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33 Nassau Law. 1 (1985-1986)

handle is hein.barjournals/nassau0033 and id is 1 raw text is: Bulk Rate U.S. Postage PAID Permit #9 Eastport, N.Y. 11941 TIlE JOURNAL OF TilE BAR ASSOCIATION OF NASSAU COUNTY, N.Y., INC. VOL. 33, NO. 1, SEPTEMBER 1985 SERVING THE LEGAL PROFESSION AND THE PUBLIC FOR OVER 84 YEARS. Affatato promises continued growth for NCBA EBy SAND)RA 3. FEUER%1 FlIN Realtors/attorneys,,,.', ,NA, Peter T, Affitiato was Installed ol Ioic 13, 1985 as president of the Nassau Count), meetBar Association. To sy tat our new prsl- mehae andorpledge dernt has been busy Is all undestatement to share inform ation Peter T. Affatnto is n dedicated dynnunn. By I IOlR ).IOFIN In the raw short months since his inudc- ion, Mr. Affatato has been busy creating Representatives of the Queens County, new committees and appoiting chairs of Nassau County road Suffolk County Bar all commstlees, a task (lint by itself would Associations and the Long Island Board of ' daunt many a would be president. lut Mr. Rcaltors met recently in an attempt to open Affatalo's cheerful style seems unaffected tip lines of communication between their by the enormity of the tasks, both lnlerited respective members. This cooperative ef- by the enormty ofre hi. fort is the result of the belief of both the Mr. Affatato graduated rim St. Jnt's bar associntiotss and the Long Island Board Law School in 1949 and ias been specinil?. or Realtors that the complexity of Inf in negligence defense trials frot his niodern-day real estate transactions require Hl lcksville o ffice for tlhe past 34 years. A cooperallon betweet reallors and attorneys member of the Association since 1958, ite to best service tise public. has served as n director, chair of the Special To this end, we arc encouraging members. . ' Gifts Committee and member of lie of tthe bar and realtors to write to their Judiciary Committee. lie has lectured ot respective bar association or to the Bloatd behalf of the Academy of Law and ilili of Realtors. outlining problems which they Lawyer Section. lie bitt s to the pre'idcn- have encountered wil lawyers or brokers cy not only a long and iistiugtished Icvtt; in real estate tr., sactions. Let us emplastize career, bill a stronS cotniflinicut to Ie flit that this comnnittee Is not to be a type of Association and its continued prokti, grievance or ethics comtiittee for either the How does lie vies the president's ile? attornleys or the realtors. The reason for Total commitment to the best interest, of seeking information concerning problem the Association, reptescntation of all its situations is not to pass ludanlent on ally members, not only tie snost vocal. iull individual or to d1,.pline that individual In creation of new prigrails which sill be (it any way. Rather, It Is the mutual hope of interest to young ltorueys. 'They N ill ie tie bar associations and (te Board of the ultimate beneficiaries of this giosisip Realtors that the studyihg of particular Bar Association and its many fine prs. Continued on paoe II . . Peit . Affatofa Continued on pore ,t a column By J(El. K. ASAEII 'ltis Is tire Nassau Latiyer' inaugural coluutn on the CI5LR. I dedicate it to those itdividuals who can sit hours oi end, twisting ntd turning Itublk's Cube. smovig their pies aronud the Trivial Pursut gaimeboard and reading 1 ire'o Arlventtres it Wlonderland fer hidden iathetsatical nmeanings. Btll scruinstv, folks.... Circun,,enting five dais for trniling? Lawyers area clever breed SIr a problem can't be solv- ed its one way, the lawyer will iry to solve it In annther. Fsr exsmple, a lawyer applies to the court to discharge a nmecianic's lien pussulnnt to §19 of he Lien Law. Under snbdivi- slot 4, wihere there is a qtalified surety, a notice of application iust be served upon use lanor or his at. tornicy at least two days befose the return date. In this particular case, a Irlwyer served a notice of application to discharge a Ilea upon fite liteor's nt- toriey by Fxpress Mail, giving only five days' notice. Under CPLR 2103(h)(2), where service Is made by mail. five days on new CPLR cases shall be added to the prescribed period, thereby requiring seven days' notice in this instance. Argued counsel, since Express Mall Is a special service of the Post Office and Is delivered She next day, ser- vice should be proper sisce delivery would be ac- coinplished in only one day. Replied the court, nice try, bul the application to discharge ihe tet is denied withti prejudice. WVhile it is true that Ex- press Mail Is a special ser- vice, CPLR 2103 makes no reference to the expedited naure of 'Express Mail.' Thus, even if the applica- tion was received the next day and evidenced by a retirn receipt card, service wosld be insufficiest if there was not seven days' notice. The moral: a letter is a letter, rcgartliesq of Site envelope or stamp afiixed. Malter of Rohrm Corp., - Mlisc,2d -, 487 N.Y.,S.2d 309, NYLJ 4/1/85, p.16, col,5 (Supreme Court, Queens County) (J, Lonscien). [Query: Sice tite nollce of application begins a special proceeding to discharge a lien, is it ap- gropriale to serve tie notice y mail? Where Is She court's auilhority for stch service? Should the lienor be persnally served as with a sumnons for the court to acquire jurisdiction? See CPLR 403(c).J Who's In charge here? You have sent your proc- ess server to defendant's place of btsiess with in- srtulatons to serve ite In- dividual defendant. When lie process server arrives, he Is rerused access to tile plant and to the defendast's office by a security guard. Although lie tries to explain that he has legal papers to Continued on page 10 What will happen otl September 17, 19877 See next month's issue. NOTICE Please note the follow- Ing change. The dedica- lion of judicial portraits In Trial Term Part I of the Supreme Court will take place on October 28 at 9:30 am, not Oc- tober 21. Attention all attorneys: review your retainers By NFIL T. SIIAYNE AND KENNFl II J. LANDAU Non.refundable fees may not be enforced. In a recent opinion, the Committee on Professionil Ethics of the liar Association of Nassau County decided that the labeling (i a fee as non-refundable violates Tihe Code of Profcs- sional Responsibility and that no fee advanced by n client is ever truly non-reftundable. opinion No. 85-5. In contrast to non-refundable fees, the atloine is limited in charging or collecting a fee pursuaint in the criteria outlined at Disciplinary Rule 2-106 of'rhe Code s' Professional Responsibility. This rccent opinion is a reminder for attorneys to review their retaiter agrcements. Althogh the Ethics Committee based its decision otn the Code of Professional Responsibility and the absolute right of a client to discharge anm attorney at atty time with or without cause, in a recent ease the First Department sttitled that noa-reoundable retainer agrecilselits, while nt to be encouraged, are not, in all cases, unenforceable as a matter of law. Jacobson v, Sarsower, 43 N.Y.S2d II (1985), However, in Jacobson the court refused to eifoice the terms of the agreement, finding that it ans ambiguous,and,accordngly.mtil be construed agaln5t the party drafting the agreement (the attorney). Jarob.on involved a $2,500 retainer in a matrimonial case. Abtion one month after the original agreement was siged, tile client discharged the original attorney and retained substitute counsel. The lower court field that time first at- torney had performed a maximum of ten hours work ui the case and based upon the agreed hsilry rate of $100 an hour, tile client was entitled to a refund of $1,500. In light of the legal uncertainty and ethical concern tuer the use of non-refundabie retainer arrangentimit is the better practice to avoid the use of these terms. As soon as possible after an attorney has met with tile client, ils important to enter into a written retainer agree. meat. New York State Code of Professional Responsibility EC2-19 states, It is usually beneficial to reduce to writing the understanding of the parties regarding the fee, par- ticularly when it is contingent, Obviously, the retainer Continued on toare 13 The Nassau Lawyer introduces

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