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In re Fee

898 P.2d 975 (1995)

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In re Fee

Arizona Supreme Court

898 P.2d 975 (1995)

Facts

Attorneys Robert Fee and John Montijo (F&M) (defendants) were retained to file a medical-malpractice action on behalf of a client whose son was born with brain damage. F&M were to receive a 40% contingent fee. The defense offered a settlement consisting of a cash amount followed by periodic payments and a separate amount for attorneys’ fees. F&M and their client decided the client’s needs would be greater than the amount offered. During a meeting with the settlement judge, there was a discussion about how the defense tactic of making separate offers of attorneys’ fees drove a wedge between a plaintiff’s attorney and his client. The settlement judge indicated he thought F&M’s contingent fee was excessive. F&M told the client the attorneys’-fees offer was insufficient. The client authorized F&M to seek more money for her son’s care, which might result in increased attorneys’ fees. A new defense offer was made that again included a separate amount for attorneys’ fees. In a private meeting, F&M proposed that the client pay them an additional amount from her share of the cash settlement. F&M advised the client of her right to seek independent advice. The client assured F&M she was satisfied with the arrangement. F&M advised the settlement judge that they agreed to the settlement but did not disclose the new fee arrangement. F&M did not want to upset the settlement, did not believe it was the settlement judge’s role to determine whether their fees were reasonable, and planned to reveal the separate agreement to the trial judge who would be approving the fees. After the settlement conference, the client called the settlement judge and asked whether she was required to comply with the separate agreement. The judge removed F&M from the case and initiated disciplinary proceedings. The disciplinary commission recommended that F&M be suspended for 60 days. F&M appealed.

Rule of Law

Issue

Holding and Reasoning (Zlaket, J.)

Dissent (Corcoran, J.)

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