Ambrose v. Detroit Edison Co., Docket No. 21489

• Decision Date: 12 November 1975
• Docket Number: Docket No. 21489
• Citation: 65 Mich.App. 484,88 A.L.R.3d 239,237 N.W.2d 520
• Parties: Joseph S. AMBROSE and Florence E. Ambrose, Plaintiffs-Appellants, v. The DETROIT EDISON COMPANY et al., Defendants, and Colista, Baum & Domonkos, Intervening Defendants-Appellees. 65 Mich.App. 484, 237 N.W.2d 520, 88 A.L.R.3d 239
• Court: Court of Appeal of Michigan — District of US

Page 520

237 N.W.2d 520

Joseph S. AMBROSE and Florence E. Ambrose Plaintiffs-Appellants, v. The DETROIT EDISON COMPANY et al., Defendants and Colista, Baum & Domonkos, Intervening Defendants-Appellees.

Docket No. 21489.

65 Mich.App. 484, 237 N.W.2d 520, 88 A.L.R.3d 239

Court of Appeals of Michigan.

Nov. 12, 1975.

Rehearing Denied Jan. 30, 1976.

Released for Publication Jan. 30, 1976.

[65 MICHAPP 486] Charles Burke, Livonia, for plaintiffs-appellants.

Colista, Baum & Domonkos by Michael Domonkos, Detroit, for appellees.

Fischer, Franklin & Ford by Edward B. Harrison, Detroit, for defendant Detroit Edison Co.

Before BRONSON, P.J., and V. J. BRENNAN and D. E. HOLBROOK, Jr., JJ.

BRONSON, Presiding Judge.

In this case, the trial judge allowed plaintiffs' attorneys to withdraw prior to settlement or trial, and imposed a lien for the value of their services. The propriety of that action is questioned here.

On October 26, 1971, plaintiffs filed a complaint against the Detroit Edison Company alleging denial of certain vested pension benefits owed to Joseph Ambrose by virtue of his prior employment with that company. Joseph Ambrose has been pursuing various claims relating to his dismissal in 1958 since that time, but all previous causes of action had been resolved against him. Plaintiffs specifically sought here all accrued benefits from the date Joseph Ambrose reached 65, the right to receive retirement benefits in the future, and $100,000 in exemplary damages for the willful refusal of Detroit Edison to pay such pension benefits.

Plaintiffs' attorneys, the law firm of Colista, Baum & Domonkos, completed extensive discovery over the course of several years. Additionally, both parties and their attorneys participated in long negotiations, with an eye toward settlement. Sometime[65 MICHAPP 487] around June, 1974, Detroit Edison made an offer which would give plaintiffs all accrued pension benefits at 8% Interest, all current retirement benefits, the listing of Joseph Ambrose's name in the directory of retired Detroit Edision employees, and $30,000 in exemplary damages. Plaintiff Joseph Ambrose refused to accept that offer, and the attorneys moved to withdraw on June 14, 1974.

The attorneys specifically alleged in their motion that the following grounds existed to show good cause for withdrawal: (1) that Joseph Ambrose refused to accept a settlement offer which was 'fair, reasonable, equitable, and in the best interests of Plaintiffs', without giving sensible and legitimate reasons; (2) that continuing the case would be a waste of judicial manpower, in violation of the court rules, and 'perhaps' in violation of the Canons of Ethics; (3) that the attorneys had the 'reasonable apprehension' that plaintiffs would take 'nothing or substantially less' on the exemplary damage claim if the case went to trial; and (4) there was a breakdown in the attorney-client relationship. The trial judge allowed the attorneys to withdraw after an extended hearing on the motion, and impressed a lien upon any future settlement or judgment. The lien was set at the contingent fee percentage (here, 35%) of the Detroit Edison offer, found to be $21,420.39.

Plaintiffs entered into a consent judgment on August 13, 1974, accepting an offer identical or nearly identical to the previous offer in June, 1974. The only possible difference was that pension benefits were to be paid in increasing increments, which may or may not be equal to the cost-of-living increases under the previous offer. All other provisions were the same.

The law creates a lien of an attorney upon the [65 MICHAPP 488] judgment or fund resulting from his services, Wipfler v. Warren, 163 Mich. 189, 194, 128 N.W. 178 (1910), Kysor Industrial Corp. v. D. M. Liquidating Co., 11 Mich.App. 438, 445, 161 N.W.2d 452 (1968), Miles v. Krainik, 16 Mich.App. 7, 9, 167 N.W.2d 479 (1969). When an attorney withdraws from a case, his reasons for doing so determine whether the lien will be preserved:

'An attorney who withdraws from a suit without cause loses his inchoate right to a lien on the ultimate recovery * * *. But where an attorney is justified in refusing to continue in a case, he does not forfeit his lien for services already rendered.' 7 C.J.S. Attorney and Client § 220, pp. 1164--1165.

See, also, Midvale Motors v. Saunders, 21 Utah 2d 181, 442 P.2d 938 (1968), Schwartz v. Jones, 58 Misc.2d 998, 297 N.Y.S.2d 275 (1969). Since the record here shows good cause for the attorneys to withdraw, we hold that the trial judge properly imposed an attorneys' lien in this case.

It is clear that 'good cause' exists when the client has caused a total breakdown in the attorney-client relationship. For example, in Genrow v. Flynn, 166 Mich. 564, 131 N.W. 1115 (1911), the client sent a disparaging telegram to his attorney. The Court decided that withdrawal was proper, and discussed the attorney-client relationship in general:

'The relations between attorney and counsel are of a delicate and confidential nature. They should have faith in each other, and their relations should be such that they can cordially co-operate. What is a sufficient cause to justify an attorney in abandoning a case in which he has been retained has not been laid down by any general rule, and in the nature of things cannot be; but where, as in this case, the plaintiff, even if he has any [65 MICHAPP 489] ground for communicating with his attorneys, instead of doing so by mail under the secrecy of the postal laws, seeks to degrade and humiliate them by sending a telegram in which he states that they have been guilty of falsehood and gross fraud and neglect, and that he does not intend to stand their abuse any longer, it must be held that such conduct is equivalent to a discharge of his counsel, and a breaking off of the confidential and delicate relation theretofore existing between them. Such conduct must result in the destruction of all faith in each other and render it impossible for them to further co-operate.' 166 Mich. at pp. 567--568, 131 N.W. at p. 1116.

We feel that it follows from that view of the role of an attorney that a client's total failure to cooperate is sufficient 'good cause' to allow an attorney to discontinue representing his client and to recover for his services.

The decision as to whether an attorney's lien should be imposed lies within the trial court's discretion, Horvath v. Vasvary, 246 Mich. 231, 224 N.W. 365 (1929). The wisdom of that rule is illustrated here, for the trial judge was the one thoroughly familiar with the background of the case and the parties, and who had been in contact with Joseph Ambrose and his attorneys through long settlement sessions. Recognizing that the trial court therefore is in a better position to judge the conduct of the parties to this dispute, we hold that the record supports the determination of good cause for withdrawal.

One needs only to read the transcript of the hearing on the motion to withdraw to discover a total lack of communication between Joseph Ambrose and his attorneys by that time. A complete recitation of the actions of Joseph Ambrose, indicating that it was his unwillingness to cooperate with his attorneys which caused the problems, would occupy too much space here. However, two [65 MICHAPP 490]...