Legal Malpractice

Contingent Fees, Appeals and Legal Malpractice

By (Andrew Lavoott Bluestone)

Attorneys and clients enter into contingent fee retainer agreements, which do not directly address the question of an appeal.  Is the legal fee for an appeal the responsibility of the client or the attorney in this situation?  Here is a case from Madison/St.Clair which discusses this question:

"A legal malpractice claim filed by Donel Johnson claims Belleville attorneys Jodee Favre and Laura Allen breached their fiduciary duty and appropriated fees greater than they were entitled to in a wrongful termination claim he filed in 1998.

According to Johnson's suit filed in St. Clair County Circuit Court on Dec. 21, 2007, he entered into a contingency fee agreement with Favre and Allen on April 9, 1998.

Johnson, a tank washer with Rogers Cartage Co., was fired in 1998 after he refused to dump chloronitrobenzene into the sewer, the suit claims. In 2001, a St. Clair County jury awarded Johnson $2.13 million plus costs. Defendants Rogers and Tankstar appealed, and in 2002, a settlement was reached in which Johnson would receive $800,000 in cash and an annuity at a cost and present value of $439,022.

Johnson claims he was damaged in that his annuity is owned by his former employer and it does not guarantee payment to him and his heirs.

"Plaintiff has been further damaged in that Plaintiff paid Defendants in excess of $334,000 more than they were entitled to pursuant to their fee agreement with Plaintiff," the complaint states.

Johnson also claims that his contract with Favre and Allen entitled them to one-third of any sum he recovered.

"Because this agreement did not specifically exclude the handling of an appeal, Defendants Favre and Allen were deemed to have agreed to include any and all appellate work regarding Plaintiff's claim," the complaint states. "

Full post as published by New York Attorney Malpractice Blog on January 14, 2008 (boomark / email).