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rvlaw
rvlaw, Lawyer (JD)
Category: Legal
Satisfied Customers: 8386
Experience:  NYC Trial Atty. 30 yrs.- pers. inj., contracts, real estate, criminal, estates, matrimonial.
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Anna-Picole Smyth, determined after several years of ...

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Anna-Picole Smyth, determined after several years of marriage to Walter Wimpy, that she would file for divorce. She located a sympathetic attorney, Nat Nice-Guy, who agreed to handle her divorce for $5,000. This was a flat fee agreement in which a complete property settlement and divorce decree would be covered.

Nice-Guy and his trusty paralegal began working on Ms. Smyth's case. In the interim, Smyth and Wimpy began dating and eventually reconciled thereby refusing to pay Nice-Guy. Nice-Guy had realized that the case was more involved than originally thought, especially given that Smyth had a nasty probate matter involving her deceased first husband. Nice-Guy could have converted to billable hours prior to the reconciliation. Nice-Guy estimated Smyth would have owed close to $10,000.

How much should Nice-Guy recover from Smyth in an action for breach of contract? Consider Nice-Guy's expectation and restitution interests. Please provide reasons for answer.
Submitted: 8 years ago.
Category: Legal
Expert:  rvlaw replied 8 years ago.

Hi,

NG can only recover 5K. At the time he entered the retainer agreement he had the duty to determine the nature and extent of the work that would be involved. Even if he didn't know of the probate matter, and knowing that he could convert to hourly prior to any reconciliation, he should have investigated any additional work that might need to be done. So he had two opportunities to make sure that the flat fee retainer would allow him to be adequately compensation. The only bases for a claim in excess of 5K which would then be based on "quantum meruit" (the value of the thing) and which would entitle him to claim the $10K would be:

1. Anna had made an affirmative representation in the retainer that there were no additional matters that would have to be dealt with other than the property settlement and obtaining the decree; or

2. NG could successfully take the position that by definition, a retainer to handle a divorce matter through decree, did NOT include the handling of a probate matter which was outside the scope of the retainer.

Rich

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