Mink v. MACCABEE

California Court of Appeal Aug 17, 2004 No. B166764Published

Before: Armstrong

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Holding. The court held that Rule 2-200 of the California Rules of Professional Conduct does not require client consent to a fee-splitting arrangement to be obtained prior to the commencement of work, nor does it require the fee-splitting agreement between attorneys to be in writing. Additionally, the court held that a claim for quantum meruit survives a demurrer even if a breach of contract claim fails for lack of client consent.

Issues

Whether Rule 2-200 requires client consent to a fee-splitting arrangement to be obtained before the commencement of legal work.
Whether Rule 2-200 requires a fee-splitting agreement between attorneys to be in writing.
Whether a quantum meruit claim is viable when a fee-splitting agreement is unenforceable for lack of client consent.

Disposition. Affirmed in part, reversed in part.

Quotations verified verbatim against the opinion

“The rule requires that the client’s written consent be obtained prior to any division of fees.”

“Rule 2-200 certainly cannot be read, as Mink would have us do, to include a requirement nowhere appearing therein, that the fee-splitting agreement between the attorneys must be in writing.”

“Huskinson & Brown establishes that Maccabee’s cause of action in quantum meruit survives demurrer.”

Synopsis

[CERTIFIED FOR PARTIAL PUBLICATION*]c

Opinion

ARMSTRONG, J.

This case involves two independent lawsuits: attorney Mink’s suit against attorney Maccabee for attorney fees pursuant to a retainer agreement, and Maccabee’s cross-complaint for an attorney referral fee in a separate matter. The cross-complaint was dismissed after the trial court sustained Mink’s demurrer, on the basis that the fee-splitting arrangement was not consented to by the client in accordance with rule 2-200 of the California Rules of Professional Conduct (Rule 2-200). The attorney fees action was tried to a jury, which returned a special verdict concluding that Maccabee had not breached the contract, and awarding no damages. The trial court granted Mink’s motion for judgment notwithstanding the verdict, and awarded Mink $9,718.97 in damages.

Maccabee appeals the ruling on the demurrer, arguing that the trial court misinterpreted Rule 2-200. He also appeals the judgment in the attorney fees action, contending that the trial court erred in granting judgment notwithstanding the verdict. We agree that the court erred in sustaining the demurrer to Maccabee’s cross-complaint, but find that the court properly entered judgment notwithstanding the verdict.

Dismissal of cross-complaint

Maccabee appeals the dismissal of his cross-complaint. That pleading alleges that Maccabee referred a client to Mink, who agreed to pay a fee for the referral. The cross-complaint also alleges that the requirements of Rule 2-200 of the Rules of Professional Conduct, to the effect that the client agree in writing to the referral arrangement, was met, albeit well after the matter had been successfully resolved.

The cross-complaint also included a cause of action in quantum meruit.

Mink demurred to the cross-complaint, arguing that the client’s belated acknowledgement and consent to the referral arrangement failed to satisfy

[838]

Rule 2-200 in two particulars: Mink contended the rule requires first that the fee-sharing arrangement be in writing and signed by Mink in order to be enforceable, and second that the client’s written consent must be obtained at the outset of the litigation. The trial court determined that the client’s late-obtained consent did not satisfy the rule, and so sustained the demurrer.

Mink v. MACCABEE

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Synopsis

ARMSTRONG, J.

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DISPOSITION

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