney delinquency in violation of New York Judiciary Law . 487 [misconduct subject to misdemeanor conviction and treble damages]. King demanded that Fox disgorge all fees he collected, plus interest, as well as punitive damages and he sought rescission of the fee agreement. Fox answered the complaint in December 1997 and counterclaimed for an accounting of his share of the artist's royalties that King had withheld since 1995 when MCA began sending the royalty checks directly to King.

In May 1998, Fox moved for summary judgment based on the untimeliness of King's claim. The District Court granted summary judgment to Fox and dismissed the complaint on the ground that King's lawsuit was barred by the six-year statute of limitations governing the fee agreement. The Court of Appeals for the Second Circuit vacated and remanded the matter finding that King "raised a genuine issue of material fact as to whether Fox continued to represent him, thus tolling the statute of limitations on King's claim" (28 Fed Appx 95, 99 [2002]).

More depositions were taken and the District Court once again granted Fox summary judgment, rejecting King's unconscionability argument, among others. The District Court accepted Fox's argument that King ratified the fee agreement since he had accepted payment of royalties pursuant to the agreement with Fox for 17 years. King appealed and on August 2, 2005, the Second Circuit affirmed the judgment in part and certified the following three questions:

"1. Is it possible for a client to ratify an attorney's fee agreement during a period of continuous representation?

"2. Is it possible for a client to ratify an attorney's fee agreement during a period of continuous representation if attorney misconduct has occurred during that period? If so, can ratification occur before the attorney has committed the misconduct?

"3. Is it possible for a client to ratify an unconscionable attorney's fee agreement?"

(418 F3d 121, 137 [2d Cir 2005]). We answer all three questions "yes," but with significant qualifications. We have not been asked, nor do we decide, whether a valid ratification occurred in this case.

III.

Having found continuous representation through at least 1991, and having further found that the action was not time- barred, the Second Circuit asks whether a client may ratify an attorney-client fee agreement during a period of continuous representation, and whether ratification is possible if the attorney has committed fraud or other misconduct during that period. King maintains that such a fee agreement can never be ratified.

In proving ratification, the burden is on the attorney to establish that the client acquiesced in the agreement "with full knowledge of all the material circumstances known to the attorney," and that such acquiescence was not brought about by fraud on the attorney's part, or misconception on the part of the client ( Greene v Greene, , 56 NY2d 86, 92 [1982]; see also Kent v Quicksilver Mining Co., 78 NY 159, 190 [1879]). Although some other jurisdictions have not permitted ratification of attorney fee agreements because of the nature of the attorney-client relationship ( see Walton v Hoover, Bax & Slovacek, LLP, 149 SW3d 834, 846-847 [Tex Ct App 2004]; Blattman v Gadd, 112 Cal App 76, 97 [1st App Dist 1931]), we do not agree that such an arrangement is in all circumstances immune from ratification.

Indeed, some New York courts have already recognized the ratification doctrine as applying to attorney-client agreements ( see Greene v Greene, 80 AD2d 55, 59 [1st Dept 1981] affd , 56 NY2d 86 [1982] [no ratification unless it be shown client approved act of attorney with knowledge that client allegedly had a cause of action against attorney]; Schlanger v Flaton, 218 AD2d 597 [1st Dept 1995] [attorney misconduct and a continuing business relationship of three years not enough time to warrant imposition of ratification defense]). Appellate courts from other jurisdictions have also held that a client may ratify what otherwise would be a breach of an attorney's fiduciary duty ( see Saggese v Kelley, 445 Mass 434, 837 NE2d 699 [2005]; Rippey v Wilson, 280 Mich 233 273 NW 552 [1937]; Monco v Janus, 222 Ill App 3 280, 583 NE2d 575 [1991]) so long as the client is competent and fully informed of the relevant facts. As the Supreme Judicial Court of Massachusetts wrote, "[r]atification is not the preferred method to obtain a client's consent to a fee- sharing agreement, but it is adequate" ( Saggese, 445 Mass at 442).

But can ratification occur during a period of continuous representation? In New York, the continuous representation doctrine tolls the statute of limitations when professional malpractice is alleged. We have never held that the ratification doctrine can be suspended during a continuous period of representation, and we refuse to do so here. The Second Circuit noted that if this were a typical contract case, King's eight years of acquiescence from 1978 to 1986 with full knowledge of the terms of the agreement, would be enough under New York law to show ratification. We see no reason why the existence of continuous representation should unsettle traditional contract principles in this case.

Thus, although continuous representation may in some cases toll the statute of limitations, it cannot preclude ratification of an attorney fee agreement. Ratification may occur at any time, so long as a client has full knowledge of the relevant facts (including the terms of the agreement and the choice to disavow it) and has acquiesced. The fact that the agreement's terms may be more advantageous to the attorney does not change the result. Nor is the result necessarily different if misconduct occurs during the period of continuous representation, so long as the client's acquiescence is not procured as a result of the misconduct. Obviously, a ratification induced by misconduct would be invalid.

IV.

Turning to the final inquiry -- whether a client may ratify an unconscionable agreement -- at common law an unconscionable agreement was one that no promisor (absent delusion) would make on the one hand and no honest and fair promisee would accept on the other ( see Black's Law Dictionary 75 [8th ed 2004]). In general, an unconscionable contract has been defined as one which is so grossly unreasonable [because of] an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party ( see Gillman v Chase Manhattan Bank, , 73 NY2d 1, 10 [1988]). Such contracts are usually voidable since a party to a contract has the power to validate or ratify the contract, as well as the power to avoid it ( see 1 Corbin on Contracts § 1.6, at 17-18 [rev. 1993]).

In regard to attorney fee agreements, "courts as a matter of public policy give particular scrutiny to fee arrangements between attorneys and clients, casting the burden on attorneys who have drafted the retainer agreements to show that the contracts are fair, reasonable, and fully known and understood by their clients" ( Shaw v Manufacturers Hanover Trust Co., , 68 NY2d 172, 176 [1986]). A "[c]ontingent fee[] may be disallowed as between attorney and client in spite of [a] contingent fee retainer agreement[], where the amount becomes large enough to be out of all proportion to the value of the professional services rendered" ( Gair v Peck, , 6 NY2d 97, 106 [1959]). Here, the Second Circuit identified the sheer amount of the fee Fox collected as an element that might justify a finding of unconscionability.

Contingent fee agreements between attorneys and their clients, however, generally allow a client without financial means to obtain legal access to the civil justice system. In entering into contingent fee agreements, attorneys risk their time and resources in endeavors that may ultimately be fruitless. Moreover, it is well settled that "the client may terminate [the contingent fee agreement] at any time, leaving the lawyer no cause of action for breach of contract" ( Gair, 6 NY2d at 106) only quantum meruit ( see Campagnola v Mullholland, , 76 NY2d 38, 43-44 [1990]).

It is inherently difficult to determine the unconscionability of contingent fee agreements because at the time of agreement, the precise amount of recovery is still unknown. As such, it is not necessarily the agreed-upon percentage of the recovery due the attorney or the duration of the recovery that makes a contingent fee agreement unconscionable ( see In re Fitzsimons, 174 NY 15 [1903] [attorney's fee of one- half of the recovery does not render the agreement unconscionable]; see also Beatie v DeLong, 164 AD2d 104 [1st Dept 1990] [contingent fee agreement fair and enforceable where attorney was to receive thirty percent of revenue generated by patents in futuro]), but rather the facts and circumstances surrounding the agreement, including the parties' intent and the value of the attorney's services in proportion to the fees charged, in hindsight ( see Gross v Russo, 47 AD2d 655 [2d Dept 1975]).

To assist in determining at what point a contingent fee agreement becomes unconscionable or unreasonable, the Legislature has enacted a statute, and the Appellate Divisions of the Supreme Court have promulgated joint rules, for establishing the reasonableness of contingent fee agreements ( see Judiciary Law .§ 474, 474-a; Code of Professional Responsibility DR 2-106 (b) [22 NYCRR 1200.11 (b)][listing factors to be considered as guide in determining reasonableness of fee] and DR 5-103 (a) (2) [22 NYCRR 1200.22] [allowing for a contingent fee in civil cases]).

Besides the sheer amount of the fee, another factor to consider -- and perhaps the most important -- in determining the unconscionability of a contingent fee agreement, is whether the client was fully informed upon entering into the agreement with the attorney. Here, the Second Circuit says there exists a dispute as to whether Fox explained the full ramifications of the agreement at the time it was signed. However, ratification by definition occurs only after the initial agreement was made. Because of the special protections given to clients in dealing with their attorneys, it will be a rare case where an unconscionable agreement may be ratified by the client, but we are not prepared to say it can never occur. Where a fully informed client with equal bargaining power knowingly and voluntarily affirms an existing fee arrangement that might otherwise be considered voidable as unconscionable, ratification can occur so long as the client has both a full understanding of the facts that made the agreement voidable and knowledge of his or her rights as a client.

Accordingly, the certified questions should be answered in accordance with the foregoing writing.