Cassetta v. Del Frate

California Court of Appeal Aug 24, 1931 No. Docket No. 7897.Published

Before: Nourse

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Holding. The court held that a contingent fee contract assigning a portion of the proceeds of a potential judgment does not create an interest in the subject matter of the litigation, and therefore the client retains the absolute right to discharge their attorney.

Issues

Does an attorney's lien on the proceeds of a potential judgment constitute an interest in the subject matter of the litigation sufficient to prevent the client from discharging the attorney?
Does a client have the absolute right to change their attorney at any stage in an action in the absence of an agency coupled with an interest?

Disposition. affirmed

Quotations verified verbatim against the opinion

“a lien upon the judgment does not alone create an interest in the subject matter of the suit which would entitle the holder to control the litigation”

“In the absence of such a relation the client has the absolute right to change his attorney at any stage in the action.”

NOURSE, P. J.

Plaintiffs employed Mr. Gloria and Mr. Hennessy as their attorneys to prosecute an action in tort for injuries arising from a motor vehicle accident. After the suit was filed plaintiffs moved for leave to substitute other counsel. Their motion was granted and Mr. Gloria and Mr. Hennessy appeal upon a bill of exceptions.

The contract of employment was in writing. - The parties agreed to pay their counsel fifty per cent “of all amounts recovered by suit or settlement or compromise and said assignment shall be a lien on any judgment or any amount recovered by judgment or compromise or settlement”.

On the strength of this assignment appellants insist that they have an interest in the subject matter of the action which prevents their discharge as attorneys under the rule of

Gage

Atwater,

136 Cal. 170, 172 [68 Pac. 581], and

Kirk

Culley,

202 Cal. 501, 505 [261 Pac. 994]. Their assignment, however, is merely an assignment of the proceeds of the judgment or settlement. As such it creates a lien upon the fund recovered.

(Hoffman

Vallejo,

45 Cal.

[257]

564, 572;

Goad

Hart,

128 Cal. 197, 201 [61 Pac. 761, 964];

Tracy

Ringole,

87 Cal. App. 549, 552 [262 Pac. 73].)

Cassetta v. Del Frate

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NOURSE, P. J.

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