Wednesday, November 25, 2009
Page 11
REMINISCING (Column)
State High Court Ratifies Law Firm Fee Award
By ROGER M. GRACE
The California Supreme Court, on Feb. 24, 1902, affirmed a $1,000 attorney fee award in favor of the assignee of the Los Angeles law firm of Hatch, Miller & Brown. But should it have done so?
Defendant/respondent Maria Ballerino had hired J. Marion Brooks to represent her in her action for divorce; Brooks, needing help, engaged the services of the law firm; a year later, the firm sent Ballerino a bill which she refused to pay, declaring that Brooks represented that he’d pay the lawyers assisting him.
Back then, the California Supreme Court could break into panels. A three-justice court acted on the appeal. Justice Walter Van Dyke wrote the opinion in the case, Miller v. Ballerino, 135 Cal. 566.
The opinion notes that Ballerino had executed an affidavit in support of an application for an order to her husband to pay for the services of Brooks as well as the law firm, and it recites that the “affiant” had hired the firm. Too, she executed a substitution-of-attorney firm adding Hatch, Miller & Brown as her counsel. This falls short of showing that Ballerino assented to being charged by the law firm, or that the law firm was expecting payment from her, essential to a recovery in quantum meruit, the theory under which the case was tried.
The woman was illiterate—and obviously lacking in cognizance that the term “affiant” referred to herself. The state’s high court pointed out that the affidavit and substitution of attorney form had been “witnessed by her two sons and a daughter, who were able to read and write, and to explain the nature of the instrument signed.” However, from the bare fact that the sons and daughter “were able to read and write,” it does not necessarily follow that they were competent “to explain the nature of the instrument signed.”
The opinion says that even if Brooks did tell the client he would pay the helpers, “it is not pretended that such an understanding was disclosed to Hatch, Miller & Brown, or that they agreed to look to Brooks for their pay, instead of the appellant.” Yet, the law firm had secured no express promise from the client to pay. There was obviously no contract; if there had been, Miller would not have sued in quantum meruit.
The trial judge refused to permit Ballerino to introduce into evidence the terms of her contract with Brooks. The opinion concludes that the express terms didn’t matter…that Brooks, as an attorney, was the agent of the client, and the fact that he hired Hatch, Miller & Brown “necessary [sic] implies (nothing appearing to the contrary) that the principal, to wit, the appellant, was to pay for their services.”
Yet, the lack of a belief on the part of the law firm that Ballerino had, through Brooks, requested their services, and expected to pay for them, might well be inferred from the absence of any reference to periodic statements to her of the account.
(What may be fairly surmised is that the law firm expected to win and would have been content to receive such sum as the court might award in favor of the wife and against the husband. A divorce was denied and no such award was made.)
A petition for rehearing came before the entire court, and was denied on March 31. Chief Justice William H. Beatty dissented, penning a persuasive opinion. He points out what was only inferable from the Feb. 24 opinion: that the trial court had made no finding as to whether Ballerino had authorized employment of additional counsel at her expense.
He points to the case of Porter v. Elizalde (1899) 125 Cal. 207, and comments:
“That was a case very closely parallel to this, in which it was held that the fact that the defendant had employed an attorney under an express agreement for a contingent fee could not be held liable to pay another attorney, employed by the first, the value of his services, merely because she had chosen to accept them. If that case was correctly decided, as I think it was, it was highly material for the defendant to prove in this case, as she offered to do, that her attorney had contracted to perform or procure to be performed all professional services in her behalf for a fixed sum, to be paid only in case of success….[I]t appears by the plaintiff’s own testimony that he and his assignors knew that there was an express contract [with Brooks] secured by mortgage. They had sufficient knowledge to put them upon inquiry, and are charged with actual notice of all they could have learned by inquiry in the proper quarter; i. e., of Mrs. Ballerino, with whom they had abundant opportunities to confer.”
Beatty, I’d suggest, had the right take on the case.
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