Hahn v. Oregon Physicians' Service, 84-3546
| Citation | 786 F.2d 1353 |
| Decision Date | 15 April 1986 |
| Docket Number | No. 84-3546,84-3546 |
| Parties | 1986-1 Trade Cases 67,150 Joseph HAHN, Wade Liggett, Joseph Aizawa, V.G. Livingston, and D. Hugh Fraser, Plaintiffs-Appellees, v. OREGON PHYSICIANS' SERVICE, an Oregon nonprofit corporation, and Physicians' Association of Clackamas County, an Oregon nonprofit corporation, Defendants-Appellees, v. Henry KANE, Claimant-Appellant. John HAHN, V.G. Livingston, Hide Aizawa and D. Hugh Fraser, Plaintiffs-Appellees, v. Josephine M. DRISCOLL, Acting Insurance Commissioner of the State of Oregon, and Portland Metro Health, Inc., an Oregon nonprofit corporation, Defendants-Appellees, v. Henry KANE, Claimant-Appellant. Lawrence HELTON, David Hoyal, Wade Liggett, Elmer Dorr, Hide Aizawa, and Jeffrey L. Widen, Plaintiffs-Appellees, v. ROGUE VALLEY PHYSICIANS' SERVICE, an Oregon nonprofit corporation; and Klamath Medical Service Bureau, an Oregon nonprofit corporation, Defendants-Appellees, v. Henry KANE, Claimant-Appellant. Lawrence HELTON, David Hoyal and Jeffrey Widen, Plaintiffs-Appellees, v. GREATER OREGON HEALTH SERVICES, INC., Defendants-Appellees, v. Henry KANE, Claimant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Daniel F. Mullin, Bassett & Morrison, Seattle, Wash., for plaintiffs-appellees.
Henry Kane, Beaverton, Or., pro se.
Appeal from the United States District Court for the District of Oregon, Portland.
Before BROWNING and ALARCON, Circuit Judges, and STEPHENS *, District Judge.
The appellees in this case, plaintiffs in the district court, are doctors of podiatric medicine who practice in the State of Oregon. They asserted antitrust claims against several defendants, including health care contractors, indemnity insurers and health maintenance organizations. In contemplation of bringing suit, the doctors contacted an attorney, William King, who recommended that a corporation called The Fair Action Committee for Education, Inc. (FACE), be formed for the purpose of bringing suit on behalf of the individual podiatrists. King proceeded to organize FACE and arrange for the assignment of the plaintiffs' individual antitrust claims to the corporation.
On July 14, 1985, FACE, through its president, Hahn, entered into a retainer agreement with King (Retainer Agreement) for the prosecution of the antitrust action. The Agreement provided for a $6,000 retainer fee to be paid to King as well as a fee in an amount equal to 50 percent of the total sum recovered by settlement or judgment. The agreement also authorized King to associate attorneys to assist him in the litigation. King brought four separate actions in the district court on behalf of FACE. These actions were consolidated by the court on April 23, 1979.
On July 26, 1979, King and Hahn, on behalf of FACE, executed a First Addendum to Retainer Agreement. Paragraph III of the Addendum states:
In no event shall Attorney's fees payable or paid either to Mr. King or to any other counsel, including but not limited to attorneys associated by Mr. King to assist in this litigation be defined or determined as costs of litigation herein. All expenses incurred incident to association of trial counsel other than Mr. King shall be the sole responsibility of Mr. King, notwithstanding the fact that Client has agreed that Attorney may associate other attorneys to assist in this litigation.
The appellant, Henry Kane, had associated with King by written agreement dated July 27, 1978. This agreement provided that appellant would be paid two-thirds of his hourly fee, to a maximum of $100,000, plus 25% of any recovery by King under the Retainer Agreement, so long as appellant continued to assist in the prosecution of the antitrust claims. FACE and the individual podiatrists were not parties to this agreement.
King and appellant acted as attorneys for FACE until October 19, 1979, when both lawyers moved the court for permission to resign as counsel for plaintiffs and filed notices of attorneys liens. On October 22, 1979, the court permitted both attorneys to resign, but specifically refrained from making a decision regarding the propriety of the liens.
Neither King nor appellant worked on the case after October of 1979. King was subsequently disbarred from the practice of law and is not involved in the present appeal. King also went through bankruptcy proceedings in which appellant was named an unsecured creditor, and in which his claim for fees was discharged.
Another law firm was substituted as counsel of record for the podiatrists after King and appellant withdrew from the case, and FACE reassigned all claims back to the individual doctors. The corporation was then liquidated. The individual podiatrists were substituted as real parties in interest in the litigation by means of a Second Amended Complaint.
On October 20, 1983, the district court conducted a hearing in chambers on the issue of attorneys fees, and after argument took the matter under advisement. On December 9, 1983, the district court vacated appellant's attorneys lien and disallowed any amounts for attorneys fees. After motion by appellant, the court entered an Amended Judgment on December 13, 1983, indicating that there was no reason to delay the entry of final judgment on the attorneys fees claim, thereby enabling appellant to file an appeal. See Federal Rule of Civil Procedure 54(a) and (b).
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