Frost v. Lotspeich
| Decision Date | 05 July 2001 |
| Citation | 30 P.3d 1185,175 Or. App. 163 |
| Parties | Marianne FROST and Brooke Conner, Guardians Ad Litem for Zachary Conner, a Minor, Plaintiffs, v. Kurt LOTSPEICH, Laura Lotspeich, Martin A. Lotspeich and DOES I through X, inclusive, Defendants. Marianne Frost and Mike Conner, Plaintiffs, v. Kurt Lotspeich, Laura Lotspeich, Martin A. Lotspeich and Does I through X, inclusive, Defendants. Timothy J.P. O'Connor, former attorney for Marianne Frost and Brooke Conner, Guardians Ad Litem and Conservators for Zachary Conner, a Minor, Appellant, v. Michael Brian, current attorney for Marianne Frost and Brooke Conner, Guardians Ad Litem and Conservators for Zachary Conner, a Minor, Respondent. In the Matter of the Conservatorship for Zachary Conner, a Minor. Timothy J.P. O'Connor, former attorney for Marianne Frost, Brooke Conner, and Mike Conner, Guardians Ad Litem and Conservators for Zachary Conner, a Minor, Appellant, v. Michael Brian, current attorney for Marianne Frost, Brooke Conner, Mike Conner, Guardians Ad Litem and Conservators for Zachary Conner, a Minor, Respondent. |
| Court | Oregon Court of Appeals |
Clayton C. Patrick, Salem, argued the cause and filed the briefs for appellant.
Gary L. Simms, Ashland, argued the cause and filed the brief for respondent.
Before HASELTON, Presiding Judge, and WOLLHEIM, Judge, and VAN HOOMISSEN, Senior Judge.
This appeal arises from a dispute between two attorneys over the division of fees generated from the settlement of the underlying personal injury action. Appellant Timothy O'Connor, a California lawyer, assigns error to several rulings including, most significantly: (1) the trial court's preclusion of O'Connor's participation by telephone in an evidentiary hearing on the fee dispute because of O'Connor's conduct during that proceeding; (2) the trial court's determination that a written fee-division agreement between O'Connor and respondent, Michael Brian, a Medford lawyer, was unenforceable as violating both California and Oregon attorney disciplinary rules; and (3) the trial court's determination that, as a reasonable fee for his services, O'Connor should receive $13,600 out of the total contingency fee and cost award of $156,874.73.
We conclude that the trial court erred in summarily precluding O'Connor's participation in the evidentiary hearing. That action effectively defaulted O'Connor and, in the totality of the circumstances, exceeded the limits of the court's legal authority. Because the effects of that error pervade the trial court's findings and conclusions, we remand for an entirely new evidentiary hearing pertaining to the enforceability of the fee-division agreement and, if necessary, the reasonable value of O'Connor's services. Finally, for purposes of guidance on remand, we conclude that, if the evidence on remand establishes a violation of California Rule of Professional Conduct 2-200(A), under choice of law principles, that violation would bar enforcement in this proceeding of the attorneys' fee-division agreement.
Except as specifically noted, the following material facts are undisputed: In October 1993, Zachary Conner was severely injured when a shotgun held by Kurt Lotspeich accidentally discharged at the Lotspeichs' home in Talent, Oregon. At that time, Zachary and Kurt were both 13 years old, and both boys, as well as their parents, were Oregon residents.
In November 1993, Zachary's parents, Marianne Frost and Mike Conner, hired Brian to represent both themselves and Zachary in any claims arising out of the accident. In December 1993, Brian sought and established a conservatorship for Zachary, with Frost and Conner as coconservators. In 1994, after Brian had undertaken some investigation but before any personal injury action was filed, Frost and Zachary moved to California. At some point thereafter, Frost and Conner discharged Brian and retained O'Connor to represent both them and Zachary.
On June 28, 1994, O'Connor sent Brian a letter addressing division of fees with respect to any personal injury recovery:
The letter indicated that copies were sent to Frost and Conner. On July 8, Brian, by letter, confirmed the agreement.
In October 1994, Frost and Conner executed a written contingency fee agreement with O'Connor. In the same month, O'Connor filed two actions against the Lotspeichs in California state court—one with Zachary as plaintiff, and one with Frost and Conner as plaintiffs. The first case was dismissed for lack of personal jurisdiction, and the second was voluntarily dismissed with prejudice. O'Connor subsequently filed an action on behalf of Frost and Conner in California federal district court. That action was also dismissed for lack of personal jurisdiction. Finally, in July 1995, O'Connor, through a Medford attorney, filed a personal injury action in Jackson County Circuit Court on behalf of Frost and Conner as Zachary's guardians ad litem.1 At that time, O'Connor was granted admission pro hac vice to represent the plaintiffs in the Jackson County action.
In August 1995, Frost and Conner discharged O'Connor. On August 18, Brian filed an attorney lien in the Jackson County personal injury action, basing his claim of lien on the June 28, 1994, letter agreement with O'Connor. On September 5, 1995, O'Connor filed a lien for attorney fees against any judgment in the Jackson County action.2
Frost and Conner subsequently retained several other California attorneys, who associated various Oregon attorneys, none of whom resolved the Jackson County litigation, which had initially been the subject of intensive motion practice but then had languished. Finally, in January 1997, Brian was in Jackson County Circuit Court on an unrelated matter, when he heard that the court was about to dismiss the personal injury action for lack of prosecution. Realizing that no one was present to oppose the motion, Brian persuaded the trial court not to dismiss the case. Thereafter, Frost and Conner retained Brian once again.
After being rehired, Brian negotiated a $500,000 policy-limits settlement with the Lotspeichs' liability insurer. On March 20, 1998, the court in the conservatorship proceeding authorized Frost and Conner, as Zachary's conservators, to execute that settlement.
In an effort to resolve O'Connor's claims to fees, Brian contacted O'Connor. When those efforts failed, Brian obtained an order to show cause why O'Connor's lien should not be discharged. O'Connor responded to the court's show cause order by submitting a copy of the June 28, 1994, fee-division letter, as well as time sheets representing that he had devoted 181.42 hours to representing Zachary and his parents.
On April 8, 1998, the court issued an order approving payment by the conservatorship of $149,366.19 in attorney fees and $7,508.54 in costs pursuant to a written contingency fee agreement between Brian and Frost and Conner. That order did not, however, address O'Connor's entitlement to fees—and, particularly, the effect of the June 28, 1994, fee-division letter. The court subsequently issued an order discharging and holding "for naught" O'Connor's attorney fee lien. At the same time, however, the court set a hearing "to determine the amount of reasonable compensation and advances" to which O'Connor was entitled.
On May 18, 1998, that hearing occurred. Counsel for Brian argued that the June 1994 fee-division letter was unenforceable and stated that he intended to present testimony from Brian and three other attorney witnesses who would render opinions as to the reasonableness of O'Connor's claimed fees. O'Connor, who represented himself, participated by telephone and made an opening statement in which he argued, primarily, that the division of fees was controlled by the June 1994 agreement. Immediately after oral arguments, and before Brian's witnesses testified, the following colloquy between the court and O'Connor occurred:
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