Imagine this: An attorney has entered into a contingency fee agreement with a client. Prior to the occurrence of the contingency, the lawyer is disbarred and withdraws from representation of the client. Is the lawyer entitled to collect fees for work that was performed on behalf of the client before the disbarment?
Courts around the country are split on this question. The Massachusetts case of Kourouvacilis v. American Federation of State, County & Municipal Employees nicely summarizes the two principal lines of authority on this issue.
One line holds that the disbarment of an attorney is regarded as the equivalent of an unjustified voluntary abandonment of the client, which precludes any recovery for legal work performed prior to the disciplinary action.
Another line does not bar recovery per se, but rather allows a disbarred attorney to recover the reasonable value of services rendered prior to the discipline, if the discipline was for conduct unrelated to the case.
The Kourouvacilis court ultimately held that where the penalized misconduct is related to the case in which the legal services were rendered and for which a fee is sought, the disbarment or suspension of an attorney for ethical misconduct bars him or her from recovering compensation for legal services rendered prior to the disciplinary action.
In Georgia, lawyers may lose their right to fees for unprofessional conduct or abandonment of their client’s cause. However, where the contract for services is severable, any misconduct of the attorney as to one phase will not result in the forfeiture of fees as to another phase of services. And when lawyers are disbarred after the completion of a case , for reasons unrelated to the case, they are not required to disgorge their fee.
An interesting Georgia case on this issue is Bryan v. Granade. In Bryan, an attorney represented the plaintiffs on a contingent basis in an action challenging a will. The challenge was successful and at the conclusion of the lawsuit, the plaintiffs asked the attorney to be the administrator of the estate. The plaintiffs alleged that the attorney converted estate assets for his own use and generally abused his position as administrator.
The attorney eventually resigned as administrator, and the probate court entered a judgment against the attorney for the funds he had converted from the estate. The attorney then filed a lawsuit to recover his fee for the successful will challenge. In opposition, the plaintiffs argued that the attorney forfeited his right to fees for the will challenge when he abused his fiduciary duties as administrator.
A divided Georgia Supreme Court affirmed the two lower court rulings in favor of the attorney, finding that the attorney’s actions in pursuing the litigation were “distinct and severable” from his actions as administrator over the estate. The attorney was, thus, allowed to keep his contingent fee in the initial lawsuit.