Attorney not entitled to prejudgment interest

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A southern Indiana lawyer who entered into an agreement with another attorney to handle some of his cases due to his suspension from practice is not entitled to prejudgment interest on his portion of a client fee, the Indiana Court of Appeals held.

J. Michael Kummerer was arrested in 2007 and charged with possessing cocaine and aiding, inducing or causing dealing in cocaine. He was suspended for six-months by the Indiana Supreme Court Disciplinary Commission and entered into an agreement with C. Richard Marshall for Marshall to handle four of Kummerer’s contingency-fee cases.

Their agreement called for the attorneys to share equally in any fee recovered without a trial. At issue is a case that settled during mediation – the parties agreed to a compromise fee with the client of $275,000. Marshall paid himself a total of $137,500. After the settlement, Marshall tried to get Kummerer to change their agreement so that he would receive 90 percent and Kummerer would get just 10 percent. Marshall believed paying Kummerer the 50 percent would violate the proportionality provision of Rule 1.5 of the Rules of Professional Conduct. Marshall claimed that he had done most of the work on the case.

Kummerer sued Marshall, alleging he had been defrauded. Marshall claimed Kummerer misrepresented the amount of work he had completed on the case. Marshall moved to have the disputed money put in an account with the clerk’s office so it could earn interest, but Kummerer objected. Marshall left the funds in his IOLTA account.

The trial court found no fraud and that Kummerer’s work on the case justified the contract. The trial judge looked at Rule 1.5 and found that the equal fee split was a reasonable forecast of the work that each attorney would perform on the case. Kummerer was awarded $137,500, but no prejudgment interest. He then filed a motion to correct errors, claiming the trial court needed to make special findings regarding whether the contract damages were determined by simple mathematical calculations when deciding to deny prejudgment interest. The trial court denied this motion.

The Court of Appeals affirmed because the trial court had to determine whether the two attorneys’ forecast of the amount of each work was reasonable. The judge had to consider the eight factors in Rule 1.5(a) to do so. That determination involved the court’s judgment in order to assess the damages, so prejudgment interest was not appropriate, Judge Nancy Vaidik wrote.

The appellate court also found that the trial court did make specific findings of fact that the fee division was reasonable under Rule 1.5 for the circumstances of this case. The trial court had to exercise its judgment in determining damages and the calculations of those damages were not merely a simple mathematical evaluation, she wrote.  



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