There can be significant value in reading "unpublished" judicial opinions. That is, opinions that, while available on the web, are not formally adopted by the issuing court for purposes of establishing precedent. A prime case on point is Sanders v. Mueller just handed down by the Fourth Circuit.
The case deals with the claims of Maryland attorney Robert Sanders against a Michigan law firm, Olsman, Ganos & Mueller, growing out of three product liability cases. The three cases involved allegedly defective auto airbags. All three cases had been referred to Olsman, Ganos by Sanders. He brought suit against the firm in order to recover a share of the attorneys' fees recovered by Olsman, Ganos.
In the lower court, Olsman, Ganos had been granted summary judgment in two of the cases, the Greer and Holtquist cases. In the third case, Ambrose, the lower court had set aside a jury award of $300,000 in favor of Sanders, reducing the award to $1.
In the Ambrose matter, the plaintiffs had initially been represented by local counsel. Subsequently, they sought advice from Sanders who ultimately referred them to Olsman, Ganos. The local firm and Olsman, Ganos agreed upon a 45/55 fee split.
Initially, Sanders and Olsman, Ganos had agreed to a one-third/two-thirds fee split. However, Olsman, Ganos asked to modify the fee split in light of the fee split with local counsel. Olsman, Ganos' proposed modification was to split the fee based upon the "totality of the circumstances," including how much work Sanders performed, his role in referring the client to Olsman, Ganos, how much of the litigation expenses he paid, and several other factors. This arrangement only applied where there was a fee split with local counsel, as in the Ambrose case. In other cases, the initial one-third/two-thirds arrangement would stand. It was also agreed that, in all events, Sanders would be allowed to work on the cases.
Sanders rendered substantial services in the Ambrose case, by his calculation working 1,500 hours over a two year period. At one point, he worked full-time on the case for a three month period. Days before the trial in Ambrose, the case settled. A total of $1M in attorneys' fees were paid, $550,000 ot Olsman, Ganos. Although Sanders had no agreement with the local firm involved, that firm gratuitously paid him $20,000 in appreciation for his efforts. However, his efforts to reach a deal with Olsman, Ganos broke down completely. Not only did Olsman, Ganos refuse to pay him a fee in the Ambrose case, it barred him from performing any work on the Greer and Holtquist cases. Subsequently, those two cases settled and Olsman, Ganos recovered attorneys' fees in both cases.
The Ambrose Case Claim
The lower court overturned the jury award with respect to the Ambrose case, holding that Sanders had failed to present evidence that would have allowed the jury to determine with any "reasonable degree of certainty" the fair value of his services in excess of the $20,000 he received from the local counsel. Thus, the lower court concluded that Sanders had proven liability, but not damages.
Sanders' claim with respect to the Ambrose case fee was based upon the theory of quantum meruit. The Fourth Circuit distinguished between two types of quantum meruit claims, one based upon an implied-in-fact contract, usually referred to as quantum meruit, and the other based on an implied-in-law contract, generally referred to as unjust enrichment. In the first type, the award is the reasonable value of the work performed by the plaintiff. In unjust enrichment cases, the award is based upon the gain bestowed upon the defendant. The Court held that Sander's claim was in the nature of a "true" quantum meruit claim. As applied to the facts of the case, the issue could then be reduced to the time and effort Sanders expended compared to the time and effort expended by all of the other attorneys in the case. Since there was evidence that Sanders' time and effort represented as much as 50% of the total time and effort of all of the attorneys, which would have supported an award of $500,000, the Court reinstated the $300,000 judgment awarded by the jury.
The Claims in the Greer and Holtquist Cases.
The district court had rejected Sanders' claims in the Greer and Holtquist cases because it concluded that the arrangement between Sanders and Olsman, Ganos constituted a "clear and flagrant" violation of Rule 1.5(e) of the Maryland Rules of Professional Conduct. That rule regulates agreements concerning fee divisions between attorneys. It requires (i) that the division be proportional to the services rendered by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation, (ii) that the client be advised of the participation of all of the lawyers involved, and (iii) that the total fee be reasonable. While it may extend to holding fee-sharing agreements in clear and flagrant violation of the rule unenforceable, a violation of the rule is not a per se defense to the enforceability of a fee-sharing agreement. Rather, it is in the nature of an equitable defense.
The Fourth Circuit held that a two-step analysis had to be conducted to determine whether Rule 1.5(e) should be applied to bar a claim for a fee-split. First, there has to be a finding that the rule had actually been violated. Second, if the rule had been violated, seven factors had to be weighed to reach a conclusion that the agreement is unenforceable.
Because there was no written agreement with respect to the fee split, Sanders had to show that his claim was proportional to the total work expended on the cases. However, Olsman, Ganos had prevented him from working on these cases. The Fourth Circuit rejected Olsman, Ganos' bootstrapping efforts and ruled that it was estopped to raise the proportionality requirement since Sanders' lack of work was due to Olsman, Ganos' actions. The appellate court also found that the clients had been informed of Sanders' participation and that there was no evidence that they objected. Since both sides agreed that the total fee was reasonable, the final element of the rule was met.
Significantly, the Court went on to state that, even if it had concluded that there had been a violation of Rule 1.5(e), it would have reversed the summary judgements since several, if not all, of the enumerated factors "militate in favor of enforcing the fee-sharing agreement." In particular, the Court ruled that a reasonable fact-finder could conclude that Olsman, Ganos was at least equally culpable for the violation of the rule as was Sanders and that Olsman, Ganos had raised the defense simply to escape an otherwise valid contractual obligation. The Court thus reversed the claims with respect to these two cases for further proceedings in the district court.
Finally, the Court rejected Sanders' quantum meruit claims in the Greer and Holtquist cases. He had based those claims on the contention that his work in the Ambrose case benefitted the prosecution of the two later cases. The court felt that he had not presented any evidence to support this contention.
A Few Comments
The case now goes back to the district court. Sanders has at least a $300,000 judgment in his pocket and a reasonable expectation as to an award in the second two cases.
The opinion by the Fourth Circuit is helpful because of its discussion of the concept of quantum meruit and because of its discussion of how Rule 1.5(e) operates in a fee-splitting dispute. As to the later issue, it correctly rejected a reflexive per se application of a Rule 1.5(e) bar in fee-splitting cases. This makes sense, since the rule was designed to protect clients, not as a sword for attorneys trying to wriggle out of arrangements that they had agreed to with other attorneys. Even if it does not establish explicit precedent, the opinion should be read at least as a partial road map for any attorney dealing with a fee-split dispute.