(a) In any claim or
action for personal injury or wrongful death, other than one alleging medical,
dental or podiatric malpractice, whether determined by judgment or settlement,
in which the compensation of claimant's or plaintiffs attorney is contingent,
that is, dependent in whole or in part upon the amount of the recovery, the
receipt, retention or sharing by such attorney, pursuant to agreement or
otherwise, of compensation which is equal to or less than that contained in any
schedule of fees adopted by this department is deemed to be fair and
reasonable. Unless authorized by a written order of a court as hereinafter
provided, the receipt, retention or sharing of compensation which is in excess
of such scheduled fees shall constitute the exaction of unreasonable and
unconscionable compensation in violation of the applicable provisions of the
Rules of Professional Conduct (section 1200.0 of this Title) or, with respect
to conduct before April 1, 2009, the former Code of Professional
Responsibility.
(b) The following
is the schedule of reasonable fees referred to in subdivision (a) of this
section, either:
SCHEDULE A
(1) 50 percent on the first $1,000 of the sum
recovered;
(2) 40 percent on the
next $2,000 of the sum recovered;
(3) 35 percent on the next $22,000 of the sum
recovered;
(4) 25 percent on any
amount over $25,000 of the sum recovered; or
SCHEDULE B
A percentage not exceeding 33 &" percent of the
sum recovered, if the initial contractual arrangement between the client and
the attorney so provides, in which event the procedure hereinafter provided for
making application for additional compensation because of extraordinary
circumstances shall not apply.
Compensation of claimant's or plaintiffs attorney for
services rendered in claims or actions for personal injury alleging medical,
dental or podiatric malpractice shall be computed pursuant to the fee schedule
contained in Judiciary Law, section
474-a.
(c) Such percentage shall be computed by one
of the following two methods to be selected by the client in the retainer
agreement or letter of engagement:
(1) on the
net sum recovered after deducting from the amount recovered expenses and
disbursements for expert testimony and investigative or other services properly
chargeable to the enforcement of the claim or prosecution of the action;
or
(2) in the event that the
attorney agrees to pay costs and expenses of the action pursuant to Judiciary
Law section
488(2)(d), on the gross sum
recovered before deducting expenses and disbursements. The retainer agreement
or letter of engagement shall describe these alternative methods, explain the
financial consequences of each, and clearly indicate the client's selection. In
computing the fee, the costs as taxed, including interest upon a judgment,
shall be deemed part of the amount recovered. For the following or similar
items there shall be no deduction in computing such percentages: liens,
assignments or claims in favor of hospitals, for medical care and treatment by
doctors and nurses, or self-insurers or insurance carriers.
(d) In the event that claimant's
or plaintiffs attorney believes in good faith that schedule A, in subdivision
(b) of this section, because of extraordinary circumstances, will not give the
attorney adequate compensation, application for greater compensation may be
made upon affidavit with written notice and an opportunity to be heard to the
client and other persons holding liens or assignments on the recovery. Such
application shall be made to the justice of the trial part to which the action
had been sent for trial; or, if it had not been sent to a part for trial, then
to the justice presiding at the trial term calendar part of the court in which
the action had been instituted; or, if no action had been instituted, then to
the justice presiding at the trial term calendar part of the Supreme Court for
the county in the judicial department in which the attorney making the
application has an office. Upon such application, the justice, in his or her
discretion, if extraordinary circumstances are found to be present, and without
regard to the claimant's or plaintiffs consent, may fix as reasonable
compensation for legal services rendered an 'amount greater than that specified
in schedule A, in subdivision (b) of this section; provided, however, that such
greater amount shall not exceed the fee fixed pursuant to the contractual
arrangement, if any, between the client and the attorney. If the application be
granted, the justice shall make a written order accordingly, briefly stating
the reasons for granting the greater compensation; and a copy of such order
shall be served on all persons entitled to receive notice of
application.
(e) Nothing contained
in this section shall be deemed applicable to the fixing of compensation for
attorneys representing infants or other persons, where the statutes or rules
provide for the fixation of such compensation by the court.
(f) Nothing contained in this section shall
be deemed applicable to the fixing of compensation of attorneys for services
rendered in connection with collection of first-party benefits as defined in
article XVIII of the Insurance Law.