*2 torney recovery. have a lien on the BELL, BROWN, and Before GEWIN question is, sole here which of the two Judges. Circuit priority liens take when the insufficient to both liens full. Judge. GEWIN, Circuit pay- Appellant contends that since performing Melvin was while reduced fee has ment of the longshoreman ship. a on a services as than its to less the amount recovered Strachan, appellant His here, paid subrogation lien, in effect is compensation him being required pay part Longshore- and other benefits under the employ. attorney Fed- an it did Compensation man’s Act.1 Melvin attorney long recognized employed prosecute fol- an his have eral Courts claim tort feasor. lowing principle: The contract between at- Melvin certain circumstances “That under torney stated: attorneys, who are officers of by court, protected the court will be hereby agreed “It is understood and in the collection of their fees is sixty (60%) per that am to receive ordinarily This to be doubted. damages way by cent of all attorneys theory done on the settlement, my

of suit or attor- upon any fund in the have a lien ney is to have for his fee the balance being hands of the court or admin- derived from said suit or settlement court or has istered brought been and disbursements and taxable into the court their ef- costs.” forts, for the value of the services rendered.” Suit filed and the case was tried jury Wessinger Sturkie, returned verdict for Mel- Cir.1935, v. 77 F.2d $30,000.00. Sprague vin also The third 751. See Ticonic v. Nat. seq. et U.S.C.A. person L. entitled to Bank, 59 S.Ct. U.S. representative; or to the (1938); and States United Ed. 1184 1960) Maryland F. *3 Jacobs, (D.C. employer (2) pay any The shall ex- Supp. 630. person cess to the entitled to com- pensation representative, or to the directing of payment the order the In less one-fifth such excess which attorney’s fees, the District the belong employer.” shall to the con- and factors involved all considered cluded : provision act makes no The for the “ priorities * * * method and of distribution Upon such consideration employeebrings where the the suit. This petition, affidavit of the Stevedores, court Voris Gulf-Tide testimony adduced counsel chief Cir. 211 F.2d was faced with respect the reasonableness with to presented by the difficulties this void attorneys’ claimed, fee the of the There, employee the statute. the a reasonable that fee Court finds job drowned on the and his children were by plain- performed the the services Long- per awarded week under the $16.62 re- the amount of the tiff is 40% Act, payments shoreman’s the to ter- covery $12,000.00.” or the sum eighteenth upon birthdays. minate their the em- Title 33 U.S.C.A. 933 allows party An action a third insti- party ployer third tort feasor to sue the tuted on of the behalf minor children injured employee so if fails to do judgment in the amount of prescribed period. within the Section Court, was recovered. The District 933(e) prescribes prior- the method and party action, the third awarded to the any recovery distribution ities of the attorneys, $3,900.00; children’s fees of employer by to be: made employer $1,742.58 compensa- already employer paid; tion “(1) shall retain an and the balance equal was directed to— to amount “be recovered ” * * * by the minor libellants by (A) him in incurred District Court held that it was respect proceedings or com- to such gross recovery total or promise (including a reasonable at- should be credited to the by torney’s as determined payments. appeal, the future On commissioner); deputy stating this court reversed the decisive actually (B) all cost of benefits question to be: by employee him to furnished * * “* whether ‘the re- title; amount under section 907 of this referred to covered’ in Section 933 compensa- paid (C) as amounts all actually (f) means amount re- ; by ceived benefi- (D) present all amounts value of in the ciaries action compensation, payable as thereafter (that attorneys’ is less fees) or computed in present to value be such whether it means the total amount prepared with a schedule accordance paid by the third defendant.” Secretary, present val- by and the answering the question”, “decisive of all benefits there- the cost ue of held: under section furnished to be after “ * * * title, by To hold to estimated that the of this minors '907 aggregate commissioner, deputy paid computed the defendant would and estimated be to disre- so

(cid:127)amounts gard situation, the realities of retained to be ignore pay compensa- age-old equitable and to fund to such (cid:127)a trust principle accomplishes that one cost of such benefits as who tion and the due, they a fund for to sum the creation the bene- become remaining finally another entitled excess thereof fit of to reim- §0 say rea- able to trial court committed bursement therefrom granting sought thereby error in incurred.” the relief sonable costs petition appellee of the ñx a lien for * * * * subsequent j. * attorney’s fees; « (cid:127) or in the » u “ mi The issue here is as to i x ’ ** , , :. . , , , bear ,, , „ proceeding m which the court received ® j, , ,. shall .-

who burden , , .,, attorney's . evidence and fixed reasonable n „ , ,, necessary cost of that with ... ». ., , ,, , question, « « fee to fund m of the, , , respect attorneys item of fees. . « ^. District Courts will , say, Needless exer- „ . sole . . . The insurance carrier was the . ,, , beneficiary supervision . . . cise careful ,, this nature and over cases of » , ., , ,. ren- . . services , , ,, ,, give ,, proper . consideration *4 j, t ,, ,. , „ ,, ., plaintiff „ . - . m the . dered , , ., , ,. , fully equitable principles involved, to the , , appear party action, , . and it does not . , f, that it was , exercising powers prevent an such to un- , ,, any way prejudiced . in ^.. , , ,. , scrupulous attorney profiting from at the . .i. contrary, by judgment; on the exT5£lseof m^ants greatly by it. benefited it was subrogee The judgment is affirmed. accepted of the benefits has recovery, bear its and it should Judge BROWN, (dis- R. Circuit JOHN 370, Cyc. 34 reasonable burdens. senting). note 64. rpQ a literal void in the stat- among Voris, factors, other our con- in ut6j produces inequi- solution Court’s important on con- was based two clusion table, shocking, if not results. None (a) where the has siderations: consequences of these have could been brought suit, expressly the act allows by speaking, intended Court as does of fees before the deduction high in the and of this noble terms one> requiring the to turn over to principles equitable linked with a liberal employee (or representa- the tives) Longshoremen’s application in Act compensation over excess of the maritime favor paid; (b) must and the act Admiralty, ward of the the some-time liberally in of the construed favor g0 jn deciding, rejects contrary the Court “ * * * workman; therefore, 2 and holdings at least two other Circuits by Congress acceptance equitable an(j prior applies our Voris decision to employers principle in case re- remotely not even contem- a situation legislative expression quires a clear Moreover, by plated meth- that case. this contrary departure authorize 0(j might encourage ques- distribution 0f by principle in from that courts professional practices.1 This tionable by injured of third actions case from the that it is about fact last comes employees representatives; or their and injured' lawyer, plaintiff’s not the do not have.’ that we beneficiary worker, sole who is the harbor carefully Congress, examined the cas- have announced. We rule now of the my appellant and Amicus es cited could have intended no judgment, controlling Curiae, Consequently, find none themof but the decision result. such § n particular statutory facts of this construction here. Under in terms us, apart record before are not 933(f) case and not sustainable. And Steamship case of Reed v. distinguished recent of the Bar of this 2. See the members al., (1963) KA, 410, plaintiff’s et 323 counsel. It U.S. are who YA 83 S.Ct. 1349, 448, reaffirm al- plain 10 L.Ed.2d not think the fee I do supported, ing principle: legally but since this lowed is previously Judges passing have said that four “We three liberally otherwise, certainly Act ‘must be it is conclude it pur- improper professionally in conformance with its for them to ac- construed way pro- pose, My cept which avoids harsh comments terms it. ” incongruous fessional, results.’ considerations are ad- ethical reached to the conclusion dressed my Court, counsel to the in- none of remarks do mean to professional criticize the conduct of the volved.

87 sup- hardly statutory for it has no can serve as a basis distin construction principles. guishing port rejecting equitable and then Fontana v. Pennsylvania S.D.N.Y., Co., Railroad Courts Other Decisions 461, 1535, 1952, A.M.C. 1952 1953, 151, Cir., affirmed 2 F.2d Although neither is true that denied, 886, 1258, in A.M.C. cert. 346 U.S. precisely situations involve them L.Ed. and Davis v. S.Ct. from the third Company, Cir., employ Lines (a) United States insufficient to reimburse payments paid 1958 A.M.C. 633. er expressly prescribes (b) these cases payable, coun Each of agreed attorney’s fees, of a formula for distribution recov percentage sel his damages2 ery worker’s suit in the (c) a substantial leave here the one plaintiff, in contrast this circumstance announced: Melvin case) (The instant

Fontana-Davis *5 recovery recovery (1) (1) Total Total (2) (2) Less: Less: Atty’s. Employer’s Compensa- on fees (cid:127) —- - (1) payments tion % recovery (3) recovery (3) Net Net (4) (4) Less: Less:

Atty’s. Employer’s Compensa- expenses fees & - - payments (3) based of% (5) (5) Balance to worker to Balance worker repeat any recovery from third Act case under the No — up present allowed decision ever party owner, lawyer guar- vessel get lawyer to his fee anteed a first claim to the full extent of prior portion re- employer’s contingent percentage (plus ex- covery. on, de- illustrated later As though penses), and this even a bonanza. It is heads-I-win- cision is any— nothing. gamble: gets tails-you-lose if there is worker principles 1915; applying Lundberg 2. these v. Prudential Steam Other cases F.Supp. Etna, Cir., 1943, ship Corp., S.D.N.Y., 1951, include The 115, 1801; 120, 37, v. Cal Oleszczuk Richter v. 1943 A.M.C. 1951 A.M.C. D.C.Md., Steamship Corp., E.D.Pa., States, mar United 190 F. Supp. A.M.C. Melvin recovex-y (1) Total (2) Loss: Atty’s. fees on (1) recovery

(3) Net (4) Less: Compensation Payments Employer’s Deficiency Employer ($10,389.80) (5) to (6) 0.00 Balance to Worker out,4 Voris Decision third Our comes worker’s benefits will be not less than binding decision is and there The Voris prescribed by those the Act. Over request for re- nor occasion neither recovery above the amount of considering Application of some it. remains, party, employer the third situ- the instant its broad statements compensation liable for full benefits. The- however, demonstrates, re- ation problem was, therefore, the- Voris sult, expressions, con- should be and such determining so,, whether, one of and if problem presented. fined to the there sources,, to what extent and from what plaintiff’s lawyer compen was to be question distribu- was not Voris amount, question sated. The was what prob- tion of third recoveries. the minor re beneficiaries in fact had lem additional upon predicate stat ceived which to compensation awarded benefits to be utory guaranty of minimum benefits.5 Deputy Com- worker reading possible Under no was. of Voris 933(f). stat- missioner under As the plain required utory works, an scheme its-, tiff’s counsel an fees on get guaranty as a will has a he representing ($1742.58) own compensation amount of minimum the compensation paid.6 theretofore due under the Act. The statute benefits stands substance Voris case gives however, him, an added and fre- proposition that where the valuable, quently benefit. He can sue and added seeks credit further knowing party, that he runs no real owing due and benefits *6 because, no the matter how suit recovery risk only from third net the the obligation employer’s remedy against § may pursue 4. The to Ms elect by course, extinguished may, (f) party, not de a third such election does compromise not made with right compensation; settlement prive Mm to of his employer’s written consent. employer § or insurance carrier- that (g) by - remains liable for recovery against person a third resolving what we described as 5. In prescribed compensa “ * * * falls short of the narrow before issue us” * * (em 211 F.2d 552. tion expressed Voris, this dominant phasis supplied). way: principle in Voris in this “In Mar these, phrased In Davis it was [1938, App.D.C. 201, lin v. Cardillo injured employee, by terms: “The rea 112], supra, we have observed adequately provided: purpose son of the Act the federal that act was injured give employee placed position, for and is a better to the com pensation provided ordinary litigant therein prosecuting the amount than the party, employee from a third by lolvich civil action. An covered greater. Chapman guaranteed In ever the statute is a minimum [1936, Hoage recovery despite any finding 296 U.S. 56 S.Ct. of fault on * * 370], supra, part L.Ed. Mr. Justice his 253 F.2d 265. that, employee (Emphasis supplied). said while the Stone employer recouped prior compensation payments (item 6. In Voris the (2)) his charge attorney’s deduction or with no for fees: recovery (1) .$13,500.00 Gross amount Compensation payments by (2) employer 1,742.58 . recovery (3) Net atty. (4) (3) fee on 33%% Atty. (5) (rounded off)

(6) deducting (2) (5) Net after & question employer’s compensa- The sole was whether the credit as to further (3) $11,757.42 (6) $7,857.42. benefits was item or item result, Longshoremen’s party may compels effect Act be deducted. is, all, just pro however, The rata fact an- bears that the rule part, injured is es- nounced works fees. This work- statutory purpose er sential to effectuate the subordinates his interests to those giving lawyer contingent injured mini- his with a fee. worker ques- mum benefits. But no here there is graphically This is illustrated further, added, tion of due future benefits inescapable arithmetical with fact that Melvin, Indeed, injured worker. employer’s prior pay problem employ- there is no between the totaling $27,836.92, ments in this case injured employee er and the Longshoremen’s under the injured get order for the worker a red employer has Act. recovery approach cent the would have to employee all due him and the nearly $48,000.00.8 sharp con This is in has dispute all received he is entitled to. recovery trast to his Fontana were the claiming is between the applied. Application rule Davis reimbursement, statutory priority MeMn rule means that the difference hand, plaintiff on the s law- one worker—in whose behalf today yer, on the other. But until plaintiff’s employed counsel has been lawyer has the regarded been s presumably and whose are close interests protection as one within the professional lose, to his heart —stands to Act.7 gain, while counsel stands to over _ , figures , $11,000.9 These are not fanciful mpac njure e or er adroitly present an extreme contrived incidentally If the rule now example.10 Perhaps spectac announced even more benefited the counsel bene- ular work fact that for fiting injured worker, might there er’s under the Melvin rule justification implied some sup- begin equal of his counsel even position judicial contract, construction of jury the under a ver- 60/40% Substantially monetary Fees for services claimants un- ex- all of these severely regulated, der the Act are ampies have come the brief 916; 933(e) (1), (f). cf. § see also § amici curiae. *7 9. Melvin Rule Fontana-Davis Rule

Recovery $47,316.32 $47,316.32 Less: Less: Atty. 18,926.52 Compensation 27,836.92 fees Paid 40% $28,389.80 $19,479.40 Less: Less: Atty. expenses 7,791.36 552.88 fee 40% $27,836.92 $11,688.04 Less: Less: Employer’s payments 27,836.92 xltty. expenses 552.88 $11,135.16 Worker receives 0.00 receives Worker Fontana-Davis, amici only The brief curiae refers to a under $674.93 but specific pending identified Duvernay case the Melvin rule. Steamship Co., the Eastern Inc., al., District of Louisiana in Alcoa et E.D. volving jury $38,500 La., verdict and an 698. This case is now employer’s compensation paid reported phase, 1963, lien for as to another $24,491.74. contingent F.Supp. 698, On a con 1963 A.M.C. -. re 1/3 (plus $500), ported aspect Duvernay tract estimated is discussed injured worker receives note infra. Ryan-Yaka In this diet in this to be sometime instance would have weird neighborhood world,13 only thing there is one certain: right wants, or no stevedore in his mind shocking strange rule, is a if not It encourages, em- suit an professional implication, in its ployee party or a third vessel recovery requires this case that the visionary vessel owner. The dream $50,000 the third come close to recouping compensation payments almost worker benefits before even always filing evaporates. For the approach $140,000 all, at judicial and must before precipitates a three- suit suffering” “pain balm his Kilkenny lash cornered all Fair in which lawyer. equals of his But even other,14 it the end and in right. bargain is not For is so often the case of the It was 60/40%.12 50/50. winning, impleaded-stevedore- Hostility Between Irreconcilable employer losing injury as a result anof Attorney and Vicarious Client thought exclusively that some cov- suppose allowance could overlook ered under the Act. 33 extraordinary compensation to a law- U.S.C.A. 905. yer despite serv- the fact that the obligations imposed on the steve- no ices conferred or even were benefit Ryan dore-employer under doctrine only client, if somewhere detriment to his ever-expanding. For are ominous and vague picture one find that in this could present purposes may quickly these lawyer perform did valuable services nearly every capsulated. situation someone, whether his client not. going has sup- question far whether stevedore too too fast to But it is warranty may recoup pose of workmanlike breached that while the exposing compensation payments the steve- part is a fact issue or all of service judge peril recovery, an adverse the suit was in dore to the out of the finding. Negligent behalf, the steve- jury in his or for his use instituted sense seaworthy creating equipment matter, an or, for that he wanted dore benefit may unseaworthy a breach. condition at all. Melvin Rule Assumed atty. 56,000.00 Less: $ Employer’s Compensation Less: *8 Worker receives attorney 1349, 448,

12. Under his contract with his 83 S.Ct. 10 L.Ed.2d 1963 “sixty (60%) per Melvin was to receive A.M.C. 1373. damages by way cent all of steamship company 14. In this case the settlement, attorney suit and [his] impleaded appellant, defendant the the [was] to have for the balance his fee stevedore-employer work- derived from said suit or settlement er, impleader Melvin. The was the now disbursements and taxable costs.” But asserting classic one that the stevedore under the Melvin rule turns warranty breached workmanlike be zero while is 40% 100%. any performance so that unseaworthi- Ryan Stevedoring negligence Co. v. Pan-Atlantic ness finally vessel was 1056, Corp., 124, SS 350 U.S. 76 S.Ct. attributable to the stevedore. 232, 133, 9; impleader voluntarily 100 L.Ed. 1956 A.M.C. This was dismissed Yaka, 1963, 410, Reed v. SS the eve of trial. 373 U.S.

91 nearly everything steps to cor- required of Failure to observe or take counsel may unseaworthy representation conditions conscientious rect known indemnity. for, liability against, impose If worker’s not for interest was performance the steve- many ways, stevedore-employer. workmanlike injury, prevented the dore would have good no could from come to the stevedore indemnity right the vessel owner’s the worker’s suit. though necessarily precluded even not First, by filing against the lawsuit unseaworthy. Uncertain- the vessel was vessel, plaintiff’s precipitated counsel factual, ties, remain con- both indemnity impleader an action for pre- cerning permitting or circumstances against actually which was stevedore include, indemnity. cluding These stevedore-employer filed. The best necessary example, whether victory, hope complete could for was a pending correc- work stevedore to cease is, shipowner’s im- a denial of vessel of defective conditions pleader. victory But such would scope of owner, existence or Obviously impleader cheap. such warranty implied of seaworthiness suit, could turn its stevedore gear the stevedore furnished counsel defense over worker’s vessel, like.15 since the facts to sustain the cur- Any appraisal realistic would the vessel owner Ryan rently developing law right very likely give to an automatic rise worker’s demonstrates indemnity by shipowner doctrine steve- represent- possibly Consequently, could not counsel dore.16 even the eventu- outright Indeed, ality ship- stevedore-employer. an denial of ing -; Steamship Co., Stevedore-Ship Vickery, v. E.D. Owner Jeffers Alcoa 15. See Doctrine, Pa., 1963, F.Supp. 250, Ryan Indemnity: Tul.U. A.M.C. 219 1963 -; E.D.Pa., Paper Co., (1963), dis Griffin v. Scott Inst. 167-76 Tidelands 7th cussing 1963, F.Supp. 41, —; principles de 219 A.M.C. 1963 detail Duvernay Steamship Co., Inc., explosive velopments field. v. Alcoa E. this D.La., 1963, F.Supp. 698, 217 A.M.C. cases 1963 over 60 alone cites This article -; Steamship span v. Portland type States Co. brief in the decided Co., D.Ore., Stevedoring 1963, present. 216 F. The list never 1956 to ends, 934, -; Supp. following past A.M.C. Isthmian few 1963 in the see the Lines, Stevedoring Co., Corp. Engineering Inc. v. Canadian v. Delta months: Scott, 1963, D.Ore., F.Supp. 856, 11, 1963, Cir., 216 F.2d 1963 1963 322 5 A.M.C.-; Lines, -; Caputo Misurella v. Isthmian States v. United A.M.C. Lines, Inc., S.D.N.Y., 1963, 857, F.Supp. 413, Cir., 1963, 215 F.2d 1903 311 2 -; E.D.N.Y., 1962, 1921, reversing A.M.C. United 1963 States Lines A.M.C. Operating Co., 1926, D.Mass., 600, v. Nacirema F.Supp. Co. 1963, cert. A.M.C. 1963 202 denied, 627, 1423; ; Corp., Stevedoring Imparato 215 1963 A.M.C. 1963 Companie 833, Co., v. Cassone Venezolana De Lines 374 U.S. v. United States E.D.N.Y., Navegacion, 1055, 1871, 1962 A.M.C. 1347. 1963 10 L.Ed.2d S.Ct. 83 A.M.C.-; very Inger, To this must be added our recent Damanati v. The A/S Shipping 395, 1963, v. Cir., cases Strachan lyke Co. Konink F.2d 1963 A.M.C. 2 314 Steamship Nederlandsche 852; Stoomboot Maals v. Prudential Orlando ehappy, N.V., Cir., 1963, 5 Cir., 1963, Corp., 324 F.2d F.2d 1963 -; Lines, Pennsylvania A.M.C. Grace Inc. v. Williams A.M.C. Everglades Co., Cir., Port 1963, Terminal R.R., Cir., *9 699, Export Lines, F.2d AM.C.-; 324 1963 A.M.C.-. American Inc. Inc., Stevedores, 4 Atlantic & Gulf v. complaint alleged 16. The the vessel 414, 567, Cir., 1963, F.2d 1963 A.M.C. 313 unseaworthy (or negli- was the vessel E.D.Va., 1962, F.Supp. 316, reversing 205 gent) because the hatch-tender had to 1702, denied, cert. 373 U.S. A.M.C. 1962 jury-rigged temporary plat- on a stand 1525, 422, 924, 10 L.Ed.2d S.Ct. 1648; 1963 83 resting perma- form of hatchboards on Lines, Moore-McCormack A.M.C. pipes. nent deck The answer and im- Maryland Ceiling Co., Ship Cir., 4 Inc. v. pleader “unseaworthy” asserted that this 663, 1962, F.2d 1963 A.M.C. purposeful condition was due to action of Export Lines, supervisory personnel v. American E.D. Bielawski of the steve- 265, Va., 1963 A.M.C. dore. defending indemnity claim, owner’s mean curred would vessel owner large expenditures point for worker’s suit. the stevedore At (a) its will own stevedore thus its own counsel’s fees in defense of the have impleader. counsel’s (b) fees and of those the de- fendant-vessel owner. But it does Second, if recov- there, possible end it for damages ered held and the stevedore vessel owner to defeat the claim of the warranty to have breached its of work- worker and still from the steve- recover performance, manlike stevedore legal expenses dore the fees incurred and indemnify would have to vessel own- shipowner the defense er for the full amount of the main suit.17 judgment notwithstanding exclusive liability provision Thus the best can come stevedore Act. attorney’s fees, out for its own with Third, paying judgment strong after the total likelihood that will have damages, the worker’s the stevedore shipowner, those the defendant indemnity also would may liable under up paying well end those of the for the in- fees A worker’s counsel as well.18 Shipping Company 17. In Strachan indemnify Kon-’ holds the stevedore liable to inklyke shipowner-defendant Nederlandsche ship- Stoomboot Maals- chappy, N.V., Cir., 1963, legal expense owner’s and fees even A.M.C.-, though Court in “a case of the defense successful and impression” jury first finding basis resulted the denial of all relief to the performance nonworkmanlike worker. specific case, Duvernay For in an Steamship Co., results actual see v. Alcoa Inc., E.D.La., 1963, F.Supp. 698, -, supra. 1963 A.M.C. discussed note finding performance District Court on a of nonworkmanlike held steve- shipowner $11,666.66 dore legal liable $1,576.10 reimburse the as fees and expenses incurred in the defense the worker’s main suit. Now that Melvin applies, up paying rule substantially attorneys’ stevedore ends all three feesr II Fontana-Davi3

Melvin Rule Rule (1) Jury $38,500.00 Jury (D verdict verdict (2) Less: (2) Worker’s atty. Less: Employer’s fees (1/3) Comp. exp. 13,333.33 Payments 24,491.74 $500 (3) $25,166.67 (3) (4) Less: Employer’s (4) Less: Comp. atty. Worker’s Payments 24,491.74 (1/3) fees exp. 5,169.42 & $500 (5) Worker’s (5) share $ 674.93 Worker’s share $ impact reimbursing Melvin Under the rule the worker bears the full em ployer’s payments. At least to the extent of the difference between and-II(4) I(2) ($8,163.91) may (see tho stevedore will or bear this note in fra). Moreover, privilege “recouping” compensation payments (1(4) H(2)), pay: the stevedore must expense (a) legal Its own ? (b) Its own fees ? Shipowner’s legal (c) expense *10 Shipowner’s legal (d) 11,666.66 fees

$ ? supposed producing remarkable tion for a rule surely result benefit conferred upon open question. employed them, one who never they would think professional Despite would have a serious the fact that the institution responsibility to consider of the worker’s suit the steam- hoped-to-be-client. of such ship company interest locked him and his steve- dore-employer Consideration of stevedore’s interest positions of irreconcila- slight conflict, even a moment would have ble some undis- demonstrated that the settlement had to equity requires closed notions of ignore accepted. positive lawyers But to this stevedore to these demand being like consideration for the privilege exposed at their hands put interests their real client Melvin to substantial liabilities which became position them a of irreconcilable con- greater, less, lawyers as these did requiring talking flict them to withdraw for job Again, their well. are “clients,” or their or one both of actual theoretical, extreme, ex- about Socratie argument vicarious. result is that because of amples. counsel can- On lawyer they didly during of a whom activities stated that the trial of the they hired, who instituted a suit $80,000 never case a settlement for was re- wished, lawyer Considering failure jected. never na- extent and accept tendered cost injuries sustained, the settlement ture of the no criti- $10,00019“ could, not less than is, the stevedore cism directed at them for might high $30,000' strategic-tactical judgment. run as have But if lawyers eompensa- $40,000.20 these are entitled to Jury verdict Atty. expenses Less: 558.88 Atty. 12,000.00 fees Amount received com- stevedore for pensation compensation paid Total Amount

Less: $10,395.SO Immediate loss net Rounding figures, $80,000 off the distribution would settlement have been: Fontana-Davis Melvin Rule Rule Recovery $80,000 $80,000 Less: Less: Atty’s. Compensation 32,000 payment 28,000 fee $48,000 $52,000 Less: Less: Employer Atty’s. 40% Compensation 28,000 20,800 $20,000 $31,200 Worker Worker injuries sustained, Considering the serious has a substantial liability expense 933(f). for added and medical in the future. Applying $20,000 Voris the net would received the worker have been Melvin, $31,200 words, rejecting under Fontana-Davis. In other the settle- employer $20,000 $31,500 cost the ment credits. To this must be added $10,395.80, 19, supra, pay- represents, effect, note actual loss fees ment of the worker’s counsel the stevedore.

Insupportable by Equity Statute working analyze it,

As I law-

Court’s rule benefits the worker’s

yer only, interest of works subjects plaintiff, and obligation

stevedore-employer person

paying fees to a substantial litiga- by it to institute unwanted hired having expensive perils awesome and necessarily ignored by the vi- are they faithfully dis- carious counsel charge their real—and duties to

their

only—client. Longshoremen’s

Nothing Act

remotely apart from requires that. And supposed statutory policy, cannot

some I equity principles noble that the believe be invoked

can behalf. dissent.21 must therefore

COMMUNICATIONS OF WORKERS AMERICA,AFL-CIO, Plaintiff- Appellant, COMPANY,

NEW YORK TELEPHONE Defendant-Appellee.

No. Docket 27926. Appeals

United States Court Circuit. Second

Submitted Nov.

Decided Jan. briefly peripheral 21. I would refer to a few only under Florida law opinion. only matters in the Court’s services rendered his client Mel- I do not think it is accurate to state vin. attorney Likewise, that “both while it is true that recovery. have a lien on the sole District heard evidence toas question is, fee, which of the two take liens reasonableness of this was on * * priority hypothesis as- counsel’s serv- suredly compensation paid. client, has a lien for ices were rendered to his not a lawyer’s here, But stranger, adversary. lien is not under the exists, Act. If one it is