Spence, Payne, Masington & Grossman, P.A. v. Philip M. Gerson, P.A.

• Decision Date: 11 February 1986
• Docket Number: No. 84-2636,84-2636
• Citation: 11 Fla. L. Weekly 433,483 So.2d 775
• Parties: 11 Fla. L. Weekly 433 SPENCE, PAYNE, MASINGTON & GROSSMAN, P.A., Appellant, v. PHILIP M. GERSON, P.A., Appellee.
• Court: Florida District Court of Appeals

Page 775

483 So.2d 775

11 Fla. L. Weekly 433

SPENCE, PAYNE, MASINGTON & GROSSMAN, P.A., Appellant, v. PHILIP M. GERSON, P.A., Appellee.

No. 84-2636.

District Court of Appeal of Florida Third District.

Feb. 11, 1986.

Rehearing Denied March 21, 1986.

Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel D. Eaton, Miami, for appellant.

Arky, Freed, Stearns, Watson, Greer & Weaver and Eugene E. Stearns and Bradford Swing, Miami, for appellee.

Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.

PER CURIAM.

We reverse a judgment awarding to the appellee, Philip M. Gerson, P.A. (a professional association through which Mr. Gerson engages in the practice of law), the sum of $280,000, being the trial judge's assessment of the reasonable value of services rendered by Gerson to Mrs. Irene Speiller. We hold that because the employment of Gerson was solicited in violation of Section 877.02(1), Florida Statutes (1981), any agreement to employ him was void, and any services rendered by him pursuant to the purported agreement not compensable under a quantum meruit theory. ¹

Leonard Speiller was killed in an automobile accident in August 1981. Within a day of the accident, Philip Gerson's secretary received a telephone call from Larry Manns--a friend of the Speillers, and a friend and regular client of Philip Gerson--notifying Gerson of Mr. Speiller's death, and stating, without basis in fact, that Mrs. Speiller "was expecting his call." Gerson's secretary telephoned him in Chicago and advised him of Manns' call. Although Gerson and Mrs. Speiller were complete strangers, and notwithstanding that Mrs. Speiller had not sought his employment, Gerson instructed his secretary to hire an independent investigator, Richard McGraw, and "have McGraw find out what is going on." McGraw was hired and instructed by Gerson's secretary to obtain a retainer agreement from Mrs. Speiller. McGraw presented himself at Mrs. Speiller's home after she returned from the funeral home the day after the accident and obtained her signature on a forty-percent contingent fee contract employing Gerson as her attorney. The following Monday, Mrs. Speiller met with Gerson, and he affixed his signature to the retainer agreement.

Gerson filed a wrongful death action on Mrs. Speiller's behalf in October 1981. For reasons not pertinent here, Mrs. Speiller discharged Gerson in April 1982, with a settlement offer of $250,000 then outstanding. The following day, Mrs. Speiller hired the appellant law firm to represent her under a forty-percent contingency fee contract. In May 1982, Gerson filed an "attorney's lien" in the action. The appellant firm thereafter settled Mrs. Speiller's wrongful death action for $1,400,000, and both the settlement and a forty-percent contingent fee of $560,000 were approved by the trial court.

Pursuant to a requirement of the order approving the settlement, the appellant placed the $560,000 in an interest-bearing account to await resolution of Gerson's lien claim. Shortly thereafter, Gerson filed a petition seeking enforcement of his attorney's lien. The appellant's answer to the petition asserted that Gerson was not entitled to any fee because, inter alia, the contract upon which he based his claim had been illegally solicited and was therefore void. Following a non-jury trial, at which the above-recited facts were essentially undisputed, the trial court entered judgment for Gerson in the amount of $280,000, that is, fifty percent of the total fee.

It is appellant's position here, as it was below, that Gerson's contract with Mrs. Speiller was invalid because illegally procured in violation of Section 877.02(1), Florida Statutes (1981). ² That section provides "It shall be unlawful for any person or his agent, employee or any person acting on his behalf, to solicit or procure through solicitation either directly or indirectly legal business, or to solicit or procure through solicitation a retainer, written or oral, or any agreement authorizing an attorney to perform or render legal service...."

A violation of the statute results in the contract being void as a matter of public policy and thus incapable of supporting a charging lien. See Thomas v. Ratiner, 462 So.2d 1157 (Fla. 3d DCA 1984), rev. denied, 472 So.2d 1182 (Fla.1985).

We agree with the appellant that the evidence, viewed most favorably to Gerson, establishes that Mrs. Speiller had not even thought about employing an attorney at the time she met Mr. Manns at the funeral home the day following the accident; that Mr. Manns had telephoned Gerson's office before meeting Mrs. Speiller at the funeral home; and that the first thing Mrs. Speiller heard about an attorney was Mr. Manns' statement to her at the funeral home that he had called his attorney and that his attorney would be in touch with her. In short, this testimony disproves any notion that Mrs. Speiller approached Gerson through Mr. Manns and proves instead that Gerson approached Mrs. Speiller at the suggestion of Mr. Manns. Under these circumstances, the attorney is held to have unlawfully solicited the legal business. ³ Cf. The Florida Bar v. Abramson, 199 So.2d 457 (Fla.1967) (retainer contracts executed after attorney, in response to telephone call from unknown person advising that accident victims wanted attorney to come to hospital in order to represent victims, violated anti-solicitation provision of Integration Rule of Florida Bar where person who placed...