Carbonic Consultants, Inc. v. Herzfeld & Rubin, Inc.

• Decision Date: 24 September 1997
• Docket Number: No. 97-690,97-690
• Citation: 699 So.2d 321
• Parties: 22 Fla. L. Weekly D2245 CARBONIC CONSULTANTS, INC., Appellant, v. HERZFELD & RUBIN, INC., Appellee.
• Court: Florida District Court of Appeals

Page 321

699 So.2d 321

22 Fla. L. Weekly D2245

CARBONIC CONSULTANTS, INC., Appellant, v. HERZFELD & RUBIN, INC., Appellee.

No. 97-690.

District Court of Appeal of Florida,

Third District.

Sept. 24, 1997.

Samuel L. Bare, III, Miami, for appellant.

Bierman, Shohat, Loewy, Perry & Klein, and Theodore Klein, and Pamela I. Perry, Miami, for appellee.

Before COPE, GERSTEN and SHEVIN, JJ.

PER CURIAM.

Appellant, Carbonic Consultants, Inc. (Carbonic), appeals an order granting a charging lien to appellee, Herzfeld & Rubin, Inc. ("law firm"), claiming the law firm forfeited its rights to compensation pursuant to a contingent fee agreement after voluntarily withdrawing from the case. We agree that the trial court erred in permitting the law firm to maintain its charging lien, and reverse the order below.

Carbonic retained attorney Stephan Nagin (Nagin) to represent the company in a complex antitrust case pursuant to a contingent fee agreement. Nagin thereafter joined the appellee's law firm in January of 1994. In May of 1996, Nagin resigned from the firm and filed a motion to withdraw as counsel for Carbonic.

The law firm then also filed a motion to withdraw after receiving a Florida Bar Staff Opinion concluding that the firm was required to terminate representation due to lack of antitrust expertise. According to the law firm, after Nagin resigned, the law firm no longer possessed the necessary expertise in the antitrust field to continue to represent Carbonic.

At the hearing on both motions, Nagin attacked the law firm's basis for withdrawal claiming the law firm had participated in other antitrust matters. Nagin presented copies of court pleadings filed in the United States District Court for the Southern District of Florida reflecting three senior partners at the law firm were involved in defending a client in an antitrust action. The court gave the documents little weight, concluding that filing pleadings in one antitrust case did not establish the law firm had a particular expertise in antitrust.

At the conclusion of the hearing, the trial court granted both motions to withdraw, and additionally granted the law firm's motion for a charging lien seeking compensation for the 2 1/2 years it had worked on the case. Apparently, the trial court was persuaded by the law firm's argument that fees should not be forfeited, based on the law firm's contention that its withdrawal was ethically mandated. Recognizing an important distinction under the circumstances of this case, we are not so easily persuaded.

An attorney's entitlement to compensation when a contingent fee contract is prematurely terminated by discharge or withdrawal, generally depends on whether the withdrawal or discharge was with or without good cause. See Rosenberg v. Levin, 409 So.2d 1016 (Fla.1982). If a client discharges an attorney without good cause, the attorney is entitled to a reasonable attorney fee based either on the employment contract between the attorney and the client or quantum meruit for services actually rendered to the date of discharge. See Rosenberg v. Levin, 409 So.2d at 1016; Barwick, Dillian & Lambert, P.A. v. Ewing, 646 So.2d 776 (Fla. 3d DCA 1994), rev. denied, 659 So.2d 271 (Fla.1995); Kopplow & Flynn, P.A. v. Trudell, 445 So.2d 1065 (Fla. 3d DCA), rev. denied, 453 So.2d 44 (Fla.1984).

In most circumstances, an attorney retained on a contingent basis who voluntarily withdraws will be held to have forfeited any right to compensation. See Faro v. Romani, 641 So.2d 69 (Fla.1994); Doremus v. Florida Energy Sys. of S. Fla., Inc., 676 So.2d 444 (Fla. 4th DCA 1996). An exception is made where there is a justifiable cause for withdrawal based on a finding that the client's conduct either rendered the attorney's performance legally impossible, or would result in the attorney violating an ethical rule. ¹ See Faro v. Romani, 641 So.2d at 71; Kocha & Jones, P.A. v. Greenwald, 660 So.2d 1074 (Fla. 4th DCA 1995).

The Supreme Court of Florida in Faro specifically stated: "[I]f the client's conduct makes the attorney's continued performance of the contract either legally impossible or would cause the attorney to violate an ethical rule of the Rules Regulating The Florida Bar, that attorney may be entitled to a fee." Faro v. Romani, 641 So.2d at 71(emphasis added). In other words, an attorney who withdraws from representation in adherence to ethical obligations may be entitled to compensation in quantum meruit, but only where the client's conduct was the cause of the ethical dilemma.

Turning to the present case, client Carbonic did not engage in any conduct which would make continued representation either legally impossible or cause an ethical problem. Any ethical problem arising from the law firm's continued representation clearly resulted from the law firm's conduct in deciding not to acquire antitrust expertise in the office.

Much of the law firm's argument is based on the incorrect assumption that, because it obtained a Florida Bar Staff Opinion concluding continued representation would be unethical due to lack of antitrust experience, its termination was thus "involuntary" and did not suffice to trigger the general forfeiture rule. This is simply not so, because the decision not to acquire antitrust expertise was voluntary, and it was this decision which created the ethical dilemma. ² Since the practice of law requires that the interests of the client be considered before those of the attorney, the burden must be on the attorney to show withdrawal was not only mandated by ethical rules, but was also based on circumstances outside the attorney's control. See ...