Attorney signs a contingent fee contract with a client and successfully tries the case. The case is appealed and during the appeal, the attorney is disbarred from the practice of law. While the case is on appeal, another attorney is substituted and finally the case is affirmed by the Supreme Court. May the second attorney pay the disbarred attorney either on the contingent fee contract or under quantum merit for services rendered?
Earlier ethics opinions generally recognize that it is not improper for an attorney to take over cases previously handled by a disbarred attorney and pay the disbarred attorney a portion of the fee based upon work done prior to the suspension or disbarment. Florida Opinion 64-17 (1965); New York County Lawyers Association Opinion 277 (1930); New York County Lawyers Association Opinion 458 (1958); New York City Bar Opinion 538 (1940); Oregon State Bar Opinion 108 (1962); Philadelphia Bar Association Opinion 59-8 (1959). However, the Supreme Court of Texas has held in Royden v. Ardoin, 331 S.W.2d 206 (Tex.Sup.Ct. 1960): Where the attorney, prior to the completion of his contingent fee contract is disbarred or suspended, he is not entitled to collect either on the contract or quantum merit for the services, if any, that have been rendered. His disbarment or suspension is considered tantamount to and to have the same effect as a voluntary abandonment, for the attorney by knowingly and willfully practicing such a course of conduct that would lend to the termination of his right to practice, renders it impossible to complete the work that he engaged to perform.
Accordingly, payment to the disbarred attorney would be in violation of DR 3-102. This opinion does not address the question of payment to a lawyer where the services are completed prior to the disbarment and where there is no abandonment. If an attorney and a client agree that another attorney will be substituted and then the original attorney is disbarred, is the original attorney entitled to a fee? This question is not addressed in this opinion. We address only the question of where there is abandonment by reason of disbarment. (9-0 vote)