OPINION OF THE COURT
Judgment entered March 24, 1982 is affirmed, with $25 costs.
The plaintiff, under a retainer agreement dated June 6, 1977, retained the defendant attorney, and her “associates”, to represent him in proceedings arising out of his marital difficulties. The June 6,1977 agreement was in the form of letter from the plaintiff to the defendant and was printed on the letterhead of a law firm with which defendant was then associated. Paragraph 1 of the retainer agreement provided that defendant’s fee for representing the plaintiff was to be billed at $100 per hour, with the understanding that the ultimate fee might also reflect the
While the employment of an attorney by a client is largely governed by the contractual provisions of the retainer, elements of trust and confidence endemic in the attorney/client relationship add a dimension to the retainer beyond the terms of the retainer agreement. Thus it has consistently been held in this jurisdiction that irrespective of the express terms of employment, a client may at any time, for any reason, or without any reason, discharge his attorney (Gair v Peck, 6 NY2d 97; Martin v Camp, 219 NY 170). A necessary corollary of the rule that a client has an unfettered right to discharge his attorney at any time and for any reason is that the client, upon discharging his attorney, cannot be held liable for damages for breach of contract (Gair v Peck, supra; Martin v Camp,
The arguments made by defendant on appeal are similar to those made in the court below. She claims that the propriety of “nonrefundable” retainer agreements is demonstrated by their widespread use, especially among attorneys practicing matrimonial and criminal law. Defendant contends that since there is some authority for the proposition that legal fees, once paid to an attorney, may not be recovered by a client who has discharged the attorney without cause, at least where that was the implicit intent of the parties (citing Fellner v Zuckerberg, 202 Misc 611; Riehl v Levy, 43 Misc 59; Gross v Russo, 47 AD2d 655), it necessarily follows that where parties have, as here, expressly “agreed” to a “nonrefundable” retainer, that express agreement should be enforced. Defendant further argues that a “nonrefundable” retainer agreement provides an attorney with a permissible “minimum fee”, consideration for which is the attorney’s commitment to the client of availability. Indeed defendant suggests that the willingness to pay such a minimum fee makes it possible for a client to retain an attorney of particular renown and reputation.
That so-called “nonrefundable” retainer agreements are widely used by certain segments of the Bar is hardly dispositive of the issue now before this court. Defendant has cited no case in which the enforceability of a “nonrefundable” retainer provision was at issue, and we find none. We do not believe that Gross v Russo (supra), Fellner v Zuckerberg (supra) and Riehl v Levy (supra) are disposi
We view unenforceable any contractual provision which constrains a client from exercising his right to freely discharge his attorney. A retainer provision which requires a client to pay for legal services in advance, and which permits the attorney to retain the advance payment irrespective of whether the services contemplated are rendered, necessarily has a chilling effect upon a client’s right to freely discharge his attorney. Indeed the larger the amount of the so-called “nonrefundable” retainer, the more securely is the client held hostage to that payment.
Moreover, a “nonrefundable” retainer may be viewed as a mechanism for liquidating damages for discharging an attorney at the amount by which the payment made on account exceeds the actual value of legal services rendered. Since, as noted above, a client will not be cast in damages for discharging his attorney, imposition of damages in the form of a forfeited payment on account is unacceptable.
The court below in concluding that the reasonable value of the legal services rendered by the defendant was only $1,000, necessarily determined that the balance of the plaintiff’s $2,500 payment to the defendant, i.e., $1,500,
Accordingly, the judgment appealed from should be affirmed.