Ellen Peck's January 2009 Article In California Bar Journal Has Nice Tips For Recovering Fees in Contingency, Limited Partner, Executor, and Client Fee Sharing Representations

 

Ms. Peck Reviews Stroud, Shimko, Miller, and Strong Decisions.

     Ellen R. Peck, a former State Bar Court judge and Encino solo practitioner, has written a fine article in the January 2009 edition of the California Bar Journal with astute tips of upfront, prophylactic actions that can be taken for successfully recovering fees in diverse client representation situations. We summarize them here:

· Contingency Fee Modifications. Material modifications to a contingency fee agreement also must fully comply with Business and Professions Code section 6147, even if the original agreement was compliant. Stroud v. Tunzi, 160 Cal.App.4^th 377, 382-384 (2008).

· Limited Partnership Fees—Look to the Limited Partnership. An attorney cannot sue a controlling limited partner for fees incurred in representing the limited partnership as a whole, where the fee recovery is based on the theory that the controlling limited partner was personally liable as a general partner. Recourse should be made against the limited partnership or against individual limited partners for services rendered to them in individual capacities. Shimko v. Guenther, 505 F.3d 987, 991-993 (9^th Cir. 2007) (construing an Arizona statute similar to Cal. Corp. Code section 15903.03).

· Probate Executor Individual Services. Attorney services to an executor, as an individual, can still be recovered even though the probate court shut the door to further recovery against the executor as far as payments from the probate estate. Miller v. Campbell, Warburton, Simmons, Smith, Mendell & Pastore, 162 Cal.App.4^th 1331, 1339-343 (2008) [reviewed in our post of May 16, 2008].

· Fee Sharing Agreement Unenforceable Against Client Did Not Bar Unjust Enrichment Suit Against Co-Counsel. Clients win where fee sharing agreements do not comport with California Rules of Professional Conduct, rule 2-200 (disclosure to and written consent by client requirements), but referring co-counsel may face exposure under unjust enrichment theories to aggrieved co-counsel. Strong v. Beydoun, 166 Cal.App.4^th 1398, 1404 (2008) [a Fourth District, Division 3 decision reviewed in our post of September 21, 2008].

     The Article also has invaluable tips for attorneys seeking fees under unjust enrichment theories—we will not give them away, but they are in Ms. Peck’s concluding discussion. Also, you get MCLE credit if you read her article and take the accompanying test.