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conclusion that petitioner controlled the earning of the item in
question, notwithstanding that the New York court ordered that it
be paid to Hester. In its order (the order), the New York court
called the item an attorney's fee and stated that petitioner had
waived his right to the fee. If the item were not an attorney's
fee, why would the New York court describe it as such and speak
of a waiver? Petitioner was not a party to the malpractice
action. The only possible claim he had to any proceeds was for
services rendered as an attorney. If he had not rendered those
services, and was not entitled to a fee, then any discussion of a
waiver makes no sense. Yes, it is possible that petitioner (or
Hester) had negotiated a reduced, one-half, fee arrangement with
the Lipsig firm, and the waiver was simply the way that
arrangement was carried out. We do not, however, believe that.
Under New York law, attorney's fees in an action involving an
infant are fixed not by the attorney's contract or retainer
agreement but by the court, and any agreement of the guardian is
advisory only. N.Y. Jud. sec. 474 (McKinney 1983); Werner v.
Levine, 276 N.Y.S.2d 269, 271 (Sup. Ct. 1967). Under New York
law, in a action involving a minor, a settlement is ineffective
without a court order. N.Y. Civ. Prac. L. & R. sec. 1207
(McKinney 1976 & Supp. 1995); Valdimer v. Mount Vernon Hebrew
Camps, Inc., 210 N.Y.S.2d 520 (1961). Affidavits of the infant's
representative and attorney, if any, must accompany the papers
supporting the motion or petition for an order. N.Y. Civ. Prac.
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