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Barrett v. Freise11/24/2003
s a result of alleged ethical violations, the $33,333.33 in fees he had reserved from the UIM settlement, or, alternatively, that the court apply the terms of the fee contract that allowed for an election of an hourly fee.
The primary ethical violation alleged was the consummation of the UIM settlement at a time when Freise allegedly knew that JoLynn was contemplating divorce . But the record fully supports the trial court's determination that Freise had no notice whatsoever that JoLynn was contemplating divorce until she told his legal assistant so, on June 20, 1996. John and Jeff provided absolutely no evidence to the contrary. The UIM settlement was consummated and the net proceeds were disbursed in early May of 1996. Accordingly, there was no genuine issue of material fact in this regard.
John and Jeff also claim that Jeff was not bound by JoLynn's election to enter into a contingency fee arrangement, and that once John was appointed as Jeff's limited guardian, John had the election to choose the hourly fee arrangement instead. The clause in the contract that gives rise to this argument provides that the client 'may elect at the conclusion of this contract' to pay for the attorneys' legal services at the 'rate of $150.00 per hour for attorney time and $75.00 per hour for paralegal time or a contingent fee based on the gross amount of recovery obtained for the Client' of 33-1/3 percent of the gross amounts recovered by way of settlement, arbitration or trial. Clerk's Papers at 88.
But JoLynn did not wait until the end of the contract to make the election. She elected the contingency fee arrangement, in writing, at the outset of the agreement. The contract does not provide that the client can make one election and the outset and change her mind later, or that one member of a family of clients can make one election at the outset of the contract and that another member of the family can make a different election at the end of the contract.
Relying upon Foster v. Williams, 4 Wn. App. 659, 662, 484 P.2d 438 (1971), the trial court concluded that JoLynn had the inherent authority as statutory agent for the marital community to act for her incapacitated husband, herself and the marital community in matters related to the injuries giving rise to the husband's incapacity. John and Jeff do not even cite Foster v. Williams in their brief for this appeal, let alone argue that it is inapplicable to the facts in this case. Neither do they cite any contrary authority that could arguably govern the issue. Accordingly, the trial court's legal conclusion that JoLynn had the authority to bind both herself and Jeff to the terms of the contingency fee contract is unchallenged on appeal and constitutes the law of this case. We affirm the trial court's ruling that Freise was entitled to retain the contingency fee paid for the UIM settlement proceeds in accord with the parties' contingency fee agreement.
The court also rejected John and Jeff's claim on summary judgment that Freise should recover no fee whatsoever for his services in obtaining the commitment from American States to pay its policy limits. As the trial court recognized, a client may not deprive a lawyer of his contingency fee by discharging him just short of completion of the contract, where the lawyer has substantially performed under the contract. Taylor v. Shigaki, 84 Wn. App. 723, 728-29, 930 P.2d 340 (1997). A discharged lawyer has substantially performed his or her duties when the attorney's efforts make a settlement 'practically certain,' even if the settlement is consummated after the client fires the attorney. Id. at 729. To permit a client to terminate a lawyer after substantial performance but before a s
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