RENEE ADAMS, APPELLANT/CROSS APPELLEE,
v.
MONTGOMERY, SEARCY & DENNEY, P.A., PATRICIA ADAMS, AS PERSONAL REPRESENTATIVES OF THE ESTATE OF GLENN T. ADAMS, DECEDENT, AND MONTGOMERY, SEARCY & DENNEY, P.A., APPELLEES/CROSS APPELLANTS, AND CITY OF BOYNTON BEACH AND PAUL SHERIDAN, APPELLEES
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In this wrongful death action, the court reversed a trial court order awarding attorneys' fees to defendants from the plaintiff's settlement share, holding that the attorneys could not ethically represent the plaintiff given their prior refusal to do so and conflict of interest with their original clients.
The court reversed the award of attorneys' fees to appellees, holding that because appellees refused to represent appellant, prevented her from contributing to the lawsuit, excluded her from settlement negotiations, and a conflict existed between appellees' clients and appellant, no attorney-client relationship could ethically be established between appellees and appellant, and the common fund rule did not apply.
[1] An attorney's right to a fee terminates when the attorney realizes or should realize that they cannot ethically represent a client.
[2] An attorney-client relationship cannot be ethically established after a conflict of interest arises without the client's knowledge and consent.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“An attorney's right to a fee terminates when the attorney realizes or should realize that he or she cannot ethically represent his or her client.”
Establishes the fundamental principle that ethical conflicts prevent attorneys from recovering fees for representing a party.
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Join FLexlaw to unlock all legal intelligenceGlenn T. Adams was killed while working as a confidential informant for the Boynton Beach Police Department. His widow and children from two marriages…
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GARRETT, Judge.
We grant the motion for rehearing filed by appellee, Montgomery, Searcy & Den- ney, P.A., and substitute the following opinion:
Decedent’s daughter appeals the trial court’s post settlement order directing attorneys’ fees be paid" by the personal representative and deducted pro rata from appellant’s share of the settlement proceeds.
Glenn T. Adams was killed working as a confidential informant with the Boynton Beach Police Department. His second wife and a child from each of his two marriages survived him. The widow engaged appel-lees to represent her and her son in a wrongful death action. Through an out-of-state attorney, appellant contacted appel-lees to see if they would also represent her. Appellees refused. They felt appellant’s claim was worthless since it could be shown that the decedent had neglected her. Appellant then incurred legal expenses by retaining a Florida attorney, who petitioned for intervention and asked appellees to keep him abreast of settlement negotiations. Appellees never responded until just prior to settlement when they amended the complaint to include appellant.
The court approved the $225,000 settlement but did not consider apportionment to the survivors. After the court’s approval, appellant was bound by the terms of the settlement agreement. At the apportionment hearing, the court awarded appellant $25,000. After the distribution, appellees petitioned for attorneys’ fees of 25% of appellant’s award and costs of $1,100. Ap-pellees argued for fees and costs under Section 768.26, Florida Statutes (1987) and the “common fund rule.”1 The trial court ordered appellees be paid $6,250 as attorneys’ fees and 11% of all costs (except attorney travel expenses) from appellant’s award. Appellant appeals the order and appellees cross appeal for the travel expenses.
We affirm the cross appeal. We reverse the order awarding appellees attorneys’ fees. Appellees and appellant did not have a fee agreement. Appellees did not want to represent appellant. A conflict existed between the interests of appellees’ clients and appellant. Appellees, by ignoring appellant, prevented her from contributing to the lawsuit. Appellees did not include appellant in the settlement negotiations. At the apportionment hearing, appellees argued that appellant should receive nothing.
An attorney’s right to a fee terminates when the attorney realizes or should realize that he or she cannot ethically represent his or her client. White v. Roundtree Transport, Inc., 386 So. 2d 1287 (Fla. 3d DCA 1980). The conflict arose before appellees made appellant part of their client’s lawsuit and continued thereafter. After the conflict, no attorney-client relationship could have been ethically established between appellees and appellant especially without her knowledge and consent.
The “common fund rule” requires “the existence of a class which received, without otherwise contributing to the lawsuit, substantial benefits as a result of the litigation.” Fidelity & Casualty Co. of New York v. O’Shea 397 So. 2d 1196 (Fla. 2d DCA 1981). Although appellant received substantial benefits from the lawsuit, she could not contribute to it because the appellees would not let her. Appellees hoisted themselves on their own petard.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT HEREWITH.
ANSTEAD, J., concurs.
LETTS, J., dissents without opinion.
. The rule permits the award of attorney’s fees from a fund which has been benefited by the rendering of legal services. Estate of Hampton, 341 So. 2d 759, 761 (Fla.1976).
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In re Est. OF Richard C. Catapane v. Catapane, 759 So. 2d 9 (Fla. 4th DCA 2000)…ase the two survivors negotiated settlements before a personal representative was ever appointed. The facts were thus different from those in the present case, in which there was a personal representative. Adams v. Montgomery, Searcy & Denney, P.A., 555 So. 2d 957 (Fla. 4th DCA 1990), is also distinguishable. Our opinion in Adams does not reflect whether there had been a personal representative appointed; however, counsel for the widow had refused to represent a daughter by a prior marriage on the ground that…
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Thompson v. Andrew K. Hodson, M.D., 825 So. 2d 941 (Fla. 1st DCA 2002)…DCA 2001) (discussing the allocation of fees among the personal representative’s attorney and attorneys hired by other beneficiaries); In re Estate of Catapane, 759 So. 2d 9, 11 (Fla. 4th DCA 2000) (same); Adams v. Montgomery, Searcy & Denney, P.A., 555 So. 2d 957, 958 (Fla. 4th DCA 1990) (same). As the Catapane court noted, “Section 768.26 provides for payment of counsel selected by the personal representative.... ” Catapane, 759 So. 2d at 11. [*950] Attorneys’ fees and other expenses of litigation shall be…
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Perez v. George, 662 So. 2d 361 (Fla. 3d DCA 1995)…en his counsel (Allen) and the George, Hartz firm. Without such a signed contract, George, Hartz is not entitled to a fee from Perez, nor is it entitled to participate in any fee to be received by Allen. See Adams v. Montgomery, Searcy & Denny, P.A, 555 So. 2d 957 (Fla. 4th DCA 1990). Even in the absence of a written contract with Perez, George, Hartz nevertheless argues that it is still entitled to all of the attorneys’ fees by virtue of the “common fund rule”. The common fund rule allows attorneys’ fees to…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Est. of Eunice G. Hampton v. Fairchild-Florida Constr. Co., 341 So. 2d 759 (Fla. 1976)
- The Fid. & Cas. Co. OF NEW York v. Marilyn O'Shea and the Honorable E. Randolph Bentley, 397 So. 2d 1196 (Fla. 2d DCA 1981)
- White v. Roundtree Transp., Inc., 386 So. 2d 1287 (Fla. 3d DCA 1980)
- Davis v. State, 386 So. 2d 1287 (Fla. 3d DCA 1980)