ILNews

COA: Attorney must wait to collect fees

Jennifer Nelson
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
The Indiana Court of Appeals affirmed a trial court's ruling on when an attorney could receive his compensation under a contingency fee agreement, even though the attorney didn't submit a transcript of the bench trial detailing the trial court's findings.

In Thomas J. Herr v. Carter Lumber Inc., The Carter Jones Lumber Company, and Brian L. Oaks, No. 79A02-0803-CV-290, before ruling on the issue Thomas Herr was appealing - whether the trial court erred in ordering he receive compensation under a contingency fee agreement only after his former client, Carter Lumber, makes a recovery - the appellate court first had to determine whether the fact Herr didn't provide a transcript of the bench trial in his appeal warranted the court dismissing the appeal.

Relying on previous cases regarding this issue - Pabey v. Pastrick, 816 N.E.2d 1138, 1141-1142 (Ind. 2004) and In re Walker, 665 N.E.2d 586, 588 (Ind. 1996), the Court of Appeals ruled it would address the issue Herr raised.

Carter Lumber hired Herr to represent it in certain collection matters at the rate of $175 per hour plus reimbursement of any advanced costs, and other collection matters on the basis of a 25 percent contingent fee with the client to pay court costs.

At some point, Herr's representation was terminated and he filed a complaint against Carter Lumber seeking quantum meruit compensation, as measured by his normal fee of $185 per hour for all the work he did that hadn't been paid.

Because the contract between Herr and Carter Lumber didn't spell out what Herr's compensation would be in the event he was terminated, the trial court ruled the attorney would have to wait until funds are collected on behalf of the client to collect his fee.

Citing similar caselaw that dealt with a contingency fee agreement that didn't specify a termination clause, the appellate court determined Herr can't receive compensation for his attorney fees until Carter Lumber receives payment from collections.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  2. If the end result is to simply record the spoke word, then perhaps some day digital recording may eventually be the status quo. However, it is a shallow view to believe the professional court reporter's function is to simply report the spoken word and nothing else. There are many aspects to being a professional court reporter, and many aspects involved in producing a professional and accurate transcript. A properly trained professional steno court reporter has achieved a skill set in a field where the average dropout rate in court reporting schools across the nation is 80% due to the difficulty of mastering the necessary skills. To name just a few "extras" that a court reporter with proper training brings into a courtroom or a deposition suite; an understanding of legal procedure, technology specific to the legal profession, and an understanding of what is being said by the attorneys and litigants (which makes a huge difference in the quality of the transcript). As to contracting, or anti-contracting the argument is simple. The court reporter as governed by our ethical standards is to be the independent, unbiased individual in a deposition or courtroom setting. When one has entered into a contract with any party, insurance carrier, etc., then that reporter is no longer unbiased. I have been a court reporter for over 30 years and I echo Mr. Richardson's remarks that I too am here to serve.

  3. A competitive bid process is ethical and appropriate especially when dealing with government agencies and large corporations, but an ethical line is crossed when court reporters in Pittsburgh start charging exorbitant fees on opposing counsel. This fee shifting isn't just financially biased, it undermines the entire justice system, giving advantages to those that can afford litigation the most. It makes no sense.

  4. "a ttention to detail is an asset for all lawyers." Well played, Indiana Lawyer. Well played.

  5. I have a appeals hearing for the renewal of my LPN licenses and I need an attorney, the ones I have spoke to so far want the money up front and I cant afford that. I was wondering if you could help me find one that takes payments or even a pro bono one. I live in Indiana just north of Indianapolis.

ADVERTISEMENT