The opinion
Annabelle Clinton Imber, Justice, concurring. The majority is correct that the trial court should be affirmed, but this is so because Ms. Salmon’s appellate brief offers no citation to authority or convincing argument for reversal. Furthermore, while I agree with the majority’s decision in this case, I write because the maj ority paints its holding with too broad a brush. A fair reading of the majority opinion could, in a contingency-fee case, deny a client the option of dropping a lawsuit. Such a result could tear at the foundation of the .attorney-client relationship.
The majority frames the issue as follows: “Whether an attorney who enters into a contingent-fee contract with a client and is later discharged by the client may bring an action for a quantum meruit fee prior to the resolution of the former client’s lawsuit.” In this case, however, the client not only discharged the attorneys; she also moved forward with her lawsuit, utilizing her discharged attorneys’ work product. The “New York rule” embraced by the majority has as its basis the idea that it is unfair to force a discharged attorney to wait on the occurrence of the contingency — a successful outcome in the litigation ■— before receiving payment for work performed. This is true because, as stated by the New York Court of Appeals,
The value of one attorney’s services is not measured by the result attained by another.This one did not contract for his contingent compensation on the hypothesis of success or failure by some other member of the bar....
Tillman v. Komar, 259 N.Y. 133 , 181 N.E. 75 (1932).
I am in complete agreement with Tillman,and the majority on this point. However, the blanket holding by the majority that, “Appellees’ cause of action to recover reasonable attorney’s fees, under the theory of quantum meruit, accrued immediately upon their being discharged by Appellant,” goes too far because it is not narrowly tailored to the facts of this case. In this case, Ms. Salmon discharged Ms. Atkinson and Mr. Howell without cause, and then used their research and the documents they had created to file her own pro se lawsuit. It would certainly be unfair to require these attorneys to base their recovery on whether or not Ms. Salmon competently represented herself in the suit and obtained a favorable outcome. After all, it was Ms. Salmon who chose to take their work and proceed forward with it.
But, what ifMs. Salmon had decided she just wanted to drop her lawsuit altogether? What of the contingency-agreement client who, due to illness or stress or a change of heart, decides she does not wish to pursue further litigation? The majority’s opinion would require that client to continue to pursue a lawsuit she no longer wants to pursue, or pay quantum meruit fees that could quite literally amount to thousands, or even hundreds of thousands, of dollars. In effect, the lawsuit would become the attorney’s lawsuit, because the only person benefitting from such a situation would be the attorney who is counting on the contingency fee. It seems to me that this situation would violate at least two of the Model Rules of Professional Conduct:
Rule 1.2. Scope of Representation.
(a) A lawyer shall abide by a client’s decisions concerning the objectives of representation...
* Hí * *
Rule 1.8. Conflict of interest: prohibited transactions.
(j) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
(1) acquire a lien granted by law to secure the lawyer’s fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.
Ark. Mod. R. Prof. Cond. 1.2 & 1.8 (2003) (emphasis added).
If as the majority holds, an attorney in a contingent-fee action is always entitled to a quantum meruit fee upon discharge, a poor client without funds to pay such a fee may be forced by the attorney to continue with a lawsuit that the client would prefer not to pursue, thus violating Rule 1.2(a). Additionally, a lawsuit that is pursued for the sole reason of securing a contingency fee for the attorney certainly violates both the letter and the spirit of Rule 1.8(j). At that point, only the attorney’s proprietary interest is fueling the cause of action. Certainly, Rule 1.8(j) allows an attorney to have a proprietary interest in a contingent outcome, but I do not believe that the fee should become the sole “raison d’etre” for the lawsuit.
Moreover, what about the case of a client who discharges an attorney with cause? The breadth of the majority’s holding is such that it does not distinguish between attorneys discharged without cause from those discharged with cause. However, our precedent has never required a client in a contingency-fee case to pay a fee to an attorney discharged with cause until and unless there is a recovery, and then the fee is based on quantum meruit. See, e.g., Mobley Law Firm P.A. v. Lisle Law Firm, P.A., 353 Ark. 828 , 120 S.W.3d 537 (2003); Crockett & Brown, P.A. v. Courson, 312 Ark. 363 , 849 S.W.2d 938 (1993).
In a situation like the one at bar, in which a client breaches a contingency-fee agreement by discharging the attorney without cause and then pursuing the suit pro se, or with the benefit of another attorney’s services, I agree with the majority that the attorney is entitled to a quantum meruit fee for services rendered. I also agree that the attorney who is discharged without cause should not have to wait until recovery for the fee, but the fee should be due immediately if the client proceeds forward with the suit. In my view, however, the majority’s holding is so broad as to force impoverished clients, who could never have afforded hourly fees in the first place, to continue with litigation against their wishes. It is true that attorneys who contract on contingency-fee cases may sometimes be left with nothing if the client decides to drop the lawsuit, but that is a risk those attorneys take for the chance to receive a percentage of a large settlement or damages award. The people who will really suffer from this holding are low-income Arkansans who might be willing to contract on a contingency-fee basis but will decide not to pursue lawsuits at all for fear they will be forced into financial ruin if they need to drop their lawsuit for some unforeseeable reason. In sum, while I concur in the result because the appellant provided neither citation to relevant authority nor cogent argument for reversal, I must also disagree with majority’s blanket holding.