*1 615 fence Upon only court. remand the trial court was increased after the sentenc- guide- judge carefully those considered wish to consideration to Strachan’s history and his failure to learn from his lines. words, past In other I mistakes.2 think the The sentence is vacated and the case RE- superior per- court did consider Strachan’s resentencing MANDED for in accordance jury potential “as an indication of [his] opinion. with this rehabilitation.” BURKE, Justice, dissenting. I Since am not convinced that the court clearly imposing otherwise mistaken in I respectfully dissent. years, a term of seven I affirm would Stra- Grayson, United Citing States 438 U.S. State, chan’s sentence. McClain v. 41, 2610, (1978), L.Ed.2d S.Ct. 811, (Alaska 1974). majority it necessary deems to vacate and resentencing, remand for because “the re-
marks of sentencing judge and the size penalty additional indicate that
sentence punishment was enhanced as
the alleged perjury, and not because the alleged perjury might have been used as an MILLER, Law, Attorneys A. Fred at A potential indication of Strachan’s reha- Corporation, Petitioner, This, believe, bilitation.” I amounts to an Grayson reading erroneous and a misin- terpretation PAUL, court’s sentenc- Representative as Personal ing remarks. Paul, of the Estate of Carl F. Respondent.
Unquestionably, Strachan’s sentence on drug charge was increased No. 5064. because the sentencing judge believed he had commit- Supreme Court of Alaska. ted perjury at his trial. But that is exactly Aug. practice approved the United United States v. Supreme States Court
Grayson, U.S. S.Ct. (1978).1 Moreover,
L.Ed.2d 582
the sen-
Grayson,
Ap-
only things you’re being
1. In
the United States Court of
of.
[T]he
Circuit,
peals, Third
ordered the defendant’s
sentenced for are the sale and
vacated,
sentencing judge
sentence
after the
apparent
you
cocaine.
.
.
.
[I]t
might
added an increment to the sentence he
you
didn’t learn from the
mistakes
made
imposed
not otherwise have
lieved the defendant had committed
his trial.
because he be-
your youth
you’d
and from the fact that
been
perjury
previously
plus
convicted of 2 serious crimes
Fauver,
Citing
Poteet v.
Roger A. W. Fred kan, petitioner. respon- Anchorage, for McMurtray,
Noel dent. RABINOWITZ, J., Before C. and CON- BURKE,
NOR, BOOCHEVER,* and MAT THEWS, JJ.
OPINION BOOCHEVER, Justice. 24, 1979, court
On December Miller, professional cor- A. Fred ordered Miller) to over to poration (hereinafter turn McMurtray Noel the files Attorney Paul, Carl F. Paul and of Estate of the Estate. The personal representative of the interests of Miller court found that adequately being attorney’s fees were paid any judg- lien on protected by an * This case was submitted prior resigna- decision to Justice Boochever’s tion.
(J17 wrongful Apparently possible due to settlement secured in a conflict of ment or filed Miller as part, Mary suit which had been interest on death Miller’s Paul termi- Paul, against certain doctors attorney for nated Miller’s services. Miller submitted a Mil- Hospital.1 and the Ketchikan General $22,941.19, billing in the amount of petition ler for review of the has filed disputed by sum is Paul. Miller filed a order, contending that the order does not covering notice of both a *3 provide adequate security for the fees and retaining possession lien in his on him. costs due Because order affects a charging any recovery a lien ulti- which, effect, substantial in will ter- mately by received Paul. Paul’s substituted proceeding,2 minate the in that once counsel, McMurtray, moved for an order putative files are turned over Miller’s lien requiring Miller to deliver the files to him. lost, granted to them will we be have motion, granted indi- review. cating adequately protected that Miller was Paul, widow, a retained Miller to by charging lien.3 represent probate her in the of her hus- wrongful We hold that in what prosecuting
band’s estate and in pro- death action. A contract was executed for the relin adequate security constitutes viding for a fee for services quishment attorney’s files the wrongful specified It death claim. court should a number of factors consider part: and set forth the basis for its decision.
4. Costs of Action. All costs in con- we are unable to ascertain the basis Since paid by decision, nection with the action shall be for the trial court’s we remand the immediately upon being the CLIENT case. with a statement therefor general regarding rule the relin-
the ATTORNEY. quishment succinctly files has been of such given 5. Lien. ATTORNEY is a lien stated: action, on the claim on any or cause of exceptions American courts with few settlement, by way sum recovered attorney hold in cases where the did recovered, any judgment may that relation, himself terminate the that fee; for the sum mentioned above as his compel client cannot his or for- general, and ATTORNEY shall have all mer attorney, up papers to deliver or liens, possessory, retaining spe- or and all attorney documents on which the has a liens, charging cial or known com- lien, retaining pays unless he the amount mon law. adequate the attorney, or furnishes for the of what Discharge 8. Substitution or of Attor- due or to be due him.4 subsequently found ney. party may Either terminate this long providing Alaska has had a statute agreement (10) days prior ten written Jones, Phillips v. attorney’s for liens. See notice other. In the event of such specifies 34.35.430 P.2d 166 AS termination, the ATTORNEY shall be part: compensated for its services at the rate of lien, ($70.00) Attorney’s (a) An has a seventy per Dollars hour of chargeable spe- his plus expenses compensation, time costs and notwithstanding anything contrary cially agreed upon implied, provided to the contained herein. in this section any judg- possession lien on us, and a pleadings 1. The of the case are not before in the hands of an ment or funds of his client apparently but a claim was based on the treat- party. adverse ment furnished Carl F. Paul. R.App.P. 2. Alaska 23. 4. Annot., A.L.R.2d lien on An have attorney’s property client in the files equate security. He indicates that Paul (1) first, upon home that could owns an unencumbered have come into billing.5 con- He professional employ- of his furnish course ment; cases void an tends that no lien and leave “the with taining second, in his (2) upon money hands is a lien if ultimate- possibility of client; to his belonging by his client. ly made” former third, (3) upon money in the hands of proceed- party the adverse an action argues adequate security that Paul employed in which the lien on files in the release of an lien to notice attorney’s possession in a party; case interest in provided (4) fourth, proceeds litigation. further ar- She upon judgment the ex- retain- gues providing a contract judgment tent in the of the costs included or, ing lien violative of the Canons Profes- special agreement, is a there *4 is void and un- specially sional and therefore compensation the Ethics extent of on, of agreed from the of notice enforceable. whom the party against the to the lien dis exercise its A trial must judgment given filing original the is and adequate security providing for cretion in judgment is clerk where the with the review, On we relinquishment of files. entered and docketed. must an abuse of discretion standard. apply to authorizes a court order an
AS 22.20.080
whether the
We must therefore decide
his
deliver over
to
client.
to
by ordering re
court abused its discretion
provides:
AS 22.20.090
leaving
the
lease
the files and
of
this chapter.
Court order under
80 of
§
charging lien on
eventual
to look to his
upon
If
a lien
the
an
claims
judgment.
the
money
papers under AS 34.35.430
courts,
initially
least
We note
that
court, making an
under
80 of
§
in
order
is
adequacy
the lien
not con-
the
of
chapter,
this
shall
against
lien
the
tested,
provided for a
have
(1)
making
impose, as a condition of
lawsuit as
proceeds
eventual
of a
order,
give security,
the
the
that
pos-
attorney’s
in an
turning over files
directed, to
form
amount to
satis-
be
certainly
is
question
A valid
session.6
action;
in an
fy the lien when determined
as to the
of such contin-
presented
security for
of files held to
gent
release
(2) summarily inquire into the
facts
fee
assure
fixed
founded,
the claim of a lien is
which
hourly rate. Disre-
based on a reasonable
it; or,
determine
dispute
the amount due
garding the
as to
(3)
controversy
direct the trial of
Miller,
hourly
clear
of
it seems
that
rate
it,
upon
by
jury,
or refer
the ver-
noncontingent
ba-
is reasonable on
$70.00
report
it as
dict or
determine
Normally,
sis.
when an
under-
cases.
on a
takes to handle matter
basis,
uncertainty
of
charging
Miller contends that
lien
against
lawsuit
offset
an enhanced fee
successful.
any proceeds of the
is inad-
sale, evincing
policy
preserv-
dicial
in favor
5. There is no indication of whether
this infor-
ing mation was furnished to the trial court.
If it
AS 09.35.090.
to a homestead.
was, the court could
its discretion in
exercise
require
it
to
whether
Paul’s
Goldenstein,
6. See
28 A.D.2d
Goldenstein
home
condition
to be encumbered as a
for re-
(N.Y.App.Div.1967);
An
N.Y.S.2d
lease of files under
circumstances
involved
taya Majett,
12 Misc.2d
N.Y.S.2d
Only
in this
case.
an extreme case would
indication,
(N.Y.Sup.Ct.1958).
is no
There
requirement
encumbering
a home be
however,
disputed
attorneys
ade
that
has,
justified.
legislature
The Alaska
with cer-
quacy
charging
liens.
exempted
exceptions,
ju-
tain
homesteads
tive of
relinquished
opportunity
lawyer
Here Miller has
ethical duties owed
fee,
contrary
policy
public
client and
for an enhanced
but seeks assurance
Academy,
was no statu-
state.
there
paid
that he will
amount due at the
tory or
an attor-
judicial authorization for
note, however, that,
hourly rate. We
fixed
ney’s
question
was
lien.
although
lien
is based
whether
consensually
created
contingency
winning
on the
of Paul’s
her
valid.
In that case an
was
case,
obligation,
unlike that of a contin-
dispute
who
because of a
as
fee,
words,
gent
remains fixed.
In other
billings,
claimed a lien
amount of
contract,
since Paul terminated the
will
she
were essen-
in his
obligated
the fixed fee even if she
law-
tial
the continuation of his client’s
eventually loses her case.7
relied on
suit. The court
Ethical Considera-
ascertaining
is ade-
2-32,
adopted
part
tion
has been
quate, the court should consider whether a
Responsi-
of Alaska’s Code
fee is involved and the
fixed
bility,
holding
the lien was unen-
security provided.
nature of
forceable.9 Unlike the
we
California
do
believe that EC 2-32 mandates
Paul contends that Miller’s statu
turn
a client’s files when the client ter-
must
tory
way
and contractual liens
relationship.
us
minates
It seems to
duty
prejudice
not to
an
ethical
designed
that the
provision specifically
withholding
client’s case
access to rele
withdraws, not when
apply
lawyer
when a
attorney’s possession.
materials
vant
the client secures new counsel.
high
Attorneys must conform to
ethical
*5
regardless
statutory
standards
of whether
however,
Regardless
2-32,
ques-
a
of EC
rights permit
contrary conduct.8 Acade
presented
tion is
as to
ethical con-
whether
my
Optometrists,
Supe
of California
Inc. v.
require
lawyer
siderations
that a
return the
Court,
Cal.App.3d
Cal.Rptr.
rior
the
right
client’s files. Paul had the
under
(1975),
the attorney’s
enforcement of
contract
to fire her
without
right
lien on a client’s
held to
cause.10 An
the
files was
be viola-
should have
counsel,
delivering
adopted
employment
other
7. Courts have
various methods of
attorneys
compensating
property
who were
to the client all
and
to which
contingent
They
entitled, cooperating
retained on a
fee basis.
in-
the client is
with coun-
fee,
subsequently
employed,
clude allowance
of the full
sel
and otherwise
covery
quantum
on a
endeavoring
meruit basis
possibility of
to minimize the
agreed contingent
Further,
fee amount
less the
should
the client
harm.
he
refund to
complete
required
value of services
to
the con-
any compensation
during
not
the em-
earned
24, Hastings
generally
tract. See
Note
L.J. 441
ployment.
Note,
Attorney-Client Relationship:
Attorneys Discharged
Remedies of
provided
Without
10.The
case
for termi
contract
this
Contingent
Situations,
days’
Cause in
Fee Contract
party
nation
either
ten
notice
with
Albany
(1973).
and,
situation,
L.R. 364
is to
such
the
compensation
per
$70.00
receive
hour for
Products,
Inc.,
Hayes Dairy
8. See Saucier v.
parties
completed.
work
raised
have not
(La. 1979) (on rhg.).
373 So.2d
question
converting
the
of whether
the clause
arrangement
the fee
to
from
basis
specifies:
9. EC 2-32
hourly
a fixed
rate on
is itself valid.
termination
lawyer
A decision
to withdraw should
strong argu
give
We
recent
note that
cases
only
compelling
be made
the basis of
disallowing
provisions,
ments
such
but we
circumstances,
pending
a matter
and in
be-
Fra
do not
issue at
See
reach
this time.
comply
fore a tribunal
with
he must
the rules
Brent,
casse regarding
of the tribunal
withdrawal. A law-
Hayes Dairy
no (e) obligations of an attor- The ethical ment. ney; indicated, we have one As consideration and, if (f) disputed, fee is Whether attorney. If the involves the conduct of so, lien to be any amount of reasonable discharge is due a conflict interest or charged;13 type prohibited by conduct (g) amount Whether the due Responsibility, a court Code fixed; justified ordering, the files be is for (h) of the due part Whether sum security.11 transferred without costs advanced recognized It has been ordering re- justify before reimbursement of attorney relation termination of the lease of the files. attor- chargeable and client was voluntary termi- ney, through either court for case to the trial We remand the relation, through his dis- nation purpose setting forth the reasons discretion, negligence charge because of his or other its in its decision. 1363, specific McGarvey, 13. In most cases decisions as to the 11. See Moses v. (1980). resolution amount can be deferred for later parties’ rights. prejudicing without Annot., 148, (1949). 12. 3 A.L.R.2d 159
621 evidence and recon- additional may receive this-opinion.14 light its decision
sider INC., STURM, CO., RUGER & a Con REMANDED. Appellant, Corporation, necticut v. Justice, MATTHEWS, dissenting. following gov my principles view the DAY, Appellee. Michael James A client has an absolute
ern this case.
attorney with or
right
discharge
DAY, Cross-Appellant,
James
Michael
undergoing
without
financial
without cause
784,
penalties. Fracasse v.
R.3d 694-703 at
the reasonable value services, compensation terms of
torney’s the ultimate result of the
the contract and
litigation are factors which should be con Lines, Newman v. Melton Truck
sidered.
Inc.,
1971);
(5th
Potts v.
Mitchell, (W.D.N.C.1976); F.Supp.
Annot. 92 A.L.R.3d discharged from a
attorney who has been
contingent fee contract is not entitled to be contingency has
paid until and unless Imposing obliga immediate
occurred. an the client’s pay unduly
tion to burdens and, additionally, discharge to the client because he
is often unfair the fee unless a recov
cannot afford *7 is received. Fracasse v.
ery in the case First National Bank &
P.2d Bassett, 183 Okl.
Trust Co. of Tulsa see Saucier Products, Inc.,
Hayes Dairy 373 So.2d (La.1979).
Because the order of parties’
consistent with the foregoing with the
defined accordance I
principles would affirm.
14. We inferences as to the do not intend inadequacy previ- ously ordered.