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Rutenbeck v. Grossenbach5/20/1993
Petitioner, attorney Blaine A. Rutenbeck, appeals from an order entered by the trial court awarding a full one-third share of a contingent fee recovered in an underlying case to intervenor Sharon W. Grossenbach, as assignee of attorney Dean P. Grossenbach (Grossenbach). We affirm.
The principal issues raised by Rutenbeck are 1) whether an attorney has a right to collect fees after he has been suspended or disbarred, and 2) if so, did the attorney here fail to do the work necessary to justify participation in the contingent fee.
The case in which the contingent fee agreement was entered was a wrongful death suit. Trial in that matter resulted in a jury verdict in favor of the plaintiff who was represented on a contingent fee basis by Richard K. Walsh, Dean P. Grossenbach, and Rutenbeck.
The jury verdict in that case was overturned by this court in Perreira v. State, 738 P.2d 4 (Colo. App. 1986). However, that decision was reversed by our supreme court in Perreira v. State, 768 P.2d 1198 (Colo. 1989), and the case was remanded for a new trial.
Prior to the new trial, this matter was settled by the parties. For reasons unrelated to the Perreira case, Grossenbach's license to practice law was suspended before the stipulation of dismissal was approved by the trial court in June 1991. The trial court retained jurisdiction to resolve attorney fees issues.
The claims asserted by Rutenbeck pertain to the distribution of the contingent fee earned in the underlying action. Although the fee sharing agreement has been lost and is, consequently, not a part of the record, it is conceded by the parties that a contract existed among the attorneys which provided that each attorney would be entitled to one-third of any contingent fee realized. It is also uncontested that the contract was fully disclosed and consented to by their client.
This dispute concerns alleged abandonment of the Perreira case by Grossenbach and the effect of his suspension prior to final dismissal of the wrongful death suit. After a hearing, wherein statements of fact were submitted by the attorneys involved, the trial court found Grossenbach entitled to one-third of the fees from the Perreira case. This decision was based upon findings that the attorneys had fairly divided the responsibilities of trial in this matter and that the attorneys had also performed as agreed.
Rutenbeck has never asserted that Walsh did not earn his one-third of the fee, and the trial court specifically found that there was no way to distinguish the amount of work done by Grossenbach from the amount done by Walsh. It, therefore, determined that since Walsh was awarded one-third of the contingent fee, Grossenbach should also be awarded a one-third share. Finally, the trial court found that Grossenbach's suspension from the practice of law, which occurred in 1990, was irrelevant since the fee had already been earned.
I.
Rutenbeck first asserts that Grossenbach was not entitled to receive a share of the fee because he was suspended from the practice of law before final resolution of the Perreira case. We disagree.
A suspended or disbarred attorney does not lose his right to assert a claim for fees earned prior to suspension or disbarment. People ex rel. McFarlane v. Harthun, 195 Colo. 38, 581 P.2d 716 (1978). Moreover, contingent fee arrangements have long been held valid in Colorado, except in criminal and divorce cases. C.R.C.P. Chapter 23.3; People v. Nutt, 696 P.2d 242 (Colo. 1984); see Colorado Code of Professional Responsibility DR 2-106 and D
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