dunwoody_33 said:
What is the name of your state?California
I would like to fire a lawyer i hired on a contingency basis.... I am willing to pay him for the hours worked. .... BUT can he refuse to accept an hourly rate for the hours they worked....AND INSIST on 40% or some % of any award i make?
My response:
The attorney will place a written lien on your case, filed with the court, and sent to each insurance company; i.e., to place that attorney's name on any check or draft in full or partial settlement of your claim or judgment in litigation.
Under a contingency fee agreement, a discharged or withdrawing attorney's fee recovery lies, if at all, in quantum meruit (reasonable value of services). [Fracasse v. Brent, supra, 6 Cal.3d at 791, 100 Cal.Rptr. at 390; Padilla v. McClellan (2001) 93 Cal.App.4th 1100, 1107, 113 Cal.Rptr.2d 680, 685; see generally, Day v. Alta Bates Med. Ctr. (2002) 98 Cal.App.4th 243, 248-249, 119 Cal.Rptr.2d 606, 609-610 (discussing requirements for quantum meruit recovery)]
While the contingency contract does not fix the quantum meruit fees, it may nonetheless be relevant to the question of "reasonable value". "Reasonable value" is measured by pro rata share of contract price. Where attorneys have partially performed under a contingency fee contract but are unable (through no fault of either party) to complete the undertaking, their quantum meruit recovery for "reasonable value of services rendered" may properly yield an "enhanced fee"--i.e., exceeding their hourly rate for time spent on the case--that reflects the risks and delay inherent in a contingency agreement. [Cazares v. Saenz (1989) 208 Cal.App.3d 279, 288-289, 256 Cal.Rptr. 209, 215]
In effect, the reasonable value of services rendered in contingency contract cases is measured by the attorney's (or firm's) "pro rata share of the contract price" . . . which may be calculated as follows:
"[T]he trial judge must calculate a fraction where the numerator is the value of the legal services rendered by the particular attorney or firm at issue and the denominator is the aggregate value of all the legal services rendered by any attorney in the case. This may be as simple as adding up the total number of hours spent by all attorneys on the matter, but it is by no means limited to 'straight time.' The trial court may adjust the fraction upward or downward to account for difficulty of the work or other relevant factors." [Cazares v. Saenz, supra, 208 Cal.App.3d at 288-289, 256 Cal.Rptr. at 215]
The fraction so yielded is then multiplied by the total fee due under the contract to arrive at the attorney's pro rata share. [Cazares v. Saenz, supra--associated attorney appointed to bench after working almost 3 years on p.i. case was entitled to reasonable value of legal services rendered, prorated on basis of original contract price of 50% of contingent fee]
Entitlement to entire contract fee in exceptional cases:
Even when calculated under the "pro rata contract share" approach, quantum meruit fees will usually be less than what counsel would have realized were there not an early termination of employment. Sometimes, however, "reasonable value" encompasses the entire contract fee. Typically, this arises where the attorney has invested substantial time and effort in the case and the discharge occurs "on the courthouse steps" with the client thereafter executing a settlement. [Fracasse v. Brent, supra, 6 Cal.3d at 791, 100 Cal.Rptr. at 390 (dictum)]
No attorney fee recovery for "reasonable value" of services will be allowed if the stated contingency does not occur--i.e., if client does not obtain a damages recovery. [Fracasse v. Brent, supra, 6 Cal.3d at 792, 100 Cal.Rptr. at 390; but see Siciliano v. Fireman's Fund Ins. Co. (1976) 62 Cal.App.3d 745, 133 Cal.Rptr. 376--dictum suggesting that discharged attorney can obtain declaratory relief and restraining order to prevent disbursement of recovery proceeds until quantum meruit claim is satisfied]
IAAL
