New York Courts dot gov
New York StateUnified Court System

Administrative Rules of the Unified Court System & Uniform Rules of the Trial Courts


Rules of the Appellate Courts

691.20:
Retainer and Closing Statements
2nd Judicial Department
Commercial reuse of the Rules as they appear on this web site is prohibited. The official version of the Rules published in the NYCRR is available on Westlaw.
Text is current through February 29, 2004.

Section 691.20 Claims or actions for personal injury, property damage, wrongful death, loss of services resulting from personal injuries, due to negligence or any type of malpractice, and claims in connection with condemnation or change of grade proceedings.

Retainer Statement
Closing Statement
SCHEDULE A
SCHEDULE B
General Materials (GM) - References, Annotations, or Tables

Section 691.20 Claims or actions for personal injury, property damage, wrongful death, loss of services resulting from personal injuries, due to negligence or any type of malpractice, and claims in connection with condemnation or change of grade proceedings.

(a) Statements as to retainers; blank retainers.

(1) Every attorney who, in connection with any action or claim for damages for personal injury or for property damages, or for death or loss of services resulting from personal injuries, due to negligence or any type of malpractice or in connection with any claim in condemnation or change of grade proceedings, accepts a retainer or enters into an agreement, express or implied, for compensation for services rendered or to be rendered in such action, claim or proceeding, whereby his compensation is to be dependent or contingent in whole or in part upon the successful prosecution or settlement thereof, shall, within 30 days from the date of any such retainer or agreement of compensation, sign personally and file with the Office of Court Administration of the State of New York a written statement of such retainer or agreement of compensation, containing the information hereinafter set forth. Such statement may be filed personally by the attorney or his representative at the main office of the Office of Court Administration in the City of New York, and upon such filing he shall receive a date-stamped receipt containing the code number assigned to the original so filed. Such statement may also be filed by ordinary mail only addressed to:

Office of Court Administration--Statements

Post Office Box No. 2016

New York, NY 10008

Statements filed by mail must be accompanied by a self-addressed stamped postal card, containing the words "Retainer Statement", the date of the retainer and the name of the client. The Office of Court Administration will date-stamp the postal card, make notation thereon of the code number assigned to the retainer statement and return such card to the attorney as a receipt for the filing of such statement. It shall be the duty of the attorney to make due inquiry if such receipt is not returned to him within 10 days after his mailing of the retainer statement to the Office of Court Administration.

(2) A statement of retainer must be filed in connection with each action, claim or proceeding for which the attorney has been retained. Such statement shall be on one side of paper 8 1/2 inches by 11 inches and be in the following form and contain the following information:
 return to top

Retainer Statement For office use:

TO THE OFFICE OF COURT ADMINISTRATION

OF THE STATE OF NEW YORK

1. Date of agreement as to retainer..........................

2. Terms of compensation.....................................

3. Name and home address of client...........................

............................................................
4. If engaged by an attorney, name and office address of retaining attorney...............................................

............................................................
5. If claim for personal injuries, wrongful death or property damage, date and place of occurrence.............................

............................................................
............................................................
6. If a condemnation or change of grade proceeding:

(a) Title and description.................................

...........................................................
(b) Date proceeding was commenced..........................

(c) Number or other designation of the parcels affected....................................................................

............................................................
............................................................
7. Name, address, occupation and relationship of person referring the client........................................................

.............................................................
..............................................................
Dated:....., NY,.....day of..... , 19 .....

Yours, etc.

.................................. .....
Signature of Attorney

........................................
Print Attorney

or$$ ....................................

Type Office and P.O. Address

..... Dist. .....Dept. .....County

NOTE: COURT RULES REQUIRE THAT THE ATTORNEY FOR THE PLAINTIFF FILE A STIPULATION OR STATEMENT OF DISCONTINUANCE WITH THE COURT UPON DISCONTINUANCE OF AN ACTION.

(3) An attorney retained by another attorney, on a contingent fee basis, as trial or appeal counsel or to assist in the preparation, investigation, adjustment or settlement of any such action, claim or proceeding shall, within 15 days from the date of such retainer, sign personally and file with the Office of Court Administration a written statement of such retainer in the manner and form as above set forth, which statement shall also contain particulars as to the fee arrangement, the type of services to be rendered in the matter, the code number assigned to the statement of retainer filed by the retaining attorney and the date when said statement of retainer was filed.

(4) No attorney shall accept or act under any written retainer or agreement of compensation in which the name of the attorney was left blank at the time of its execution by the client.

(b) Closing statement; statement where no recovery.

(1) A closing statement shall be filed in connection with every claim, action or proceeding in which a retainer statement is required, as follows: Every attorney upon receiving, retaining or sharing any sum in connection with a claim, action or proceeding subject to this section shall, within 15 days after such receipt, retention or sharing, sign personally and file with the Office of Court Administration and serve upon the client a closing statement as hereinafter provided. Where there has been a disposition of any claim, action or proceeding, or a retainer agreement is terminated, without recovery, a closing statement showing such fact shall be signed personally by the attorney and filed with the Office of Court Administration within 30 days after such disposition or termination. Such statement may be filed personally by the attorney or his representative at the main office of the Office of Court Administration in the City of New York and upon such filing he shall receive a date-stamped receipt. Such statement may also be filed by ordinary mail only addressed to:

Office of Court Administration--Statements

Post Office Box No. 2016

New York, NY 10008

Statements filed by mail must be accompanied by a self-addressed stamped postal card containing the words "Closing Statement", the date the matter was completed, and the name of the client. The Office of Court Administration will date-stamp the postal card, make notation thereon of the code number assigned to the closing statement and return such card to the attorney as a receipt for the filing of such statement. It shall be the duty of the attorney to make due inquiry if such receipt is not returned to him within 10 days after his mailing of the closing statement to the Office of Court Administration.

(2) Each closing statement shall be on one side of paper 8 1/2 inches by 11 inches and be in the following form and contain the following information:
 return to top

Closing Statement For office use:

TO THE OFFICE OF COURT ADMINISTRATION

OF THE STATE OF NEW YORK

1. Code number appearing on Attorney's receipt for filing of

retainer statement. (If statement filed with Clerk of Appellate Division prior to July 1, 1960, give date of such filing.)

..............................................
Code Number

2. Name and present address of client........................

3. Plaintiff(s) 4. Defendant(s)

......................... ...............................
......................... ...............................
5 (a) If an action was commenced, state the date:_____, _____, _____ Court, _____ County.

5 (b) Was the action disposed of in open court?_____.

If not, and a request for judicial intervention was filed, state the date the stipulation or statement of discontinuance was filed with the clerk of the part to which the action was assigned._____.

If not, and an index number was assigned but no request for judicial intervention was filed, state the date the stipulation or statement of discontinuance was filed with the County Clerk._____.

6. Check items applicable: Settled ( ); Claim abandoned by client ( ); Judgment ( )

Date of payment by carrier or defendant ..... day of ....., 19.....

Date of payment to client.....day of..... , 19 .....

7. Gross amount of recovery (if judgment entered, include any interest, costs and disbursements allowed) $.....[of which $ ..... was taxable costs and disbursements].

8. Name and address of insurance carrier or person paying judgment or claim and carrier's file number, if any..........

9. Net amounts: to client $.....; compensation to undersigned $ .....; names, addresses and amounts paid to attorneys participating in the contingent compensation..........

10. Compensation fixed by: retainer agreement ( ); under schedule ( ); or by court ( ).

11. If compensation fixed by court: Name of Judge .......... Court..... , Index No......, Date of Order .....

12. Itemized statement of payments made for hospital, medical care or treatment, liens, assignments, claims and expenses on behalf of the client which have been charged against the client's share of the recovery, together with the name, address, amount and reasons for each payment..........

..........
13. Itemized statement of the amounts of expenses and disbursements paid or agreed to be paid to others for expert testimony, investigative or other services properly chargeable to the recovery of damages together with the name, address and reason for each payment ..........

..........
14. Date on which a copy of this closing statement has been forwarded to the client..........

..... , 19..........

NOTE: COURT RULES REQUIRE THAT THE ATTORNEY FOR THE PLAINTIFF FILE A STIPULATION OR STATEMENT OF DISCONTINUANCE WITH THE COURT UPON DISCONTINUANCE OF AN ACTION.

Dated:..... , N.Y.,........day of ........, 19........

Yours, etc.

..................................
Signature of Attorney

..................................
Print Attorney

or ................................

Type Office and P.O. Address

..... Dist...... Dept. .....County

(If space provided is insufficient, riders on sheets 8 1/2 inches by 14 inches and signed by the attorney may be attached.)

(3) A joint closing statement may be served and filed in the event that more than one attorney receives, retains or shares in the contingent compensation in any claim, action or proceeding, in which event the statement shall be signed by each such attorney.

(c) Confidential nature of statements.

(1) All statements of retainer or closing statements filed shall be deemed to be confidential and the information therein contained shall not be divulged or made available for inspection or examination except upon written order of the presiding justice of the Appellate Division. (See subdivision [g] of this section.)

(2) The Office of Court Administration of the State of New York shall reproduce in an alternative format, as that term is defined in section 104.1(c) of this Title, all statements filed pursuant to this section by a means that shall accurately reproduce the original statements in all details thereof, and shall thereafter destroy the originals so reproduced. Such a reproduction in an alternative format shall be deemed to be an original record for all purposes, and an enlargement or facsimile thereof may be introduced in evidence in all courts and administrative agencies and in any action, hearing or proceeding in place and stead of the original statement so reproduced, with the same force and effect as though the original document were presented.

(d) Deposit of collections; notice.

(1) Whenever an attorney, who has accepted a retainer or entered into an agreement as above referred to, shall collect any sum of money upon any such action, claim or proceeding, either by way of settlement or after a trial or hearing, he shall forthwith deposit the same in a special account in accordance with the provisions of section 691.12 of this Part. Within 15 days after the receipt of any such sums he shall cause to be delivered personally to such client or sent by registered or certified mail, addressed to such client at the client's last known address, a copy of the closing statement required by this section. At the same time the attorney shall pay or remit to the client the amount shown by such statement to be due the client, and he may then withdraw for himself the amount so claimed to be due him for compensation and disbursements. For the purpose of calculating the 15-day period, the attorney shall be deemed to have collected or received or been paid a sum of money on the date that he receives the draft endorsed by the client, or if the client's endorsement is not required, on the date the attorney receives the sum. The acceptance by a client of such amount shall be without prejudice to the latter's right in an appropriate action or proceeding, to petition the court to have the question of the attorney's compensation or reimbursement for expenses investigated and determined by it.

(2) Whenever any sum of money is payable upon any such claim, action or proceeding, either by way of settlement or after trial or hearing, and the attorney is unable to locate a client, the attorney shall apply pursuant to subdivision f-1 of section 1200.46 of the Disciplinary Rules of the Code of Professional Responsibility to the court in which such action or proceeding was pending, or if no action had been commenced, then to the Supreme Court in the county in which the attorney maintains an office, for an order directing payment to be made to the attorney of the fees and reimbursable disbursements determined by the court to be due said attorney and to the Lawyer's Fund for Client Protection of the balance due to the client, for the account of the client, subject to the charge of any lien found by the court to be payable therefrom.

(e) Contingent fees in claims and actions for personal injury and wrongful death.

(1) In any claim or action for personal injury or wrongful death, or loss of services resulting from personal injury or for property or money damages resulting from negligence or any type of malpractice, other than one alleging medical, dental or podiatric malpractice, whether determined by judgment or settlement, in which the compensation of claimant's or plaintiff's attorney is contingent, that is, dependent in whole or in part upon the amount of 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. 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 any provisions of the Code of Professional Responsibility, as adopted by the New York State Bar Association, or of any canon of the Canons of Ethics, as adopted by such bar association, unless authorized by a written order of the court as hereinafter provided.

(2) The following is the schedule of reasonable fees referred to in paragraph (1) of this subdivision: either
 return to top

SCHEDULE A

(i) 50 percent on the first $1000 of the sum recovered;

(ii) 40 percent on the next $2000 of the sum recovered;

(iii) 35 percent on the next $22,000 of the sum recovered; or

(iv) 25 percent on any amount over $25,000 of the sum recovered; or
 return to top

SCHEDULE B

(v) A percentage not exceeding 33 1/3 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.

(3) Such percentage shall be computed on the net sum recovered after deducting from the amount recovered expenses and disbursements for expert medical testimony and investigative or other services properly chargeable to the enforcement of the claim or prosecution of the action. 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.

(4) In the event that claimant's or plaintiff's attorney believes in good faith that Schedule A above because of extraordinary circumstances, will not give him 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 who filed the statement of retainer, pursuant to this section, has an office. Upon such application, the justice, in his discretion, if extraordinary circumstances are found to be present, and without regard to the claimant's or plaintiff's consent, may fix as reasonable compensation for legal services rendered an amount greater than that specified in Schedule A of paragraph (2) of this subdivision; 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 the application.

(5) The provisions of subdivision (e) of this section shall not apply to an attorney retained as counsel in a claim or action for personal injury or wrongful death by another attorney, if such other attorney is not subject to the provisions of this section in such claim or action, but all other subdivisions of this section shall apply.

(6) Nothing contained in subdivision (e) of 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.

(7) Nothing contained in subdivision (e) of this section shall be deemed applicable to the fixing of compensation for attorneys for services rendered in connection with the collection of first party benefits as defined by article XVIII of the Insurance Law.

(8) The provisions of paragraph (2) of this subdivision shall not apply to claims alleging medical, dental or podiatric malpractice. Compensation of claimant's or plaintiff's 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 in section 474-a of the Judiciary Law.

(f) Preservation of records of claims and actions. Attorneys for both plaintiff and defendant in the case of any such claim or cause of action shall preserve, for a period of seven years after any settlement or satisfaction of the claim or cause of action or any judgment thereon or after the dismissal or discontinuance of any action, the pleadings and other papers pertaining to such claim or cause of action, including, but not limited to, letters or other date relating to the claim of loss of time from employment or loss of income; medical reports, medical bills, X-ray reports, X- ray bills; repair bills, estimates of repairs; all correspondence concerning the claim or cause of action; and memoranda of the disposition thereof as well as canceled vouchers, receipts and memoranda evidencing the amounts disbursed by the attorney to the client and others in connection with the aforesaid claim or cause of action and such other records as are required to be maintained under section 691.12 of this Part.

(g) Special authorization to divulge retainer and closing statements filed by attorneys. Pursuant to paragraph (c)(1) of this section, the presiding justice of the Appellate Division of the Supreme Court in the second judicial department does hereby order that, without his further specific order, the clerk of the said Appellate Division and the Office of Court Administration of the State of New York, jointly and severally, are authorized to permit any agent or representative of the Treasury Department or of the district director of internal revenue of the United States, upon the presentation of written authorization from a supervising official or head in the office of said department or district director, to examine and copy any retainer or closing statement heretofore or hereafter filed by any attorney in the office of the said clerk or the Office of Court Administration of the State of New York, in accordance with said rules regulating the conduct of attorneys and counselors at law.

(h) Omnibus filings in property damage actions or claims. Attorneys prosecuting actions or claims for property damage may make semi-annual omnibus filings of retainer statements and closing statements.

Historical Note
Sec. filed Oct. 23, 1974; amds. filed: March 17, 1975; Oct. 27, 1977; March 28, 1979; Feb. 5, 1987; April 3, 1989; June 11, 1990; Sept. 5, 1991; May 18, 1993; April 15, 1995; April 30, 1998; Jan. 27, 2004 eff. Jan. 21, 2004. Amended (c)(2).
 return to top

General Materials (GM) - References, Annotations, or Tables

RESEARCH REFERENCES AND PRACTICE AIDS:

6A NY Jur 2d, Attorneys at Law §356

23A C-W2d § 141:290

CASE NOTES:
Failure of attorney representing decedent's estate in legal malpractice action to file retainer statement with Office of Court Administration did not preclude him from recovering fee; estate's claim of legal malpractice was not "action or claim for damages for personal injury or for property damages, or for death or loss of services resulting from personal injuries." In re Seigel (2 Dept. 2002) 754 N.Y.S.2d 300, 300 A.D.2d 668

CASE NOTES:
Nunc pro tunc filing of retainer statements with Office of Court Administration (OCA) was sufficient to preserve rights of original attorney and assisting law firm to recover a portion of contingent fee, following settlement of patient's and his wife's medical malpractice action by a successor attorney. Warren v. Meyers, 2001, 723 N.Y.S.2d 337, 187 Misc.2d 668

CASE NOTES:
Assisting law firm, which began litigation of medical malpractice action, was entitled to share of fees from settlement as agent of original attorney who referred case to firm, although neither attorney nor firm filed mandatory retainer statements at time of their retention, where both attorneys filed nunc pro tunc retainer statements before beginning of hearing on fee dispute with successor attorney, and patient and his wife bringing action were aware of firm's involvement. Warren v. Meyers, 2001, 723 N.Y.S.2d 337, 187 Misc.2d 668

CASE NOTES:
Revised retainer agreement, under which attorney would receive as payment one-third of net recovery in event of settlement or verdict in amount of at least $700,000 and 31% of net recovery in event of settlement or verdict that was less than $700,000, was not enforceable. Connors v. Wildstein (2 Dept. 2000) 706 N.Y.S.2d 189, 271 A.D.2d 633

CASE NOTES:
Attorney was suspended from practice of law for one year based on special referee's report sustaining charges, among others, that he violated 22 NYCRR §691.20(a)(1) by failing to prepare retainer statement for filing with Office of Court Administration in personal injury case and violated 22 NYCRR §691.20(b)(1) by failing to prepare closing statement for filing with Office of Court Administration in same case. Matter of Laskorski (2 Dept. 1995) 630 N.Y.S.2d 561, 213 A.D.2d 50

CASE NOTES:
Although found to have entered into agreement for excessive and illegal fee in violation of paragraph (e) of regulation, to have failed to file timely retainer and closing statements in violation of paragraphs (a) and (b) of regulation, and to have taken improper disbursements from client's share of personal injury proceeds in violation of regulation, attorney was censured for this and other conduct in view of fact that charges of professional misconduct arose from her representation of one client who owed her thousands of dollars and with whom she was personally involved before undertaking representation. Matter of Roper (2 Dept. 1995) 629 N.Y.S.2d 70, 212 A.D.2d 73

CASE NOTES:
Respondent attorney who failed to file certain retainer statements with the Office of Court Administration was guilty of serious professional misconduct. Matter of Benjamin (2 Dept. 1994) 611 N.Y.S.2d 258, 197 A.D.2d 158

CASE NOTES:
Attorney violated 22 NYCRR §691.20 by multiple acts of converting client's funds to his own use and benefit, by failing to promptly disburse and account for client's funds, and by failing to preserve and maintain complete bank and bookkeeping records despite history of prior discipline. Matter of Carlisi (2 Dept. 1993) 596 N.Y.S.2d 78, 189 A.D.2d 346, leave to appeal denied 619 N.E.2d 658, 601 N.Y.S.2d 580, 81 N.Y.2d 711

CASE NOTES:
Attorney's failure to file retainer statement with Office of Court Administration for personal injury action he was retained to handle as required by 22 NYCRR §691.20, among other charges, supported disbarment. Matter of Kuriakose (2 Dept. 1991) 576 N.Y.S.2d 293, 171 A.D.2d 358

CASE NOTES:
Attorney's procurement of contingent fee retainer agreement incorporating terms of compensation set forth in 22 NYCRR §691.20 (e) (2), pursuant to which he would have been entitled to recover up to $652 for assisting his client to collect $1,380 in no- fault benefits, constituted agreement to charge clearly excessive fee in violation of DR 2-106 (A); attorney was found guilty of professional misconduct and was censured. Matter of Hausen (2 Dept. 1985) 488 N.Y.S.2d 742, 108 A.D.2d 206

CASE NOTES:
Law firm could not withhold opening and closing statements filed with Office of Court Administration on grounds of confidentiality, since confidentiality rule spoke only to non-disclosure of such statements by Office of Court Administration, not disclosure by filing law firms. In re Nassau County Grand Jury Subpoena Duces Tecum, 2003, 1 Misc.3d 902(A), 2003 WL 22928559, Unreported

22 NY ADC 691.20