{¶ 1} Appellants, the law firm of Leeseberg & Valentine (“L & V”) аnd Diana Southard, executor of the estate of Peter C. Southard, appeal from a judgment of the Franklin County Court of Common Pleas, Probate Division, determining that the probate court lacked jurisdiction to resolve the fee-sharing dispute between L & V and appellee, William Morse. Appellants assign a single error:
In an action arising out of a wrongful death settlement, the probate court imprоperly declined to exercise jurisdiction over a dispute between attorneys and the executor of the estate.
Because the probate court did not err in determining that it lacked jurisdiction, we affirm.
I. Facts and Procedural History
{¶ 2} Peter Southard died on June 11, 2005; the probate court admitted his last will and testament to probate on July 5, 2005. Pursuant to the will, the probate court appointed Diana Southard, Peter’s wife, to serve as executor of his estate. Diana retained L & V to pursue a wrongful-death-and-survival action against the assisted-care facility where Peter had stayed.
{¶ 3} On September 2, 2005, Diana entered into a “Medical Malpractice Claim Investigation Contingent Fee Agreement” with L & V. Under its terms, Diana was to pay L & V 40 percent of the gross amount of any recovery from the wrongful-death-and-survival action. The same day, Diana also signed a “Notification of and Consent to Share Fees” in which L & V and Morse agreed “to assume joint responsibility for the representation” of Diana in her claim against the assisted-care facility. The attorneys further agreed that L & V was to receive two-thirds of any fees derived from the litigation, with Morse receiving one-third. The litigation concluded in April 2009 with a verdict against the assisted-care facility; the parties to the litigаtion subsequently settled the case for the amount of the jury verdict, $6.5 million.
{¶ 5} On January 6, 2010, the probate court conducted a hearing regarding the application. Concluding that all necessary parties consented, the court approved the settlement and all proposed distributions to the surviving spouse, children, and grandchildren of Peter Southard and subsequently ordered the proceeds from the wrongful-death-and-survival action distributed to them.
{¶ 6} At the January 6 hearing, the court also approved the total amount of $2.6 million in attorney fees. Noting Morse’s objection to the proposed division of those fees, the court ordered the $866,666.67 in dispute to be deposited into an interest-bearing account and instructed the parties to submit briefs setting forth the probate court’s jurisdiction over the fee dispute. After the parties briefed the issue, the probate court issued an entry, concluding that it lacked jurisdiction over the dispute. The probate court explained that because the matter was a fee-sharing dispute between attorneys, it must be resolved through the Ohio State Bar Association’s (“OSBA”) mediation or arbitration process pursuant to DR 2-107(B) and Prof.Cond.R. 1.5(f). The probate court stated that after the OSBA resolved the issue, “either L & V or Mr. Morse may apply to the court for disbursement of these funds.” Appellants appeal from the probate court’s determination that it lacked jurisdiction over the fee dispute between L & V and Morse.
II. Probate Court’s Entry is a Final, Appealable Order
{¶ 7} Morse filed a motion to dismiss the appeal, asserting that the probate court’s entry is not a final, appealable order because the probate court reserved jurisdiction to take further action in the matter after the OSBA resolved the fee-shаring dispute. Because Morse’s motion raises an issue regarding our jurisdiction to entertain the appeal, we first must resolve the motion.
{¶ 8} Pursuant to Section 3(B)(2), Article IV, Ohio Constitution and R.C. 2505.03, appellate courts have jurisdiction to review only final orders, judgments, or decrees. “ ‘ “[T]he entire concept of ‘final orders’ is based upon
{¶ 9} “A trial court’s order is final and appealable only if it meets the requirements of R.C. 2505.02 and, if applicable, Civ.R. 54(B).” Fahey Banking Co. v. United Tel. Credit Union, Inc., 10th Dist. No. 09AP-1130,
{¶ 10} R.C. 2505.02(B)(1) is pertinent in resolving whether the probate court’s entry is a final, appealable order. It provides that “[a]n order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is * * * [a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment.” An order that affects a substantial right is “one which, if not immediately appealable, would foreclose appropriate relief in the future.” Bell v. Mt. Sinai Med. Ctr. (1993),
{¶ 11} To determine whether the trial court’s entry affects a substantial right requires that we examine the proceedings that the probate court ordered the parties to pursue with the OSBA. Because the parties executed the fee-sharing agreemеnt in 2005 and the Ohio Rules of Professional Conduct did not take effect until February 1, 2007, the Ohio Code of Professional Responsibility and DR 2-107(A) apply to and govern the fee-sharing agreement. See Prof.Cond.R. “Form
{¶ 12} DR 2-107 addresses how lawyers from diffеrent firms may divide fees. To resolve disputes arising in those circumstances, DR 2-107(B) provides that the fees “shall be divided in accordance with mediation or arbitration provided by a local bar association.” If the dispute “cannot be resolved by a local bar association,” it “shall be referred to the Ohio State Bar Association for mediation or arbitration.” See also Prof.Cond.R. 1.5(f). An “arbitration awаrd rendered pursuant to DR 2-107(B) is final, binding upon the parties, and unappealable.” Shimko v. Lobe,
{¶ 13} In light of the nature of the proceedings before the OSBA under DR 2-107, the probate court’s decision to relinquish jurisdiction in favor of arbitration is a final, appealable order. Initially, the decision involves a substantial right. See In re Guardianship of Jadwisiak (1992),
{¶ 14} Morse nonetheless asserts that the probate court retained jurisdiction over the funds in dispute by inviting the рarties to apply to the probate court for disbursement of withheld funds following the OSBA mediation or arbitration. Although the probate court postarbitration may undertake the ministerial function of disbursing the funds, the probate court under Shimko must be consistent with the final and unappealable results of the OSBA mediation or arbitration. At best, the probate court will act as a conduit to distribute the funds in accord with the OSBA’s award.
{¶ 15} Accordingly, we deny Morse’s motion to dismiss the appeal.
III. Probate Court Lacks Jurisdiction
{¶ 16} We initially note that appellants’ “Statement of Facts” is based almost entirely on Diana’s affidavit executed March 6, 2010. The affidavit is not
{¶ 17} In determining the probate court’s jurisdiction, we again must look to DR 2-107(A), whiсh provides that lawyers who are not in the same firm may divide fees only with the prior consent of the client. In addition, as pertinent here, the agreement must state that all the lawyers will assume responsibility for the representation and state, in writing, the terms under which the fee will be divided and the identity of the lawyers. Lastly, the total fee must be reasonable.
{¶ 18} Here, the fee-sharing agreement was in writing, stated that L & V and Morse аgreed to assume joint responsibility for the representation, set forth how the fee would be split between L & V and Morse, and bore Diana’s signature. In view of the probate court’s January 14, 2010 entry approving the total amount of attorney fees, that amount may be considered reasonable, an element the parties do not dispute. The agreement thus satisfies the terms of DR 2-107(A). Accordingly, DR 2-107(B) requires the attоrneys to submit their dispute to the OSBA for mediation or arbitration. Shimko, 103 Ohio St 3d 59,
{¶ 19} In response, appellants initially assert that the probate court viewed its own jurisdiction too narrowly. Appellants contend that because the wrongful-death statute and the Rules of Superintendence vest the probate court with jurisdiction to approve settlement offers and determine the reasonableness of attorney fees in wrongful-death actions, the probate court is the proper forum to hear the fee-sharing dispute between L & V and Morse.
{¶ 20} The probate court’s role in approving settlements in wrongful-death- and-survival actions is established in statute and the corresponding Rules of Superintendence. R.C. 2125.02(C) states that a personal representative may settle a wrongful-death action with the approval of the probate court. Sup.R. 70 provides for an application to approve the settlement and distribution of wrongful-death-and-survival claims in the probate court. It further states not only that the probate court retains jurisdiction over the settlement, аllocation, and distribution of the claims, but that attorney fees arising from a wrongful-death-and-survival action shall be subject to the approval of the probate court.
{¶ 22} Appellants also point to various decisions to support their jurisdictional argument, citing Messner v. Kaforey (Dec. 15, 1993), 9th Dist. No. 16270,
{¶ 23} Appellants also rely on Jadwisiak,
{¶ 24} Kinross concerned a fee dispute between Ohio attorneys arising from the settlement of a wrongful-death case where one attorney received the total fee award, but the other attorney did not receive notice of the hearing regarding the approval and distribution of the attorney fees. Id. at 387. Citing Jadwisiak, the court held that the probate court had jurisdiction over the entirе settlement proceeds to order the attorney to return the funds to the estate. Id. at 339-340. Kinross, however, did not discuss DR 2-107, much less hold that it does not require arbitration of fee-sharing disputes among attorneys.
{¶ 25} In the final analysis, the Disciplinary Rules and the Ohio Rules of Professional Conduct specify that fee-sharing disputes between attorneys arising under the rules must be submitted to arbitration or mediation before the appropriate bar association. The probate court properly concluded that it lacked jurisdiction over the fee dispute and referred the dispute to the OSBA for mediation or arbitration. See Steiner v. Van Dorn Co. (1995),
{¶ 26} Appellants alternatively assert that Diana, by consenting to the fee-sharing agreement, became a necessary party to any fee dispute arising out of the case. The probate court addressed the argument in its entry, observing that L & V’s argument would mean that no fee-sharing dispute could ever be referred to arbitration or mediation because the Disciplinary Rules, as well as the Rules of Professional Conduct, require the client to consent in writing to the fee-sharing agreement. Case law draws a distinction supporting the probate court’s conclusion.
{¶ 27} When a dispute over fees occurs between a client and an attorney, the client cannot be compelled to submit the dispute to arbitration pursuant to DR 2-107(B), now Prof.Cond.R. 1.5(f), because doing so would deprive the client of his or her right to litigate the dispute to a jury. Putnam v. Hogan (1997),
{¶ 28} In Endieott, the client disputed the amount of fees owed to two of her three attorneys; the attorneys also disputed the allocation among themselves. The client filed an action against the two attorneys, disputing their entitlement to
{¶ 29} Concluding that Putnam did not apply, we noted that Putnam addressed a client’s rights and determined that a client could not be forced to litigate a fee dispute with her former attorney in a DR 2-107(B) arbitration proceeding. Unlike Putnam, Endicott was not forced to arbitrate her claim against her attorneys, and her action against them was not implicated in the appeal. Rather, like L & V and Morse, the attorneys in Endicott were embroiled in a fee-sharing dispute that concerned only their respective shares of the settlement allocated to attorney fees, a matter appropriatеly resolved through arbitration.
{¶ 30} Similarly, the OSBA mediation or arbitration process here will affect only the allocation of fees among the attorneys. Even though Diana signed the fee-sharing agreement, that fact is not enough to convert the DR 2-107 dispute among the attorneys into a Putnam dispute between Diana and her attorney. Indeed, as the probate court noted, to so hold would render DR 2-107 and Prof.Cond.R. 1.5(f) endlessly inapplicable, a result contrary to the Supreme Court’s decision in Shimko. See Shimko,
{¶ 31} Lastly, appellants suggest that the probate court retains jurisdiction to determine whether the fee-sharing agreеment was fraudulently induced. L & V points out that it filed a complaint in the general division of the Franklin County Court of Common Pleas raising the issue; L & V contends that the probate division of the same court has similar jurisdiction. See Schulman v. Wolske & Blue Co., L.P.A. (1998),
Motion to dismiss denied and judgment affirmed.