*1 183 Corp., 475, 493, Distillers 312 vert 196 Md. 77 A.2d records). is not re- (official sentencing judge The (1950) rules, and facts “can relevant by evidentiary stricted trial, at the demeanor presented from the evidence derived gleaned from his various of the defendant veracity and such data from acquired as the as well appearances, court any per- investigation presentence sources other gained living from have knowledge may the judge sonal State, v. Johnson as the offender.” community the same (footnotes 536, 541, (1975) A.2d Md. 336 omitted). Thus, judge it has sentencing is clear that when disposal of facts reliable sources at his and plethora the character of the offender. sizing up competently sentencing judges I confident can am provided. numerous now punishment tools impose sentencing need not reach out and consider judge relating charges. matters to serious Controverted disputed unresolved, allegations are unreliable criminal sentencing inject prejudice into the merely uncertainty consideration. judge’s I resentenc-
Accordingly, and would remand for dissent ing. he me state that
Judge ELDRIDGE has authorized expressed herein. concurs with views A.2d M. VOGELHUT Steven KANDEL. Nelson R. Term, 29, Sept. 1986. No. Maryland. Appeals
Court Dec. 1986. *3 Towson, III, H. Zink for appellant. John Baltimore, appellee. E. for Kerpelman, Saul COLE, MURPHY, ELDRIDGE, C.J., RO- Argued before H. DOWSKY, McAULIFFE, JJ., and MARVIN COUCH SMITH, Appeals Mary- of Judge the Court Associate Assigned. (retired) land Specially COUCH, Judge. a discharged attorney- shall here hold that where
We former client to a successor relating the files gives the successor attor- exchange promise by for attorney percent of give discharged attorney twenty-five ney attorney, fee received the successor there by any not attorneys involving contract between enforceable agreement further hold that such an does the client. We Rule 2-106 or 2-107 of the Disciplinary either violate Responsibility. of Professional Code are as Ellis Shirley The facts of this case follows. Nelson R. Kandel after attorney retained the services personal injuries her children sustained an auto- she and Ellis, apparently accident. dissatisfied with Kan- mobile representation, subsequently del’s retained Steven Vogelhut percent contingent agree- M. under a forty advising ment. a letter to Kandel wrote requesting of his Ellis and “all the information retention matter;” you concerning have this at the bottom note, Ellis, signed repeating both the fact of letter was request and the for files. Vogelhut’s retention later, practice, Some months an associate Kandel’s two Wolf, Vogelhut’s took the files to office with Robert negotiate prior a fee for services rendered instructions discharge. Vogel- surrendered the files and Kandel’s Wolf the files and for three signed receipt hut a written checks, to various members of the Ellis payable insurance There conflicting testimony contained therein. family, *4 negotiations. to the result of the Wolf testified at trial as give twenty-five percent-of Kandel Vogelhut agreed case; Vogelhut from the Ellis by Vogelhut fee received any binding agreement was reached. After denied that a Vogelhut letter to recit- meeting, confirmatory Wolf sent a agreement. alleged of the terms ing version that he receiving the letter and stated Vogelhut admitted agreed he had never to the respond did not thereto because Mrs. Ellis had terms set forth in the letter and because any Kandel to receive did not want that she indicated remuneration. case, Vogelhut wrote of the
Upon settlement of the time Kandel accounting for asking Kandel and his claimed, performed, nature of the services if rate, could determine Kandel was Vogelhut so that hourly the Ellis for rendered compensation services entitled responded by on a meruit basis. family quantum Vogelhut’s pursuant twenty-five percent demanding this demand and Vogelhut refused agreement. their for of contract. Vogelhut breach Kandel sued in a trial the Circuit Court was heard bench The matter disputed resolved the judge The trial City. for Baltimore in his favor judgment of Kandel and rendered facts in favor affirmed $18,700.00. Special Appeals The Court for Kandel, 502 A.2d Md.App. certiorari, for 306 Md. petition granted Vogelhut’s We of the intermediate judgment A.2d and affirm court. appellate for our con- questions three Vogelhut presents
Appellant address seriatim. sideration which we shall
I between a negotiations attend agency Do the rules of settling his successor discharged lawyer and for division of fees? acting agent he as an appellant claims that (Mrs. Ellis) negotiations in his principal
of a disclosed is agency the law of and therefore discharged attorney The trial of the case judice.1 to a resolution sub apposite fact, the fee found, however, as a matter of judge First, agency. arguments law of two under the 1. The raised authority into a contract with a actual to enter that an needs Second, legal fees. that an discharged attorney the settlement of principal agent negotiates on behalf of a disclosed who a contract agency light party In of our resolution not a to the contract. issue, merits of these contentions. we need not address the *5 discharged attorney a contract between the agreement was not the attorney and a contract between and the successor stated, discharged The trial attorney. judge client and the dispute “the whole is over some- part, in that pertinent is obliged pay, Ellis is but what thing that Mrs. Implicit in this statement is the trial pay.” obliged the was not conclusion that successor judge’s agent as Ellis. arrangement the an Mrs. negotiating fee unless appeal will not be disturbed on findings Factual 886. the erroneous. Md.Rule We have reviewed clearly support finding find evidence to the of sufficient record the lower court.
II sharing precluded lawyer ethically discharged Is a from successor, proportion either not in the fee of services, or the absence the client’s in the value of of consent? contention is that appellant’s
The substance of second DR 2-106 agreement attorneys between violated Responsibility and DR 2-107 of Professional of Code therefore, expression as is an of the inasmuch the Code State, is as public of this the contract unenforceable policy disagree. against public policy. We DR 2-106 of the Code of Professional and DR 2-107 application agreement no to an between Responsibility have discharged attorney attorney whereby a successor a files client to the latter gives former of erstwhile any fee exchange percentage for a to share a promise DR 2-106 fees for services.2 regulates received. Legal 2. DR 2-106 Fees for Services. for,
(A) agreement charge, lawyer or collect A shall not enter into an illegal clearly excessive fee. facts, when, (B) clearly fee after a review of the A is excessive lawyer prudence and firm ordinary would left with definite fee. Factors to fee is in excess a reasonable conviction guides determining of a the reasonableness be considered following: include the sought by appellee the fee claims modest efforts on light appellee’s clearly excessive *6 family. of the Ellis behalf pari materia 2-106, respective its ethical
DR read considerations, is, however, fee agree- limited to plainly Where, here, as attorney. a client and his ments between agreement and the attorneys is between two agreement pay, the fee the client contracted to DR no effect on has inapposite. 2-106 is p the division of fees between DR 2-1073 roscribes alia, inter unless, properly associated attorneys “[t]he employment attorney to the other client consents difficulty (1) required, novelty and of the The time and labor involved, perform legal questions requisite to and the skill properly. service client, likelihood, (2) acceptance apparent if to the that the The employment by employment preclude particular will other lawyer. (3) legal customarily charged locality in the for similar The fee services. (4) The amount involved and the results obtained. (5) imposed by by the client or the circum- The time limitations stances. (6) relationship length professional with the The nature and of the client. (7) ability lawyer lawyers experience, reputation, The performing the services. (8) contingent. Whether the fee is fixed or for, (C) lawyer arrangement charge, or A shall not enter into an contingent representing fee for a defendant in a criminal collect case. Among Lawyers. DR 2-107 Division of Fees 3. (A) lawyer legal with another A shall not divide a fee for services lawyer partner law firm or law who is not a in or associate of his office, unless: (1) employment lawyer of the other after a The client consents to will be made. full disclosure that a division of fees (2) performed proportion services The division is made in to the responsibility and (3) assumed each. clearly lawyers exceed reasonable The total fee of the does not they compensation rendered the client. for all services (B) prohibit payment Disciplinary to a former This Rule does not separation agree- partner pursuant or retirement or associate to a ment. of fees full that a division will be made.” after a disclosure 2-107(A)(l). maintains that the agree- DR DR Mrs. Ellis ment contravenes 2-107 because never con- the agreement. sented to 2-107, however, contemplates representa- concurrent
DR attorney insofar tion of a client more than one the consent of the requires attorney to obtain client rule Here, attorney. of a second there upon employment to the representation; contrary, no such concurrent was procured and she discharged her Mrs. attorney. the successor DR employment brokering, client from protect formulated prohibit employment, prevent ag- payment clandestine Klawon, grandizement Mich.App. of fees. Krajewski 532, 538, we are not Patently, N.W.2d *7 in the present a situation case. faced with such argument, respect appellant’s to the remainder of With of the Code of Professional that a contract violation public policy, the against is unenforceable Responsibility logically dispositive thereof. foregoing analysis
Ill discharged attorney Is a ade- by the surrender files of promise by a the support consideration to quate share a percentage any successor to of received? alleges the contract fails for
Finally, appellant that gave appellee lack of because the time the consideration months after appellant, the files to the some two files, the there- requested the materials contained no perceive We duplicated by appellant. had been to this contention. merit generally that courts is basic contract law
It will v. as to of consideration. Blumenthal inquire adequacy 636, (1971). The 234, 243, Heron, 261 274 A.2d 640 Md. predeces- our expressed this rule best policy behind was (1871): 500, Md. 505 33 Taylor Turley, sors v.
191 to interfere with of the Courts province not the “It is contract, and to exercise parties of right natural and upon subject; they judgment and own will their of the consider- to estimate the value power have the will contracts, from their to be derived benefits ation contract, no fraud or incompetency is no there where no rule of law is violated.” surprise, fulfills follows, therefore, that which anything It consideration, is, recognized as one requirement may compara be the promise, whatever support legal, will thing promised. of the consideration tive value 243, 636 Md. at 274 A.2d Heron, 261 supra, v. Blumenthal Campbell Sons Harry v. T. Powder Co. Hercules (quoting Corbin, (1929)). 1 A. 346, 510 Accord 144 A. Co., 156 Md. Williston, (1963); 1 W. Jae 127 S. on Contracts Corbin § (3d ed. Law Contracts A Treatise on the ger, § a detriment to the or 1957). promisor A to the benefit support consideration is sufficient valuable promisee 412 A.2d Md. Shimp, Shimp contract. “giving up some means Legal detriment promisee immediately prior thereto thing which doing from retain, refraining doing or privileged do, or not to not to privileged was then something which he Williston, on the Law A Treatise doing.” from S. refrain Contracts, 102A at 382. supra, § record, court, reviewing the upon the trial agree We the con- support consideration to adequate there was *8 error, thus, Kandel; finding no Yogelhut and tract between affirm. we APPEALS SPECIAL THE COURT OF
JUDGMENT OF PAY APPELLANT TO COSTS. AFFIRMED. RODOWSKY, concurring. Judge, case, I in this would the result Although agree I with upon sued contract special it the explain by analyzing a novation. having effected
192 to is authority attorney an act for client revoca
The
Johnson,
385,
Boyd
v.
the client.
145 Md.
ble at the will of
(1924).
697,
power
The
to revoke
389, 125 A.
client’s
that,
implied
is
term
the retainer contract so
an
cause,
with or without
terminating
representation,
the retainer contract. Martin v.
does
client
not breach
denied,
46,
reh’g
170,
114
219 N.Y.
Camp,
219
N.E.
N.Y.
on other
(1916),
grounds,
627,
N.E.
220
114
1072
modified
If
653,
(1917).
discharges
115
1044
the client
N.E.
N.Y.
cause,
is
attorney
for
rule
that the
attorney
prevailing
MacKinnon,
See
F.
any compensation.
not recover
may
Services,
(1964);
Legal
Fees
at 77-80
S.
Contingent
for
4:37,
(1973); Wood,
Speiser, Attorneys’ Fees §
at 189-90
E.
Lawyers Sec.
(1936).
If
Fee Contracts of
at 201-203
cause, the
representation
terminates the
without
the client
compensated
for the
is entitled
reasonable
to termination.
legal
prior
services rendered
value
Brown,
Boyd
v.
(1945);
v.
184
Thus, present had a legal theory, as a matter of Kandel the pay as of the time of termination obligation by Kandel. On of the services rendered reasonable value Kandel, hand, theory, in accordance the other in hand papers retain funds of the client then would Shecter, Ashman payment. until he received that this reality Md. A.2d impasse. can situation result reaching manner practical in a through impasse cut agreement. their *9 retaining papers his lien on Ellis’s surrendered Ellis. It against as his claim would be as well moneys receive, in the of recovery, for Kandel to event
inconsistent fee and at the same time Vogelhut’s twenty-five percent meruit against Ellis. This because quantum claim implicit begin- for the latter. The former substitutes Vogelhut and Kan- negotiation between ning point meruit quantum Wolf, Kandel’s was representative, del’s amount then due and unliquidated an was claim on which made Ellis. The contract was substituted payable by percentage a obligor, for Ellis as substituted Vogelhut amount, unliquidated contingent fee Vogelhut’s contingent Vogel- on payment and made payment, deferred fee out of a on behalf earning contingent recovery hut’s il- Vogelhut’s Against background agency, Ellis. arguments may dispatched legality, and consideration quickly. agent for a dis-
Vogelhut contracting fully was not as promisor. Con- principal closed inasmuch he was from the her cededly, benefited novation because liabil- ity discharged. longer obligor; was She was no how- ever, promisor. she is not a
Vogelhut’s argument assumes that DR primary illegality and that it renders the contract unenforcea- governs argument obligations ble. This confuses the two involved valuing DR 2-106 in his governed by here. Kandel was ethically and could not claim an excessive fee for services retaining obligation pay lien. Ellis’s Kan- release of however, del, discharged special novation. The quasi-contract that was substituted for the contract is not brought, and on which this suit was agreement, to DR 2-106. subject Vogelhut’s there is promise as consideration for
Finally, lien, surrendering the detriment to Kandel benefit files, Ellis in obtaining and the benefit to quantum meruit obligation. obtaining discharge on the