Elliott v. Joyce, 93SC528
| Decision Date | 07 November 1994 |
| Docket Number | No. 93SC528,93SC528 |
| Parties | James E. ELLIOTT, Jr., Petitioner, v. Jim JOYCE, a/k/a James M. Joyce, Respondent. |
| Court | Colorado Supreme Court |
The Elliott Law Offices, Mark D. Elliott, Arvada, for petitioner.
E. Ronald Beeks, Evergreen, for respondent.
We granted certiorari in Joyce v. Elliott, 857 P.2d 549 (Colo.App.1993), to decide whether our rules of procedure governing contingent fee agreements prohibit recovery in quantum meruit by an attorney from a former client, without express provision in the contingent fee agreement. The court of appeals reversed the trial court's judgment enforcing an attorney's lien in favor of James E. Elliott, Jr., an attorney, against Mr. Elliott's client, James Joyce. Because the contingent fee agreement did not contain a statement indicating the client would be liable to pay compensation to the attorney under the particular circumstances by which the attorney-client relationship was terminated, we affirm.
On April 15, 1985, respondent, James Joyce (client), entered into a contingent fee agreement to retain the services of petitioner, James E. Elliott (attorney), to represent him in a legal action involving the purchase of cattle. The fee agreement set forth the nature of the services to be rendered by the attorney, provided a schedule of the percentages to be paid to the attorney, noted that the client was to pay an initial amount of $1000 as an "advance" to be applied toward fees, and established a $5000 maximum limitation upon the amount of expenses the attorney could incur without further written authority from the client. In addition, the agreement contained the following provisions:
The client may terminate this Contingent Fee Agreement by notifying the attorney in writing. If permission for withdrawal is required by the rules of any Court, the attorney shall withdraw upon permission of the court. The client shall pay the attorney a fee based upon time and effort for services rendered to the date of the attorney's receipt of the client's letter of termination. The fees shall be calculated at the rate of One Hundred Fifty Dollars ($150.00) per hour based upon the time records maintained by the attorney. Such fees shall be payable only if the client is successful in obtaining a recovery in the matter. All expenses and disbursements shall be paid to the attorney immediately at the time of letter of termination, regardless of whether recovery is obtained.
....
This Contingent Fee Agreement contains the entire Agreement of client and attorney regarding the attorney's employment. This Agreement shall not be modified or revoked except by written agreement signed by the client and attorney.
From April 1985 through April 1990, Elliott expended approximately 120 hours of his time on the client's behalf. On April 6, 1990, Elliott filed a motion for the court to authorize his withdrawal because of "an irreconcilable conflict." The motion to withdraw made no reference to any claim for fees and, in accordance with C.R.C.P. 121, § 1-1(2), 7A C.R.S. (1990), Elliott provided proper notice of his motion to withdraw and advised Joyce of his right as a client to object to such withdrawal. Joyce did not object and by order dated April 25, 1990, the trial court authorized Elliott's withdrawal. After Elliott's motion to withdraw was granted, Joyce retained new counsel who was able to settle the litigation. After the matter was settled, Elliott filed an attorney's lien under section 12-5-119 and section 12-5-120, 5A C.R.S. (1991), seeking recovery of attorney fees in the amount of $17,936.67 based on time and effort for services rendered, under the theory of quantum meruit. On November 8, 1990, the trial court accepted "the proceeds of the settlement ... in the amount of $20,000 ... to be held by the court until James Elliott's attorney's lien question is resolved."
Initially, by order dated October 15, 1991, the trial court found that "Mr. Elliott himself terminated the Contingent Fee Agreement," concluded that, by voluntarily withdrawing, Elliott "gave up any right he may have had under [the contingent fee] agreement to collect a fee," and discharged the attorney lien claimed by Elliott. In response, Elliott filed a motion for post-trial relief.
The trial court treated Elliott's motion for post-trial relief as raising "[t]he additional issue [of] whether Mr. Elliott is entitled to recovery of a fee independent of [the contingent fee agreement], based upon a quantum meruit or unjust enrichment theory." Relying solely upon two cases, Mutter v. Burgess, 87 Colo. 580, 290 P. 269 (1930), and Ownbey v. Silverstein, 69 Colo. 325, 194 P. 607 (1920), the trial court ruled that Elliott "has an enforceable attorney's lien in the amount of $8,186.67." In reaching its conclusion, the trial court made "additional findings" material here. In its order dated December 20, 1991, the trial court determined that Elliott "was not required to withdraw, but elected to do so," and that by not objecting to his attorney's withdrawal, Joyce "consent[ed] to the withdrawal." Finally, the trial court ruled that "when a contract has been abandoned by the parties, the attorney may recover, upon an implied contract." The trial court's orders do not refer to our rules governing contingent fee agreements under chapter 23.3, and the record does not reflect whether the parties ever raised either Rule 5(d) or Rule 6 before that court and we assume they did not.
The court of appeals reversed the ruling of the trial court, finding that where an attorney voluntarily withdraws from representation, his or her client is not obligated to pay the attorney "unless the [fee] agreement, or some later written agreement between the parties, establishes the client's obligation to pay fees under such circumstances." Joyce v. Elliott, 857 P.2d 549, 552 (Colo.App.1993). The court of appeals found no such express provision in the Contingent Fee Agreement and thus dismissed the attorney's lien.
We granted Elliott's petition for certiorari to determine "[w]hether C.R.C.P. ch. 23.3, Rule 5(d) (Rules Governing Contingent Fees) prohibits recovery in quantum meruit when the parties to a contingent fee agreement have abandoned that agreement." Because our rules prohibit a recovery unless the fee agreement specifically states otherwise, we affirm the judgment of the court of appeals.
In Colorado, Contingent Fee Agreements are limited by our Rules Governing Contingent Fees, C.R.C.P. ch. 23.3. In 1979, we adopted chapter 23.3 consistent with our general supervisory power over attorneys in order to regulate the conduct of attorneys in the attorney-client relationship and to protect the public.
Among other matters, chapter 23.3 specifically requires that a contingent fee agreement set forth the amount of compensation to which the attorney shall be entitled, expressed as a percentage of the proceeds received by the client, and the amount the client must pay for expenses. C.R.C.P. ch. 23.3, Rule 5. Chapter 23.3, which is comprised of several rules, also mandates that each contingent fee agreement include "a statement of the contingency upon which the client is to be liable to pay compensation otherwise than from amounts collected for him by the attorney." C.R.C.P. ch. 23.3, Rule 5(d). In essence, chapter 23.3 is self-enforcing; the sanction for noncompliance by attorneys is the inability to enforce payment by clients. As set forth in Rule 6, "[n]o contingent fee agreement shall be enforceable by the involved attorney unless there is substantial compliance with all of the provisions of this rule." Thus, an attorney who fails to comply with the rules may be barred from recovering any unpaid legal fees, whether expressly provided for or otherwise contemplated.
Elliott argues that nothing in chapter 23.3 prohibits quantum meruit recovery where, as here, there is a mutual abandonment of a contingency agreement. Focusing on the trial court's finding of mutual abandonment, Elliott reasons that the instant scenario is analogous to situations in which an attorney has provided services in the absence of an express contractual agreement. In those cases, he posits, courts have been inclined to grant quantum meruit recovery. See, e.g., Murdock v. Cohen, 762 P.2d...
To continue reading
Request your trial
-
Brody v. Hellman
...of the proceeds received by the client, and the amount the client must pay for expenses. C.R.C.P. ch. 23.3, Rule 1, 5; Elliott v. Joyce, 889 P.2d 43, 45 (Colo.1994). An attorney who fails to comply with chapter 23.3 may not enforce payment by clients. C.R.C.P. ch. 23.3, Rule 6; Elliott v. J......
-
LaFond v. Sweeney
...completion of a contingent fee case and such quantum meruit recovery is expressly described in the fee agreement, Elliott v. Joyce, 889 P.2d 43, 45 (Colo.1994) ; or when the attorney's services are “successfully completed” but the contingent fee agreement was unenforceable because it was no......
-
Dudding v. Norton Frickey & Associates
...meruit recovery by an attorney but only when the underlying agreement contemplates the availability of such recovery. See Elliott v. Joyce, 889 P.2d 43, 46 (Colo.1994). In Elliott, the attorney and client entered into a contingent fee agreement that expressly provided if the client withdrew......
-
Hannon Law Firm, LLC v. Melat, Pressman & Higbie, LLP
...Chapter 23.3, which sets forth rules governing contingent fee arrangements, limits such recovery in certain situations. Elliott v. Joyce, 889 P.2d 43, 46 (Colo.1994). An attorney who withdraws during representation on a contingent fee basis may recover in quantum meruit from a client only i......
-
Dear Lawyer: if You Decide It's Not Economical to Represent Me, You Can Fire Me as Your Contingent Fee Client, but I Agree I Will Still Owe You a Fee.
...Ethics Op. 1606, supra note 108 (citation omitted).152. Colo. Rules Prof'l, Conduct 1.5(c) (2007).153. See generally, Elliott v. Joyce, 889 P.2d 43, 46 (Colo. 1994) ("[W]e decline the invitation to look to case law from other jurisdictions or to rely solely upon our case law prior to the ad......
-
Disciplinary Opinion: People v. Gregson
...we are cognizant that in contractual disputes a fee agreement must be interpreted and construed against the drafter, Elliot v. Joyce, 889 P.2d 43, 46(Colo. 1994), we are also wary of unreservedly applying this rule of construction given the context of this matter; this is, after all, not an......
-
The Potential Impact of the Restatement (third) of the Law Governing Lawyers
...People v. Bennett, 810 P.2d 661 (Colo. 1991); Schmidt v. Frankewich, 819 P.2d 1074 (Colo.App. 1991). 21. Compare, e.g., Elliott v. Joyce, 889 P.2d 43 (Colo. 1994), with Proposed Restatement§ 51, expressing differing viewpoints on recoverability of fees based on quantum meruit. 22. The pream......
-
Cba Ethics Committee Abstracts of Recent Letter Opinions
...from recovering any fees if he fails to comply substantially with all of the requirements of C.R.C.P., Ch. 23.3. In Elliott v. Joyce, 889 P.2d 43 1994), under similar circumstances the Supreme Court applied these rules to prohibit a recovery of attorney fees under a quantum meruit theory, a......