11th Circuit: Because Client Loses Faith in Lawyer, and so Lawyer Quits, Lawyer Still gets Contingent Fee

Lewis v. Haskell Slaughter Young & Rediker (11th Cir. Sept. 11, 2014) is definitely going to be on my speaking agenda this year.  I love it, as a speaker, when courts give me decisions like this, though I regret that they exist.

The plaintiff hires a lawyer (“Lawyer A”) on a 45% contingent fee basis to bring a discrimination claim.  After 13 months of litigation, during which Lawyer A had sought five continuance,  had submitted no dispositive motions, had taken no depositions, and had submitted no expert reports.  The judge said there would be no more continuances.

Understandably, the client wrote a somewhat pointed email to an associate of Lawyer A, writing in part that it was “unacceptable for you to be uninformed on these things.  Has there been no progress…?”  Lawyer A immediately wrote back and said that she was “immediately” terminating the case and “your file has been boxed and is in the lobby with the receptionist.”  Lawyer A also wrote that she’d file a motion to withdraw with the court three weeks later.

Lawyer A didn’t withdraw.  A settlement offer came from the other side to Lawyer A, which she forwarded to the plaintiff, who had by then secured separate counsel.  Through separate counsel plaintiff accepted the $85,000 settlement offer.

Lawyer A then shows up demanding fees.  The district court awarded Lawyer A $38,250.

On appeal, the panel split 2-1.  The majority reasoned (and I am not making this up) that because the client no longer trusted the work of Lawyer A, Lawyer A had “just cause” to withdraw, and so was entitled to quantum meruit, which was supposedly $38,250.

The dissent disagreed.  It pointed out, among other things, that what the majority rule amounted to was a license to use poor service to get paid.  The dissent emphasized that the court failed to take into account the fact that it was not the client who had caused the relationship to deteriorate, but the lawyer.  The dissent also emphasized that by withdrawing immediately and putting the file in a box in the lobby, Lawyer A had violated basic precepts of the ethical rules concerning withdrawal.

This is an embarrassing case for the 11th Circuit.  Thankfully, it is unpublished.

Then the lawyer

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

4 thoughts on “11th Circuit: Because Client Loses Faith in Lawyer, and so Lawyer Quits, Lawyer Still gets Contingent Fee

  1. 4

    quantum meruit – is generally NOT the contingent fee. It is the actual hours worked at a reasonable billable hourly rate. Shame on the 11th circuit.

  2. 3

    Can the client bring a malpractice suit against the attorney though (i.e., that incompetence resulted in low settlement)? Does the second attorney also get a percentage leaving the client with almost nothing?

  3. 2

    I don’t believe it was challenged on appeal. That seems high to me, but that’s in the abstract. Usually I’d see 45% in a case where it was resolved only after trial.

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