Pearson v. Tanner
Pearson v. Tanner
Opinion of the Court
MEMORANDUM
I. INTRODUCTION
Ex-lawyer Allen J. Feingold and suspended attorney Jeffry S. Pearson filed a complaint seeking a declaratory judgment
II. FACTUAL BACKGROUND
Theresa and Jerry Allen retained the services of Allen J. Feingold in 2003 to represent them in connection with a medical malpractice case arising from complications sustained by Mrs. Allen following a sinus surgery. Compl. at 9. Mr. and Mrs. Allen entered into a written fee agreement with Mr. Feingold which provided that Mr. Feingold would receive a contingency fee from the amount of any recovery obtained by Mr. Feingold on their behalf. Id. at 10.
After prosecuting various aspects of the litigation, in 2007, with Mr. and Mrs. Allen’s consent, Mr. Feingold “associated with and transferred responsibility” for the Allens’ litigation to Jeffry S. Pearson. Id. at 12. Plaintiffs allege that Mr. Pearson and the Allens agreed that the original contingency fee agreement entered into with Mr. Feingold would govern the payment of attorney’s fees. Id. at 13. Mr. Pearson oversaw the litigation until June of 2009, at which point, again with the consent of Mr. and Mrs. Allen, he “associated with and transferred responsibility” for the case to Theodore Schwartz, Esquire. Id. at 15. Mr. and Mrs. Allen once again agreed that the original contingency fee agreement would continue to govern the payment of attorney’s fees. Id. at 16.
Then, in October 2009, after discharging Mr. Schwartz allegedly without cause, Mr. and Mrs. Allen retained Mark Tanner and the law firm of Feldman, Shepherd, Wohgelhertner, Tanner, Weinstock & Do-dig, LLP to continue prosecuting their medical malpractice claim. Id. at 17. Messrs. Feingold and Pearson allege that Mr. Tanner has refused to protect their claims for fees and for recovery of costs incurred on Mr. and Mrs. Allen’s behalf. The plaintiffs filed this action to protect their purported interest in any contingent fee the Allens may be awarded at the conclusion of their case.
The defendants promptly filed a motion to dismiss Messrs. Feingold and Pearson’s Complaint. They attach as Exhibit A to their motion Mr. Feingold’s Disciplinary History before The Disciplinary Board of the Supreme Court of Pennsylvania. See Def. Ex. A.
III. LEGAL STANDARD
A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Although Rule 8 of the Federal Rules of Civil Procedure requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-55, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley, 355 U.S. at 47, 78 S.Ct. 99), the plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (citations omitted). Specifically, “[fjactual allegations must be enough to raise a right to relief above the speculative level .... ” Id. at 555, 127 S.Ct. 1955 (citations omitted). To survive a motion to dismiss, a civil complaint must allege “factual content [that] allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (confirming that Twombly applies to all civil cases).
While, indeed, the Court “must only consider those facts alleged in the complaint and accept all of those allegations as true,” ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994) (citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)); see also Twombly, 127 S.Ct. at 1965 (stating that courts must assume that “all the allegations in the complaint are true (even if doubtful in fact)”), the Court need not accept as true “unsupported conclusions and unwarranted inferences,” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000) (citing City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 n. 13 (3d Cir. 1998)), or the plaintiffs “bald assertions” or “legal conclusions.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
Additionally, and particularly pertinent in this case, the Court may also consider exhibits attached to the complaint, matters of public record, and records of which the Court may take judicial notice. See Tellabs, Inc. v. Makor Issues & Rts., 551 U.S. 308, 127 S.Ct. 2499, 2509, 168 L.Ed.2d 179 (2007); Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). “[P]ublic record, for purposes of what properly may be considered on a motion to dismiss ... inelude[s] criminal case dispositions such as convictions or mistrials, letter decisions of government agencies, and published reports of administrative bodies.” Pension Benefit, 998 F.2d at 1196 (citations omitted); see also Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). Reported case law and other docketed judicial opinions likewise meet the same criteria.
IV. DISCUSSION
A. Availability of Recovery Against Mr. Tanner and His Law Firm
Defendants argue that an attorney who initially represents a client but who is
In response, Messrs. Feingold and Pearson direct the Court to Feingold v. Pucello, 439 Pa.Super. 509, 654 A.2d 1093 (Pa.Super.Ct. 1995), and Johnson v. Stein, 254 Pa.Super. 41, 385 A.2d 514 (Pa.Super.Ct. 1978), in support of their claim that they may bring an action in quantum meruit against successor counsel. In Johnson, an attorney filed an action against a former colleague seeking a charging lien for work he had performed while the two attorneys were affiliated at the same law firm. 385 A.2d at 515. After the Superior Court affirmed the trial court’s ruling that the first attorney was not entitled to a charging lien, in what the Superior Court has subsequently repudiated as “pure dicta” and “gratuitous speculation,” Styer v. Hugo, 422 Pa.Super. 262, 619 A.2d 347, 351 (Pa.Super.Ct. 1993), aff'd, 535 Pa. 610, 637 A.2d 276 (1994), the Court suggested that the first attorney may be able to pursue an action asserting unjust enrichment against the other attorney. Johnson, 385 A.2d at 515.
The Feingold case merely piles more dicta on top of the Johnson case’s dicta. 654 A.2d at 1095. There, Mr. Feingold, then a licensed attorney, sued a former client for attorney’s fees in quantum meruit after his client discharged him prior to the end of a case. Id. The Superior Court affirmed the dismissal of Mr. Feingold’s claim against his former client but, citing only Johnson, and offering no analysis whatsoever, suggested that “[Mr.] Feingold’s claim would more properly lie against [his client’s new] attorney.” Id.
Since the Superior Court decided the Feingold case, it has twice repudiated the dicta in Johnson, and suggested that the language in Johnson is limited only to situations where the dispute is between an employer-attorney and a former employee-attorney who, upon termination of his employment, takes his former employer’s client. Mager, 797 A.2d at 955; Fowkes, 661 A.2d at 880; see also In re LaBrum & Doak, LLP, 225 B.R. 93, 105-106 (Bkrtcy. E.D.Pa. 1998) (“Pennsylvania law is clear that a quantum meruit cause of action does not lie against an unrelated successor attorney.”). Here, there is no affiliation between either of the plaintiffs and Mr. Tanner or his law firm. Accordingly, the plaintiffs’ claim against Mr. Tanner and his law firm must be dismissed as a matter of law.
B. Availability of Recovery Against Mr. and Mrs. Allen
Defendants next argue that the Messrs. Feingold and Pearson fail to state a claim against Mr. and Mrs. Allen upon which relief can be granted because both counsel were discharged for their own wrongful acts. As noted above, the public records indicate that Mr. Feingold was suspended from practicing law on March 3, 2006, and disbarred on August 22, 2008, while Mr. Pearson was suspended from practicing law on May 28, 2009, and June 28, 2011. Accordingly, Defendants argue, because Messrs. Feingold and Pearson were discharged due to their disbarment and/or suspension (i.e., their own wrongful acts), they are not entitled to a percentage of the contingency fee in the event Mr. and Mrs. Allen’s lawsuit proves successful.
In support of their position Defendants cite Lampl v. Latkanich, 210 Pa.Super. 83, 231 A.2d 890, 894 (Pa.Super.Ct. 1967), the
Although no Pennsylvania court has spoken directly on whether a disbarred or suspended attorney is entitled to recover a portion of a contingency fee from a former client for services rendered prior to disbarment, courts around the country have adopted one of two approaches. The first approach equates an attorney’s disbarment or suspension prior to completion of her retainer to be equivalent to a material breach, and thus, the lawyer is not entitled to any compensation. See, e.g., Royden v. Ardoin, 160 Tex. 338, 331 S.W.2d 206, 209 (1960) (“Where the attorney, prior to the completion of his contingent fee contract is disbarred or suspended, he is not entitled to collect either on the contract or quantum meruit for his services, if any, that have been rendered.”); Fletcher v. Krise, 120 F.2d 809, 810 (D.C.Cir. 1941) (“[Appellant’s disbarment deprived him of any right to compensation either under his contract or on a quantum meruit [basis]”); Woodworth, 15 F.Supp. at 293 (“Reasonable compensation in lieu of the fee he cannot have, because his inability to complete his contract has been brought about by his own wrongful conduct. The rule permitting recovery for reasonable value of services performed is based on quasi contract ... and is confined to instances where the attorney has been prevented from earning the agreed contingent fee without fault, as by illness, death, or discharge without fair cause.... [T]he rule of reasonable compensation does not apply where the attorney is forced to relinquish the suit by reason of disbarment. His inability to perform his contract is the consequence of his own wrong.”). This approach is consistent with the Superior Court’s ruling in Lampl because it treats a lawyer’s disbarment or suspension as a “wrongful act” under the Lampl rubric.
The second line of cases permits quantum meruit recovery for services rendered pursuant to a contingency fee arrangement prior to disbarment where the attorney discipline was unrelated to the particular matter for which recovery was sought. See Eisenberg v. Gen. Motors Acceptance Corp., 761 F.Supp. 20, 22 (E.D.Pa. 1991) (Buckwalter, J.) (“[T]here is no sound reason in law or morals for permitting the defendant to use the plaintiffs disbarment as an escape from paying him for services rendered.”) (quoting Stein v. Shaw, 6 N.J. 525, 79 A.2d 310, 311 (1951) (“To deprive an attorney of his claim for any and all
The Court does not share our sister courts’ concern regarding unjustly enriching clients at the expense of their disbarred or suspended former attorneys. The courts that have permitted attorneys to recover fees for partial performance prior to their disbarment or suspension have gone to great pains to distinguish disbarment from a breach of contract between the attorney and client. As one court noted, “disbarment or disciplinary resignation automatically terminates the attorney client relationship by operation of law” whereas a voluntary abandonment on the part of the attorney constitutes a material breach of a retainer agreement. Eisenberg, 761 F.Supp. at 23. This distinction seemingly equates an attorney’s disbarment with an event beyond his or her control, and implicitly likens it to an event triggering the doctrine of impossibility, or in Pennsylvania, “frustration of contractual purpose.” See Alvino v. Carraccio, 400 Pa. 477, 162 A.2d 358, 361 (1960). Based on this rationale, even though the disbarred attorney is unable to fulfill her contractual obligations to her client, the attorney’s disbarment constitutes an excuse for performance, which would entitle the disbarred attorney to compensation for her pre-disbarment partial performance. See West v. Peoples First Nat. Bank & Trust Co., 378 Pa. 275, 106 A.2d 427, 433 (1954) (“[Wjhere the party excused by impossibility has partly performed the contract on his side before the impossibility arises, ... justice requires the imposition of a quasi-contractual obligation on the party receiving such performance to pay its fair value.”) (quoting 6 Williston on Contracts, § 1972 (Rev. Ed.)).
One flaw with this line of reasoning, in this Court’s consideration, is that an attorney’s disbarment or suspension is not, in fact, an event beyond his or her control.
y. CONCLUSION
For the foregoing reasons, the Court concludes that Messrs. Feingold and Pearson fail to state a claim upon which relief can be granted. Accordingly, the Court will grant the Defendants’ motion to dismiss.
An appropriate order, consistent with this Memorandum follows.
. Unless otherwise stated, these facts are drawn from the Complaint and are accepted as true for the purposes of this motion.
. The Allens' medical malpractice case remains extant.
.See text at pages 4-5 infra regarding the Court's consideration of this information.
. Glaringly absent from the plaintiffs' complaint is any mention of their respective disciplinary histories or Mr. Feingold’s disbarment. Suffice it to say, those histories help explain why Mr. Feingold "associated with and transferred” Mr. and Mrs. Allen’s case to Mr. Pearson “sometime in 2007,” and why Mr. Pearson "associated with and transferred” the case to Mr. Schwartz in June 2009.
. Perhaps the ultimate decision of the Disciplinary Board is beyond the attorney’s "control” (given that one would assume that every respondent attorney would, if possible, "control” the outcome in his or her favor), but the actions of the attorney that placed him or her before the Disciplinary Board in the first place most certainly are within his or her control.
. Of course this ruling does not in any way affect a disbarred or suspended attorney’s ability to pursue attorney’s fees earned prior to being disciplined pursuant to a contractually set hourly rate or a contingency fee arrangement in which he has seen the case through to completion. Likewise, this ruling would not necessarily preclude reimbursement for documented costs actually advanced if and when the key contingency, i.e., a recovery, comes to pass, provided that the contractual terms previously agreed to on that issue so permit.
Reference
- Full Case Name
- Jeffry S. PEARSON v. Mark W. TANNER
- Cited By
- 2 cases
- Status
- Published