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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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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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