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TUCKER v. RIO OPTICAL CORP.12/9/1994
Thomas DeCoursey and Pieter Brower (appellants), plaintiff's original attorneys, appeal the order of the district court denying their application for an apportionment of attorney fees between themselves and J.R. Russell and John Fields (appellees), plaintiff's subsequent attorneys, who obtained a settlement of plaintiff's claim.
The sole issue presented is whether attorneys who withdraw from a case for good cause are entitled to a portion of the fees from a settlement obtained by successor attorneys upon a showing by the withdrawing attorneys that they provided legal services to the plaintiff that contributed to the settlement obtained. We reverse the district court's ruling that withdrawal for good cause would not entitle appellants to share in the attorney fees obtained from the settlement, and remand for a factual determination of whether appellants withdrew for good cause and, if so, what portion of the $16,000 attorney fee amount should be paid to appellants.
Appellants were the original attorneys representing plaintiff Willa Tucker in her medical malpractice action. They entered into a contingent fee contract under which they were to receive one-third of any recovery and 40 percent if the case was settled within 30 days of trial. The action was filed in January 1991 and was first set for trial in November 1992. During this period, appellants performed substantial legal work for their client. They found experts, conducted discovery, opposed motions for summary judgment, and prepared for trial.
Appellants had not received any significant settlement offers from the defendants, due in part to the fact that Tucker was a difficult client. She had unrealistically high expectations about the amount she could recover, refusing to entertain any realistic settlement even after the trial judge explained to her the statutory limits on recovery in malpractice actions. She demanded that appellants offer the trial judge a bribe or she would get a different attorney, and she accused appellants of being in conspiracy with the trial court and defense counsel. As a result of Tucker's conduct, DeCoursey sent a letter to Tucker on October 14, 1992, stating:
"If you think a conspiracy exists between all of the parties then I strongly urge you to hire additional attorneys to represent you. Mr. Brower and I will withdraw from the case as soon as we can. I do not want to represent you if you believe what you are saying. If you are playing some kind of mental game with me then this game must end now. I do not find it amusing. I find it insulting and destructive.
Please let me know immediately if you want to have new attorneys to represent you in this matter." Tucker did not answer, and on October 21, 1992, appellants moved to withdraw as attorneys of record, citing permanent and irreconcilable differences that caused "destruction of the lawyer/client relationship." The trial judge expressed displeasure that DeCoursey moved to withdraw so close to the scheduled trial date but signed an order permitting immediate withdrawal after the circumstances were explained.
Tucker then retained appellees to represent her. They entered into a contingent fee contract under which appellees would receive
one-third of any recovery. There was no agreement to split the fees with appellants and several months after withdrawing, appellants filed an attorneys' lien, claiming expenses of $6,971.34 and attorney fees of $45,000. Appellees had advised appellants to file the lien to insure that Tucker would pay their out-of-pocket expenses, but they did not expect an additional lien for $45,000 in attorney fees.
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