Mabry v. Windsor Service Inc.

18 Pa. D. & C.4th 553, 1993 Pa. Dist. & Cnty. Dec. LEXIS 196
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedMay 14, 1993
Docketno. 89-10392
StatusPublished

This text of 18 Pa. D. & C.4th 553 (Mabry v. Windsor Service Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mabry v. Windsor Service Inc., 18 Pa. D. & C.4th 553, 1993 Pa. Dist. & Cnty. Dec. LEXIS 196 (Pa. Super. Ct. 1993).

Opinion

SUBERS, J.,

This case is the respondent’s appeal from this court’s order dated August 7,1992, awarding attorney’s fees to petitioner, Susan Mabry. Ms. Mabry was involved in an automobile accident on December 22, 1988, and retained James P. Lynch, Esq., to institute a personal injury action on her behalf. Mr. Lynch filed a civil action against defendants, Windsor Service Inc. and Edwin Blatt, on June 21,1989. In March 1991, petitioner discharged Mr. Lynch as her attorney and retained the respondent, Carleton G. Goodnow, Esq., to represent her.

Susan Mabry entered into a contingent fee agreement with Mr. Goodnow, the contents of which are unknown because petitioner did not retain a copy of that agreement and Mr. Goodnow failed to produce this fee agreement. On March 21,1991, Mr. Goodnow entered his appearance on behalf of Susan Mabry and subsequently answered a petition for bifurcation, which had been previously filed by the defendants. The case failed to be praeciped for trial despite being 3 1/2 years old with completed discovery.

On April 28,1992, Susan Mabry discharged Mr. Good-now in writing and advised him to forward her file to her new attorney, Joan M. Righter, Esq. Ms. Righter wrote Mr. Goodnow requesting Susan Mabry’s file to be transferred to her along with a statement of account. However, instead of transferring the file, Mr. Goodnow imposed two conditions which had to be met in order for the transfer to occur: (1) Ms. Righter would have to meet Mr. Goodnow at the scene of the accident; and (2) Mr. Goodnow would receive 50 percent of the contingency fee collected.

[555]*555On May 5, 1992, Mr. Goodnow attended a judicate settlement conference on behalf of Susan Mabry despite knowledge that Susan Mabry had discharged him on April 28,1992, and had retained Joan Righter, Esq. As a result of the settlement conference, defendant’s adjuster, Susan Shemanski, forwarded a draft of $40,000 to Mr. Goodnow, who relayed this offer to Susan Mabry but failed to inform her that he possessed a draft from defendant’s insurer. Although Susan Mabry rejected this offer, Mr. Goodnow faffed to inform Susan Shemanski of the rejection and faffed to return the $40,000 draft.

On July 7,1992, Joan Righter filed a petition for return of file and substitution of counsel and on July 14, 1992, Ms. Righter and Mr. Goodnow attended an informal conference on the petition with this court. This court decided the only open issue remaining for disposition was respondent’s counsel fee and directed both parties to submit briefs on that issue on August 6, 1992. However, Mr. Goodnow failed to respond to this petition or appear at the scheduled argument before this court on August 6, 1992, when he had an opportunity to be heard. Accordingly, the rule returnable for August 6,1992, became absolute.

The order appealed from was entered on August 7, 1992. (This order is attached as Exhibit A.)

On December 7, 1992, respondent’s petition for reconsideration was denied. Respondent now appeals this court’s order of August 7, 1992.

ISSUES

(1) Whether respondent’s conduct was wrongful and vexatious?

(2) Whether the attorney’s fees awarded to petitioner were unreasonable or an abuse of this court’s discretion?

[556]*556(3) Whether respondent has standing to inquire into circumstances surrounding petitioner’s contingent fee agreement with her attorney?

DISCUSSION

Respondent’s first argument is that his conduct in the case at hand was not wrongful or vexatious. We disagree. The court may require a party to pay another participant’s counsel fees if the party’s conduct in commencing the action was “arbitrary, vexatious or in bad faith.” 42 Pa.C.S. §2503. Brenckle v. Arblaster, 320 Pa. Super. 87, 466 A.2d 1075 (1983). In the instant matter, respondent, Carleton G. Goodnow, Esq., attempted to coerce a disputed fee from a former client, Susan Mabry, by wrongfully withholding her file from her new attorney, Ms. Righter.

As stated previously in the facts presented, Mr. Good-now was informed, in writing, by his client, Susan Mabry, that she was terminating his services as her attorney on April 28, 1992, and that he should forward her file to her new attorney, Joan Righter, Esq. In addition, Ms. Righter requested that Mr. Goodnow forward Susan Mabry’s file to her attention. However, Mr. Goodnow decided to withhold petitioner’s file until Ms. Righter met with Mr. Goodnow at the scene of the accident and agreed that Mr. Goodnow would receive 50 percent of the contingency fee collected.

An attorney must withdraw from representation of the client once he is discharged. Rule 1.16(a)(3), Pa. Rules of Professional Conduct. Rule 1.16 sets forth a lawyer’s obligations upon termination:

“(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, [557]*557surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.”

An attorney must surrender the papers and property of a client to that client or new counsel so as not to prejudice a client’s interests. Here, Mr. Goodnow simply prevented new counsel from continuing with this case and severely prejudiced Susan Mabry’s interest by withholding her file with no justifiable reason. “When an attorney attempts to coerce a fee which has not been realized from a client by preventing the client from proceeding in an action with an attorney of his choice, the situation requires the strict scrutiny of the court.” Village Gentry Inc. v. The Fox Co., 6 Phila. Rep. 446, 452 (1981), rev’d on other grounds 316 Pa. Super. 404, 463 A.2d 427 (1983). As such, Mr. Goodnow’s wrongful conduct by withholding the file is unconscionable and cannot be tolerated because his conduct conflicts with the strong directives set forth in the Disciplinary Rules against prejudicing the rights of a client.

As stated previously in the facts presented, Mr. Good-now also attended a settlement conference after he had been discharged as Susan Mabry’s attorney. Mr. Good-now held himself out to be Ms. Mabry’s attorney and accepted a settlement draft in the amount of $40,000 from defendant’s insurer. Mr. Goodnow informed Ms. Mabry of this offer and although Ms. Mabry rejected the offer, Mr. Goodnow failed to inform her that he had a draft from defendant’s insurer. Furthermore, Mr. Goodnow never communicated Ms. Mabry’s rejection to defendant’s insurer and failed to return the $40,000 draft. This conduct by Mr. Goodnow, as well as his refusal to return petitioner’s file, demonstrates his ignorance of the Pa. Rules of Professional Conduct and the rights of his former client.

[558]*558Additionally, Mr. Goodnow failed to provide petitioner with a statement as to services performed for Ms. Mabry and, therefore, petitioner can only look to precedent which holds that an attorney may proceed only on a quantum meruit basis.

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Cite This Page — Counsel Stack

Bluebook (online)
18 Pa. D. & C.4th 553, 1993 Pa. Dist. & Cnty. Dec. LEXIS 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mabry-v-windsor-service-inc-pactcomplmontgo-1993.