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Collins v. Hertenstein11/15/2005
vidence to reach a single apportionment and award of attorney's fees and expenses, and that following this procedure affected the share he should have been awarded. Acknowledging that the lawyers involved are owed fees both under contract and in quantum meruit, he further claims that it is impossible to determine on what basis attorney's fees were awarded. He also claims that any errors that affect the fees his lawyer should have received should benefit him rather than Ms. Collins or her law firm.
Ms. Collins fired father's lawyer just before the $100,000 settlement agreement was approved by the court. In Risjord v. Lewis, 987 S.W.2d 403, 405 (Mo. App. W.D. 1999), this court stated, "Once termination of the lawyer-client relationship has occurred before completion of a contingent fee contract, the lawyers' only recovery could be in quantum meruit for the benefits conferred." (citation and internal quotations omitted). This principle protects the client who has lost faith in her attorney and would be unable to pay both the discharged attorney at full contract price and someone hired to continue the attorney's work. Id. at 406. According to testimony that supports the circuit court's decision to award father's lawyer $5,900 from Ms. Collins's share, this lawyer did some preliminary investigation, served in a mostly consulting capacity, and engaged in considerable client counseling before Ms. Collins terminated his services. The law firm was providing the laboring oar drafting and filing the petition, conducting discovery, taking numerous depositions, handling media communications, and otherwise preparing the case for trial. While the circuit court did not label the $5,900 award a quantum meruit recovery on Ms. Collins's terminated contract with father's lawyer, under Risjord, this was a quantum meruit recovery and is all that Ms. Collins owed. Any objection to this determination was for father's lawyer to pursue, and he has not appealed the circuit court's decision.
As for Mr. Wilson's obligation to his original lawyer, that contract, too, was terminated before completion. The Missouri Supreme Court has ruled that a lawyer's suspension from the practice of law is "equivalent to a voluntary abandonment of his contract of employment," and thus, he cannot recover, even in quantum meruit, for his services. Kimmie v. Terminal R.R. Ass'n of St. Louis, 126 S.W.2d 1197, 1201 (Mo. 1939). The appeals court in Pollock v. Wetterau Food Distr. Group, 11 S.W.3d 754, 772-73 (Mo. App. E.D. 1999), however, suggested that, at least where the suspended attorney is seeking to recover attorney's fees from an adverse party and the misconduct is not associated with the case, the attorney should not be precluded from recovering for the reasonable value of his or her services under a quantum meruit theory. The Pollock court, although dealing with a distinguishable fact situation, thoughtfully reasoned, on the basis of persuasive case law from other jurisdictions, that a rule to the contrary would "have the unintended effect of retroactive monetary punishment." Id. at 773. Such effect, said the court, would run counter to the purpose of disciplinary action, which is to protect the public and not to punish the attorney. Id.
Adopting the Pollock approach to attorney's fees for disbarred or suspended attorneys even if recovery is not being sought from an adverse party, we believe that Mr. Wilson's lawyer, suspended for misconduct not associated with the case, is owed at least the value of the services he rendered to Mr. Wilson from the date of engagement in November 1998 until the date he was suspended from the practice of law in January 2002. Mr. Wilson paid him $28,250. The circuit court, on remand, will have to de
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