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Ausler v. Ramsey3/7/1994
e will be unsuccessful.
Clients often must accept the drawbacks of a contingent fee arrangement if they want to acquire an attorney at all. Attorneys must do the same. Therefore, an attorney should not be permitted to withdraw from a "bad case" on grounds that the client "uncooperatively" wishes to go to trial, thereby eliminating his or her exposure to risk, and still recover fees for that case.
Blumenthal contends that he withdrew because Ausler refused to cooperate. He indicates only one instance where
Ausler did not reply in writing to a letter he sent her concerning arbitration of the personal injury matter. This alone is insufficient to establish that his withdrawal was justified. This is particularly so since the record indicates that Ausler responded verbally and the two eventually discussed submitting the claim to arbitration. Blumenthal cites RPC 1.9(b), claiming that he could not ethically disclose other, more damning evidence of Ausler's lack of cooperation. However, RPC 1.6 allows an attorney to disclose client confidences in actions between the client and the attorney. Therefore, Blumenthal could ethically have produced any evidence which established his claim against Ausler.
The record shows that Ausler and Blumenthal disagreed both over the value of the suit and as to whether it should be arbitrated or tried. RPC 1.2(a) states that an attorney "shall abide" by the client's decision whether to accept a settlement offer. Compare Falco, at 1018. Blumenthal was not forced out of the case by Ausler's recalcitrance. He was not constructively fired. Rather, without sufficient justification shown in this record, he voluntarily withdrew before the contingency was realized. On these facts Blumenthal waived his fee.
We reverse. Blumenthal having been paid $4,037.72, he should repay Ausler $3,520, for a net recovery to Blumenthal of $517.72 for his costs advanced. We remand for entry of an offsetting judgment against Blumenthal and in favor of Ausler for $3,520. Ausler's appeal not being frivolous, Blumenthal's request for an award of attorney fees for a frivolous appeal is denied.
Disposition
Holding that the attorney had withdrawn without good cause and was ineligible for an award of attorney fees under the theory of quantum meruit, the court reverses the order.
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