Oneida Indian Nation v. County of Oneida (802 F. Supp. 2d 395, 2011)

Citations

802 F. Supp. 2d 395

Full opinion text

DECISION and ORDER

LAWRENCE E. KAHN, District Judge.

I. Introduction

This matter comes before the Court following a Report-Recommendation (“R & R”) filed on February 18, 2001 by the Honorable Randolph F. Treece, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3 of the Northern District of New York. Dkt. No. 624/122. Judge Treece’s R & R addresses Bond, Schoeneck & King’s (“BSK”) Motion to have the Court recognize its right to a fee pursuant to the Retainer Agreement and charging lien in connection with its previous representation of the Oneida Nation. Dkt. No. 130/55. After fourteen days from the service thereof, the Clerk has sent the entire file to the undersigned, including the Objection to Report and Recommendations by BSK, which was filed on March 4, 2011, and the Objection of Bertram E. Hirsch (“Mr. Hirsch”), which was filed on March 25, 2011. Objection to Report and Recommendations by Bond, Schoeneck, & King (“BSK’s Objection”) (Dkt. No. 625/136); Objection to Report and Recommendations by Attorney Bertram E. Hirsch (“Hirsch’s Objection”) (Dkt. No. 631/129). Responses were filed on March 23, 2011. Dkt. Nos. 629/127 and 630/128. Additionally, the Oneida Indian Nation of New York has filed a Motion to strike BSK’s Objection because it was not filed under seal. Dkt. No. 632/130.

II. Discussion

A. Motion to Strike

Plaintiff Oneida Indian Nation of New York (“NY Oneida”) has moved pursuant to Fed.R.Civ.P. 12(f) and 37(c), Local Rule 1.1(d), and the Court’s inherent authority, to strike BSK’s Objections. NY Oneida argues that BSK’s Objection should be stricken because BSK filed this document in violation of the sealing order entered in these cases, and then failed to ask the Court to correct the error. Dkt. No. 645/130.

While the Court cautions BSK to be more diligent in its procedures for honoring its obligations to file under seal in future cases, it does not find that striking BSK’s Objection to the R & R is appropriate in this case. Whether to grant a Rule 12(f) motion “is within the district court’s discretion”; however, such motions “are disfavored and not routinely granted.” Holmes v. Fischer, No. 09-CV-00829S(F, 2011 WL 32550), at *6, 2011 U.S. Dist. LEXIS 831, at *14 (W.D.N.Y. Jan. 4, 2011). Imposing sanctions based on the Court’s inherent power is also generally disfavored:

In order to impose sanctions pursuant to its inherent power, a finding of bad faith is necessary. Awards should be imposed based on clear evidence that the challenged actions are entirely without color, and are taking for reasons of harassment or delay or for other improper purposes and such sanctions require ‘a high degree of specificity in factual findings.’

Rivera v. Sharp, 2010 WL 2555065, at *4, 2010 U.S. Dist. LEXIS 62556, at *4 (D.V.I. June 21, 2010) (quoting Wolters Kluwer Fin. Srvcs., Inc. v. Scivantage, 525 F.Supp.2d 448, 539 (S.D.N.Y.2007). BSK’s failure to file under seal was accidental, it attempted to contact the Clerk’s office and opposing counsel regarding its mistake, the R & R had already been filed publicly and outlined the parties’ dispute over attorney’s fees, and BSK’s Objection contained little or no confidential or embarrassing information. See generally BSK’s Memorandum in opposition to N.Y. Oneida’s motion to strike (Dkt. No. 633/131); R & R); and BSK’s Objection. The Court does not find that BSK’s failure to file its Objection under seal rises to the level of bad faith or involves otherwise compelling circumstances, and therefore it exercises it denies the Motion to strike BSK’s Objection.

B. Report-Recommendation

1. BSK’s Objection to the Report-Recommendation

This Court is to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b). “A [district] judge ... may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. Where, however, an objecting “ ‘party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error.’ ” Farid v. Bouey, 554 F.Supp.2d 301, 307 (N.D.N.Y.2008) (quoting McAllan v. Von Essen, 517 F.Supp.2d 672, 679 (S.D.N.Y.2007) (citations and quotations omitted)); see also Brown v. Peters, No. 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997). “A [district] judge ... may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

BSK specifically objects to section IV of Magistrate Judge Treece’s R & R which awarded BSK attorneys’ fees in these Oneida land claim cases. Judge Treece awarded BSK $5,174.54 of the $57,494.54 that Plaintiffs recovered from Defendants. R & R at 56. BSK objects to Magistrate Judge Treece’s award on the ground that it is entitled to a larger fee “based upon the value of the recovery that has been achieved.” BSK’s Objection at 20. Rather than arguing that it is entitled to more of the money awarded in the judgment in No. 70-CV-35, BSK contends that its contingent fee in the Oneida land claim recovery includes Oneida Nation of York businesses, including a casino established under a gaming compact approved by the Secretary of the Interior in 1993, as well as to any value created by a trust land decision made by the Department of Interior in 2008. Id. at 14-15. BSK argues that everything the Oneida Nation has gained as a result of the legal principle underlying the $57,494.54 damage award, namely that a 1795 purchase of some Oneida lands by New York was invalid because it violated federal law, should be included it the “amount recovered” under the Retainer Agreement. Id. at 3, 15, 20.

The Court has considered BSK’s Objection, has undertaken a de novo review of the record, and has determined that the R & R should be approved. With respect to BSK’s argument that the term “recovery” should include relief not contained in the final judgment, such as income generated by the Oneida Casino, the Court notes that BSK fails to cite any ease in which a contingent fee interest was extended beyond the award contained in a final judgment resolving the litigation or beyond the terms of a settlement. See Universal Acupuncture Pain Servs., P.C. v. Quadrino & Schwartz, P.C., 370 F.3d 259, 264 (2d Cir.2004) (holding that attorney’s fees in quantum meruit could be appropriate where the client settled without a monetary award, if the attorney was fired by the client without cause and prior to the completion of litigation); Pueblo of Santo Domingo v. United States, 54 Fed.Cl. 240, 245 (2002) (holding that counsel for an Indian tribe were entitled to the maximum allowable percentage of the tribe’s recovery in a settlement it reached with the United States); Stein v. U.S. Bancorp, No. 10-14026, 2011 WL 740537, at *3-4, 2011 U.S. Dist. LEXIS 18357, at *9 (E.D.Mich. Feb. 24, 2011) (including a pre-judgment payment from defendant to plaintiff in calculating an attorney’s fee because that payment was credited toward the Court’s judgment); Dewey v. Volkswagen of America, 728 F.Supp.2d 546 (D.N.J.2010) (valuing a class-action settlement that included non-cash benefits such as free repairs); McCoy v. Health Net, Inc., 569 F.Supp.2d 448 (D.N.J.2008) (valuing non-cash benefits in another class-action settlement, such as the ability of consumers to obtain free credit reports); Western Shoshone Identifiable Grp. v. United States, 228 Ct.Cl. 26, 652 F.2d 41, 47-48 (1981) (affirming an attorney’s fee that constituted 10% of the award obtained in litigation based upon the application of a multi-factor test). Judge Treece specifically addressed this argument by stating that “the Retainer Agreement neither explicitly or implicitly embraces that interpretation” and that “[t]he Court cannot imagine what all of this would portend in terms of a fee.” R & R at 437.

In determining the applicable law, Judge Treece correctly stated that the Second Circuit has rejected the proposition “that [the] statutory requirements governing federal approval of certain contracts between Indians and non-Indians give rise to a federal common law governing such contracts.” Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747, 753 (2d Cir.1996) (citing Gila River Indian Cmty. v. Henningson, Durham & Richardson, 626 F.2d 708, 714-15 (9th Cir.1980)). Magistrate Judge Treece also correctly concluded that, in the absence of a federal common law governing contracts between Indians and non-Indians, state contract law must be applied to the extent that federal Indian law does not override it. Niagara Mohawk Power Corp., at 747.

However, rather than relying on contract law principles in its Objection, BSK cites cases on common fund fee awards in class action lawsuits, fee awards in tribal claims against the federal government, and other statutory fee awards. BSK’s Objection at 15-19. These cases are not applicable when a contingency fee agreement governs attorneys’ fees. Niagara Mohawk Power Corp. at 747. Under New York law, when a term in a fee agreement between an attorney and a client is ambiguous, the New York Court of Appeals has held that “[w]hile, in the law generally, equivocal contracts will be construed against the drafters, courts as a matter of public policy give particular scrutiny to fee arrangements between attorneys and clients, casting the burden on attorneys who have drafted the retainer agreements to show that the contracts are fair, reasonable, and fully known and understood by their clients.” Shaw v. Mfrs. Hanover Trust Co., 68 N.Y.2d 172, 176, 507 N.Y.S.2d 610, 499 N.E.2d 864 (1986).

The Retainer Agreement itself does not expressly state that BSK is entitled to recover casinos, trust land, or anything that the Oneida tribes came by outside of a land claim settlement or judgment. Dkt. No. 630/128, Ex. A. Instead, the Retainer Agreement states, “The compensation of the Attorneys for the services to be rendered under the terms of this contract is to be wholly contingent upon a recovery for the Nation from the State of New York, or any political sub-division or department to it.” Id. at 2. The Retainer Agreement goes on to specify the percentages that BSK is entitled to for “amounts recovered by the Nation from the State of New York or any political subdivision, or instrumentality, or agency thereof on account of such claim as a result of or through the instrumentality of attorney’s services, advice or assistance.” Id. Nowhere in the fee agreement is the term “amounts recovered” defined or is its meaning delineated. Finally, in the context of a contingency arrangement between a client and an attorney, the plain meaning of “amounts recovered” might not include revenue generated by the client outside of recovery obtained through a settlement or final judgment.

It follows, therefore, that BSK can only recover if it proves that it advised its client before making the fee agreement that the term “amounts recovered” might give BSK an interest in these items. To the contrary, there are indications in the record that BSK advised its client that its fees would be limited to money damages: in its reply memorandum, BSK stated that the Oneida Nation sought counsel to secure “monetary compensation” and that the firm pursued “narrow relief’ in the form of the land’s “rental value.” Dkt. No. 472 (Test Case document). Furthermore, BSK’s expert attached documents in which BSK advised the Oneida Nation that the aim of the litigation was to get “money damages” and that BSK “would receive no compensation for our services unless we succeeded in collecting something.” Dkt. No. 143 (Reservation Case document).

Based upon the foregoing, the Court finds that BSK has not proven that it advised its client that “recovery” or “amounts recovered” would include revenue generated by political and business agreements, such as the licensing and establishment of a casino, that were completely apart from the damages or settlement obtained in the lawsuits. And because BSK has not carried its burden of showing that its client fully knew and understood that the term “amounts recovered” included revenue generated separately from a judgment or settlement, the term “amounts recovered” must be construed against the attorney who drafted it. Thus, Magistrate Judge Treece was correct to construe “amounts recovered” to include only the recovery obtained in the Test Case against the State of New York.

BSK also argues that Magistrate Judge Treeee’s calculation of a fee award was premature and that BSK was entitled to an evidentiary hearing on the amount of the fee. BSK’s Objection at 1, 3, 8. However, the Court notes that BSK has failed to ask the Court to receive further evidence, and furthermore, the Court finds that BSK has failed to proffer any proof that it could have offered in support of a greater fee. See 28 U.S.C. 636(b)(1) (in BSK’s Objections, it could have asked the Court to “receive further evidence”). Instead, BSK has not offered, or referenced in its submissions, any new evidence in support of a greater fee. The Court has considered BSK’s Objection and has undertaken a de novo review of the record, and it has determined that the R & R should be approved.

C. Mr. Hirsch’s Objections to the Report-Recommendation

Mr. Hirsch does not object to the legal conclusions contained in Magistrate Judge Treece’s R & R, but rather, attempts to correct two factual errors he asserts are contained in the R & R. Hirsch Objection. First, the R & R contains a reference to Mr. Hirsch being the plaintiffs attorney in Homer v. Halbritter, 158 F.R.D. 236 (N.D.N.Y.1994). R & R at 44. Shortly thereafter, the R & R makes reference to a 1993 letter written by George Shattuck, in which it is claimed that Mr. Hirsch was then representing the Oneida Indian Nation of New York. Id. It would appear that Mr. Hirsch objected to the R & R in order to correct this error. Upon reviewing the counsel listed in Homer, the Court notes that Mr. Hirsch does not appear to have been an attorney in that case. Id. The Court may not amend or correct the R & R in this respect, because it is limited to the record before it, and the record contains a document that lists Mr. Hirsch as an attorney in Homer. Smith Deck, Ex. 45. However, insofar as the R & R stated that Mr. Hirsch was attorney in that case, the Court notes that the R & R may have been in error.

III. Conclusion

Accordingly, it is hereby:

ORDERED, that the R & R (Dkt. No. 624/122) is APPROVED and ADOPTED in its ENTIRETY; and it is further

ORDERED, that BSK’s Motion to have the Court recognize its right to a fee (Dkt. No. 130/54) is GRANTED to the extent outlined in Magistrate Judge Treece’s R & R (Dkt. No. 624/122); and it is further

ORDERED, that the Clerk serve a copy of this Order on all parties.

IT IS SO ORDERED.

REPORT-RECOMMENDATION and ORDER

RANDOLPH F. TREECE, United States Magistrate Judge.

TABLE OF CONTENTS

I. BACKGROUND...........................................................405

A. Brief History of the Cases...............................................405

B. The Retainer Agreement................................................408

C. Summary of Arguments.................................................409

II. JURISDICTION...........................................................410

A. Federal Subject Matter Jurisdiction......................................410

B. Applicable Law........................................................411

C. Specific Jurisdiction....................................................412

1. Specific Jurisdiction Under the Retainer Agreement....................413

a. Paragraph 10 of the Retainer Agreement..........................413

i. Whether the Retainer Agreement was Terminated..............413

ii. Whether the Motion is Untimely..............................416

b. Paragraph 5 of the Retainer Agreement...........................416

2.Sovereign Immunity................................................417

III. PROFESSIONAL ETHICS AND BSK’S RIGHT TO A FEE ...................417

A. The N.Y. and WI Oneida’s Pre-1978 Ethical Claims ........................418

1. Conflicts of Interest and Failure to Disclose............................418

a. Ethical Standards...............................................418

b. Application of Ethical Standards..................................419

2. BSK’s Withdrawal..................................................426

3. BSK Prevented the Nation from Seeking Other Attorneys...............428

B. The N.Y. Oneida’s Post-1978 Ethical Claims...............................429

1. Findings of Fact....................................................429

2. Application of Ethical Standards......................................431

3. Effect of BSK’s Improper Representation..............................435

IV. CALCULATION OF FEES.................................................436

V. CONCLUSION............................................................437

Presently before the Court is Bond, Schoeneck & King, PLLC’s (hereinafter “BSK”) Motion to Have the Court Recognize Its Right to a Fee Pursuant to Retainer Agreement and Charging Lien in connection with its previous representation of the Oneida Nation. Test Case Dkt. No. 55, Mot. for Att’y Fees; Reservation Case Dkt. No. 130, Mot. for Att’y Fees. Plaintiffs Oneida Indian Nation of New York (hereinafter “NY Oneidas”) and the Oneida Indian Nation of Wisconsin (hereinafter “WI Oneidas”) filed a Joint Opposition to the Motion, Test Case Dkt. No. 109, and in addition, the N.Y. Oneidas filed a Separate Brief in Opposition, Test Case Dkt. No. 108. BSK filed a Reply to both the Joint Opposition and the N.Y. Oneidas’ Separate Brief. Test Case Dkt. No. 112. For the reasons that follow, it is recommended that BSK’s Motion be granted in part.

I. BACKGROUND-

A. Brief History of the Cases

In 1795, New York State purchased approximately 100,000 acres of the Oneidas’ Reservation land without federal authorization and therefore in violation of the Non-Intercourse Act of 1790. Oneida Indian Nation v. County of Oneida, 434 F.Supp. 527 (D.C.N.Y.1977), aff'd in part, rev’d in part, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985). In 1966, nearly two centuries later, the NY, WI, and Thames Band of Oneidas from Canada (hereinafter “CAN Oneidas”) entered into a Retainer Agreement with BSK for the purpose of seeking compensation for Oneida lands that had been illegally purchased. Test Case Dkt. No. 56, George C. Shattuck, Esq., Deck, dated May 20, 1999, at ¶¶ 6 & 10.

At the time the Retainer Agreement was entered into, the legal landscape for Native-American land claims in New York was decidedly unfavorable towards would-be Native-Ameriean plaintiffs. On the state side, New York courts had generally refused to hear Native-Ameriean land claims, see Shattuck Deck at ¶ 47 (citing cases); on the federal side, the doctrine known as the “well-pleaded complaint rule,” which barred federal courts from exercising jurisdiction over Native-American claims that could be brought in state court, amounted to a tested and predictable roadblock, see Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218 (1914); Shattuck Deck at ¶ 50. Upon researching the viability of the Oneida’s potential claims, BSK identified the reality of this legal predicament, but nevertheless saw merit in the Oneidas’ claim that New York State’s purchase of Oneida lands violated the Federal Non-Intercourse Act of 1790. Shattuck Deck at ¶¶ 8 & 26.

BSK’s strategy was essentially threefold: (1) petition state and federal governmental agencies for a settlement; (2) if those petitions fail, persuade the United States to file suit against New York State on the Oneidas’ behalf; and (3) if the prior two options fail, sue the State of New York directly. Id. at ¶¶ 30, 45, & 86. Despite several written and oral petitions to administrative agencies and government officials including the Governor of New York and Presidents Johnson and Nixon, the implementation of the first two phases of BSK’s strategy proved to be futile. Id. at ¶¶ 3(M5. As a consequence, BSK filed a claim in the Northern District of New York on behalf of the N.Y. and WI Oneidas. Id. at ¶¶ 46-54. This lawsuit will be referred to as the “Test Case.”

In the Test Case, the Oneidas sued Madison and Oneida Counties, alleging that New York’s purchase of 100,000 acres of Oneida land in 1795 violated the Non-Intercourse Act, and sought relief in the form of fair rental value for the land for a two-year period, 1968-1969. No private landowners were sued in the Test Case. According to George Shattuck, BSK’s lead attorney on the Oneida Test case during the time period relevant to this Motion, “[t]he premise [of the lawsuit] was that the Oneidas still owned the land and were entitled to rent from its governmental occupants.” Id. at ¶ 52.

The Honorable Edmund Port, United States District Judge, pursuant to the “well-pleaded complaint rule,” dismissed the Test Case complaint for lack of jurisdiction. Id. at ¶ 56. The Oneidas appealed to the Second Circuit Court of Appeals, who, based on this seminal pleading doctrine, affirmed Judge Port’s decision. Oneida Indian Nation of New York v. New York Cnty. of Oneida, 464 F.2d 916, 924 (2d Cir.1972). BSK filed a petition for a writ of certiorari with the Supreme Court on behalf of the Oneidas, which was granted on the sole issue of federal question jurisdiction. Shattuck Decl. at ¶¶ 60 & 63; Oneida Indian Nation of New York v. Cnty. of Oneida, 412 U.S. 927, 93 S.Ct. 2748, 37 L.Ed.2d 153 (1973). In a landmark decision, the Supreme Court unanimously reversed the Second Circuit’s affirmation, holding that the Oneidas’ possessory land claim was based on federal law and therefore the well-pleaded complaint rule posed no jurisdictional barrier to such action in federal court. Oneida Indian Nation of New York v. Cnty. of Oneida, 414 U.S. 661, 781-82, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) (hereinafter “Oneida I”). The case was remanded to the district court for trial.

BSK partners John Freyer and George Shattuck represented the Oneidas at trial. Shattuck Decl. at ¶ 88. Prior to the commencement of the trial, Judge Port agreed to trifurcate the case in order to determine the issues of: (1) liability, i.e., whether the land belonged to the Oneidas; (2) damages; and (3) if damages were found, whether New York State should indemnify the Counties. Shattuck Decl. at ¶ 88. On November 13, 1975, during the first phase of the trial, the CAN Oneidas were admitted as a party-Plaintiffs to the suit. Shat-tuck Decl. at ¶ 98. For the purposes of analyzing this Motion, we will hereinafter refer to the three collective Oneida tribes as “the Nation.” At trial, Judge Port ruled in favor of the Nation on the issue of liability, finding that New York State violated the Non-Intercourse Act when it purchased the lands in question from the Oneidas in 1795. Oneida Indian Nation of New York v. Cnty. of Oneida, 434 F.Supp. 527.

After the Supreme Court’s 1974 landmark ruling in Oneida I, BSK prepared and filed a new complaint on behalf of the Nation in the Northern District of New York, seeking rent and compensation from Oneida and Madison Counties for their use and possession of approximately 300,000 acres of Oneida land acquired in violation of the Non-Intercourse Act. That action will hereinafter be referred to as the “Reservation Case.” Shattuck Decl. at ¶ 110. Then, in 1977, BSK decided to “withdraw from active participation in the Test and Reservation Cases.” Shattuck Decl. at ¶ 133, Exs. 33 & 34. And in 1978, BSK withdrew as counsel of record in both cases. Reservation Case Dkt. No. 131, BSK’s Mem. of Law at p. 10. At that point, liability had been established in the Test Case, but the issue of damages had yet to be resolved. In the Reservation case, dispositive motions had yet to be filed. See generally Dkts. for Test and Reservation Cases.

The trial on the damages phase of the Test Case began in 1981 before Judge Port, who ultimately assessed damages in the amount of $9,060 plus interest at six percent (6 %) per annum against Madison County, and $7,634 plus interest at six percent (6 %) per annum against Oneida County from January 1, 1968. BSK’s Mem. of Law at pp. 8-9. Judge Port’s decisions on liability and damages were appealed to the Supreme Court, which affirmed his rulings, but remanded for a recalculation of damages. Cnty. of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) (hereinafter “Oneida II”). On remand, the case was reassigned to the Honorable Neal P. McCurn, now-Senior United States District Judge, who eventually entered a judgment against Oneida County in the amount of $8,360, and against Madison County in the amount of $9,910, both with a prejudgment interest rate of six percent (6 %) per annum from January 1, 1968. Test Case Dkt. No. 119, Am. J., dated May 6, 2003. Per a stipulation between the parties, the Defendants deposited $57,494.87 with the Clerk of the Court. Test Case Dkt. No. 121 & entries, dated Mar. 9, 2004.

Aside from settlement discussions between the Nation and New York State, the Reservation Case laid dormant until 1998, when the United States Department of Justice (DOJ) intervened on behalf of the Nation. Reservation Case Dkt. No. 56, Order, dated June 2, 1998. After many failed attempts at settlement through mediation, Amended Complaints were filed and dispositive motions were brought before the Honorable Lawrence E. Kahn, now-Senior United States District Court Judge. Judge Kahn granted in part and denied in part the Defendants’ Motions to Dismiss and for Summary Judgment. Oneida Indian Nation of New York v. New York, 194 F.Supp.2d 104 (N.D.N.Y.2002) (denying in part and granting in part motion to dismiss); Oneida Indian Nation of New York v. New York, 500 F.Supp.2d 128 (N.D.N.Y.2007) (denying in part and granting in part motion for summary judgment). The Second Circuit subsequently granted leave to the parties to make interlocutory appeals of Judge Kahn’s orders on the dispositive motions. Reservation Case Dkt. entry, dated July 20, 2007. On January 7, 2011, the Second Circuit issued a Mandate, based upon its August 9, 2010 Opinion, that affirmed in part, reversed in part, and remanded the case back to the District Court for an entry of judgment and resolution of any pending motions. See Reservation Case Dkt. No. 622, Mandate; Oneida Indian Nation of New York v. New York State, 617 F.3d 114 (2d Cir.2010). Accordingly, a Judgment in Defendants’ favor was issued and the case was dismissed. Reservation Case Dkt. No. 623, Judgment, dated Jan. 10, 2011.

B. The Retainer Agreement

The Retainer Agreement placed a duty on BSK to advise and represent the Nation “against the State of New York in respect of their former lands in New York State,” and specified that BSK’s remuneration would be “contingent upon a recovery for the Nation from the State of New York, or any political sub-division or department of it.” Shattuck Deck, Ex. 1, Retainer Agreement, dated June 24, 1966, at ¶¶ 1 & 4. The amount of the contingency fee was set at twenty percent (20%) of any amount recovered up to $1,000,000, and ten percent (10%) of any amount recovered in excess of $1,000,000. Id. at ¶ 5. However, if the DOJ intervened, assumed responsibility for the claim, and was successful, any fee due to BSK would be determined by the Secretary of the Interior “on a quantum meruit basis.” Id.

The Retainer Agreement was submitted to the Secretary of the Interior/Department of the Interior (hereinafter “DOI”) for approval as required by 25 U.S.C. § 81. The Secretary required the implementation of certain revisions to the Retainer Agreement prior to its approval. Paragraph 10 was amended, and Paragraph 13 was added. Amended Paragraph 10 states:

This contract may be terminated on 60 days written notice by the Secretary of the Interior or his authorized representative; or by the Oneida Indian Nation of New York State and the Oneida Tribe of Indians of Wisconsin with the consent of the Secretary of the Interior or his authorized representative; or by the attorneys. If the contract shall be so terminated, except for the wrongdoing or dereliction of the attorneys, the attorneys shall be credited with such share in the attorney fee as the court or tribunal finally determining the Oneidas’ claim may determine to be equitable; provided, that such fee shall be wholly contingent upon a recovery for the Oneidas and; provided further, that if there be a recovery without submission to a court or tribunal then said fee to be in such amount as the Secretary of the Interior or his authorized representative may find to be equitable.

Id., Ex. 1, Am. to Retainer Agreement at ¶ 2 (adding ¶ 10).

Paragraph 13 states: “This agreement shall be in force for a term of ten (10) years beginning with the date of approval by the Secretary of the Interior or his authorized representative.” Id. at ¶ 3 (adding ¶ 13). DOI granted approval of the Agreement on March 28, 1967. Id. The composite parts of the Retainer Agreement finally approved by the Secretary of the Interior will hereinafter be referred to simply as the “Retainer Agreement.” In 1974, three years before the Retainer Agreement was set to expire, upon the agreement of the parties and DOI, the Retainer Agreement was extended for a period of five (5) years, with a new expiration date of March 28, 1982. Test Case Dkt. No. 107, Michael R. Smith, Deck, dated Aug. 15, 2002, Ex. 10, Lt. Approving Extension Agreement, dated Apr. 19,1974.

C. Summary of Arguments

BSK asserts that it is entitled to attorney’s fees pursuant to Paragraph 10 of the Retainer Agreement and New York Judiciary Law § 475, which imposes a charging lien upon a client’s cause of action when that client’s attorney has made an appearance in that action. N.Y. Jud. Law § 475. BSK asserts that, pursuant to its charging lien and the terms of the Retainer Agreement, it is “entitled to an equitable share of the 10% fee that the firm would have received, had it not withdrawn.” BSK’s Mem. of Law at p. 16.

The N.Y. and WI Oneidas argue that BSK is not entitled to any fee because: (1) BSK does not have a valid charging lien pursuant to § 475 because it did not withdraw “for good cause;” (2) § 475 does not apply in this case because it is preempted by 25 U.S.C. § 81 and barred by the doctrine of tribal sovereign immunity; (8) if § 475 does apply, the applicable six (6) year statute of limitations (SOL) bars BSK’s claim; (4) the Retainer Agreement expired by its own terms in 1982 and is not now “in force;” (5) Paragraph 10 of the Retainer Agreement does not apply because BSK never “terminated” the Retainer Agreement, but rather, “withdrew” as the attorneys of record in the Test and Reservation cases; (6) pursuant to Paragraph 5 of the Retainer Agreement, any fee owed BSK must be determined by the Secretary of the Interior because the United States Attorney General intervened in the case in 1998; (7) if Paragraph 10 of the Retainer Agreement applies, BSK has forfeited any fee as a consequence of its alleged unethical conduct which constitutes “wrongdoing or dereliction” under the terms of Paragraph 10; and (8) BSK’s claim is not yet ripe because there has been no final determination of the Nation’s claims. Test Case Dkt. No. 109, Joint Opp’n to Mot. for Att’y Fees at pp. 16-21.

The N.Y. Oneidas also filed a Separate Opposition to BSK’s Motion wherein they accuse BSK of disloyalty and breach of fiduciary duty stemming from alleged acts taken during the 1980’s and early 1990’s. Test Case Dkt. No. 108, Separate Opp’n to Mot. for Att’y Fees. The N.Y. Oneidas argue that as a consequence of those alleged actions, BSK has forfeited any right to attorney’s fees as against the N.Y. Oneidas. Id. at p. 12.

II. JURISDICTION

A. Federal Subject Matter Jurisdiction

Although the Supreme Court has never addressed the issue, it is doubtful that the approval of a contract by the Secretary of the Interior under 25 U.S.C. § 81 by itself creates federal subject-matter jurisdiction in a routine breach of contract claim, because nothing in that statute creates an independent cause of action for a party to such a contract. See Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 862 F.Supp. 995 (W.D.N.Y.1994) (“[Cjlaims based on [a contract] are not converted to federal claims merely because one of the parties to the agreement is an Indian tribe.”); TTEA v. Ysleta del Sur Peublo, 181 F.3d 676, 681 (5th Cir.1999) (“The federal courts do not have jurisdiction to entertain routine contract actions involving Indian tribes.”) (citation omitted); see also Littell v. Nakai, 344 F.2d 486, 488 (9th Cir.1965) (federal court lacked jurisdiction in a breach of contract claim where the contract was approved under 25 U.S.C. § 81 because “the real substance of the controversy centers upon the contract and its construction rather than the statutory basis for the eontract[.]” (citation omitted)); cf. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (holding that the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1341, did not create an independent cause of action against Indian tribes for declarative or injunctive relief).

However, the very terms of the Retainer Agreement give this Court subject matter jurisdiction as does the doctrine of supplemental jurisdiction. Both the Test and Reservation Cases originated in this Court. The Court therefore finds that it has supplemental jurisdiction over this Motion pursuant to 28 U.S.C. § 1367. Itar-Tass Russian News Agency v. Russian Kurier Inc., 140 F.3d 442, 444 (2d Cir.1998) (holding that, pursuant to 29 U.S.C. § 1367, the district court should have exercised supplemental jurisdiction over a claim for attorneys’ fees); see also Louima v. City of New York, 2004 WL 2359943, at *55 (E.D.N.Y. Oct. 5, 2004) (stating that federal courts have “the authority to determine attorney’s fee disputes and regulate attorney’s fee liens”) (internal citation and quotation marks omitted).

B. Applicable Law

As previously noted, BSK seeks recognition of a right to attorney’s fees pursuant to its alleged charging lien and the Retainer Agreement, a contract. Before this Court can make a recommendation as to the rights and responsibilities contained in the Retainer Agreement, it must first determine what law governs. A leading treatise on Indian law from the time the contract was entered into suggests that in most cases, “the ordinary rules of the common law with respect to the execution and interpretation of contracts have been applied [to contracts between Indian tribes and third parties], by common consent of the parties.” Felix S. Cohen, Cohen’s Handbook of Federal Indian Law (1971). No such common consent, in the form of a choice of law clause or otherwise, is present in the Retainer Agreement. For that reason, the N.Y. and WI Oneidas assert that there is no “room to invoke state law to supplement a federally-approved contract,” and that “BSK could have tried to incorporate state law principles in its contract expressly, permitting Interior to approve it or not.” Joint Opp’n at p. 13.

It is settled law that Indian relations fall within “the exclusive province of federal law.” Oneida II, 470 U.S. at 234, 105 S.Ct. 1245. Pursuant to federal law governing Indian relations, the Retainer Agreement was approved by the Secretary of the Interior under 25 U.S.C. § 81. However, nothing in 25 U.S.C. § 81 nor its companion statutes purport to create an entirely separate body of federal common law governing contracts with Indians. See generally 25 U.S.C. § 81 et seq. Indeed, the Second Circuit Court of Appeals has rejected the proposition “that [the] statutory requirements governing federal approval of certain contracts between Indians and non-Indians give rise to a federal common law governing such contracts.” Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747, 753 (2d Cir.1996) (citing Gila River Indian Cmty. v. Henningson, Durham, & Richardson, 626 F.2d 708, 714-15 (9th Cir.1980)); cf. A.K. Mgmt. Co. v. San Manuel Band of Mission Indians, 789 F.2d 785, 789 (9th Cir.1986) (“[I]t is doubtful that general contract principles apply to an agreement subject to 25 U.S.C. § 81 (1982).”).

The Second Circuit’s rejection of the existence of a federal common law governing Indian contracts is congruent with the longstanding rule first enunciated in Erie R.R. Co. v. Tompkins, that “[ejxcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state.” 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). 25 U.S.C. § 81 requires the government’s approval of certain contracts with Indians, but it does not prescribe or reference a specific body of law to govern such contracts. Therefore it cannot be said that federal law governs all aspects of contracts approved by the Secretary of the Interior pursuant to 25 U.S.C. § 81. See In re Sanborn, 148 U.S. 222, 227, 13 S.Ct. 577, 37 L.Ed. 429 (1893).

Accepting as we must the Second Circuit’s conclusion that there is no federal common law governing contracts with Indians, state contract law must be applied to the extent that federal Indian law does not override it. Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d at 747 (cited in United States ex rel. The Saint Regis Mohawk Tribe v. President R.C.—St. Regis Mgmt. Co., 451 F.3d 44, 51 n. 6 (2d Cir.2006)). To hold otherwise would effectively place the Court’s consideration of this Motion in a legal vacuum. Therefore, because this action was filed in a district court within the State of New York, for the purposes of analyzing and defining the rights and responsibilities conferred on the parties by the Retainer Agreement, New York State law governs to the extent it is not preempted by federal law. Schiavone Const. Co. v. City of New York, 99 F.3d 546, 548 (2d Cir.1996) (applying New York substantive law because the action was filed in a district court in that state).

C. Specific Jurisdiction

Although this Court has subject-matter jurisdiction over BSK’s Motion, that does not end the jurisdictional discussion. We must still determine: (1) whether the terms of the Retainer Agreement grant or preclude specific jurisdiction upon or from this Court; and (2) whether the N.Y. and WI Oneidas’ sovereign immunity under federal Indian law precludes this Court’s jurisdiction over BSK’s Motion.

1. Specific Jurisdiction under the Retainer Agreement

a. Paragraph 10 of the Retainer Agreement

Paragraph 10 of the Retainer Agreement states:

Retainer Agreement at ¶ 10.

The N.Y. and WI Oneidas make two arguments in support of their claim that this Court does not have jurisdiction over BSK’s Motion under Paragraph 10: (1) the Retainer Agreement was never terminated, Joint Opp’n at pp. 5-8; and (2) BSK’s Motion is untimely because this Court does not have jurisdiction until such time as it finally determines the underlying claims, Joint Opp’n at pp. 8-9. These arguments are considered ad seriatim.

i. Whether the Retainer Agreement was Terminated

BSK asserts that pursuant to the express language of Paragraph 10, they are entitled to attorney’s fees to be determined by the Court on an equitable basis because the contract was terminated without any wrongdoing on their part. The N.Y. and WI Oneidas contend that the instructions of Paragraph 10 are inapplicable because BSK never terminated the Retainer Agreement, but rather, withdrew from representation in the Test and Reservation Cases. In support of their argument, the N.Y. and WI Oneidas reference a letter from George Shattuck to Jacob Thompson, then Claims Representative for the N.Y. Oneidas, dated April 25, 1977, wherein Shattuck stated:

We are pleased to advise you that we have received a letter from the U.S. Department of Justice advising that they will bring legal action on your behalf with respect to your land claims in the State of New York. It appeared at our April 7, 1977 meeting with the Department of the Interior and the Department of Justice that such action would be forthcoming but it is well to receive such a commitment in writing. We enclose a copy of the letter dated April 21, 1977.

In light of this most significant development we should review with you the strategy thus far pursued by the Oneidas and consider whether our approach to the problem should be changed in any way. As you are aware the strategy up to this point has been to accomplish recompense and justice for the Oneidas without damaging private property owners or causing economic hardship in the area.

Smith Decl., Ex. 23 at p. 1.

Shattuck went on to explain that because the legal climate had changed as a consequence of their victory in the Supreme Court in Oneida I, a new possibility of bringing valid ejectment actions against private landowners existed. However, Shattuck wrote that BSK was “unable to represent or advise [the Nation] with respect to potential actions against the private landowners.” Id. at p. 3. As a consequence, Shattuck wrote, BSK had come to the conclusion that

there are substantial questions concerning our ability fairly and adequately to represent you on either the issue of whether to make the strategy change or the implementation of the new strategy, if it is adopted.

For these reasons, it is our opinion that it is in your best interests that you obtain counsel to advise you as to the possible strategy change and your future aetions[.]

Id. at pp. 3-4.

Although Shattuck was recommending that the Nation find different counsel with respect to potential actions against private landowners, he made clear that BSK did not

intend this letter to be a “termination” of your retainer contract, but rather a statement that, with the entry of the Department of Justice, we have accomplished essentially what we were retained to do: Open the federal courts to you and get the U.S. to bring suit in your behalf.

Id. at p. 5.

The N.Y. and WI Oneidas also point out that BSK continued to send annual reports to the Secretary of the Interior, as required by Paragraph 11 of the Retainer Agreement, from 1977 through 1982. The reports filed for the years 1979-1982 all state the following:

As you may know, this firm is not actively representing the Oneidas in the current litigation on their land claims due to our concern about potential conflicts of interest. However, we still remain of counsel for the Oneidas under our retainer contract and do render services from time to time.

Smith Deck, Ex. 29, Rpts. to Dep’t of the Interior, dated Mar. 25, 1980, Mar. 31, 1981, Apr. 13,1982, & Mar. 1,1983.

Notwithstanding BSK’s representation to the Nation in its April 25, 1977 Letter that it did not intend to terminate the Retainer Agreement, it is clear that the relationship between BSK and the Nation was fundamentally altered upon BSK’s withdrawal as counsel of record in the Test and Reservation cases in 1978. After their withdrawal in 1978, BSK no longer represented the Nation in its land claims. Although George Shattuck continued to advise and counsel the Nation “in accordance with [BSK’s] intent to help the Oneidas however possible in their pursuit of their claims,” the primary responsibility for the land claim litigation fell on the Native American Rights Fund (NARF), who was substituted as counsel in 1978. Shattuck Decl. at ¶¶ 135-36. In a March 17, 1978 Letter to the Nation, George Shattuck explained that he foresaw BSK’s role from that point forward as “helping to supply information where we can, but leaving court appearances and strategy and policy decisions to counsel who have no potential conflicts.” Smith Decl., Ex. 26, Lt., dated Mar. 17,1978.

The Retainer Agreement, by its express terms, placed upon BSK the responsibility to both “advise” and “represent” the Nation in connection with their land claims. Retainer Agreement at ¶¶ 1-2. The contingency fee articulated in the Retainer Agreement was agreed to as consideration for BSK’s services as both advisor and representative as to their land claims. Thus, BSK’s withdrawal from representation constituted a change in the nature and extent of the services that were contemplated under the Retainer Agreement. Besides extending the Retainer Agreement until 1982, neither BSK nor the Nation agreed to amend the terms of the Retainer Agreement, nor did they seek to have a new contract approved by the DOI as required by 25 U.S.C. § 81. Therefore, we find that BSK’s statements to the Nation that it intended to withdraw, along with the subsequent official substitution of BSK as counsel of record in the Test and Reservation Cases, constituted a declaration that it could not perform all of the services specified in the Retainer Agreement.

Despite this change in the nature and extent of the services BSK provided to the Nation after 1978, there is substantial evidence in the record that notwithstanding its withdrawal as counsel of record, BSK did not consider the Retainer Agreement to be terminated. First, George Shat-tuck’s April 25, 1977 Letter specifically stated that he did not intend to terminate the Retainer Agreement. Smith Decl., Ex. 23, Lt., dated Apr. 25, 1977, at p. 5. Second, BSK continued to send annual reports to the DOI until the Retainer Agreement expired by its own terms in 1982. Id., Ex. 29, Lts. to Dep’t of the Interior, dated Mar. 25, 1980, Mar. 31,1981, Apr. 13,1982, & Mar. 1, 1983. Third, in 1979, BSK sent a letter to the DOI stating that BSK was entitled to a contingency fee, and noting that the “retainer contract dated June 24, 1966, and approved July 24, 1967 (extension approved on April 19, 1974), runs to March 28, 1982.” Id., Ex. 27, Lt., dated May 14, 1979. There is little evidence on the record speaking to the Nation’s understanding of the legal significance of BSK’s withdrawal, however, Jacob Thompson, the President of the N.Y. Oneidas at that time, states in his Affidavit that “[t]he Oneidas of N.Y. did not object at all to [BSK] withdrawing as counsel and understood that other attorneys should be consulted[.] Shortly thereafter, Mr. Bertram Hirsch, an attorney from Long Island, who did not have clients in the [disputed] land claim area, became the attorney for the Oneida Indian Nation of New York.” Test Case Dkt. No. 110, Jacob Thompson, Aft., dated Nov. 22, 2002, at ¶26. At a minimum then, Mr. Thompson understood that BSK’s withdrawal meant that a new attorney would represent the Nation in the Test and Reservation Cases.

Paragraph 9 of the Retainer Agreement stipulates that “[n]o assignment of the obligations of this contract, in whole or in part, shall be made without the consent, previously obtained, of the Nation and the Secretary of the Interior or his authorized representative.” Neither party has asserted, and the record does not reflect, that any attempt was made to assign any of BSK’s obligations under the Retainer Agreement to the Nation’s substituted counsel. Nor does the record reflect that any attempt was made to amend the Retainer Agreement in order to memorialize a new agreement that did not include the duty of representation. Indeed, if such a new agreement had been reached, the Secretary of the Interior’s approval would have been required under 25 U.S.C. § 81. Therefore, BSK’s 1978 withdrawal and the Nation’s acceptance of that withdrawal, notwithstanding BSK’s suggestions and actions to the contrary, effectively terminated the Retainer Agreement.

ii. Whether the Motion is Untimely

Paragraph 10 of the Retainer Agreement states that if the attorneys terminate the Retainer Agreement, their compensation will be decided as the “court or tribunal finally determining the Oneidas’ claim may determine to be equitable.” Retainer Agreement at ¶ 10 (emphasis added). When the N.Y. and WI Oneidas filed their Opposition, they argued that because no final determination had been reached in the Reservation Case, BSK’s Motion is untimely. Joint Opp’n at p. 8. However, both the Test and Reservation cases now have final determinations, which renders any discussion as to timeliness moot,

b. Paragraph 5 of the Retainer Agreement

Paragraph 5 of the Retainer Agreement states that “[i]f the United States Department of Justice assumes the responsibility of handling the claim, the fee of the Attorneys shall be fixed by the Secretary of the Interior on a quantum meruit basis if said Department of Justice is successful in obtaining a recovery.” The N.Y. and WI Oneidas argue that this Court lacks jurisdiction under Paragraph 5 because the DOJ has intervened in the case, and therefore the Secretary of the Interior should determine the question of attorney fees. Joint Opp’n at pp. 2-5.

The record shows that the DOJ intervened in the Reservation Case in 1998. Reservation Case Dkt. Nos. 48, USA Mot. to Intervene & 56, Order Granting Mot. to Intervene. As previously discussed, the Retainer Agreement with BSK was terminated in 1978, invoking the directions of Paragraph 10. Paragraph 5 stipulates that if the DOJ takes responsibility for the case from BSK, the latter’s fee will be determined by the Secretary of the Interi- or. However, BSK’s responsibility for the cases ended when they terminated the Retainer Agreement in 1978. BSK’s obligations under the Retainer Agreement were not assumed nor was the contract extended by the Nation’s subsequent counsel. Therefore, the DOJ cannot assume the responsibility for handling the claim from BSK because BSK had no responsibility to relinquish in 1998.

The N.Y. and WI Oneidas argue that even if the Retainer Agreement was terminated, Paragraph 5 still applies because the DOJ has intervened, essentially positing that Paragraph 5 supercedes Paragraph 10. Id. at pp. 3-5. There is nothing in the Retainer Agreement to suggest that Paragraph 5 supercedes Paragraph 10, nor is there any other reason for the Court to follow such an interpretation. Both Paragraphs offer contingency plans for two different scenarios in which BSK would be relieved of its obligations specified in the Retainer Agreement: Paragraph 10 concerns what happens in the event the contract is terminated prior to recovery; Paragraph 5 concerns what happens in the event the DOJ assumes control of the claims from BSK prior to recovery. If the DOJ had intervened prior to the termination of the Retainer Agreement in 1978, there would be no reason for us to consider Paragraph 10. Equally then, because the contract was terminated prior to the DOJ’s intervention, there is no reason to consider Paragraph 5 and the instructions of Paragraph 10 must be followed.

2. Sovereign Immunity

The N.Y. and WI Oneidas assert that their tribal sovereign immunity precludes this Court’s jurisdiction over this Motion. It is well-settled that tribes maintain sovereign immunity against civil claims unless (1) Congress has waived said immunity by statute, or (2) the tribe has “unequivocally expressed” its intent to waive it. Santa Clara Pueblo v. Martinez, 436 U.S. at 58, 98 S.Ct. 1670 (citing United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)). Nonetheless, while an Indian tribe’s waiver of its sovereign immunity must be clear, it has never been held that clarity requires the use of the words “sovereign immunity.” C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411, 420, 121 S.Ct. 1589, 149 L.Ed.2d 623 (2001) (citing Sokaogon Gaming Enter. Corp. v. Tushie-Montgomery Assocs., Inc., 86 F.3d 656, 659-660 (7th Cir.1996)).

The N.Y. and WI Oneidas assert that they have made “no waiver that would permit either a judicial or administrative judgment or order regarding fees.” Joint Opp’n at p. 15. However, Paragraph 10 of the Retainer Agreement states that if the contract is terminated by the Nation, the attorneys, or the Secretary of the Interior, “the attorneys shall be credited with such share in the attorney fee as the court or tribunal finally determining the Oneidas’ claim may determine to be equitable.”

In C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, the Supreme Court held that a tribe’s express consent to arbitration in a contract was a clear waiver of its sovereign immunity. 532 U.S. at 420, 121 S.Ct. 1589. In that case, the Potawatomi Tribe of Oklahoma argued that because the contract did not name a specific judicial forum in which to enforce the decision of the arbitrator, sovereign immunity was not waived. Id. at p. 421, 121 S.Ct. 1589. The Supreme Court rejected that argument, holding that the consent to arbitration in the contract “memorialize[d] the Tribe’s commitment to adhere to the contract’s dispute resolution regime,” thus constituting a waiver of sovereign immunity. Id. at p. 422.

In the instant case, Paragraph 10 of the Retainer Agreement unambiguously proclaims that the court which finally determines the Nation’s claims is the specific judicial forum that has the authority to determine attorney’s fees in the event the contract is terminated. Therefore, Paragraph constitutes an even more explicit waiver of sovereign immunity than the arbitration clause at issue in C & L Enters., Inc., which clause the Supreme Court determined to be a waiver of sovereign immunity. As such, the N.Y. and WI Oneidas’ sovereign immunity is abrogated to the extent delineated in Paragraph 10, which by its application gives this Court express jurisdiction to determine on an equitable basis what compensation, if any, BSK is due.

III. PROFESSIONAL ETHICS AND BSK’S RIGHT TO A FEE

Paragraph 10 of the Retainer Agreement states that if the contract is terminated, “except for the wrongdoing or dereliction of the attorneys, the attorneys shall be credited with such share in the attorney fee as the court or tribunal finally determining the Oneidas’ claim may determine to be equitable.” (emphasis added). According to the N.Y. and WI Oneidas, BSK has forfeited any right to attorney’s fees because their conduct constitutes “wrongdoing or dereliction” under Paragraph 10, and because the application of ethical standards requires such consequence. Joint Opp’n at pp. 16-22.

Specifically, the N.Y. and WI Oneidas make the following arguments: (1) By virtue of the fact that BSK had attorneys, family members of attorneys, and clients with vested proprietary interests in land parcels located within the 300,000 acre plot that was alleged to have been obtained in violation of the Non-Intercourse Act, BSK had a conflict of interest from the outset of its representation of the Nation because the Nation sought to assert its own proprietary rights over that land; (2) BSK could not ethically represent all three Oneida tribes concurrently; (3) BSK withdrew without good cause because its conflicts were extant in 1978 and foreseeable, and because BSK’s motive for withdrawal was its perceived “diminishing returns” on the case and not because of any ethical conflict; (4) BSK failed to disclose its conflicts to the Nation and to the Secretary of the Interior; and (5) BSK “kept the Oneidas away from other lawyers.” Joint Opp’n at pp. 16-22.

In addition to these aforementioned arguments, the N.Y. Oneidas allege in a separate brief that BSK engaged in unethical conduct and wrongdoing after their withdrawal in 1978, and should be denied attorney’s fees from the N.Y. Oneidas on that basis as well. Test Case Dkt. 109, Separate Opp’n. We address first the N.Y. and WI Oneidas’ pre-1978 ethical claims.

A. The N.Y. and WI Oneidas’ Pre-1978 Ethical Claims

1. Conflicts of Interest and Failure to Disclose

a. Ethical Standards

Because the Retainer Agreement was entered into in 1967, it is necessary to briefly examine the applicable professional ethical standards from that time. On January 1, 1970, the Model Code of Professional Responsibility (hereinafter “the Code”) became the effective professional standard adopted by the New York State Bar Association. See N.Y. Jud. Law App. at 351 (McKinney 1975). Prior to the adoption of the Code in 1970, the New York State Bar Association followed the Canons of Professional Ethics first promulgated by the American Bar Association in 1908. Thus, the form and packaging of the ethical standards changed during the lifetime of the Retainer Agreement from 1967 to 1978, however the content of those standards in relation to conflicts of interest remained consistent.

Canon 6 of the Canons of Professional Ethics (pre-1970) concerning adverse influences and conflicting interests stated:

It is the duty of a lawyer at the time of retainer to disclose to the client all the circumstances of his relations to the parties, and any interest in or connection with the controversy, which might influence the client in the selection of counsel.

It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.

The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.

Henry S. Drinker, Legal Ethics 311 (Columbia Univ. Press 1953); see also Consol. Theatres v. Warner Bros. Circuit Mgmt. Corp., 216 F.2d 920, 924 n. 3 (2d Cir.1954).

The Code, adopted in 1970, is comprised of distinct but interrelated parts: Canons, Ethical Considerations (hereinafter “EC’s”), and Disciplinary Rules (hereinafter “DR’s”). The Lawyer’s Code of Professional Responsibility, N.Y. State Bar Ass’n, effective Jan. 1, 1970, at p. 1 (hereinafter “Code of 1970”). The Canons are “axiomatic norms, expressing in general terms the standards of professional conduct expected of lawyers.” Id. at p. 2. EC’s are “aspirational in character and represent the objectives toward which every member of the profession should strive.” Id. DR’s are mandatory and state “the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action.” Id.

Pursuant to the Code as it was adopted in 1970, “[ejxcept with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, personal interests.” Id. at p. 37, DR 5-101(A). Pursuant to DR 5-105(B), “[a] lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent p