both generally discussing this doctrine
How later courts described this case
- both generally discussing this doctrine
Written by the judges who cited it.
Later courts went against this
Overruled in part, on other grounds by T&T Chemical, Inc. v. Priest, 351 Ark. 537 (2003)
City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982), overruled on other grounds by T & T Chemical, Inc. v. Priest, 351 Ark. 537, 95 S.W.3d 750 (2003).
The opinion
Richard B. Adkisson, Chief Justice, dissenting. I dissent from the denial of the attorney fee. The sanction applied in this case far exceeds the impropriety. No consideration is given to the public service performed by this attorney in stopping the illegal exaction.
John I. Purtle, Justice, dissenting in part, concurring in part. The majority opinion sets out sufficient facts for a clear understanding of this case with the exception of that portion of the record relating to t^ie relationship of the appellees’ attorney and the appellant in this case. I feel the majority should have quoted that part of the record where the attorney for the appellees in the present case offered to give the Phillips v. Weeks file back to the city attorney because he feared it might become the subject of a motion to disqualify. Part of Mr. Henry’s testimony was:
Mr. Magruder told us he didn’t want the Phillips v. Weeks file back and that if we would keep it, it would never serve as a basis for any motion to disqualify.
It should be pbinted out that all of the ordinances which the appellant claims were enacted with the approval of attorney Henry were nothing more than the same ordinances being reenacted several times. Every year when the city decided to levy this illegal tax they upped the ante and required a larger payment by the Water Works Commission, which is a tool in the hands of the City Directors of the City of Little Rock, Arkansas. Also, it should be kept in mind that the ultimate parties responsible for the payment of this illegal tax were the customers of the City of Little Rock Water Works Commission.
The attorney for the appellant engaged in the private practice of law with the full knowledge and consent of the Board of Directors for the City of Little Rock. He later instituted a suit to force the city to refund monies they had illegally collected from the public. They contend it is unfair because he gained such knowledge while he was an assistant city attorney which now constitutes an adverse interest. Nonsense! The ordinances are public records and are actually published in the newspapers in order that the public might become aware of them.
I have no doubt that the present attorney for the appellant feels that he has misled attorney Henry because he has been forced by the board of directors to back down on his word that the Phillips v. Weeks case would never be used to disqualify him.
The truth of the matter is that it is none of the board’s business as to whether David Henry receives $5 or $500,000 in this case. It is not coming from the pockets of the city. The city is only respnsible for the refund they have been ordered to make. Therefore, they have no standing to argue this point. The fee allowed by the chancellor is a part of the recovery made by the efforts of Mr. Henry and his associates. So far as I am concerned, attorney David Henry has acted with the utmost honesty and frankness in this entire matter. Certainly, it cannot be said of him that he backed down on his word. If those who recover the funds are satisfied with the amount of attorney’s fee allowed, then it should be allowed. Certainly, the city attempted to defeat the rights of these same people from collecting anything whatsoever. Now it looks to me like a case of sour grapes.
I would reduce the attorney’s fee in the same proportion that the amount of the recovery is reduced and allow him the 25% authorized by the trial court, provided his clients do not object.
Dissenting Opinion on Denial of Rehearing delivered January 17, 1983