*2 STEPHENS, Before STEWART and ROWE, JJ.
ROWE, Justice. Mary Appellees, McKnight D. and Fouts, P.C., McKnight appellants, sued Staples, Joyce Staples, Ernest L. R. and Twix, Inc., contingent to recover agreement legal fee for services rendered appellants prior in the course of a law- judgment suit. The trial court entered on a jury appellees verdict in favor of for the contingent full fee. their second error, appellants complain that the trial granting judgment appel- court erred in just lees because there was no evidence of McKnight’s excusing voluntary cause with- drawal from the case. For the reasons below, we that the evidence legally Accordingly, insufficient. judgment reverse the trial court’s and ren- appellees nothing der take appellants. from In deciding point, a no evidence we must only consider the evidence and inferences support jury’s findings and disregard all evidence and inferences to the contrary. Alm v. Aluminum Co. of America, (Tex.1986). The record that in shows June of McKnight represent hired prosecuting wrongful discharge a suit for employment his former em America, ployer, Rutishauser of Inc. Sta ples McKnight entered into an oral contingent agreement whereby fee would receive one-third of recovery in the Rutishauser case after gross costs were deducted from the McKnight performed amount recovered. accord In re Estate, litigating services Thomasson’s various 346 Mo. 911, 144 1985., 79, 83 (1940); S.W.2d Schwartz, February Rutishauser case until May, 276; N.Y.S.2d at time, , At S.E.2d had at 647. then, critical question, concerning did disagreement anticipa certain have cause to withdraw.1 testimony Staples might ted have been called oral
deposition. McKnight stopped performing alleges she volun that services, and Staples hired another attor case from the Rutishauser tarily withdrew ney successfully deny who settled the Rutishau- he would Staples that indicated when "turning Rutishauser ser then in” responsibility case. demanded that for in oral Staples pay her his one-third of the settlement to the IRS anticipated testi this McKnight considered agreement. as her fee under the her by as revealed mony to be untruthful reported Although we find no testimony: gener holding, adopt so Texas case Q. Staples Mr. in of 1984 Did December ally prevailing in rule that the absence of a you testimony to his represent that intent, contrary attorney manifest an who in his oral would be other than truthful legal proceeding to conduct a retained deposition? presumably enters into a contract to con He did. A. proceeding duct to its conclusion. 46 without 264 S.E.2d hand, Sup.Ct. 58 Misc.2d gan Ambrose v. Detroit Edison right task for 160 Tex. his contract Dec. Matheny v. App. 484, for his services. ever, 1060, 1061 (1910). justifiable First Schwartz (Minn.Ct.App.1985); Carton 159, to allow an 1969); compensation. Nat’l which his 237 N.W.2d v. attorney who abandons 160, 998, an of Farley, cause Co., cause before Bank, May v. attorney 410 employment and 297 87 Upgrade Corp. client hired to recover Other N.E.2d N.Y.S.2d 66 (1980). 375 Ill.App.3d 520, Seibert, Royden W.Va. who withdraws for jurisdictions, N.W.2d 523 159, completing the 275, Co., On compensation him breaches (1975); 164 680, 662, 160 forfeits all the other 841, v. 276 N.Y. v. Michi 65 Mich. Ardoin, Va. 66 a case Jones, (1960); (1980); 43 Ill. Stall how 845- S.E. fessional you while the A. people knows Butler did. said that turning Mr. to A. deny not Q. Q. you that would have been [*] I said to Mr. What did do Can he was the Staples I it”, relation to in that. you cannot knows Responsibility the Rutishausers contends that you unquote. to the 193rd [*] bounty did. you? tell the said to I know that you say let you did. Louis [*] person I sat you Staples: was discussed. are Jury issue me, [*] do required to there aware that responsible what in quote, “I that.2 you him when he of whether or Code of Pro- I to untruthful? [*] cannot let did. Ken with he Carrillo her [*] IRS, you The you will for to agree Supreme Responsibility. sional See SUPREME COURT We with the general TEXAS, Virginia "No rule West that can be RULES GOVERNINGTHE STATE OF can, cases, XII, (Code, laid down which it in all of Profes- BAR OF TEXAS art. jus- will to determined what cause be sufficient (C) 2-110(B) (1973). Responsibility) DR sional tify attorney abandoning a case which an Matheny, he been 66 S.E. at has retained.” that Butler Ru- 2. The record discloses Ken was. Annotation, 1061; generally see Circumstances issue accountant when the tax arose tishauser’s Attorney Right Compen- Which Retains to special the IRS and that Louis Carrillo was Notwithstanding Voluntary sation Withdrawal agent assigned case. Al- Rutishauser A,L.R.3d Case, (1978) (describ- 246-269 from ing it, though questioned about neither both were jurisdictions that causes different attorney have held to, claimed, Staples was entitled or testified that justify an re- will taining withdraw while bounty. received a right compensation). We note that attorney's justifying voluntary causes an certain withdrawal are set forth in our Code Profes- representing Staples Staples withdraw from be- at admitted trial his involvement respecting cause it her the IRS was obvious to the Rutishauser evidence, however, matter. There is no testimony intended to untruthful deposition.3 that he ever characterized this that a client’s inten- involvement making “responsible” give perjured testimony provides “turning tion to as for Rutishauser, in” or he just cause for took action attorney to withdraw. negate position his asserted however, The attorney, burden is Further, responsibility. he lacked such al- falsity testimony to establish the of the though both Butler and Carrillo given, testified at threatened to be and such burden trial, gave any testimony neither witness was not met in this case. jury reasonably could have only peijury at issue herein is inferred that had concluded that he deny said he would that he “responsible” “turning in” Rutish- “responsible” “turning in” Rutish- *4 law, auser. Because of federal Carrillo auser to the IRS. The record discloses no expressing any opinion restricted from other statement that intended to subject. on the expressly Butler denied give deposition in his oral McKnight Staples’ that he himself characterized ac- testing considered untruthful. In un the “turning tions as in” Rutishauser. This is statement, truth of this initially we note significant present because Butler was “responsible” that the terms “turning Staples, accompanied by when McKnight, apply in” secondarily underlying facts agent met with Carrillo for the first time. Thus, and are conclusory. therefore Butler anony- even testified that he had case, Staples’ the facts of this denial can be mously concerning contacted the IRS the only if intentionally untruthful he misstat long Rutishauser tax issue before opinion ed his true as to the effect of his became investiga- involved with the IRS conduct or if the evidence established that tion. opinion professed the he against all record, After a careful review the State, reason. See Gibson v. 118, 15 S.W. probative find no evidence from which (Tex.Ct.App.1890). 119 Staples’ denial can jury could have determined that not be deemed to be untruthful merely give perjured testimony intended to because some of the underlying sug facts Since advanced no gest opinion that his was not the best. just other cause as the reason for her with- Similarly, it cannot be deemed to un drawal, we conclude that there is no evi- truthful because held a different support jury’s finding dence opinion knew, based what she where representing withdrew from underlying facts establish aas matter appellants legal cause or excuse. Staples’ opinion law that was not Accordingly, appellants’ we sustain second short, all reason. one does not commit point of error. peijury by expressing an honest albeit a Savage See opinion. bad v. Herrin Trans appellants’ point Since second of error is Co., & Warehouse 103 dispositive appeal, of this we need not ad- fer (Tex.Civ.App. writ); no remaining points dress their of error or — Galveston generally, see Perjury (1987). appellee’s 70 C.J.S. cross-points. We reverse the tri- § agree withdraw, requesting permission attorney We do not that our Code of Professional an Responsibility requires attorney to withdraw testify should first warn her client that he must when her client intends to untruthful testi- truthfully perjure and that in the event he does court, mony. pending In matters before a himself, attorney bring will have to attorney may request permission the tribunal’s permis- matter to the court's attention and ask to withdraw if her client intends to commit sion to withdraw. Tex.Comm. on Professional Ethics, TEXAS, peijury. See SUPREME COURT OF (1987). Op. 50 TEX.B.J. 766 RULES GOVERNING THE STATE OF BAR however, agree, attorney may that an withdraw XII, (Code TEXAS art. Professional Re- peijury. if her client intends to commit sponsibility) 2-110(C)(1)(b) (1973). DR Prior to judgment
al court’s and render appellees nothing appel- take
lants.
STEPHENS, J., dissents.
STEPHENS, Justice, dissenting. majority’s opin-
I cannot with the
ion. The-facts as the author are recited uphold jury’s finding
sufficient to
McKnight’s voluntary withdrawal should
be excused. majority opinion,
As in the when issue, only
no evidence is at we must inferences
consider the evidence and support jury’s findings
tends to
disregard contrary. all to the evidence America,
Alm Aluminum Co. of (Tex.1986). majority
S.W.2d quoted McKnight’s testimony
has that Sta
ples testify indicated that he would un
truthfully
McKnight further that she at testified
tempted to dissuade the untruthful testimo that,
ny. I in view cannot of this
evidence, to justify there was no evidence jury’s finding. Accordingly, I would
affirm the of the trial court. Anthony
Michael JOHNJOCK
Appellant, Appellee.
The STATE Texas 6-88-003-CR, 6 - 88-004-CR.
Nos. Texas,
Texarkana.
Jan.