author: Titone, J.

text:
    [633 NE2d 472, 611 NYS2d 118]
    The People of the State of New York, Respondent, v Alvin Walker, Appellant.
    Argued March 15, 1994;
    decided April 28, 1994

      POINTS OF COUNSEL

      Marlene Vasquez, New York City, and Philip L. Weinstein for appellant.
    The trial court committed legal error by failing to exercise its discretion in making its Sandoval ruling, which (a) permitted the prosecutor to question appellant about the fact that he had been convicted of two felonies and 17 misdemeanors along with the dates of those convictions and (b) also allowed the prosecutor to impeach appellant with respect to his use of 14 aliases and 5 birthdates. (People v Sandoval, 34 NY2d 371; People v Williams, 56 NY2d 236; People v Davis, 44 NY2d 269; People v Bowles, 132 AD2d 465; People v Dickman, 42 NY2d 294; People v Ellis, 94 AD2d 652; People v Hicks, 88 AD2d 519; People v Rodriguez, 120 AD2d 623; People v Malphurs, 111 AD2d 266; People v Crimmins, 36 NY2d 230.)

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Alan S. Rafterman, Joseph N. Ferdenzi and Billie Manning of counsel), for respondent.
    I. Appellant’s guilt of criminal sale of a controlled substance in the third degree was proved beyond a reasonable doubt and with overwhelming evidence. II. The trial court’s ruling on appellant’s Sandoval motion is beyond this Court’s scope of review and, in any event, the ruling represents a meaningful exercise of discretion. (People v Sandoval, 34 NY2d 371; People v Holman, 172 AD2d 245, 79 NY2d 986; People v Canty, 60 NY2d 830; People v Mackey, 49 NY2d 274; People v Pollock, 50 NY2d 547; People v Esteves, 41 NY2d 826; People v Burke, 39 NY2d 729; People v Moreno, 70 NY2d 403; People v Patterson, 88 AD2d 694, 59 NY2d 794.)
   OPINION OF THE COURT

Titone, J.

The narrow issue presented for consideration here is whether defendant was entitled to an order precluding the prosecution from cross-examining him about his prior use of aliases when the defense claimed that there was an alternative explanation for the defendant’s use of aliases that potentially rebutted the inference of dishonesty. Concluding that the probative worth of alias evidence can be adequately assessed by the fact finder in most situations, we decline to impose a legal requirement of preclusion in these circumstances and hold instead that, like many issues involving the proper scope of cross-examination, the prosecution’s use of alias evidence as cross-examination material rests within the sound discretion of the trial court.

I.

Defendant was charged with criminal sale and possession of a controlled substance in the third degree in connection with a November 20, 1990 sale of a quantity of cocaine to an undercover officer. Prior to trial, the court conducted a Sandoval hearing at which the prosecutor’s plans to cross-examine defendant about his prior criminal acts were discussed (see, People v Sandoval, 34 NY2d 371). The prosecutor noted that defendant had previously been convicted of two felonies, one involving a narcotics sale and one involving a robbery. There was also a string of 17 misdemeanor convictions between 1979 and 1989 that the prosecutor wished to raise if defendant chose to testify.

In addition to reviewing defendant’s prior convictions, the parties focused at the Sandoval hearing on defendant’s prior use of aliases and other false pedigree information. The prosecutor asserted that defendant had used 14 different names and 5 different dates of birth on the occasions that he had been arrested. Arguing that this use of false information "goes directly to the defendant’s credibility,” the prosecutor asked to be permitted to cross-examine defendant on the subject in the event that he decided to take the witness stand. Anticipating the prosecutor’s request, defense counsel had noted in his opening remarks that defendant is a Muslim and that "that may explain why * * * he used the name of Ali.” Moreover, according to defense counsel, defendant had been using his father’s surname when he told the police in 1982 that his name was "Alvin Smith.” Finally, defense counsel asserted, defendant had used the name "McDonald” when he "was under the influence of drugs and was not in his right mind.”

After hearing both parties’ arguments, the court ruled that the People would be permitted to question defendant about his use of "numerous aliases” and "various dates of birth.” With regard to the prior felony and misdemeanor convictions, the court held that the People would be able to inquire about their number and dates but would not be permitted to allude to the underlying facts.

Defendant was subsequently tried before a jury. Having elected not to testify, defendant rested his defense on a challenge to the reliability of the People’s witnesses, particularly the undercover officer who had actually purchased the cocaine and identified defendant as the seller. The jury found defendant guilty of criminal sale in the third degree, and defendant was subsequently sentenced to a 6- to 12-year term of imprisonment. On defendant’s appeal, the Appellate Division found no reason to disturb the judgment of conviction, although it noted that the trial court "would have been more circumspect in its [Sandoval] obligation” if it had limited the number of prior convictions that the People could use on cross-examination (189 AD2d 620, 621). This appeal, taken by leave of a Judge of this Court, ensued.

II.

Initially, we reject defendant’s contention that the conviction should be overturned because the trial court failed properly to balance the Sandoval factors in deciding to permit cross-examination with respect to each of defendant’s 19 prior convictions. While, as the Appellate Division noted, the trial court might have been more discriminating, we find no legal reason to upset the court’s exercise of its discretion (see, People v Mackey, 49 NY2d 274, 281).

In this regard, it must be stressed that "in the usual case, appellate review of the exercise of discretion by the trial court * * * ends in the intermediate appellate court” (People v Pollock, 50 NY2d 547, 550, citing People v Mackey, supra, at 281). The use of prior bad acts for impeachment of a testifying defendant "is 'largely, if not completely’ a discretionary determination for the trial courts and fact-reviewing intermediate appellate courts, and * * * generally no further review by this Court is warranted” (People v Mattiace, 77 NY2d 269, 274, quoting People v Shields, 46 NY2d 764, 765; see, People v Pollock, supra, at 550; People v Brown, 48 NY2d 921). Because the trial courts have inherent power to control the scope of cross-examination and the use of prior bad acts is a generically accepted practice in that context, this Court will intervene only where "the trial court ha[s] either abused its discretion or exercised none at all” (People v Williams, 56 NY2d 236, 238; see, People v Canty, 60 NY2d 830, 831).

Here, the record does not indicate a failure by the trial court to balance the relevant factors. To the contrary, the court’s decision, which permitted inquiry about each of defendant’s prior convictions but forbade reference to the underlying criminal acts, reflects sensitivity to the particular prejudice that may result when a jury is made aware of the fact that the defendant has previously committed crimes that are similar to the charged crime (see, People v Smith, 59 NY2d 156, 168; see also, People v Pollock, supra, at 550-551 [Meyer, J., dissenting] ["thrust of Sandoval is that * * * a jury may be led by such evidence (of prior crimes) to infer criminal propensity”]).

That the number of prior convictions ruled admissible was large and that some of those prior convictions were remote in time are matters of substance that may properly be considered by the trial court but are not appropriate bases for this Court to second-guess the trial court’s conclusion (see, People v Patterson, 88 AD2d 694, affd 59 NY2d 794). Our law does not require "the application of any particular balancing process” in Sandoval determinations (People v Pollock, supra, at 550), and there are no per se rules requiring preclusion because of the age, nature and number of a defendant’s prior crimes (see, People v Pavao, 59 NY2d 282, 292; People v Bennette, 56 NY2d 142, 147; People v Mackey, supra). Similarly, an exercise of a trial court’s Sandoval discretion should not be disturbed merely because the court did not provide a detailed recitation of its underlying reasoning (see, People v Ellis, 183 AD2d 534, 535, affd 81 NY2d 854), particularly where, as here, the basis of the court’s decision may be inferred from the parties’ arguments (see, People v Burke, 39 NY2d 729, 730-731).

Distilled to its essentials, defendant’s present appellate claim is really nothing more than a disagreement with the ultimate outcome of the trial court’s discretionary balancing determination. Such a disagreement does not furnish a cognizable ground for intervention by this Court, which is limited to resolving questions of law (see, CPL 470.35 [2]). Accordingly, the only remaining question with regard to the propriety of the trial court’s Sandoval ruling is whether the court erred in holding that the People could cross-examine defendant about his prior use of aliases despite defense counsel’s representations that there were alternative, arguably innocent explanations for several of the incidents in question. It is to that question that we now turn our attention.

III.

The question of using alias evidence as a basis for cross-examining a testifying defendant has been referred to in a series of Appellate Division decisions. In most of the cases, the intermediate appellate courts have merely set forth the commonsense proposition that the People cannot ask about aliases used by a defendant in such a way as to suggest the existence of a prior arrest when the trial court has previously precluded all reference to the crime associated with that arrest (People v Esquilin, 141 AD2d 838; People v Spivey, 125 AD2d 349; People v Walker, 119 AD2d 521, 523; People v Bannerman, 110 AD2d 706; People v Evans, 88 AD2d 604; People v Dowdell, 88 AD2d 239, 243-244). These cases rest on the unexceptional premise that prosecutorial evasions of the trial court’s Sandoval ruling are improper (see, e.g., People v Dowdell, supra, at 243-244; People v Bannerman, supra, at 707).

The foregoing line of cases, however, provides no comfort for this defendant, who obtained a wholly unfavorable Sandoval ruling. Accordingly, on this appeal, defendant has invoked a different line of cases from the Second Department which suggests a much broader rule: i.e., that a defendant’s use of aliases on "prior [occasions] unrelated to the [case on trial]” is not a proper subject for impeachment at all (People v High-tower, 163 AD2d 489; People v Smith, 138 AD2d 759; People v Malphurs, 111 AD2d 266, 269; People v Jimenez, 79 AD2d 1012, 1013, mod on other grounds 55 NY2d 895; but see, People v Greer, 181 AD2d 422 [1st Dept]; People v Rivera, 180 AD2d 560 [1st Dept]; People v Bost, 176 AD2d 1085 [3d Dept]; People v Roberts, 163 AD2d 120, 121 [1st Dept] [all upholding use of alias evidence for cross-examination]). While defendant does not necessarily ask us to go so far, he does advocate adoption of a rule that would forbid impeachment through prior incidents of alias use unless the prosecution makes a specific showing that such incidents "bear demonstrably on [the] defendant’s credibility as a witness” in the particular case. In essence, defendant is asking us to require a special preliminary inquest into the underlying facts whenever the People seek to use alias evidence for impeachment purposes. For the reasons that follow, we decline to adopt defendant’s view or to fashion a special rule for alias evidence premised on the assumption that such evidence is inherently suspect.

Preliminarily, we note that there was no mention at trial of a need for a special inquest or a particularized showing of relevance by the prosecution. Instead, there was, at most, a contention by defense counsel that any cross-examination as to prior alias use should be limited because there was an arguably innocent reason for defendant’s use of a different name on three of the relevant occasions. Thus, the only preserved question before us is whether the trial court erred as a matter of law in rebuffing defense counsel’s assertions as a ground for forbidding cross-examination with regard to some of the incidents in which defendant had used "aliases.”

To answer this question, we begin with the elementary premise that impeachment is a particular form of cross-examination whose purpose is, in part, to discredit the witness and to persuade the fact finder that the witness is not being truthful (see generally, Fisch, New York Evidence § 447 [2d ed]). One traditional method of accomplishing these ends is to demonstrate through questioning that the witness has been guilty of prior immoral, vicious or criminal conduct bearing on credibility (id., § 455; see, e.g., People v Schwartzman, 24 NY2d 241, 244, cert denied 396 US 846; People v Webster, 139 NY 73). Such cross-examination is not limited to questions about prior crimes or like misconduct. Rather, even where the proof "fall[s] outside the conventional category of immoral, vicious or criminal acts,” it may be a proper subject for impeachment questioning where it demonstrates an untruthful bent or " 'significantly reveal[s] a willingness or disposition on the part of the particular defendant voluntarily to place the advancement of his individual self-interest ahead of principle or of the interests of society’ ” (People v Coleman, 56 NY2d 269, 273, quoting People v Sandoval, supra, at 377).

Manifestly, a suspect’s use of a false name or other inaccurate pedigree information is an indication of dishonesty that goes to the very heart of the question of that individual’s testimonial credibility. Giving false pedigree information in situations where one is called upon to be truthful is, by definition, an act of prevarication. Common sense suggests that individuals who give false information in such situations are usually motivated by a desire to gain some unwarranted benefit or to avoid some deserved penalty or liability (see, People v Colmey, 117 App Div 462, 465, affd 188 NY 573). Arrested individuals who use aliases, for example, often do so for the purpose of evading prosecution. As a matter of reason and common experience, it is certainly fair to infer that a person who has used an alias when asked about his or her real identity has demonstrated a willingness to place his or her individual self-interest ahead of principle or the interests of society (see, People v Coleman, supra, at 273, quoting People v Sandoval, supra, at 377). Accordingly, such evidence is generally "both relevant and material to the credibility, veracity and honesty” of the witness and is a therefore a proper subject for cross-examination (People v Coleman, supra, at 273).

To be sure, as defendant contends, there are situations in which the use of a name other than one’s accustomed appellation is not indicative of deliberate dishonesty. Converts to particular religion, for example, sometimes adopt new names to reflect their new affiliation and beliefs. Married women often assume their husband’s surname or join it with a hyphen to their own surnames. Additionally, some women who have previously used their husbands’ surnames elect to resume the use of their premarital names for personal reasons having nothing to do with a desire to deceive or evade responsibility. Finally, there are situations in which confusion within the criminal justice system itself can make it appear that an individual is using an alias when, in fact, the individual is being truthful. Mistakes concerning the spelling or correct order of a foreign name can lead to errors in the records which, in turn, can create the false impression that a rearrested suspect is using an "alias”.

The existence of these potential "innocent” explanations for a name discrepancy, however, is not a sufficient basis to treat alias evidence differently or to carve out a special exception to the general rule that the nature and extent of cross-examination are matters that are entrusted to the sound discretion of the trial court (People v Schwartzman, supra, at 244; People v Sorge, 301 NY 198, 201-202). Whether a particular discrepancy in the name an arrested individual has given is indicative of dishonesty or is instead the product of some other noncorrupt circumstance is a question that the trier of fact can readily resolve as part of its over-all function to weigh the evidence and resolve credibility issues. In this regard, alias evidence is no different from any other factual information elicited in an effort to impeach a witness’s credibility. Like any other form of impeachment evidence, the probative worth of this class of evidence may effectively be challenged through such conventional methods as explanation and rehabilitation (see generally, Fisch, op. cit., § 495). Once all of the evidence is placed before the fact finder, the truth-seeking process itself can be trusted to sort out the relevant variables and arrive at the proper conclusion.

In concluding that there is no need for a special rule to govern the use of alias evidence for impeachment, we note that, unlike prior crime evidence, there is nothing inherent in alias evidence that suggests a need for extraordinary caution. Evidence that a defendant has previously committed or been convicted of a crime can be highly prejudicial because of the risk that the jury will use it to infer criminal propensity (People v Sandoval, supra, at 377; accord, People v McGee, 68 NY2d 328, 333; People v Pollock, supra, at 550-551 [Meyer, J., dissenting]). In contrast, alias evidence carries no additional implication other than the natural one of propensity for untruthfulness (provided, of course, that it is not used in such a way as to suggest the existence of otherwise unadmitted prior encounters with law enforcement authorities). Hence, there is no undue prejudice; there is only the expected — and, indeed, intended — negative impact that naturally flows from evidence admitted for the purpose of impeachment. Accordingly, no specialized treatment is required beyond the ordinary principles of common sense and fairness that typically inform trial court discretion (see generally, People v McGee, supra; People v Allen, 50 NY2d 898 [holding Sandoval procedure inapplicable to cross-examination of witnesses other than defendant]; cf., People v Conyers, 52 NY2d 454; People v Dawson, 50 NY2d 311; People v Allweiss, 48 NY2d 40 [all precluding or limiting use of otherwise probative evidence because of potential for undue prejudice]; see also, People v Ventimiglia, 52 NY2d 350; People v Sandoval, supra [establishing procedure for advance ruling on admissibility of evidence carrying particular potential for prejudice]).

Application of these principles to the present case leads inevitably to affirmance. Defense counsel’s assertions about the potentially "innocent” explanations for defendant’s prior use of false names and birthdates were highly speculative and, in any event, did not suggest a legal reason to mandate preclusion. The facts that one of the so-called "aliases” may have been defendant’s Muslim name, that another was defendant’s father’s name and that a third was given to police when defendant was in a state of drug-induced confusion may have affected the value of the incidents as indicia of untruthfulness. However, those facts did not render the evidence inadmissible as a matter of law. It thus cannot be said that the trial court exceeded or abused its discretionary authority over the nature and extent of cross-examination when it determined that the prosecution could cross-examine defendant regarding his prior use of aliases and other false pedigree information (see generally, People v Schwartzman, supra).

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed.

      . We assume that, upon request and a proper offer of proof by the defense, the trial court will ordinarily exercise its discretion in favor of permitting a cross-examined defendant to explain his or her prior use of an alias (see, Fisch, op. cit., § 495 ["A witness whose credibility has been attacked may be rehabilitated (and t)he manner in which this can be done varies with, and is determined by, the form of the discrediting evidence”]).

      . Inasmuch as both parties in this case chose to litigate the question of the admissibility of the alias evidence within the context of the Sandoval hearing, we have no occasion to consider whether a similar procedure is mandatory in all cases (cf., People v Kennedy, 47 NY2d 196, 205). We note, however, that there are a number of pragmatic benefits to be derived from airing the issue of alias evidence during the Sandoval hearing, most notably the opportunity to review the defendant’s entire "rap” sheet and to correlate the incidents of alias use with the prior convictions to ensure that only aliases associated with admissible prior crimes are used for impeachment (see, People v Bannerman, supra). Additionally, such procedure minimizes the surprise factor and enables the defendant to make an informed choice as to whether to testify.


source: Caselaw Access Project

author: Bellacosa, J.

license: Public Domain

text:
    [633 NE2d 1069, 611 NYS2d 465]
    In the Matter of Edward M. Cooperman (Admitted as Edward Michael Cooperman), an Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Argued February 8, 1994;
    decided March 17, 1994

      POINTS OF COUNSEL

      Nicholas J. Damadeo, P. C., Plainview, and Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, Buffalo (Paul Cambria of counsel), for appellant.
    I. The retainer agreements signed in 1986, 1987 and 1988, which provided for a minimum or nonrefundable fee, did not per se violate the Code of Professional Responsibility or public policy. (Jacobson v Sassower, 66 NY2d 991.) II. No refunds were due any clients because the fees had been earned; the fees charged were not excessive. III. The retainer agreements had no "chilling effect” on the clients’ rights to freely discharge their attorney. (Gross v Russo, 47 AD2d 655.) IV. Case law and Ethics Committee opinions issued subsequent to the retainer agreements being signed do not support a finding that the retainer agreements, which provided for a minimum or nonrefundable fee, per se violated the Code of Professional Responsibility. (Jacobson v Sassower, 66 NY2d 991; Heinike Assocs. v Liberty Natl. Bank, 142 AD2d 929; Wittenberg Distribs. v Kuhns Bros. & Laidlaw, 151 AD2d 978.) V. The discipline imposed is not supported by the evidence. (Jacobson v Sassower, 66 NY2d 991.)

      Robert R Guido, Syosset, Frank A. Finherty, Jr., and Muriel Steigerwald Gennosa for respondent.
    I. A fee agreement that allows an attorney to keep an advance payment irrespective of whether the services contemplated are rendered violates the disciplinary rules mandating a refund of unearned fees. II. The Court below correctly applied the decisional authority of this Court in separately holding that nonrefundable fee agreements interfere with the client’s absolute right to discharge the attorney without penalty. (Martin v Camp, 219 NY 170; Demov, Morris, Levin & Shein v Glantz, 53 NY2d 553; Gross v Russo, 47 AD2d 655; Cardinale v Golinello, 43 NY2d 288.) III. Appellant’s use of unconscionable fee agreements drafted in conscious disregard of his inherent duties and obligations as an attorney provides a rational basis for a finding of misconduct. (Matter of Holtzman, 78 NY2d 184; Jacobson v Sassower, 66 NY2d 991.) IV. The Court below’s determination that appellant violated the Court’s rules regarding excessive fees and failure to make refunds was a reasonable exercise of discretion in light of the evidence. (Dougherty v Milliken, 163 NY 527; De Long v County of Erie, 60 NY2d 296.) V. As the legislatively appointed arbiter of attorney discipline, the Court below’s ordered sanction should not be disturbed absent a finding of abuse of discretion. (Matter of Del Bello, 19 NY2d 466; Matter of Flannery, 212 NY 610.)
    The Association of the Bar of the City of New York, amicus curiae.

    I. A lawyer may not ethically characterize a fee being paid in advance as "nonrefundable”. (Matter of Friedman, 136 App Div 750, 199 NY 537; McKenzie Constr. v Maynard, 758 F2d 97; Krause v Rhodes, 640 F2d 214, cert denied sub nom. Sindell, Lowe & Guidubaldi v Attorney Gen. of Ohio, 454 US 836; Martin v Camp, 219 NY 170.) II. The opinion below advocates a case-by-case approach and does not disregard factors in addition to the time and labor of the attorney.

      Lester Brickman, New York City, and Lawrence A. Cunningham, amici curiae.

    I. The Court below is authorized to determine the ethical invalidity of nonrefundable retainers by applying the Code of Professional Responsibility which it adopted and the public policy of the State of New York announced by this Court. (Martin v Camp, 219 NY 170; Demov, Morris, Levin & Shein v Glantz, 53 NY2d 553; Jacobson v Sassower, 66 NY2d 991; Niesig v Team I, 76 NY2d 363; Matter of New York City Dept. of Envtl. Protection v New York City Civ. Serv. Commn., 78 NY2d 318; Matter of Ahsaf v

      Nyquist, 37 NY2d 182; Matter of Flannery, 212 NY 610.) II. The decision below properly distinguishes general retainers from special retainers and applies only with respect to special retainers. III. The decision below properly applies the public policy mandate of this Court to promote public confidence and trust in the legal profession by preserving and protecting a client’s right to discharge an attorney at any time, for any reason, without penalty. (Greene v Greene, 56 NY2d 86; Martin v Camp, 219 NY 170; Jacobson v Sassower, 66 NY2d 991; Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454; Teichner v W & J Holsteins, 64 NY2d 977.) IV. The decision below properly determines that nonrefundable retainers are per se unethical by applying the Code of Professional Responsibility. (Demov, Morris, Levin & Shein v Glantz, 53 NY2d 553; Jacobson v Sassower, 66 NY2d 991.) V. The decision below is consistent with the decisions of this Court and other New York State courts. (Jacobson v Sassower, 107 AD2d 603, 66 NY2d 991; Gross v Russo, 76 Misc 2d 441, 47 AD2d 655; Martin v Camp, 219 NY 170; Joel R. Brandes, P. C. v Zingmond, 151 Misc 2d 671; Demov, Morris, Levin & Shein v Glantz, 53 NY2d 553; Heinike Assocs. v Liberty Natl. Bank, 142 AD2d 929.) VI. Bar Association advisory opinions support the decision below that nonrefundable retainers are unethical. (Martin v Camp, 219 NY 170; Demov, Morris, Levin & Shein v Glantz, 53 NY2d 553; Jacobson v Sassower, 66 NY2d 991.) VII. Affirming the decision below will not deprive respondent of any due process rights. (Martin v Camp, 219 NY 170; Consolidated Theatres v Warner Bros. Circuit Mgt. Corp., 216 F2d 920; Nichols v Village Voice, 99 Misc 2d 822.)

      Fried, Frank, Harris, Shriver & Jacobson, New York City (Howard W. Goldstein and Stuart M. Altman of counsel), for New York Council of Defense Lawyers, amicus curiae.

    The use of nonrefundable retainers and minimum fee agreements is not per se unethical, but rather should be subject to a case-by-case analysis. (Martin v Camp, 219 NY 170; Jacobson v Sassower, 66 NY2d 991; Wittenberg Distribs. v Kuhns Bros. & Laidlaw, 151 AD2d 978; Heinike Assocs. v Liberty Natl. Bank, 142 AD2d 929; Gross v Russo, 47 AD2d 655.)

      Archibald R. Murray, Albany, and Steven Finell for New York State Bar Association, amicus curiae.

    I. Nonrefundable retainer agreements are not unlawful or unethical per se, but should be judged according to the reasonableness of their terms when entered into and when applied. (Jacobson v Sas

      sower, 66 NY2d 991; Greene v Greene, 56 NY2d 86; Matter of First Natl. Bank v Brower, 42 NY2d 471; Heinike Assocs. v Liberty Natl. Bank, 142 AD2d 929; Gross v Russo, 47 AD2d 655; Joel R. Brandes, P. C. v Zingmond, 151 Misc 2d 671.) II. In suspending a lawyer from practice for two years for violating a theretofore unstated rule, the Court below exposes lawyers to discipline for conduct that, when committed, complied with the Code as construed in reported precedents. (Gross v Russo, 47 AD2d 655; Jacobson v Sassower, 66 NY2d 991.)

      Malvina Nathanson, New York City, and Lawrence S. Goldman for New York State Association of Criminal Defense Lawyers and another, amici curiae.

    The Court below erred in suspending an attorney for conduct not previously deemed to be unethical, and in ruling that all nonrefundable fee agreements are improper. (Jacobson v Sassower, 107 AD2d 603; Gross v Russo, 47 AD2d 655; Heinike Assocs. v Liberty Natl. Bank, 142 AD2d 929; Wittenberg Distribs. v Kuhns Bros. & Laidlaw, 151 AD2d 978; United States v James, 708 F2d 40.)
   OPINION OF THE COURT

Bellacosa, J.

The issue in this appeal is whether the appellant attorney violated the Code of Professional Responsibility by repeatedly using special nonrefundable retainer fee agreements with his clients. Essentially, such arrangements are marked by the payment of a nonrefundable fee for specific services, in advance and irrespective of whether any professional services are actually rendered. The local Grievance Committee twice warned the lawyer that he should not use these agreements. After a third complaint and completion of prescribed grievance proceedings, the Appellate Division suspended the lawyer from practice for two years. It held that the particular agreements were per se violative of public policy. We affirm the order of the Appellate Division.

L

In 1990, the petitioner, Grievance Committee for the Tenth Judicial District, initiated a disciplinary proceeding charging attorney Cooperman with 15 specifications of professional misconduct. They relate to his use of three special nonrefundable retainer fee agreements.

The first five charges derive from a written fee agreement to represent an individual in a criminal matter. It states: "My minimum fee for appearing for you in this matter is Fifteen Thousand ($15,000.00) Dollars. This fee is not refundable for any reason whatsoever once I file a notice of appearance on your behalf’. One month after the agreement, the lawyer was discharged by the client and refused to refund any portion of the fee. The client filed a formal complaint which the Grievance Committee forwarded to Cooperman for a response. Cooperman had already received a Letter of Caution not to use nonrefundable retainer agreements, and while this new complaint was pending, Cooperman was issued a second Letter of Caution admonishing him not to accept the kind of fee arrangement at issue here. He rejected the admonition, claiming the fee was nonrefundable.

Charges 6 through 10 refer to a written retainer agreement in connection with a probate proceeding. It states in pertinent part: "For the minimal pee and non-refundable amount of Five Thousand ($5,000.00) Dollars, I will act as your counsel”. The agreement further provided: "This is the minimum fee no matter how much or how little work I do in this investigatory stage * * * and will remain the minimum fee and not refundable even if you decide prior to my completion of the investigation that you wish to discontinue the use of my services for any reason whatsoever.” The client discharged Cooperman, who refused to provide the client with an itemized bill of services rendered or refund any portion of the fee, citing the unconditional nonrefundable fee agreement.

The last five charges relate to a fee agreement involving another criminal matter. It provides: "The minimum fee for Mr. Cooperman’s representation * * * to any extent whatsoever is Ten Thousand ($10,000.00) Dollars. * * * The above amount is the minimum fee and will remain the minimum fee no matter how few court appearances are made * * *. The minimum fee will remain the same even if Mr. Cooperman is discharged.” Two days after execution of the fee agreement, the client discharged Cooperman and demanded a refund. As with the other clients, he demurred.

Cooperman’s persistent refusals to refund any portion of the fees sparked at least three separate client complaints to the Grievance Committee. In each case, Cooperman answered the complaint but refused the Grievance Committee’s suggestion for fee arbitration. Thereafter, the Grievance Committee sought authorization from the Appellate Division, Second Department, to initiate formal disciplinary proceedings against Cooperman. It tendered an array of arguments that these retainer agreements are unethical because, first, they violate the lawyer’s obligation to "refund promptly any part of a fee paid in advance that has not been earned” (Code of Professional Responsibility DR 2-110 [A] [3]). Further, the agreements create "an impermissible chilling effect upon the client’s inherent right upon public policy grounds to discharge the attorney at any time with or without cause,” in violation of DR 2-110 (B) (4). The petition also alleged that the fees charged by Cooperman were excessive in violation of DR 2-106 (A), and that he wrongfully refused to refund unearned fees in violation of DR 2-110 (A) (3). Finally, it notes that denominating the fee payment as nonrefundable constitutes misrepresentation (DR 1-102 [A] [4]).

After an extensive hearing, the Referee made findings supporting violations on all 15 charges. On appropriate motion, the Appellate Division confirmed the Referee’s report with respect to charges 2 through 5, 7 through 10, and 12 through 15. The Court disaffirmed the report as to charges 1, 6 and 11, which alleged that the retainer agreements constituted deceit and misrepresentation. In sustaining the remaining charges, the Court held that these retainer agreements were unethical and unconscionable and "violative of an attorney’s obligations under the Code of Professional Responsibility to refund unearned fees upon his or her discharge” (187 AD2d 56, 57). The Court also concluded that Cooperman’s fees were excessive. The Court suspended him from the practice of law for a period of two years but did not order restitution.

IL

Whether special nonrefundable retainer fee agreements are against public policy is a question we left open in Jacobson v Sassower (66 NY2d 991, 994), a fee dispute case. We agree with the Appellate Division in this disciplinary matter that special nonrefundable retainer fee agreements clash with public policy and transgress provisions of the Code of Professional Responsibility (see, DR 2-110 [A] [3]; [B] [4]; 2-106 [A]), essentially because these fee agreements compromise the client’s absolute right to terminate the unique fiduciary attorney-client relationship.

The particular analysis begins with a reflection on the nature of the attorney-client relationship. Sir Francis Bacon observed, "[t]he greatest trust between [people] is the trust of giving counsel” (Bacon, Of Counsel, in The Essays of Francis Bacon, at 181 [1846]). This unique fiduciary reliance, stemming from people hiring attorneys to exercise professional judgment on a client’s behalf — "giving counsel” — is imbued with ultimate trust and confidence (see, Rosner v Paley, 65 NY2d 736, 738; Greene v Greene, 56 NY2d 86, 92). The attorney’s obligations, therefore, transcend those prevailing in the commercial market place (compare, Meinhard v Salmon, 249 NY 458, 463, 464). The duty to deal fairly, honestly and with undivided loyalty superimposes onto the attorney-client relationship a set of special and unique duties, including maintaining confidentiality, avoiding conflicts of interest, operating competently, safeguarding client property and honoring the clients’ interests over the lawyer’s (see, Matter of Kelly, 23 NY2d 368, 375-376; see also, Brickman and Cunningham, Nonrefundable Retainers Revisited, 72 NC L Rev 1, 6 [1993]). To the public and clients, few features could be more paramount than the fee — the costs of legal services (see, Jacobson v Sassower, 66 NY2d 991, 993, supra). The Code of Professional Responsibility reflects this central ingredient by specifically mandating, without exception, that an attorney "shall not enter into an agreement for, charge, or collect an illegal or excessive fee” (DR 2-106 [A]), and upon withdrawal from employment "shall refund promptly any part of a fee paid in advance that has not been earned” (DR 2-110 [A] [3]). Accordingly, attorney-client fee agreements are a matter of special concern to the courts and are enforceable and affected by lofty principles different from those applicable to commonplace commercial contracts (see, Matter of Schanzer, 7 AD2d 275, affd 8 NY2d 972; Martin v Camp, 219 NY 170).

Because the attorney-client relationship is recognized as so special and so sensitive in our society, its effectiveness, actually and perceptually, may be irreparably impaired by conduct which undermines the confidence of the particular client or the public in general. In recognition of this indispensable desideratum and as a precaution against the corrosive potentiality from failing to foster trust, public policy recognizes a client’s right to terminate the attorney-client relationship at any time with or without cause (see, Matter of Dunn, 205 NY 398, 402; Tenney v Berger, 93 NY 524; DR 2-110 [B] [4]). This principle was effectively enunciated in Martin v Camp (219 NY 170, supra): "The contract under which an attorney is employed by a client has peculiar and distinctive features * * * [thus] [Notwithstanding the fact that the employment of an attorney by a client is governed by the contract which the parties make * * * the client with or without cause may terminate the contract at any time” (id., at 172-174; compare, Denburg v Parker Chapin Flattau & Klimpl, 82 NY2d 375; Cohen v Lord, Day & Lord, 75 NY2d 95 [dealing conversely with economic consequences affecting the unfettered right to hire an attorney]).

The unqualified right to terminate the attorney-client relationship at any time has been assiduously protected by the courts (see, Demon, Morris, Lenin & Shein v Glantz, 53 NY2d 553; Andrewes n Haas, 214 NY 255; see also, Matter of Krooks, 257 NY 329, 331; Matter of Snyder, 190 NY 66, 69). An attorney, however, is not left without recourse for unfair terminations lacking cause. If a client exercises the right to discharge an attorney after some services are performed but prior to the completion of the services for which the fee was agreed upon, the discharged attorney is entitled to recover compensation from the client measured by the fair and reasonable value of the completed services (see, Lai Ling Cheng n Modansky Leasing Co., 73 NY2d 454; Teichner n W & J Holsteins, 64 NY2d 977; Matter of Montgomery, 272 NY 323, 326). We have recognized that permitting a discharged attorney "to recover the reasonable value of services rendered in quantum meruit, a principle inherently designed to prevent unjust enrichment, strikes the delicate balance between the need to deter clients from taking undue advantage of attorneys, on the one hand, and the public policy favoring the right of a client to terminate the attorney-client relationship without inhibition on the other” (Demon, Morris, Lenin & Shein v Glantz, 53 NY2d 553, 558, supra, citing Matter of Krooks, 257 NY 329, 332, supra).

Correspondingly and by cogent logic and extension of the governing precepts, we hold that the use of a special nonrefundable retainer fee agreement clashes with public policy because it inappropriately compromises the right to sever the fiduciary services relationship with the lawyer. Special nonrefundable retainer fee agreements diminish the core of the fiduciary relationship by substantially altering and economically chilling the client’s unbridled prerogative to walk away from the lawyer. To answer that the client can technically still terminate misses the reality of the economic coercion that pervades such matters. If special nonrefundable retainers are allowed to flourish, clients would be relegated to hostage status in an unwanted fiduciary relationship — an utter anomaly. Such circumstance would impose a penalty on a client for daring to invoke a hollow right to discharge. The established prerogative which, by operation of law and policy, is deemed not a breach of contract is thus weakened (see, Matter of Krooks, 257 NY 329, supra; Martin v Camp, 219 NY 170, 174, supra). Instead of becoming responsible for fair value of actual services rendered, the firing client would lose the entire "nonrefundable” fee, no matter what legal services, if any, were rendered. This would be a shameful, not honorable, professional denouement. Cooperman even acknowledges that the essential purpose of the nonrefundable retainer was to prevent clients from firing the lawyer, a purpose which, as demonstrated, directly contravenes the Code and this State’s settled public policy in this regard.

Nevertheless, Cooperman contends that special nonrefundable retainer fee agreements should not be treated as per se violations unless they are pegged to a "clearly excessive” fee. The argument is unavailing because the reasonableness of a particular nonrefundable fee cannot rescue an agreement that impedes the client’s absolute right to walk away from the attorney. The termination right and the right not to be charged excessive fees are not interdependent in this analysis and context. Cooperman’s claim, in any event, reflects a misconception of the nature of the legal profession by turning on its head the axiom that the legal profession "is a learned profession, not a mere money-getting trade” (ABA Formal Opn No. 250).

DR 2-110 (A) and (B) of the Code of Professional Responsibility add further instruction to our analysis and disposition:

"Withdrawal from Employment
"(A) In general. * * *
"(3) A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned.
"(B) Mandatory withdrawal.
"A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment, if: * * *
"(4) [The lawyer] is discharged by [the] client.”

We believe that if an attorney is prohibited from keeping any part of a prepaid fee that has not been earned because of discharge by the client, it is reasonable to conclude also that an attorney may not negotiate and keep fees such as those at issue here. In each of Cooperman’s retainer agreements, the Appellate Division found that the lawyer transgressed professional ethical norms. The fee arrangements expressed an absoluteness which deprived his clients of entitlement to any refund and, thus, conflicted with DR 2-110 (A) (3).

Since we decide the precise issue in this case in a disciplinary context only, we imply no views with respect to the wider array of factors by which attorneys and clients may have fee dispute controversies resolved. Traditional criteria, including the factor of the actual amount of services rendered, will continue to govern those situations (see, DR 2-106 [B]). Thus, while the special nonrefundable retainer agreement will be unenforceable and may subject an attorney to professional discipline, quantum meruit payment for services actually rendered will still be available and appropriate.

Notably, too, the record in this case contradicts Cooper-man’s claim that he acted in "good faith”. He urges us to conclude that he "complied with the limited legal precedents at the time.” The conduct of attorneys is not measured by how close to the edge of thin ice they skate. The measure of an attorney’s conduct is not how much clarity can be squeezed out of the strict letter of the law, but how much honor can be poured into the generous spirit of lawyer-client relationships. The "punctilio of an honor the most sensitive” (Meinhard v Salmon, 249 NY, at 464, supra) must be the prevailing standard. Therefore, the review is not the reasonableness of the individual attorney’s belief, but, rather, whether a "reasonable attorney, familiar with the Code and its ethical strictures, would have notice of what conduct is proscribed” (Matter of Holtzman, 78 NY2d 184, 191). Cooperman’s level of knowledge, the admonitions to him and the course of conduct he audaciously chose do not measure up to this necessarily high professional template. He even acknowledged at his disciplinary hearing that he knew that "there were problems with the nonrefundability of retainers”. Cooperman’s case, therefore, constitutes a daring test of ethical principles, not good faith. He failed the test, and those charged with enforcing transcendent professional values, especially the Appellate Divisions, ought to be sustained in their efforts.

Our holding today makes the conduct of trading in special nonrefundable retainer fee agreements subject to appropriate professional discipline. Moreover, we intend no effect or disturbance with respect to other types of appropriate and ethical fee agreements (see, Brickman and Cunningham, Nonrefundable Retainers Revisited, 72 NC L Rev 1, 6 [1993]). Minimum fee arrangements and general retainers that provide for fees, not laden with the nonrefundability impediment irrespective of any services, will continue to be valid and not subject in and of themselves to professional discipline.

The Court is also mindful of the arguments of some of the amici curiae concerned about sweeping sequelae from this case in the form of disciplinary complaints or investigations that may seek to unearth or examine into past conduct and to declare all sorts of unobjectionable, settled fee arrangements unethical. We are confident that the Appellate Divisions, in the highest tradition of their regulatory and adjudicatory roles, will exercise their unique disciplinary responsibility with prudence, so as not to overbroadly brand past individualized attorney fee arrangements as unethical, and will, instead, fairly assess the varieties of these practices, if presented, on an individualized basis. Therefore, we decline to render our ruling prospectively, as requested (see, Schaefer, The Control of "Sunbursts": Techniques of Prospective Overruling, Cardozo Memorial Lecture, delivered before the Association of the Bar of the City of New York [Apr. 13, 1967], reprinted in 22 Record of Assn of Bar of City of NY 394, 403, 407-408; Great N. Ry. v Sunburst Co., 287 US 358, 364-365).

We have examined appellant’s other contentions and conclude that they are without merit.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Judges Simons, Smith, Levine and Ciparick concur; Chief Judge Kaye and Judge Titone taking no part.

Order affirmed, with costs.