January 24, 2008
Fee Claim Rejected
In Liss v. Studeny, SJC-09916, decided yesterday, the Massachusetts Supreme Judicial Court upheld the grant of client Studeny's motion for summary judgment on lawyer Liss' claim under a contingent fee agreement where the contingency had never occurred. The court also rejected the fee claim on quantum meruit grounds.
" there is no evidence that Studeny used Liss's services without intending that the contingency occur. That is, Studeny did not defeat Liss's reasonable expectation that he was using Liss's services to bring about the contingency on which Liss might be compensated. See Salamon v. Terra, supra at 859 (quantum meruit may be appropriate where reasonable expectations are defeated). In fact, the undisputed evidence demonstrates that, even after Liss had withdrawn from the case, Studeny defeated his employer's motion for summary judgment and continued to litigate his case to the end of trial in an effort to achieve the contingency. His attorney may have wished for Studeny to invest more money and effort in the litigation of the case, but the fact that Studeny expected to pursue his claim at the least possible cost does not establish that he intended the contingency not to occur. Given these facts, Liss's right to recover in quantum meruit would not have accrued until the occurrence of the contingency. Because the contingency did not occur, his right to recover never accrued. Liss may not recover in quantum meruit."
The link to the court's web page is here. One interesting aspect of the civil case is that Bar Counsel submitted an amicus brief. (Mike Frisch)
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