*1 Gеorge Jeanett Markwardt and Markwardt, Plaintiffs-Appellants,†
Tommy Thompson, Secretary Department of Health & Human Company,
Services, Humana Insurance Corporation, a Wisconsin Insurance Involuntary-Plaintiffs,
v. Zurich American Insurance Company, foreign Corporation, Nahop a Insurance foreign partnership, a Partners, LP, limited Airport, Radisson Hotel Milwaukee Defendants, Cannon & Dunphy, S.C., Party-Intervenor-Respondent. Third [Case 2005AP1857.] Nos. 2004AP3236 and
Evelyn Plaintiff-Appellant, Rodriguez, Involuntary-Plaintiff, Motorola, Inc.,
v. foreign insurance Allstate Insurance Company, corporation, Nagode, and Jennifer Defendants, Intervenor-Respondent. Cannon & Dunphy, S.C., [Case 2005AP1292.] No. Plaintiff-Appellant, Lori A. Tucek, † Petition to review denied 3/16/07. Insurance a Wisconsin
Managed Services, Health Casualty Property Corporation, and Travelers Company, a domestic insurance Insurаnce *2 Involuntary-Plaintiffs, company,
v. Insurance Farm Mutual Automobile State corporation, foreign Company, insurance North, Defendants, M. Edna
v. S.C., Dunphy, Party-Intervenor-Respondent. Third 2005AP1856.]
[Case No. Plaintiff-Appellant, Pamela Draskovich, D. Wisconsin, Inc., HealthCare United Family corporation, and American a Wisconsin Company, a Wisconsin Mutual Insurance Involuntary-Plaintiffs, corporation, insurance v. Mutual and State Farm Kristin R. McCauley foreign Company, a Insurance Automobile corporation, Defendants, insurance Intervenor-Respondent. Dunphy, S.C., Cannon 2005AP2543.] [Case No. Appeals
Court of 2005AP1856, 2005AP1857, 2005AP1292, 2004AP3236, Nos. August 2005AP2543. Submitted briefs 12, 2006. September Decided 513 App WI (Also 669.) reported 724 N.W.2d *8 On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of James J. Gende II of Gende Law Offices, S.C. Waukesha and Robert E. Barnes of Law Robert G. of Milwaukee. Office of Bernhoft
On behalf of the third-party-intervenor-respondent, Terry E. Johnson the cause was submitted on the brief of Murray, Peterson, Johnson & S.C. of Milwaukee. Before Fine, and Curley Kessler, JJ. 1. KESSLER, J. Because each
¶ trial judge as- to one signed of these cases properly determined that Cannon & Dunphy, S.C. had a valid lien, and based on material undisputed facts determined that attorney fees and requested costs by Cannon & Dunphy, S.C. were reasonable, we In case, affirm. each the award of reasonable attorney fees and costs was consistent with a Retainer Contract signed by each client with Cannon & Dunphy, S.C., and was consistent with the Separation Agreement between Cannon & Dunphy, S.C. and James Gende, who became successor counsel when he сeased to be a Cannon & Dunphy, S.C. employee. objected Gende all awards to Cannon & S.C., Dunphy, claiming that they did not sufficiently document costs, claimed claiming that the fee allocation to which he in his agreed Separation Agreement was unenforceable because the Separation Agreement was contrary public We policy. disagree therefore affirm.
Background ("Gende") 2. When Attorney James Gende was ("the employed by Cannon & Dunphy, S.C. firm" or "Cannon & Dunphy") May 2000, he entered into an *9 Agreement agreed
Employment firm. with the He things, among therein, other that: assigned are of the law firm of all clients to him clients Em- not the clients of the Corporation the and are generated assigned such cases ployee. All fees on client Corporation property to Employee the are the regardless generаted, are or whether of when the fees Corporation employed by Employee still generated. when fees are Agreement provisions Employment The also contained in the Gende left the for allocation of client fees event discharge the firm and firm the client elected to and plaintiffs appeal Each of named this retain Gende. they signed in which retained "Can- a Retainer Contract specified Dunphy, S.C.," Gende, non & not to handle Agreement personal injury Employment The claims. specified to firm elected retain that, as clients who up firm firm, if he left the costs advanced Gende repaid by departure Gende, to the of his would be date recovery relating any from and Gende would receive fees hourly rate to those clients based on a defined for work specifically performed leaving he after the firm. Gende agreed provisions Employ- in the that the termination Agreement equitable." ment "fair and were years Approximately later, four and 3. Gende negotiated Separation Agreement the firm which signed April Separation In the Gende Employment Agreement, again agreed Gende that the Agreement fair of its are and "is and all terms valid binding" agreed and he further "not to initiate a chal- validity lenge, any agree- of forum, as said addition, ment." In Gende released Cannon any claims, actions, action, all of "from causes injuries, damages, contracts, lawsuits, demands, costs, compensation, judgment or interest, whether known beginning from of unknown time the date of agreement." provi- execution this Under this release Separation Agreement, sion of the any agreed against to not cause of action "initiateG any [Gende] in did, forum" and if it Gende's release *10 Dunphy paragraph Cannon & said would be "null void."2 Separation Agree-
¶ 4. the of Under terms the ment, Gende obtained more favorable terms than are Employment Agreement respect contained the with allocating existing to from of fees clients the firm who According Employ- him he retained after left. Agreement, paid ment Gende be for on would work Dunphy & Cannon former client on a cases formula of post-departure multiplied hours worked Gende's hourly salary Dunphy. rate based his at Cannon & Separation Agreement, the case, Under for all but one twenty keep percent Gende would of the fee recovered. keep As to one venued in Illinois, case he was to twenty-five percent Employ- of of the fee. Instead Agreement obligation repayment ment of immediate Dunphy, Separation costs advanced Cannon & Agreement delay Gende allowed to reimbursement particular those costs until the case was concluded. plaintiffs appeal ¶ The in this all chose follow any to his law Gende own firm. find no evidence that We client with terminated Retainer Contract Cannon & Dunphy obligations for Gende cause. did not honor his Separation Agreement under he did not when voluntarily pay Dunphy Cannon & their share of the fees they or reimburse costs had advanced when the appears The effect of this clause prevent Cannon suing from personally Gende to collect fees to which entitled, they prevent are but doеs not enforcement of lien rights against proceeds. settlement all one of cases concluded. In but these
various were Cannon & filed cases, the record shows that and to assert its contractual motions to intervene3 attorney dis- lien after the case had been settled and missed. ending employment
¶ with Cannon & 6. After his County. Dunphy, the firm in Waukesha Gende twice sued (2004CV2587) The case dismissed for failure to first was properly A Decision and Order on commence the action. (2005CV1529) April dismissing case 26,2006, the second declaratory sought judgment indicates that Gende Agreement Employment Agree- Separation and the policy against public are void as and unenforceable. ment granted Dunphy's The trial court Cannon & motion summary judgment and case dismissed case. That presently appealed, has not before this been but is court. leaving Dunphy, 7. Also after Gende ("OLR") Regulation Lawyer complained to the Office of *11 Dunphy the method Cannon & used to calculate about complaint charged to to the some costs clients. His OLR charging the to involved same unit method of costs alleged before the trial court invali- clients that Gende Retainer hence dates each client's Contract—and defeats disagreed the for The and concluded: lien fees.4 OLR 3 intervention; case, objected In each Gende in each case, permitted trial does not the court intervention. Gende appeal. pursue this issue on
4 court, objected apparently Gende before trial OLR, charged: to A that Cannon & complained per per page photocopying; flat fee of loсal $.25 $.25 call, sent; regardless duration; per desktop fax telephone $.35 per long telephone minute for distance call addition $.16 However, charge. that to local call record reflects Gende seeking represented just charges when court such manner approval employed of minor settlements while Cannon & charges. approved and that the courts such Judge Foley that ruled the fees asserted Dunphy S.C. agree are reasonable. Judge We with Foley's decision. reasonable,
While all fees be must the Supreme Court Rules do not include a mandate attorney for an to for a per-unit calculate client the actual cost of nomi- nal, expenses prior fair or upon termination of the representation. There is sup- insuffiсient evidence to port allegation an of ethical misconduct.
Gende sought review of initial OLR decision, and the Director of the OLR advised:
I have determined that there not a sufficient basis to I proceed. agree Judge Foley with that charged the costs you this matter are The reasonable. information provided have support potential is insufficient to viola- tions of Supreme Wisconsin Court regarding Rules they communication relate as to fees and costs. 8. All of the trial judges awarded Cannon &
Dunphy summary judgment which affirmed the valid- liens, of their found ity costs and attorney fees reason- able, and that costs ordered advanced and Retainer Contract fees from paid proceeds be recovery consistent with the Separation Agreement.5 Each trial court declined to consider Gende's claims that Contract and the Employment Separation were Agreement invalid, concluding either they were irrelevant validity lien or that those issues were before another court. Gende appealed. twenty percent Gende admits that he has retained of all *12 cases, on
fees these which is a benefit he in the obtained Agreement. Separation subsequent challenge His validity agreement very from which he a suggests, benefited at minimum, a certain disingenuousness.
525 Review of Standard summary judgment
¶ an order for 9. "Wereview applying same as the trial court." novo, standards de App ¶ 152, 6, 2004 Ricciardi, v. WI & Assocs. Piaskoski "Summary judgment 2d 686 N.W.2d675. 275 Wis. pleadings, proper admissions and answers, is when the genuine of material fact and affidavits show no issues judgment moving party as a matter of is entitled tо summary granting Id. will a decision law." "We reverse incorrectly legal judgment decided if trial court dispute." if "Even if are in Id. issues or material facts dispute, dispute prevent will not facts are in certain judgment granting summary if facts at issue of summary legal 'not issue which are material omitted). (citation judgment sought.'" Id. A the reasonableness court determines original attorney allocating fees between when Porter, Herro, v. McAndrews & S.C. successor counsel. (1974), 214 179, 182, 2d N.W.2d401 Gerhardt, 62 Wis. grounds by Theatres, Inc. on other Standard overruled (1984) DOT, 2d 349 661 730, 747, v. 118 Wis. N.W.2d ("[CJourts power inherent to determine the have the fees."). dispute attorney's A fee be reasonableness of may prop original and successor counsel tween counsel summary judgment. erly Piaskoski, 275 be resolved on Original 650, ¶¶ 2d counsel and successor 6-11. Wis. binding dividing may a enter into contrаct counsel contingency ¶¶ specific Id., 5, 10. An cases. fees finding appellate uphold a trial court's court will finding that the trial fees absent reasonable Theatres, Inc., court abused its discretion. Standard ("[W]e proper at hold that the standard 118 Wis. 2d *13 attorney upon review of fees is that the trial court's of determination the value of these will fees be sus discretion."). an tained unless there of abuse We validity Herro, review of the lien de novo. 62 2dWis. at 183. Validity
I. lien of Establishing attorney A. an lien for fees recognize
¶ 11. Wisconsin not does a common law attorney judgment, lien for fees before in of the absence Weigel a written Grimmett, contract. See v. 173 2dWis. (Ct. 1992) App. (discussing 263, 267-68, 496 N.W.2d206 (1869)). Courtney v. McGavock, 619, 23 Wis. In 621-23 attorney judgment Wisconsin, statute, an lien before only can be created contraсt. Wisconsin Stat. § provides: 757.36 Lien on proceeds of action to enforce cause of Any person having action. claiming right or action, sounding unliquidated or damages tort for on contract, with may any attorney prosecute contract give the action upon a lien the cause of action and upon proceeds damages or in any derived action brought for the enforcement of the cause of action, security as in the the litiga- conduct for fees tion; agreement when such is made and notice thereof given opposite party attorney, or or her his no adjustment settlement or may action be valid as created, against provided the lien so agreement for is fair fees and reasonable. section This shall not be chаnging construed respect champer- as law in tous contracts. added.)
(Emphasis
Klatt,
265,
See Knoll v.
43 Wis. 2d
(1969),
grounds by
527 (1974); Tonn v. 214 401 Herro, 179, 62 2d N.W.2d Wis. (1959). Reuter, 2d 95 N.W.2d Wis. of these Retainer Contract6 each 12. The client, the name of except cases is identical rise to the representation, the incident giving date of *14 client and the representative date signed and the in part: of It relevant Dunphy. provides DUNPHY, & S.C. CANNON RETAINER CONTRACT agreed in ... consideration of services [Client] hereby CAN- employ and furnished do to be rendered DUNPHY, my attorneys to, my & as with NON S.C. consent, for my bring claim or suit thereon settle settlement, damages proceeds out of the of said monies, agree give them third judgment, etc. one (1/3) compensation, their and in the mean- thereof as in time, give pursuant I a lien amount them valid said 757.36, Additionally, Wis. Stats. ... to sec. CANNON DUNPHY, hereby agreеs advance reasonable S.C. costs, necessary for expenses and disbursements my repay of claim I will prosecution which legal I that there will addition to the fees. understand costs, nor charge no for services reimbursement be there is expenses or disbursements advanced unless recovery my on claim.
I advised that services could rendered have been be basis, hereby I to be hourly on an but elect bound contingent fee contract. DUNPHY, S.C.
In the event CANNON & withdraw as my attorneys after I have a settlement offer received in this undisputed plaintiffs appeal It is that each signed containing language. a Retainer Contract this reject, I I give then them a which valid lien in the amount settlement offer on the date of with- or may required drawal such lower amount as be by the Responsibility. Code Professional DUNPHY, CANNON & S.C.
By:-
Attorney (Client signature capitalization origi- omitted; line as in added.) emphasis nal;
B. The attorney liens at issue arguing 13. Gende, that Cannon & had no valid hen fees earned as a result signing of the clients Contracts, the Retainer advances *15 objects any First, three theories. Gende to award of fees Dunphy, arguing to or costs & Cannon that he not successor counsel. Gende that argues the Retainer Con- tract did not a lien create for Cannon & because plaintiffs Dunphy, the were never clients of Cannon & Alternatively, argues but were instead his clients. Gende that the Retainer Contract was invalid the because calculating charged of method costs was client Finally, argues Employment unethical. Gende that the Separation Agreement Contract and thе are void as against public policy, creating obligation thus no on his part to return fees from these to cases Cannon & Dunphy. arguments separately. We address these 1. Successor Counsel
¶ 14. he, Gende asserts that Dun- not Cannon & phy, personally in was retained the initial Retainer con- facts establish the unequivocally
Contract. The the of the Retainer language As can be seen from trary. on behalf of Contract, Gende Cannon signed specifically to repeatedly The Retainer Contract refers & Dunphy. not Dunphy, Cannon & Gende. client employing not The Cannon & obligates Dunphy, Retainer Contract advance The Gende, to services and costs. perform Cannon & not Dunphy, Retainer Contract allows Un- Gende, to withdraw under certain circumstances. Contract, client to pay der the Retainer promises any of recov- Gende, & not one-third Dunрhy, Cannon Gende, not a lien for ery and gives Dunphy, fees. As observed Judge aptly those Guolee he, & to claim that not Cannon response Gende's had always lawyer: been client's Dunphy, right lawyer not a to employee An associate does have rights treasury hijack employer or the firm's and they basically That's we leave firm. what have when saying... an employee .... would be like ... [I]t here computer, going I am to take this and this television going just I am to ... them. And I am and leave with money to of that firm ... going take some this has say fight ["Y]ou and leave. And then me accumulated it.["]7 Gende, brief, reply argues and these his brief statements, original agreements and even the fee between counsel, level "chattel." This is successor reduce clients a mischaracterization of the facts in the record. The record that, times, ability all had the retain indicates at clients they whatever counsel that wished. The clients chose to retain voluntarily signed & the Retainer Con Cannon departure At the time Gende's from Cannon tracts. *16 to the clients then had the choice remain with Cannon Dunphy, attorney. to Gende or to retain another The Dunphy, retain in this chose to retain The clients' free and clients case Gende. they desire, how- intelligent choice to retain whatever counsel 530 express language can As be seen from the of the original Contract, Retainer Cannon & was the retained counsel. may freely change attorneys. A15. client How supreme long ago explained,
ever, as our
court
termi
nating
attorney
a contract
an
a
with
without cause is
Tonn,
breach of
contract
client.
[I]t [sic] [costs] boarders that representation incurred in ten months in a $206.13 significant injury ultimately personal action re- $87,500.00 in a could sulted settlement be deemed alone, unreasonable. On those facts I would conclude they Howеver, are it reasonable. since is Mr. Gende's *18 position item-by-item analysis necessary, that an I following. offer .25,
Photocopy charges of which bate incorporate stamping, coding, labeling bar and folio costs are rea- sonable, noting charged by that particularly copy costs providers photocopying ranged medical in this case for charges from to .45 and that HFS 117.05 permits $1.10 charged by Dunphy at or above the level Cannon & photocopying. taking judicial phone
I am notice of the fact that phones calls made from On public pay now cost .50. Dunphy that basis I determine that the Cannon & charge I S.C.'s of .25 is reasonable. reach the same faxing charge their desktop conclusion as to of .35. 18. For agree Judge Foley's analysis. We with ¶ reasons, the same the method of we conclude calculating costs was reasonable. 19. We also conclude that in re- independently
¶ case, lation to the total in each the costs recovery Cannon & are reasonable. We requested by Dunphy9 come on the undis- following to this conclusion based facts relevant to each case. puted Markwardt America n v. Zurich Insurance 20. (Case 2003CV8352) Co. 18, no. was filed September payments third-party do not include ven These costs dors, disputed like. expert witnesses and the Gende has not costs. those September
2003, 21, The total and settled 2004. settle- Dunphy disputed $87,500. ment Cannon & costs was recovery. $277.73, or The fee to were 0.32% Dunphy, Cannon & under the Retainer Contract as Separation Agreement, $23,100. reduced was (Case Rodriguez ¶ 21. v. Allstate Insurance Co. 2003CV3470) April 15, 2003, no. filed was settled January 25, The $25,000. total settlement was disputed $291.42, Cannon & costs were or recovery. Dunphy, 1.17% of the The fee to Cannon & Separa- under the Retainer Contract as reduced Agreement, $6,600. tion was ¶ 22. Draskovich v. State Farm Mutual Automo- (Case 2004CV737) bile Insurance Co. no. was filed January February 23, 2004, and settled 2005. The $45,000. total settlement was costs *19 disputed recovery. $389.58, were or 0.87% of the The fee Dunphy, to Cannon & under the Retainer Contract as by Separation Agreement, reduced $11,880. the was ¶ 23. v. Tucek State Farm Mutual Automobile (Case 2004CV2876) Insurance Co. no. was filed March May 29, 2004, and settled The 2005. total settle- Dunphy disputed $46,750. ment was Cannon & costs recovery. $175.96, were or The 0.4% fee to Dunphy, under the Retainer Contract as Separation Agreement, reduced the $12,342. was undisputed ¶ 24. It is also that Cannon & took a financial risk when it advanced substantial expenses third-party providers, including in the only Tucek case which was filed a week before Gende signed Separation Agreement, agreed and when it delay recovery until the conclusion of those costs to particular conclude records, Based on the we each case. are rea- costs claimed Cannon that the sonable. Agreement Sepa- Employment Impact and
3. Agreement on lien10 ration Employment argues that both Gende contrary Separation Agreement Agreement are and the policy, public unenforceable. He made and thus arguments First, as each of the documents. different Agreement argues Employment violates that the Gende employment public policy were the terms of his because authority for that the client. He cites no not disclosed to any why, logical proposition and fail to see reason we attorney's employment generally, contract an associate profes- employer should, a matter of his or her as with responsibility, firm. to a client of be disclosed sional that assertion is relevant Nor do we see how in the Retainer Contract. lien established reject Accordingly, case, we this on the facts of this “argument. brief, of his portion that in the fact statement We observe in his and editorializes repeatedly "spins" facts
Gende
repeatedly
he
refers to
example,
the facts. For
description of
Agreement as
Agreement
Separation
Employment
because,
with
as is common
agreements, apparently
"secret"
agreements,
parties
contracts and
employment
settlement
litigants
remind
they
be confidential. We
agreed
would
Wis.
interspersed
what
argument
comment and
editorial
(e)
809.19(l)(d)
namely
objective
an
requires,
Rule
Stat.
*20
facts,
inappropriate.
accurate recitation of the
completely
61,
n.2,
Co.,
5
281
App
2005 WI
Pipeline
¶
Arents v. ANR
See
173,
2d
¶ Next, Gende that these clients were 26. damaged by being given Separation not notice supported by any Agreement. not This assertion is any not indicate that client evidence. The record does paid and Cannon & more because Gende agreed upon dividing Rather, a formula for the fee. Separation Agreement, a the terms of the under developed agreed original to, was the method whereby counsel, fees be divided and successor would attorney agreed-upon percentage that time on an so no expenses need to incurred to determine the or would be split percentage fee for each individual transferred Accordingly, case, on the facts of also matter. reject this we argument. this
¶
The
trial court declined to consider these
validity
agree-
of those
issues. We conclude
only
defense
ments is irrelevant to
Gende raised
namely
challenge
Having
lien,
to the costs.
already explained
allegation,
resolution of
our
the costs
pursue
Accordingly,
decline to
it further.
based on
we
foregoing,
attorney
liens held
we conclude that
Dunphy these cases are valid.
II.
fees
attorney
Reasоnableness
previously
¶
an
28. We have
concluded that when
attorney
employment
firm,
ends
with a law
the firm
departing attorney may
separation
and the
enter into a
agreement that allocates between them the fees to be
contingent-fee
departing
earned
cases which the
employment.
retains after the
conclusion
Piaskoski,
firm,
275 Wis. 2d
25. The law
and the
departing attorney,
public policy by
do not violate
contracting for a
them
method
allocate between
fees
*21
completed.
¶¶
id.,
5,
not
See
cases that have
been
1,
any potential
parties compromised
20. Where "both
agreed percentage
[the
more than
claims to
providing
client's]
specific
for their
fee,
consideration
[as agreed],"
court
the fee
this
hаs
contract to divide
agreed upon
fifty percent
division between
enforced a
agreed
departing
¶
Id.,
An
the firm and
percentage
counsel.
original
and succes
allocation between
the fee due from
counsel, which does not increase
sor
produce
fee,
a reasonable
as
client,
must still
subject
agreement.
group
applied
to the
of cases
App
Meyer Michigan
Co.,
53,
2000 WI
v.
Mut. Ins.
See
("Alawyer's
¶
n.4,
493,
2d
609
167
13
233 Wis.
N.W.2d
reasonable.");
Cannon,
401,
State v.
199Wis.
fee shall he
(1929)
recovery
(holding
of fees
409,
385
that
226 N.W
contingency agreements
fair and reason
must be
under
able).
alloca
of the fees under this
The reasonableness
original counsel and successor
tion of the fees between
subject
Herro,
See
62
is
to control
the court.
counsel
note that
183; Tоnn,
2d
¶ 30. We consider the
only
post-employment
it
alloc
insofar as
deals with
fee
long accepted
portion
ation.11
has
that a
of a
Wisconsin
may
despite
severable,
contract
other
be
fact that
may
portions
illegal.
Thiede,
be
Schara v.
58 Wis. 2d
(1973).
express
opinion
489, 495, 206 N.W.2d129
We
no
validity
portions
Employment
on the
of other
of the
they
unnecessary
Contract because
are
to our decision
Castillo,
488,
here. State v.
2d
492,
213 Wis.
570 N.W.2d
(1997) (noting
appellate
44
that an
court should decide
possible grounds).
nego
cases on the narrowest
Gende
change
tiated a substantial
to his benefit in these terms
(See
Separation Agreement.
supra,
discussion,
in the
4.) Consequently,
validity
Employment
Agreement
longer
terms which are no
in effect is moot.
App
State
rel.
Litscher,
61, 3,
еx
Olson v.
2000 WI
233
11
complains
Employment Agreement
Gende
that
re
hiring
Dunphy
strictions on
staff from Cannon &
or employing
experts
independent
or other
contractors he
in
used while
their
However,
employ
against public policy.
provi
are
none of those
anything
obligation
sions have
to do
the fee
with
allocation
in
Agreement
the Employment
Separa
or its modification in the
Agreement.
Indeed,
tion
alleged
Gende has not even
that he
person
wished to hire a
from the
Cannon &
staff or that
any difficulty
he
expert
suffered
because of the
witness restric
necessary
tion. We decline to consider issues
are not
which
296, 300,
Hoffman,
the case before us. See
v.
Gross
227 Wis.
277
(1938) (noting
only
663
dispositive
N.W
that
issue need be
addressed).
("An
685,
2d
N.W.2d425
issue is moot when its
Wis.
practical
underly
no
effect on
rеsolution will have
ing controversy.");
Farms, Inc.,
see also
v. Link
Warren
(Ct.
1985).
App.
487,
123 Wis. 2d
368 N.W.2d688
A
question is one which
ren
moot
circumstances have
purely
Generally,
dered
academic.
moot issues will not
appeal. Warren,
be considered on
¶ 31. to the fee allocation formula As contained Separation Agreement, argue not Gende does Separation Agreement his with higher resulted fees to the client than were set forth in the Retainer Contract. The record also confirms that only charged contingency each client the one-third was *23 argue the one-third contin- fee. Nor does Gende gency the above, fee is unreasonable.12 As noted undis- among puted the facts demonstrate the differences beginning of the action cases in the time between the (See supra, discussion, and settlement of each case. 19-23.) undisputed ¶¶ The facts also demonstrate during done differences in the time which work was individually by Dunphy done work was (See id.) By entering Separation Agree- into the Gende. original Gende, coun- ment, Cannon & as respectively, sought counsel, to save sel and successor required litigate expense the time and that would be 12 above, contingency one-third As noted courts have found See, 213, Schott, 2d e.g., Klabacka v. 23 Wis. fees are reasonable. (1964). 218, 127 19 N.W.2d of each the exact division of each fee at the conclusion savings party was consideration for each case. This agreeing percentage applied to to a set allocation to be nothing inherently in all cases. We find unreasonable agreement. an such percentage applied
¶ allo- 32. The trial court Agreement agreed Separation cation upon undisputed Retainer Contract Based fees. independently records, conclude that the facts we to Cannon & were reasonable in fees awarded these cases. foregoing
¶ reasons, For all of the we affirm 33. Dunphy's enforcing and the the orders Cannon liens and fees consistent with the allocation costs terms Separation Agreement. respon- Costs awarded to dent.
By the Court.—Orders affirmed. (dissenting). pre-
¶ FINE, J. The core issue appeal Dunрhy, sented this is whether Cannon & S.C., has an lien in each of the cases. I enforceable respectfully submit that it does not. judgment a a 35. Unless client recovers on his or accordingly, lawyer claim, and,
her tort has an Wurtzinger equitable fees, Jacobs, lien for v. 33 Wis. 2d (1967), attorney's 703, 712, an 86, 148 N.W.2d91 lien for granted by must client in fees be contract with the order Weigel enforceable, Grimmett, 263, to be v. 173 Wis. 2d (Ct. 1992). App. 267-271, The N.W.2d 208-210 Majority recognizes this when it writes: "Wisconsin recognize not a does common law hen for fees judgment, in the before Majority, absence of written contract." Majority recognizes,
¶ 11. As the also Wis. *24 § permits give lawyer 757.36 the client to his or her Stat. provides: a fee-lien contract. It
540 action, sound- claiming right a having or Any person contract, damages unliquidated tort or for ing the action attorney prosecutе any may contract with of action upon a hen the cause give and the any action damages derived in or proceeds upon action, as of the cause of enforcement brought for the litigation; when conduct of the security for fees in the given thereof made and notice agreement such or attorney, no settlement or or her party his opposite against may be valid as of the action adjustment fair agreement for fees is created, provided hen so as shall not be construed This section and reasonable. contracts. respect champertous changing the law lien lien is controlled the agreed-to The extent of See lawyer. and the the client between contract Cos., 176 Wis. 382, 391, 2d 500 Ins. McBride v. Wausau 1993). (Ct. Neither App. N.W.2d firm has an thаt the contends Majority nor the Rather, cases. in these lien on the settlements equitable Dunphy's & focus on Cannon retention/lien- they view, In my clients. firm's former with the agreements liens & give do not Cannon lien agreements proceeds. on the settlement notes, agreements the lien Majority 36. As the They provide: are identical.
in these cases injuries on or personal having sustained [Client] and carelessness [date], negligence through about in consideration responsible parties of all hereby do and furnished to be rendered agreed services to, DUNPHY, my attorneys S.C. as & CANNON employ bring suit thereon consent, my claim or my settle with settlement, of said proceeds damages and out of third give them one monies, agree to etc. judgment, (1/3) mean- and in the compensation, thereof аs their pursuant hen in amount time, said give I them valid return, CANNON 757.36, In Wis. Stats. to sec. effort, with every consistent DUNPHY, make S.C. will *25 the Rules of Professional Responsibility provide to me with all necessary reasonable and legal in services connection with investigation the prosecution and of my Additionally, claim. DUNPHY, CANNON & S.C. hereby agrees to advance reasonable costs, expenses and disbursements for necessary prosecution my of claim which I will repay legal addition to the fees. I understand that there will be charge no services nor costs, reimbursement for expenses or dis- bursements advanced recovery unless there is a my on claim.
I have been advised that services could be rendered basis, hourly an I hereby but by elect to be bound contingent fee contract. I have been any advised that at during time handling my case, of DUNPHY, CANNON may & S.C. recommend that the case not be good continued for reasons, sufficient including, to, but not limited little or no likelihood of success on the claim's merits or a lack of available to satisfy funds the claim should it be successful. In they the event make such a recommen- dation to reject, discontinue I hereby which I agree that they may my attorneys withdraw as in consideration of agreement their give to me due notice of their with- DUNPHY, drawal. CANNON agrees they S.C. will comply all applicable with provisions of the Code of Professional Responsibility. I have been advised DUNPHY, CANNON & they S.C. that will under- every take reasonable effort bring my to claim to a successful prior conclusion they to trial. If negotiate a prior settlement to they trial which reсommend I accept, I right reject have the such recommendation. If I reject choose to recommendation, their then I agree that I will object not withdrawing them my as attorneys upon their giving due notice and otherwise complying with the Code Responsibility. Professional In the event DUNPHY, CANNON & S.C. as withdraw my attorneys after I have received a settlement offer valid lien give I them a reject, then I which on the date with- offer of the settlement amount may required be lower amount as or such drawal Responsibility. of Professional Code contract, from this can be seen As retention/fee-lien granted firm was drafted, the which following circumstances: a lien under *26 (1) gets a favorable either settles or Dunphy & Cannon claim; or client's judgment on the (2) offer that a settlement Dunphy procures & Cannon rejects the client to the client and presented is then, a as offer, Dunphy & and Cannon settlement as the client's law- rejection, withdraws of that result yers. (cid:127) any things happened cases. in these
None Dunphy might Although had drafted wish it & Cannon fee-lien to secure a contracts its form retention/fee-lien settlement, it did not the firm before leaves if the client do so. a firm with
¶ & is Wisconsin Cannon ambiguities legal superb reputation and all acumen, interpreted against it it wrote must be contract (none as the whom, insofar clients of its favor Stevens, lawyer). Ross & See DeWitt reveals, is a Record Racing P'ship, Gaming Galaxy 2004 WI Ltd. & S.C. v. 839, 605-606, 682 N.W.2d 577, 2d 66, 273 Wis. 92, Dunphy's con But Cannon 853-854. retention/fee-lien provide plainly ambiguous for its does not tract is not —it "interpreta Thus, no the circumstances. under survival necessary. 2d at 176 Wis. McBride, See tion" is (fee-lien agreement in force "still be must at 390 N.W.2d Accordingly, procured."). I the time the settlement at dissent from the respectfully conclusion Majority's has valid statute-based contractual liens in these cases.