Cameron v. Sullivan

• Decision Date: 08 March 1977
• Citation: 360 N.E.2d 890,372 Mass. 128
• Parties: Barbara A. CAMERON, administratrix v. Edward M. SULLIVAN. Supreme Judicial Court of Massachusetts, Middlesex
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 890

360 N.E.2d 890

372 Mass. 128

Barbara A. CAMERON, administratrix v. Edward M. SULLIVAN.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 3, 1977.

Decided March 8, 1977.

Robert M. Murphy, Boston, for defendant.

S. George Bromberg, Boston, for plaintiff.

Before HENNESSEY, C.J., and QUIRICO, KAPLAN, WILKINS and LIACOS, JJ.

KAPLAN, Justice.

The plaintiff Barbara A. Cameron, as administratrix of the estate of her husband Alan, brought an action against her attorney Edward M. Sullivan, defendant, based on G.L. c. 221, § 51: 'An attorney at law who unreasonably neglects to pay over money collected by him for and in behalf of a client, when demanded by the client, shall forfeit to such client five times the lawful interest of the money from the time of the demand.' A jury trial in the Superior Court resulted in a verdict for the plaintiff. The defendant appealed from the ensuing judgment, and the case is here by transfer on our own motion from the Appeals Court.

On October 1, 1965, the plaintiff and her two minor children were involved in a motor vehicle accident. Thereafter, on December 20, her husband was involved in another accident. The defendant was retained to press the claims for damages. On March 20, 1966, the husband died.

On March 30, papers were executed for the appointment of the plaintiff as administratrix. On April 4, the plaintiff, as 'mother and next friend' in respect to the first claim, and as administratrix regarding the second claim, entered into a contingent fee agreement with the defendant set out on a printed form (with cross-outs and addenda). This called for '(r)easonable compensation,' on the contingency of recovery on each claim, but 'not to exceed' thirty-three and one-third per cent of the gross amount collected, with an additional sixteen and two-thirds per cent in the event of a 'second trial.' A second agreement between the plaintiff, 'individually and as admix.,' and the defendant, entitled 'Non-Contingent Fee Agreement,' undated, but probably executed the same day, April 4, stated that the defendant was retained to perform legal services in connection with matters other than the accidents mentioned, including (i) the probate of the husband's estate and sale of his business, (ii) a claim on a $25,000 'Occidental' policy on the husband's life (on which, as the agreement stated, 'our hope of success . . . is not great,' the company having claimed a lapse), and (iii) a possible claim against the estate arising from an incident on December 17, 1965, when the husband had allegedly struck a pedestrian in yet another motor vehicle accident. The defendant was to receive noncontingent, reasonable compensation for the work (with the agreement that 'a minimum hourly rate of $25.00 per hour' was reasonable for other than court appearances), payable 'directly to . . . (the defendant) out of the moneys . . ., if any, recovered from . . . (the two matters covered in the contingent fee agreement).'

The defendant attorney, on behalf of the plaintiff as administratrix, commenced an action in the Municipal Court of the Dorchester District to recover for the injuries to the husband which went to trial and resulted in a judgment for $2,875. Appeal was taken to the Superior Court and there, after trial, a judgment for $5,784.75 was achieved in or about April, 1971. The defendant received the avails of the judgment in the form of a check to his order as attorney for the plaintiff as administratrix. This he deposited in a trustee account. He thereupon withdrew the same amount from that account by a check to his own order. He did not notify the plaintiff in writing of his receipt of the money nor did he render bills to the plaintiff for his services. There were telephone calls or other conversations between plaintiff and defendant in which, according to the plaintiff, she made demands but was put off or 'pacified'; the defendant's version was that all was repeatedly explained to her, though nothing was put in writing. In any event, the plaintiff has not received any part of the $5,784.75 recovery. The present action was commenced by writ dated August 10, 1971.

To the plaintiff's claim that some substantial fraction of the $5,784.75 had been 'unreasonably' withheld, the defendant answered that nothing was owing because, first, he had earned the full fifty per cent of that amount under the contingent fee agreement as reasonable compensation, and, second, his reasonable compensation for his services on other matters accounted for the balance. On the first point there was conflicting evidence. Experienced lawyers called by the respective parties testified that a fifty per cent contingent fee was, and was not, excessive in the circumstances. As to the other services, it appeared that the defendant had secured the appointment of the plaintiff as administratrix by a Probate Court, had assisted in the sale of the decedent's business or good will for a price of $500, and had had some conversations with creditors of the estate (which, according to the defendant, was insolvent). But on the defendant's own testimony all this consumed no more than about thirty hours; indeed the plaintiff sought to show, with some evident success, that the work was perfunctory. The defendant claimed only four hours applied to the pedestrian's possible claim against the estate.

The judge ruled out an attempt by the defendant to prove some work done on the claim that arose from the accident involving the plaintiff and the children: this belonged under the contingent fee agreement and the contingency of a recovery had not occurred; besides, the work would not have been performed on behalf of the estate, so that the defendant could not justify the deduction of its reasonable value from the $5,784.75 recovery for the estate. Evidence of work done on the Occidental life policy claim (which did not succeed) was also ruled out by the judge as a basis for deduction: it was the plaintiff as an individual who was named as beneficiary of the policy, not the estate. In the end, however, the trial judge specifically instructed the jury that they could consider the evidence that the defendant had done work on the Occidental policy claim as bearing on whether the defendant had a good faith belief that he was entitled to use this as an offset, which might in turn reflect on whether there was unreasonable neglect under G.L. c. 221, § 51.

The jury found a verdict on March 19, 1975, in favor of the plaintiff in the amount of $2,642.38, which with interest calculated by the jury at thirty per cent per annum from August 10, 1971, came to a total of $5,502.73. The clerk in his tally added ordinary legal interest on the latter amount at six per cent from August 10, 1971, to August 13, 1974, and at eight per cent from August 14, 1974, to March 19, 1975, ¹ an amount of $1,256.10.

On the present appeal, the defendant argues that the judge erred in instructing the jury that they could review the reasonableness of the...