Miller v. Paul

MATTHEWS, Justice,

dissenting.

In my view the following principles govern this case. A client has an absolute right to discharge his attorney with or without cause without undergoing financial penalties. Fracasse v. Brent, 6 Cal.3d 784, 100 Cal.Rptr. 385, 494 P.2d 9 (1972); Heinzman v. Fine, Fine, Legum & Fine, 217 Va. 958, 234 S.E.2d 282 (1977); Covington v. Rhodes, 38 N.C.App. 61, 247 S.E.2d 305 (1978); Sohn v. Brockington, 371 So.2d 1089 (Fla.App.1979). When the contract between the parties is a contingent fee contract and the contingency has not occurred, the discharged attorney’s recovery should be limited to the reasonable value of his services. Id. See generally Annot. 92 A.L.R.3d 690, 694-703 (1979). In determining the reasonable value of the discharged attorney’s services, the compensation terms of the contract and the ultimate result of the litigation are factors which should be considered. Newman v. Melton Truck Lines, Inc., 443 F.2d 896 (5th Cir. 1971); Potts v. Mitchell, 410 F.Supp. 1278 (W.D.N.C.1976); Annot. 92 A.L.R.3d 702-703 (1979). The attorney who has been discharged from a contingent fee contract is not entitled to be paid until and unless the contingency has occurred. Imposing an immediate obligation to pay unduly burdens the client’s right to discharge his attorney and, additionally, is often unfair to the client because he cannot afford to pay the fee unless a recovery in the case is received. Fracasse v. Brent, 6 Cal.3d 784, 100 Cal.Rptr. 385, 494 P.2d 9, 14 (1972); First National Bank & Trust Co. of Tulsa v. Bassett, 183 Okl. 592, 83 P.2d 837, 840 (1938); see Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 116-17 (La.1979).

Because the order of the superior court is consistent with the parties’ rights as defined in accordance with the foregoing principles I would affirm.