Sohn v. Brockington

• Decision Date: 13 June 1979
• Docket Number: No. LL-277,LL-277
• Citation: 371 So.2d 1089
• Parties: Gerald SOHN, Appellant, v. Hazel BROCKINGTON and Evelyn Brockington, his wife, Thomas E. Brown, Home Transportation Company, Inc., and Home Indemnity Co., Appellees.
• Court: Florida District Court of Appeals

Page 1089

371 So.2d 1089

Gerald SOHN, Appellant, v. Hazel BROCKINGTON and Evelyn Brockington, his wife, Thomas E. Brown, Home Transportation Company, Inc., and Home Indemnity Co., Appellees.

No. LL-277.

District Court of Appeal of Florida, First District.

June 13, 1979.

Rehearing Denied July 6, 1979.

Gerald Sohn, Jr., Jacksonville, for appellant.

Lee S. Carlin of Wood, Godfrey & Carlin, Jacksonville, for appellees.

ERVIN, Judge.

Attorney Sohn, discharged without cause by his former client before he had accomplished the contingency stated in his contingent fee contract, appeals the quantum meruit fee award entered by the lower court arguing first, that he is entitled to recover under the terms of the fee contract, and second, even if quantum meruit is the correct means of evaluating the fee to be awarded, the amount awarded, given the nature of the services rendered, was insufficient. We agree with the lower court as to the first point, but reverse and remand as to the second.

On August 25, 1976, attorney Sohn and his former client, Hazel Brockington, entered into a 40% Contingent fee contract relating to services to be performed by Sohn pertaining to the recovery of damages resulting from injuries which had occurred to Brockington in an automobile accident. During the course of his employment, Sohn had successfully represented Brockington on his workmen's compensation claim as well as in a personal injury protection claim with Brockington's insurer. However, five months after the execution of the contract, Sohn was discharged without any cause given, and before he had filed a complaint pertaining to the common law tort action. Subsequently additional attorneys were employed by Brockington on the same percentage terms as Sohn, and, during pendency of the personal injury action, Sohn filed a motion seeking a lien on the proceeds of any recovery or settlement in accordance with his contingency contract. Ultimately Brockington's newly retained attorneys secured a settlement in the sum of $75,000. Later, at the hearing on the motion for attorney Sohn's charging lien, the court concluded that Sohn was discharged by Brockington without cause, that prior to the discharge Sohn performed valuable legal services for Brockington, all of which were rendered on the workmen's compensation claim, that based on the persuasive guidance of the Florida Supreme Court in Milton Kelner, P. A. v. 610 Lincoln Road, Inc., 328 So.2d 193 (Fla.1976), attorney Sohn was limited to a quantum meruit recovery for the value of his services rendered prior to his discharge, and that the value of those services as to the common law action only was determined to be $950.

We are confronted with the same question which the Third District Court of Appeal answered in 610 Lincoln Road, Inc. v. Kelner, P. A., 289 So.2d 12 (Fla.3d DCA 1974), but which was vacated by the Supreme Court in Kelner, P. A. v. 610 Lincoln Road, Inc., Supra. In Kelner, the Third District Court of Appeal held that the discharged attorney, a party to a contingent fee contract, could recover from his former client only on quantum meruit. The Supreme Court, in reversing, stated that while quantum meruit might be the proper standard when the discharge happens prior to the occurrence of the contingency stipulated in the contract, nevertheless held, since the attorney had obtained maximum recovery on behalf of his client prior to discharge, the facts did not present a question requiring it to decide whether quantum meruit was the exclusive remedy. The court therefore permitted the discharged attorney to recover on the contract. ¹

In the instant case the lower court concluded that Milton Kelner, P. A. v. 610 Lincoln Road, Inc., supra, was persuasive and that attorney Sohn was limited to quantum meruit for the legal services he had rendered only on the personal injury claim prior to his discharge. The dictum expressed in Kelner by the Supreme Court, while not controlling, is certainly persuasive, and we agree that when an attorney has entered into a contingent fee contract with his client and he is later discharged, either with or without cause before any recovery is obtained, his sole recourse is to seek damages for the reasonable value of the services he rendered before discharge.

The subject of an attorney's right to recover either under contract or quantum meruit has been one of extensive litigation. The majority rule is that an attorney employed under a contingent fee contract and discharged without fault on his part may recover damages for breach of the contract. See annot., 136 A.L.R. 232, 242 (1942). For example the courts of some states permit the discharged attorney to recover the full amount of the contingent fee for which he contracted. Carter v. Dunham, 104 Kan. 59, 177 P. 533 (1919); Harrison v. Johnson, 64 Ohio App. 185, 28 N.E.2d 615 (1940); Dolph v. Speckart, 94 Or. 550, 179 P. 657 (1919); Williams v. Philadelphia, 208 Pa. 282, 57 A. 578 (1904); White v. Burch, 19 S.W.2d 404 (Tex.App.1929). Other courts, such as those in Missouri, permit an attorney, employed under a contingent fee contract and discharged without cause, to elect either to treat the contract as rescinded and seek quantum meruit for services rendered or to wait until the client's cause of action is liquidated by judgment or settlement and then sue for his fee according to the contract. Mills v. Metropolitan St. Ry. Co., 282 Mo. 118, 221 S.W. 1 (1920). Indiana also allows an election. French v. Cunningham, 149 Ind. 632, 49 N.E. 797 (1898). Arkansas allows recovery of the stipulated contingent fee computed upon the amount ultimately realized by the client, less the expenses which the discharged attorney would have been required to make in performing the unperformed portion of the contract. Brodie v. Watkins, 33 Ark. 545 (1878); Bockman v. Rorex, 212 Ark. 948, 208 S.W.2d 991 (1948). The rule in Wisconsin is similar. The attorney is allowed to sue for damages on the contingent fee contract based upon the amount of the settlement or judgment ultimately realized by the client, less a fair allowance for services and expenses which would have been expended by the discharged attorney in performing the balance of the contract. Tonn v. Reuter, 6 Wis.2d 498, 95 N.W.2d 261 (1959); Knoll v. Klatt, 43 Wis.2d 265, 168 N.W.2d 555 (1969).

A more recent trend of cases denies the attorney, discharged by his client before the contingency has been fulfilled, any contract action, and limits his recovery exclusively to quantum meruit. See annot., 136 A.L.R. at 254. E. g., Martin v. Camp, 219 N.Y. 170, 114 N.E. 46 (N.Y.1916); Ramey v. Graves, 112 Wash. 88, 191 P. 801 (1920); Fracasse v. Brent, 6 Cal.3d 784, 100 Cal.Rptr. 385, 494 P.2d 9 (1972); Johnson v. Long, 15 Ill.App.3d 506, 305 N.E.2d 30 (1973); In re Estate of Poli, 134 N.J.Super. 222, 338 A.2d 888 (1975).

We feel the minority rule, limiting recovery only on quantum meruit, is the more logical and should be adopted in this state. In Martin v. Camp, supra, the New York Court of Appeals held that an attorney cannot seek an action in contract against his client unless the attorney completely performs. Its rule was based upon the principle that the client has the right to terminate the contract with or without cause at any time, and, if he exercises a right which is an implied condition of the contract, he obviously cannot be held liable for damages resulting from an asserted breach of the contract, since no breach ever occurred. Therefore, the lawyer who rendered services under the contract can recover only the reasonable value of the services which he performed prior to discharge.

The New York rule was followed in the landmark decision of Fracasse v. Brent, supra, where the California Supreme Court overruled a long line of cases which had held that when an attorney is discharged without cause by his client before he has completely performed his contract, he could elect either to sue his former client for damages resulting from the breach, or he could recover in quantum meruit for the reasonable value of his services. E. g., Herron v. State Farm Mutual Insurance Co., 56 Cal.2d 202, 14 Cal.Rptr. 294, 363 P.2d 310 (1961); Moore v. Fellner, 50 Cal.2d 330, 325 P.2d 857 (1958); Oliver v. Campbell, 43 Cal.2d 298, 273 P.2d 15 (1954). The opinion in Fracasse was based both upon the nature of the contractual relationship between attorney and client as stated in Martin v. Camp, supra, and the policy reasons expressed in the concurring opinion of Chief Justice Gibson, in Salopek v. Schoemann, 20 Cal.2d 150, 124 P.2d 21 (1942).

In Salopek, the trial court had allowed an attorney's lien on the proceeds of a judgment to the extent of the reasonable value of the services and the court affirmed, the majority holding that the attorney was discharged for cause and therefore was entitled only to a quantum meruit recovery. Chief Justice Gibson concurred but stated that whether the discharge was with or without cause, the measure of damages should be the reasonable value of the attorney's services. The policy reasons for limiting an attorney to quantum meruit were forcefully and cogently stated as follows:

It is recognized as a part of the ethical rules governing the legal profession that an attorney will not sue a client for a fee except to prevent injustice, imposition or fraud. See American Bar Association, Canons of Professional Ethics, Canon 14.

The relation of attorney and client is one of special confidence and trust and the dignity and integrity of the legal profession demand that the interests of the client be fully protected. (Citations omitted.) Without public confidence in the members of the legal profession which is dependent upon absolute fairness in the dealings between attorney and client, courts cannot function in the proper administration of justice. And inherent in the relationship between attorney and client is the fact that the client must rely almost...