Allan B. Diamond, Chapter 7 Trustee of Howrey LLP v. Hogan Lovells US LLP

Notice: This opinion is subject to formal revision before publication in the Atlantic
and Maryland Reporters. Users are requested to notify the Clerk of the Court of
any formal errors so that corrections may be made before the bound volumes go
to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-SP-218

ALLAN B. DIAMOND,
CHAPTER 7 TRUSTEE OF HOWREY LLP,
APPELLANT,

v.

HOGAN LOVELLS US LLP, ET AL.,
APPELLEES.

On Questions Certified by the
United States Court of Appeals for the Ninth Circuit
(15-16326, 15-16327, 15-16328, 15-16329,
15-16330, 15-16331, 15-16332, and 15-16333)

(Argued December 17, 2018 Decided February 13, 2020)

Christopher R. Murray, with whom Christopher D. Sullivan was on the brief,
for appellant.

Jonathan W. Hughes, with whom Allon Kedem was on the statement in lieu
of brief, for appellee Hogan Lovells US, LLP.

Shay Dvoretzky, with whom Parker A. Rider-Longmaid was on the brief, for
appellee Jones Day.

Margaret A. Ziemianek, Robert M. Novick, and Henry Brownstein were on the
brief for appellee Kasowitz Benson Torres LLP.

Robert Radasevich and Nancy J. Newman were on the brief for appellee Neal,
Gerber & Eisenberg LLP.
 2

Jon B. Jacobs was on the statement in lieu of brief for appellee Perkins Coie
LLP.

Jack McKay was on the statement in lieu of brief for appellee Pillsbury
Winthrop Shaw Pittman LLP.

Steven P. Hollman was on the statement in lieu of brief for appellee Sheppard,
Mullin, Richter & Hampton LLP.

Lori L. Roeser and M. Ryan Pinkston were on the brief for appellee Seyfarth
Shaw LLP.

Todd S. Kim, Hilarie Bass, and Eric A. Shumsky were on the brief for amicus
curiae American Bar Association in support of appellees.

Anthony E. Davis, Logan G. Haine-Roberts, and Gretchen Harris Sperry were
on the brief for amicus curiae The Association of Professional Responsibility
Lawyers in support of appellees.

Robert J. Malionek and Gregory G. Garre were on the brief for amicus curiae
The Bar Association of the District of Columbia in support of appellees.

Douglas L. Hendricks and Brian R. Matsui were on the brief for amicus curiae
“25 National and International Law Firms” * in support of appellees.

Before BLACKBURNE-RIGSBY, Chief Judge, BECKWITH, Associate Judge, and
RUIZ, Senior Judge.

*
Morrison & Foerster LLP; Faegre Baker Daniels LLP; Miles & Stockbridge
PC; Hunton Andrews Kurth LLP; Greenberg Traurig LLP; Bryan Cave Leighton
Paisner LLP; Morgan Lewis & Bockius LLP; Buckley Sanders LLP; Goulston &
Storrs PC; Dykema Gossett PLLC; Alston & Bird LLP; Snell & Wilmer LLP;
Fenwick & West LLP; Drinker Biddle & Reath LLP; Lowenstein Sandler LLP;
Holland & Knight LLP; Dorsey & White LLP; Vinson & Elkins LLP; Dechert LLP;
Nixon Peabody LLP; Ogletree, Deakins, Nash, Smoak & Stewart, PC; K&L Gates
LLP; Wilmer Cutler Pickering Hale and Dorr LLP; Squire Patton Boggs (US) LLP;
Fish & Richardson PC.
 3

BLACKBURNE-RIGSBY, Chief Judge: This case is before the court on a certified

question from the United States Court of Appeals for the Ninth Circuit.1 The Ninth

Circuit asks this court to clarify certain aspects of the District of Columbia’s

partnership laws that would assist the Ninth Circuit in resolving the pending

bankruptcy proceedings of the dissolved Howrey LLP (“Howrey”) law firm. As we

construe the inquiry, 2 the Ninth Circuit asks us to answer the following questions:

(1) Do law partnerships have a property interest in hourly-billed
client matters?

(2) Under District of Columbia law, does a partner who leaves
the law firm (disassociates) owe a duty to the former law firm to
account for profits earned post-departure on legal matters that
were in progress but not completed at the time of the partner’s
departure, where those matters were billed on an hourly basis and
where those matters were then completed by the former partner
at another firm?

(3) If the answer to question (2) is “yes,” then does District of
Columbia law allow a partner’s former law firm to recover those
profits from the partner’s new law firm under an unjust
enrichment theory?

(4) Under District of Columbia law, what property interest, if
any, does a dissolved law firm have in profits earned on legal
matters that were in progress but not completed at the time the

1
See Diamond v. Hogan Lovells US LLP, 883 F.3d 1140, 1143 (9th Cir.
2018); see also See D.C. Code § 11-723 (2012 Repl.).
2
See Penn Mut. Life Ins. Co. v. Abramson, 530 A.2d 1202, 1207 (D.C.
1987) (“With regard to the questions of law designated by the certifying court, we
may exercise our prerogative to frame the basic issues as we see fit for an informed
decision.”)
 4

law firm dissolved, where the matters were billed on an hourly
basis, and where those matters were then completed by a former
partner at another firm post dissolution?

I. Short Answers

We answer the above questions as follows:

(1) We hold that hourly-billed client matters are not “property”
of the law firm. A client has an almost “unfettered right” to
choose or to discharge counsel. In re Mance, 980 A.2d 1196,
1203 (D.C. 2009). Therefore, a law firm has no more than a
“unilateral expectation,” rather than a “legitimate claim of
entitlement,” to future fees earned from continued work on
hourly-billed client matters. Bd. of Regents of State Colleges v.
Roth, 408 U.S. 564, 577 (1972).

(2) After a partner leaves the law firm (disassociates), the partner
owes no continued duty to the former law firm to account for new
profits earned on hourly-billed client matters that started at the
former firm. A dissociated partner has a limited duty of loyalty
to the former firm only “with regard to matters arising and events
occurring before the partner’s dissociation.” D.C. Code § 29-
606.03(b)(3) (2013 Repl.). This limited duty requires a
dissociated partner to remit profits earned on work performed
prior to the partner’s dissociation, but does not include profits
earned from work performed subsequent to the partner’s
dissociation.

(3) Since a dissociated partner has no duty to account for profits
earned after the partner leaves the firm, we need not address this
question.

(4) A dissolved law firm has no interest in profits earned on
hourly-billed client matters following dissolution. A dissolved
law firm is only entitled to proceeds earned as part of the firm’s
“winding up” process, which include acts that preserve
 5

partnership rights and property, prosecute and defend actions,
settle or transfer partnership business, or distribute assets.
“Winding up” does not encompass new business or work done
on former client matters after dissolution by former partners.
The dissolved partnership can no longer undertake work on these
matters after dissolution. See D.C. Code § 29-608.03(c) (2013
Repl.).

II. Factual Background

In the aftermath of the “Great Recession” of 2008, Howrey, a law firm

operating under District of Columbia partnership law, became insolvent. Howrey

faced a decline in demand for its legal services and an inability to collect accounts

receivable from clients. This led Howrey to engage in unsustainable borrowing to

cover its operating expenses. By early 2011, Howrey had defaulted on its loan, and

the bank prohibited Howrey from using cash collateral without the bank’s consent.

Some partners left Howrey during this turbulent time. On March 9, 2011, the

remaining Howrey partners voted to dissolve the firm, effective March 15, 2011.

As part of the dissolution vote, the partners also amended Howrey’s

partnership agreement. The amendment stated that:

[N]either the Partners nor the Partnership shall have any claim or
entitlement to clients, cases or matters ongoing at the time of
dissolution other than the entitlement for collections of amounts
due for work performed by the Partners and other Partnership
personnel on behalf of the Partnership prior to the earlier of their
 6

respective departure dates from the Partnership or the date of
dissolution of the Partnership.3

In 2013, appellant Allan B. Diamond, Trustee for Howrey’s bankruptcy estate

(the “Trustee”), filed claims in the United States Bankruptcy Court for the Northern

District of California against appellees, a group of eight law firms 4 that hired former

Howrey partners. The Howrey partners who were hired by these firms brought with

them hourly-billed client matters that were pending before and after Howrey’s

dissolution, and they continued working on them at their new firms. The Trustee

claimed that Howrey’s bankruptcy estate was entitled to the profits that these firms

earned from working on hourly-billed client matters that were initiated at Howrey.

Specifically, the Trustee claimed that Howrey’s estate was entitled to recover profits

earned under an unjust enrichment theory if the partner left prior to Howrey’s

dissolution. The Trustee also claimed the estate is entitled to recover profits because

the Jewel Waiver adopted upon dissolution constituted a “fraudulent transfer” of

3
This is commonly referred to as a “Jewel waiver.” See Jewel v. Boxer, 203
Cal. Rptr. 13 (Cal. Ct. App. 1984).
4
Appellees Hogan Lovells US, LLP; Jones Day; Kasowitz Benson Torres
LLP; Neal, Gerber & Eisenberg LLP; Perkins Coie LLP; Pillsbury Winthrop Shaw
Pittman LLP; Sheppard, Mullin, Richter & Hampton LLP; and Seyfarth Shaw LLP.
 7

Howrey’s assets by the former partners.5 Appellees filed motions to dismiss.

The bankruptcy court allowed the Trustee to move forward on both the pre-

and post-dissolution claims. 6 However, the United States District Court for the

Northern District of California, upon review of the bankruptcy court’s decision,

reversed the bankruptcy court’s denial of appellees’ motions to dismiss. The district

court rested its conclusion on the “universally-accepted truth that a firm does not

own new client matters taken on by other firms” and its prediction that this court

would construe the hourly-billed client matters as “new.” 7 The Ninth Circuit,

concluding that appellees’ liability in the bankruptcy proceedings turned on

unanswered questions of District of Columbia law, decided that these issues “should

be resolved in accord with the substantive law of the District of Columbia.”

Diamond, 883 F.3d at 1147. Accordingly, the Ninth Circuit certified the above-

mentioned questions to this court, and stayed the Trustee’s claims against appellees

5
Under the Bankruptcy Code, a “trustee may avoid any transfer” if the debtor
“voluntarily or involuntarily . . . made such transfer . . . with actual intent to hinder,
delay, or defraud.” 11 U.S.C. § 548(a)(1)(A) (2012); see also 11 U.S.C. § 550 (2012)
(identifying a transferee’s liability to a trustee for, among other things, fraudulent
transfers).
6
In re Howrey, 71 Collier Bankr. Case. 2d 57, *4 (Bankr. N.D. Cal. 2014);
In re Howrey, 515 B.R. 624, 628, 630-31 (Bankr. N.D. Cal. 2014).
7
Hogan Lovells US LLP v. Howrey LLP, 531 B.R. 814, 822-23 (N.D. Cal.
2015).
 8

pending our decision. Id. at 1143, 1148.

III. Legal Framework

A. District of Columbia Partnership Law and the Duty of Loyalty

Partnership law in the District of Columbia is governed by statute. The

District’s current partnership law, titled the Uniform Partnership Act of 2010 (“D.C.

RUPA”), is fashioned after the model Revised Uniform Partnership Act (“RUPA”),

which was drafted by the National Conference of Commissioners on Uniform State

Laws. D.C. Code §§ 29-601.01 to -611.01 (2013 Repl.). 8 The District’s statutory

8
Congress enacted the first District of Columbia Uniform Partnership Act in
1962. See Pub. L. No. 87-709, 76 Stat. 636, 644 (1962). Before then, courts of the
District of Columbia relied on the common law. See Martinez v. McGregor-
Doniger, Inc., 173 A.2d 221, 221-22 & n.2 (D.C. 1961) (citing Corpus Juris
Secundum for the general rule that a retiring partner is liable for partnership debts
contracted while a member of the partnership); Barlow v. Cornwell, 125 A.2d 63, 67
& n.6 (D.C. 1956) (citing Corpus Juris Secundum in observing that all partners are
bound by the actions of one partner if taken within the scope of the partnership and
with the knowledge of others). Like most other jurisdictions, the District’s codified
partnership law was based on the model Uniform Partnership Act (“UPA”) adopted
by the National Conference of Commissioners on Uniform State Laws in 1914. See
D.C. Council, Comm. on Consumer & Regulatory Affairs, Report on Bill 11-344,
the “District of Columbia Uniform Partnership Act of 1996,” at 2 (Sept. 24, 1996).
In 1996, the Council of the District of Columbia replaced the 1962 act with the
Uniform Partnership Act of 1996, modeled after the RUPA that was drafted by the
National Conference of Commissioners on Uniform State Laws in 1994. See D.C.
 9

scheme provides partnerships a starting point; with limited exceptions, partners may

alter some of these statutory provisions through their partnership agreement. See

D.C. Code § 29-601.04.

One of the basic tenets of partnership law is that “[p]artners are accountable

to one another as fiduciaries.” Marmac Inv. Co. v. Wolpe, 759 A.2d 620, 626 (D.C.

2000). Partners owe both a duty of care and a duty of loyalty to the partnership and

to the other partners. D.C. Code § 29-604.07(a). At issue in this appeal is a partner’s

duty of loyalty. 9 The D.C. RUPA requires a partner to “account to the partnership

and hold as trustee for [the partnership] any property, profit, or benefit derived by

the partner in the conduct and winding up of the partnership business or derived from

a use by the partner of partnership property, including the appropriation of a

partnership opportunity”; to refrain from taking actions that are adverse to the

Council Report on Bill 11-344, at 2; see generally (Revised) Uniform Partnership
Act §§ 101-810 (1994). As the first major revision to the UPA in eighty years, the
RUPA constituted a “substantial and necessary modernization of the existing statute
which recognizes and facilitates modern business organization practices,” including
the recognition and provisions dealing with limited liability partnerships. D.C.
Council Report on Bill 11-344, at 2. The current partnership act, the Uniform
Partnership Act of 2010, see D.C. Code §§ 29-601.01, to -611.01 (2013 Repl.), is an
amended RUPA.
9
A partner’s duty of care, which precludes a partner from engaging in
“grossly negligent or reckless conduct, intentional misconduct, or a knowing
violation of law,” is not relevant for purposes of this appeal. D.C. Code § 29-
604.07(c).
 10

partnership; or to compete with the partnership “before the dissolution of the

partnership.” Id. § 29-604.07(b)(1)-(3). Generally speaking, the duty of loyalty

ceases when a partner leaves the partnership, which is known as “dissociation” from

the partnership. Following dissociation, a former partner can compete with his or

her former partnership immediately. Id. § 29-505.03(b)(2). However, a former

partner has a continuing, limited duty of loyalty “with regard to matters arising and

events occurring before the partner’s dissociation, unless the partner participates in

winding up the partnership’s business.” Id. § 29-606.03(b)(3).10

When a partnership is dissolved, a partner owes a duty to account for

“property, profit[s], or benefit[s]” gained in the conduct and “winding up” of the

partnership business or from use of partnership property. D.C. Code

§ 29-604.07(b)(1). “Winding up” of the partnership’s business includes acts to

preserve partnership rights and property for a reasonable time, and acts to prosecute

and defend actions, settle activities, transfer partnership property, or distribute

assets. D.C. Code § 29-608.03(c).11 A partner who participates in the winding up

10
Additionally, “[a] person’s dissociation alone does not discharge the person
from a debt, obligation, or other liability to the partnership or to the other partners
which the person incurred while a partner.” D.C. Code § 29-606.03(c).
11
The statute states in relevant part:
 11

of the partnership business is entitled to “reasonable compensation for services

rendered” beyond that of his or her partnership interest. D.C. Code § 29-604.01(k).

B. District of Columbia’s Common Law Definition of “Property”

Whether a law firm’s hourly-billed client matters constitute property of the

partnership cognizable under the D.C. RUPA is a question of statutory interpretation

and an issue of first impression, which we review de novo. See Plummer v. United

States, 43 A.3d 260, 273 (D.C. 2012). The District’s partnership act does not define

partnership “property.” Rather, the act merely states that “[p]roperty acquired by a

partnership shall be property of the partnership and not of the partners individually.”

D.C. Code § 29-602.03. The act further explains how partnership property is

acquired, D.C. Code § 29-602.04, and how property is to be divided upon

dissolution, D.C. Code § 29-608.07. We therefore will look to our common law to

A person winding up a partnership’s activities and affairs
may preserve the partnership activities or property as a
going concern for a reasonable time, prosecute and defend
actions and proceedings, whether civil, criminal, or
administrative, settle and close the partnership’s business,
dispose of and transfer the partnership's property,
discharge the partnership’s liabilities, distribute the assets
of the partnership . . . , settle disputes by mediation or
arbitration, and perform other necessary acts.

Id. § 29-608.03(c).
 12

define what constitutes “property” for purposes of District of Columbia partnership

law as applied to law firms. 12

Property can either be “tangible,” such as things that have a “physical form

and characteristics,” Tangible Property, Black’s Law Dictionary (10th ed. 2014), or

“intangible,” meaning things that “lack[] a physical existence,” such as “stock

options” or “business goodwill.” Intangible Property, Black’s Law Dictionary. To

have an enforceable property interest in a thing, a party “clearly must have more

than an abstract need or desire for it” and more than a “unilateral expectation of it.”

Roth, 408 U.S. at 577. The party “must, instead, have a legitimate claim of

entitlement to it.” Id.

For example, we have said that, in the context of employment, an employee

has no legitimate claim of entitlement, and therefore no property interest, in benefits

that “rest[] on the discretion of the employer.” Burton v. Office of Emp. Appeals, 30

A.3d 789, 798 (D.C. 2011). Likewise, we have observed that the existence of an

enforceable property interest in continued employment is based on whether the

employee has a “legitimate claim of entitlement to job tenure,” as opposed to at-will

12
The DC RUPA applies to many different kinds of businesses carried out
in partnership form. In this opinion we address only law partnerships.
 13

employment. Pratt v. Univ. of the District of Columbia, 691 A.2d 158, 159-60 (D.C.

1997) (per curiam) (citation omitted).

IV. Discussion

The crux of the Trustee’s argument is that a former partner who leaves the

firm, but who continues to work on hourly-billed client matters that began at the

firm, has a continuing duty of loyalty to remit to the former firm the fees earned from

such matters. For those Howrey partners who left with pending matters prior to

Howrey’s dissolution, the Trustee’s argument is based on the statutory language that

a dissociated partner has a continued duty of loyalty “with regard to matters arising

and events occurring before the partner’s dissociation.” D.C. Code § 29-

606.03(b)(3). The Trustee argues that “matters arising” necessarily includes pending

hourly-billed client matters. Likewise, for those Howrey partners who left the firm

with pending matters after its dissolution, the Trustee argues that those former

partners have a duty to remit fees as part of the dissolved firm’s “winding up”

process under the unfinished business rule, which he claims this court is bound to

follow and apply based on our holding in Beckman v. Farmer, 579 A.2d 618 (D.C.

1990), and its progeny.
 14

In both scenarios, the Trustee argues hourly-billed client matters that started

at the partnership constitute partnership property. If hourly-billed client matters are

not considered Howrey’s property, then its former partners would have no duty of

loyalty under the D.C. RUPA to account for future fees earned from such matters to

Howrey, regardless of when they left. For the reasons discussed more fully below,

we conclude that hourly-billed client matters are not partnership property.

Moreover, with respect to dissolved firms, a person has no duty to offer his [or her]

former partners or partnership a business opportunity which arises after the

partnership has terminated.” M.R. Champion, Inc. v. Mizell, 904 S.W.2d 617, 618

(Tex. 1995). We further conclude that the unfinished business rule stated in this

court’s decision in Beckman does not apply in these circumstances.

A. Hourly-billed law firm client matters are not property under District of
Columbia common law.

In determining whether hourly-billed client matters constitute law firm

property, we find persuasive the decisions of New York’s and California’s high

courts, which have considered this precise issue.13 The New York and California

cases also pertained to the bankruptcy proceedings of large law firms. See In re

13
New York’s partnership law is based on the model UPA, while California’s
partnership law is based on the model RUPA. See Douglas R. Richmond, Whither
(Wither?) the Unfinished Business Doctrine, 20 Chap. L. Rev. 283, 299, 309 (2017).
 15

Thelen LLP, 24 N.Y.3d 16, 22-23 (2014) (“Thelen”); Heller Ehrman LLP v. Davis

Wright Tremaine LLP, 411 P.3d 548, 550 (Cal. 2018) (“Heller”). In resolving the

respective bankruptcy proceedings, the Court of Appeals of New York and the

Supreme Court of California were asked by the Second Circuit and the Ninth Circuit,

respectively, whether pending hourly-billed client matters were considered

partnership property under their respective state laws. The New York and California

courts both definitively held that hourly-billed client matters were not the property

of the law firm. Thelen, 24 N.Y.3d at 22; Heller, 411 P.3d at 550. At the heart of

the two courts’ holdings is the consensus that hourly-billed client matters are not

partnership property because, under established rules of attorney-client relations and

professional responsibility, a law firm does not own client legal matters, clients own

their matter – clients have the right to transfer their matters to new counsel, to

terminate representation, and to hire new counsel. Thelen, 24 N.Y.3d at 28; Heller,

411 P.3d at 550. Because clients retain all rights associated with representation of

their legal matters, law firms do not have a reasonable expectation, or “legitimate

claim of entitlement,” Heller, 411 P.3d at 554 (citation omitted), that they will

continue working on these client matters and earn future fees. See also Thelen, 24

N.Y.3d at 28. Law firm expectations of continued work are “best understood as

essentially unilateral,” Heller, 411 P.3d at 554, and “too contingent in nature and
 16

speculative to create a present or future property interest,” Thelen, 24 N.Y.3d at 28

(citation omitted).

The Court of Appeals of New York observed that a client who signs a retainer

agreement retains the “ability to terminate the relationship at any time without

penalty.” Thelen, 24 N.Y.3d at 28 (emphasis and citation omitted); see also In re

Ryan, 670 A.2d 375, 379 (D.C. 1996) (observing that “an attorney’s ethical duties

to a client arise not from any contract but from the establishment of a fiduciary

relationship between attorney and client”). Instead, a client’s obligation to the law

firm is to compensate the firm for the “fair and reasonable value of the completed

services.” Thelen, 24 N.Y.3d at 28 (citation omitted). A law firm’s property interest

extends only to fees earned from work already performed. The Supreme Court of

California observed that “reasonable” clients and lawyers would not likely share the

view that a dissolved law firm, which “cannot work” and has “ceased operations,”

is entitled to fees from “hourly matters on which it is not working.” Heller, 411 P.3d

at 554. The California court noted that, while it is true that firm partners pool

resources and human capital and it is therefore “difficult to deny that lawyers in the

same firm would ordinarily feel some shared interest in each other’s work,” such a

shared interest is not the same as a property interest. Id.
 17

Under the District of Columbia’s Rules of Professional Conduct, it is similarly

well understood that clients own their legal matters. See D.C. Ethics Committee

Opinion 372 (2017) (“A key principle governing the ethical obligations of a law firm

and its members in connection with the process of dissolving the firm is that the

clients do not belong to either the law firm or its members.”). A client has an almost

“unfettered right” to choose counsel, and the “right to discharge an attorney.” In re

Mance, 980 A.2d at 1203 (citing D.C. R. Prof’l Conduct 1.7(b), cmt. 8 (“Clients

have broad discretion to terminate their representation by a lawyer and that

discretion may generally be exercised on unreasonable as well as reasonable

grounds.”)). Thus, a law firm has no right to transfer the client’s legal matter to

another firm or attorney without the client’s express consent. See D.C. Ethics

Committee Opinion 273 (1997) (stating that D.C. R. Prof’l Conduct 1.4 “require[s]

the lawyer to communicate his prospective change of affiliation to the client, but

such communication must occur sufficiently in advance of the departure to give the

client adequate opportunity to consider whether it wants to continue the

representation by the departing lawyer and, if not, to make other representation

arrangements”); D.C. Ethics Committee Opinion 372 (stating that clients have the

right to choose to continue to be represented by a member of the dissolving firm, or

be represented by another lawyer, or by another firm). In short, the law firm does

not hold the bundle of rights that would give rise to a “property” interest in client
 18

legal matters. See United States v. Craft, 535 U.S. 274, 278 (2002) (describing

“property” as a “bundle of sticks,” i.e., “a collection of individual rights which, in

certain combinations, constitute property”); Property, Black’s Law Dictionary

(“These rights include the right to possess and use, the right to exclude, and the right

to transfer.”). Even where the client engagement calls for advanced fees or costs,

our Rules of Professional Conduct expressly state that “unearned fees and

unincurred costs” are the “property of the client” until such fees and costs are earned

or incurred, unless the client provides for a different arrangement. D.C. R. Prof’l

Conduct 1.15(e). Attorneys are thus required to return to the client “any unearned

portions of advanced legal fees and unincurred costs” upon termination of

representation. Id.; see also D.C. R. Prof’l Conduct 1.16(d); In re Hallmark, 831

A.2d 366, 372 (D.C. 2003).

The Trustee’s interpretation runs counter to the principles underlying these

Rules. Absent the client’s consent, to allow a law firm to share in profits that it has

not earned would reduce clients’ freedom of choice. As the court in Heller stated:

To allow a firm like Heller to share in fees paid by a client who
has discharged it (and paid it in full) necessarily reduces the fees
available to compensate the client’s substituted counsel of
choice. In such a situation, clients with pending matters who
prefer any of the firms that hired Heller’s former shareholders
may—in recognition of the fact that these firms will not receive
the full fees paid and therefore will not be as incentivized to work
on their matters—opt for second-choice counsel.
 19

411 P.3d at 555-56.

The Trustee’s interpretation would also restrict attorneys’ rights to practice

and mobility, which would also violate the Rules of Professional Conduct. See D.C.

R. Prof’l Conduct 5.6 (partnership agreement shall not restrict “the rights of a lawyer

to practice after termination of the relationship”). 14 It would make it difficult for

dissociated partners or partners who stay past dissolution to continue their practice

elsewhere because subsequent profits earned on unfinished client matters would

have to be remitted to the former firm, making them less attractive to a new firm.

14
Further, D.C. Ethics Committee Opinion 368 (2015) states:

A law firm may not provide for or impose liquidated
damages on a lawyer who, after departure, competes with
the firm. A firm and a departing lawyer may have liability
to one another, though, for work done before the lawyer’s
departure. Also, a firm may not restrict a departed
lawyer’s subsequent professional association or affiliation
with partners or employees of the firm, except insofar as
such activity is subject to legal limitations outside the
Rules of Professional Conduct. Whether a choice of law
provision in a partnership or employment agreement can
avoid application of the D.C. Rule governing lawyer
departures usually will depend on the location where the
departing lawyer principally practiced.
 20

Taken together, applicable principles lead us to conclude that a law firm has

no property interest in hourly-billed client matters, and therefore no right to future

fees earned from such matters by former partners who leave the partnership and go

on to join other firms. A law firm does not have a “legitimate claim of entitlement”

to hourly-billed client matters because it is the clients who retain the right to control

the representation. A law firm’s belief that it will continue working on such hourly-

billed client matters into the future constitutes no more than an “abstract need” or

“unilateral expectation.” Roth, 408 U.S. at 577. 15

15
A question sub silentio arises from our holding. If pending client matters
are not considered property of the law firm, then can law firms assert claims such as
tortious interference with contract and prospective advantage when a third-party law
firm or former partners induce the client to end his or her relationship with the firm?
Both theories of tortious interference, with contract and with prospective advantage,
are based on the idea that contracts and business expectancies constitute property
interests protected from unjust interference. See Carr v. Brown, 395 A.2d 79, 84
(D.C. 1978) (stating that “business expectancies, not grounded on present
contractual relationships but commercially reasonable to anticipate,” are considered
property). There is no case law from this jurisdiction directly on point, but reviewing
case law from other jurisdictions, we note that some courts have allowed these types
of tortious interference claims, while others have severely restricted them in the
attorney-client context. Compare e.g., Dowd v. Gleason, 816 N.E.2d 754, 768 (Ill.
App. Ct. 2004) (concluding that a tortious interference claim is actionable despite
the fact that the relationship between an attorney and client is terminable at will
because the claim is not dependent upon an enforceable contract, but rather on an
existing relationship) with Nostrame v. Santiago, 61 A.3d 893, 895-96 (N.J. 2013)
(concluding that only in very rare circumstances will the court find that an attorney
has engaged in behavior constituting tortious interference in attracting clients from
other attorneys, due to the “paramount importance” of a client’s right to choose
counsel). We need not resolve this question now, but merely note this open question
in light of our holding.
 21

B. A former partner has no duty of loyalty to remit profits earned on hourly-
billed client matters.

In light of our holding that hourly-billed client matters are not partnership

property, former partners owe no duty to their former firms to remit new profits

earned on hourly-billed client matters in either the pre- or post-dissolution context.

A former partner owes no duty to provide the former partnership with benefits to

which the partnership has no legal entitlement, as this would constitute unjust

enrichment. New World Commc’ns, Inc. v. Thompsen, 878 A.2d 1218, 1222 (D.C.

2005). We therefore answer the Ninth Circuit’s questions pertaining to a partner’s

duty of loyalty under the District’s partnership act as follows.

First, a dissociated partner’s duty of loyalty “continue[s] only with regard to

matters arising and events occurring before the partner’s dissociation.” D.C. Code

§ 29-606.03(b)(3). We construe this language to mean that a dissociated partner’s

duty to account back to the former firm is limited to fees earned from work

performed before the partner’s dissociation.16

16
The Trustee also cites to the comments section of the 1997 edition of the
model RUPA § 603, which the District has codified as D.C. Code § 29-606.03,
pertaining to the effects of a partner’s dissociation. The Trustee points to a specific
example from the RUPA comments: “[A] partner who leaves a brokerage firm may
 22

Second, we hold that a dissolved partnership is not entitled to fees earned by

former partners who continue to work on hourly-billed client matters. A former

partner’s duty of loyalty is limited to remitting profits earned from participating in

the conduct and winding up of the dissolved partnership. D.C. Code § 29-

604.07(b)(1). By statute, “winding up” of the partnership business includes acts to

preserve partnership rights and property, prosecute and defend actions, settle or

transfer partnership business, or distribute assets. D.C. Code § 29-608.03(c). This

means limited acts that are “necessary to (1) preserve legal matters for transfer to the

client’s new counsel or the client itself, (2) effectuate such a transfer, and (3) collect

on work done pretransfer.” Heller, 411 P.3d at 557. The duty of loyalty in this

context, however, does not extend to “substantive legal work done on hourly fee

immediately compete with the firm for new clients, but must exercise care in
completing on-going client transactions and must account to the firm for any fees
received from the old clients on account of those transactions . . . .” Id. § 603, cmt.
2 (emphasis added). Analogizing the brokerage example to the law firm context, the
Trustee claims that a dissociated partner of a law firm, likewise, has a continuing
duty of loyalty to account to the law partnership for any fees earned from matters
that began at the partnership, but that were not completed at the time of dissociation.
This argument is without merit, however, because, under the District of Columbia’s
definition of property, future fees earned on hourly-billed client matters are not
partnership property. This continuing duty of loyalty would also be incongruous
with the fact that law-firm clients have the right to choose counsel, and have broad
discretion to terminate representation. See In re Mance, 980 A.2d at 1203 (citing
D.C. R. Prof’l Conduct 1.7(b), cmt. 8). Accordingly, the brokerage firm example
used in RUPA § 603, cmt. 2 is inapplicable to law firms.
 23

matters to continue what was formerly the business of a dissolved partnership.” Id.

A dissolved partnership can no longer engage in new business following dissolution.

See Berk v. Sherman, 682 A.2d 209, 213 (D.C. 1996) (observing that dissolution

prevents the partnership from engaging in new transactions). This limited duty of

loyalty in the winding up process is further restricted by D.C. Code § 29-604.01(k),

which states that a partner who participates in the winding up of the partnership

business is entitled to “reasonable compensation for services rendered.” What

constitutes “reasonable compensation” is ultimately a factual question, but

regardless of the amount, partners who participate in the winding up process are

entitled to more remuneration than those partners who do not participate in the

winding up process.

B. The “unfinished business rule” is inapplicable to hourly-billed matters.

Only two decisions of this court have recognized the unfinished business rule,

whereby profits from contingency fee matters earned post dissolution are remitted

back to the dissolved firm for distribution among partners as part of the winding up

process: the aforementioned Beckman v. Farmer and Young v. Delaney, 647 A.2d

784 (D.C. 1994). Beckman involved a contentious dissolution of a three-partner law

firm. One of the primary questions before the court was whether all three partners
 24

of the dissolved firm were entitled to their respective partnership share of the profits

from a large contingency fee client matter that was earned post dissolution. 579

A.2d at 622. Two of the partners argued that a third partner was not entitled to his

full share because he did not work on the matter. Id. at 634. Interpreting provisions

of the District’s Uniform Partnership Act (“D.C. UPA”), which has since been

abrogated and replaced by the D.C. RUPA, we disagreed. 17 We observed that, under

the provisions of the D.C. UPA, upon dissolution, each partner of the dissolved

partnership carried a fiduciary obligation to “account to the partnership for any

benefits, and hold as a trustee for it any profits derived by him without the consent

of the other partners from any transaction connected with the . . . conduct, or

liquidation of the partnership.” Id. at 636 (emphasis added) (quoting D.C. Code

§ 41-120 (repealed 1997)). We further noted that a partner can “bind the partnership

after dissolution by . . . completing transactions unfinished at dissolution.” Id.

(quoting D.C. Code § 41-134(a)(1) (repealed 1997)). We held that “any profits

17
As a preliminary matter, we noted that, because, under the D.C. UPA, a
partnership dissolves when “any partner ceas[es] to be” a part of the partnership, the
law firm of Beckman, Farmer & Kirstein dissolved “by the express will of
Beckman,” when he notified Farmer that he wanted to end their association.
Beckman, 579 A.2d at 634; see also D.C. Code § 41-128 (repealed 1997) (stating
that, under the D.C. UPA, “[t]he dissolution of a partnership is the change in relation
of the partners caused by any partner ceasing to be associated in the carrying on as
distinguished from the winding up of the business”). The general rule under the
D.C. RUPA is that a partner’s dissociation does not dissolve the partnership. See
D.C. Code § 29-608.01.
 25

derived from completion of such unfinished business inure to the partner’s benefit,

even if received after dissolution.” Id. “[P]ending cases are uncompleted

transactions requiring winding up after dissolution, and are . . . assets of the

partnership subject to post-dissolution distribution.” Id. Accordingly, we concluded

that “all work performed on partnership business unfinished at the date of

dissolution,” including the contingent fee case, “was done for the benefit of the

dissolved partnership,” id. at 639, and that the third partner was thus entitled to his

share of the contingent fee award.

In Young, we did not specify how the pending cases at issue were billed, as

that issue was not relevant in resolving the case. Thus it is fair to say that, in this

jurisdiction, application of the unfinished business rule has been limited to

contingency fee-based client matters.18 None of our prior cases have squarely

confronted the issue before us on whether hourly-billed client matters constitute

“property.” Contrary to the Trustee’s argument, we are not bound by Beckman or

18
The United States District Court for the District of Columbia has previously
held that profits from hourly-billed client matters constituted property of the
partnership that required distribution to former partners upon dissolution. Robinson
v. Nussbaum, 11 F. Supp. 2d 1, 3 (D.D.C. 1997). The district court’s decision is
distinguishable because it was based on the abrogated D.C. UPA. We also decline
to follow it because the court did not reconcile how hourly-billed client matters can
constitute partnership property when such a conclusion would contradict established
rules of attorney-client relations.
 26

Young. The Trustee argued in his brief that the unfinished business rule should be

extended to client matters in the pre-dissolution context. But because we conclude

that hourly-billed client matters are not property of the firm, former partners have

no duty to account for fees earned from continuing to work on such matters.

Moreover, in Beckman, we specifically said that the unfinished business rule does

not apply where dissociation does not lead to dissolution of the partnership, and the

business is continued by the remaining partners. 579 A.2d at 634. 19 Consistent with

M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971), and stare decisis, and in light of our

holding today, we limit the unfinished business rule recognized in Beckman and

Young to instances in which the dissolved partnership seeks remuneration of

contingency fees earned by former partners after dissolution. It is a fundamental

principle of appellate review that, “for purposes of binding precedent, a holding is a

narrow concept, a statement of the outcome accompanied by one or more legal steps

or conclusions along the way that—as this court and others have repeatedly held—

19
The Trustee cites to the Eleventh Circuit’s decision in Buckley Towers
Condo., Inc. v. Katzman Garfinkel Rosenbaum, LLP, 519 F. App’x 657, 661-62
(11th Cir. 2013) (per curiam) (“Buckley”), in support of his claim that the unfinished
business rule should apply in the pre-dissolution context. In Buckley, the Eleventh
Circuit concluded that, under Florida’s formulation of the RUPA, “when a partner
exits the initial firm and the client follows, the initial firm is entitled to the entire
contingency fee, less the former partner’s partnership share.” Id. at 661. However,
the Eleventh Circuit did not choose to publish this case, and therefore it has
significantly reduced persuasive value. Cf. In re Grant, 635 F.3d 1227, 1231 (D.C.
Cir. 2011).
 27

are ‘necessary’ to explain the outcome; other observations are dicta.” Parker v. K

& L Gates, LLP, 76 A.3d 859, 873 (D.C. 2013) (Ferren, J., concurring for a majority

of the court).

Our prior decision in Beckman is also distinguishable on both factual and legal

grounds. On the facts, Beckman primarily involved the duty to account for profits

earned from an unfinished contingency fee matter, rather than the pending hourly-

billed client matters that are at issue in this case. See 579 A.2d at 622 (referring to

dispute “involving a large contingent fee”); id. at 639 n.27 (noting that an issue

before court is “whether a pending contingent fee case is an asset of a dissolved

partnership”).20 The high court in California also distinguished contingency fee

cases in answering whether a law firm has a property interest in hourly-billed client

matters. The court in Heller recognized that hourly-billed matters and contingency

fee matters may deserve different treatment. 411 P.3d at 558. One reason justifying

different treatment is that a dissolved law firm that continues to work on hourly-

billed client matters goes beyond what is necessary to transfer the matters or collect

on work done, since the dissolved firm has already been paid in full for work

completed. Id. “[T]he situation might be different in the context of contingency fee

20
Beckman, however, did involve what appears to be a small non-contingent
fee arising from the administration of a client estate.
 28

matters,” the court said, because what actions constitute winding up of the business

may be different “against a backdrop in which the dissolved firm had yet to be paid

for the work it performed and will not be paid until the matter is resolved.” Id. 21 In

our view, the differences between contingency fee cases and hourly-billed cases are

sufficiently material that our conclusion in one does not bind us in the other.

On the law, Beckman is distinguishable because the legal underpinning for

that decision, under the D.C. UPA, has been substantially revised. The court in

Beckman concluded that contingency fee cases constitute assets of the firm, and that

fees earned subsequent to dissolution inure to the firm based on a review of the

provisions of the D.C. UPA. Young was also decided under the former D.C. UPA.

Since then the D.C. UPA has been replaced by the D.C. RUPA, which differs from

the prior act in numerous respects. For example, under the D.C. RUPA, “a

dissociation of a partner with the partnership does not result in the dissolution of the

partnership and winding up of its affairs, unless there is an express intent to do so.”

D.C. Council Report on Bill 11-344 (Attached Statement of James C. McKay, Jr. at

3-4). The D.C. RUPA also liberalized the so-called “No Compensation Rule” by

21
We understand there are numerous, complex billing methods employed by
law firms, many of which are a hybrid contingency fee and hourly-fee arrangement.
The treatment to give such hybrid fee arrangements is not before the court today.
See Litigation Management Handbook § 4:17: Pros and Cons of Various Pricing
Methods—Hourly Fee (2018).
 29

allowing compensation for services performed during winding up. D.C. Code § 29-

604.01(k), pertaining to a partner’s rights and duties, states, “A partner shall not be

entitled to remuneration for services performed for the partnership, except for

reasonable compensation for services rendered in winding up the business of the

partnership.” Compare with D.C. Code § 41-117(6) (repealed 1997) (“No partner is

entitled to remuneration for acting in the partnership business, except that a

surviving partner is entitled to reasonable compensation for his services in winding

up the partnership affairs.”). These current provisions directly contradict our

observations in Beckman that, under the D.C. UPA, a partnership dissolves when

“any partner ceas[es] to be” a part of the partnership, 579 A.2d at 634, and that,

generally, “a partner winding up the business of a partnership rightfully

dissolved . . . cannot recover compensation for completing unfinished business

above his distributive share,” id. at 640 (citing D.C. Code § 41-117(6) (repealed

1997)).

More critically, the D.C. UPA expressly stated that a partner’s duty to account

extends to “any transaction connected with the . . . conduct, or liquidation of the

partnership.” Beckman, 579 A.2d at 636 (quoting D.C. Code § 41-120 (repealed

1997)) (alteration in original). It further stated that a winding up partner can bind

the dissolved partnership by any act appropriate for “completing transactions
 30

unfinished at dissolution.” Id. (quoting D.C. Code § 41-134(a)(1) (repealed 1997)).

Together, these provisions of the D.C. UPA made explicit that a partner’s duty of

loyalty, as part of the winding up process, included accounting for earnings from

completing pending cases, which it considered to be “unfinished transactions

requiring winding up after dissolution.” Id. The corresponding provisions under the

D.C. RUPA are different. The D.C. RUPA now merely states that a partner post

dissolution may bind the partnership by acts that are “appropriate for winding up the

partnership activities or affairs.” D.C. Code § 29-608.04(1). There is no reference

in the D.C. RUPA to “completing transactions unfinished at dissolution.” D.C. Code

§ 41-134(a)(1) (repealed 1997). Further, the definition of “winding up” in the D.C.

RUPA is limited to activities that are intended to “preserve the partnership activities

or property,” “prosecute and defend actions and proceedings,” “settle and close the

partnership’s business,” “dispose of and transfer the partnership’s property,”

“discharge the partnership’s liabilities,” distribute the assets of the partnership,”

“settle disputes by mediation or arbitration,” and “perform other necessary acts.”

D.C. Code § 29-608.03(c).22 Accordingly, the legal underpinnings for Beckman’s

22
Delaware’s Revised Uniform Partnership Act, which served as the basis
for the model RUPA, RUPA § 803, cmt., provides that a person winding up a
partnership may “prosecute and defend suits, . . . gradually settle and close the
partnership’s business or affairs, dispose of and convey the partnership's property,
discharge or make reasonable provision for the partnership's liabilities, distribute to
the partners . . . any remaining assets of the partnership, and perform other acts which
 31

decision have been substantially changed since the District’s adoption of the D.C.

RUPA. 23

V. Conclusion

We hold that law firms have no property interest in hourly-billed client

matters. Accordingly, under the D.C. RUPA partners have no duty to account to

their former law firms for fees earned from continuing to work on hourly-billed

client matters after their separation from the firm. Partnerships can depart from most

of these statutory provisions of the D.C. RUPA through their partnership

agreements. See D.C. Code § 29-601.04 (a) (providing that, with some expressly

stated exceptions, “relations among the partners and between the partners and the

partnership shall be governed by the partnership agreement”), -601.04(c)(2)(A)

(providing that unless “manifestly unreasonable,” the partnership agreement may

“[r]estrict or eliminate” aspects of a partner’s duty of loyalty).

are necessary or convenient to the winding up of the partnership’s business or
affairs.” Del. Code Ann. tit. 6, § 15-803 (2019).
23
In light of the substantial changes to the District’s partnership law, it is
unclear whether our decision in Beckman, decided in 1990 under the D.C. UPA,
remains good law even in the context of contingency fees earned post dissolution.
Regardless, that is not an issue we need to decide today, and we leave for another
case whether, in light of the D.C. RUPA, former partners have a duty to remit fees
earned from contingency cases post-dissolution to the dissolved partnership.
 32

A partner’s duty of loyalty under the D.C. RUPA still requires a partner to

account to the partnership for “any property, profit, or benefit” incurred in

conducting partnership business or through the “winding up” process upon its

dissolution. D.C. Code § 29-604.07(b)(1). A partner can neither appropriate a

partnership opportunity, act on behalf of a party with an adverse interest to the

partnership, or compete with the partnership before dissolution or dissociation. Id.

§ 29-604.07(b)(1)-(3). A former partner who has dissociated from the firm has a

limited duty of loyalty “with regard to matters arising and events occurring before

the partner’s dissociation.” D.C. Code § 29-606.03(b)(3). The disassociating

partner must account to the partnership for fees earned from work performed on

hourly-billed client matters prior to dissociation. Likewise, a dissolved partnership

is entitled to “property, profit[s], or benefit[s]” gained from winding up of the

business, which includes conduct that, inter alia, preserves the partnership activities

or property, settles activities, transfers property, or discharges liabilities. D.C. Code

§ 29-604.07(b)(1); D.C. Code § 29-608.03(c). 24 Winding up of the business does

not include new work on hourly-billed client matters that the partnership can no

longer undertake as a result of dissolution. See D.C. Code § 29-608.01.

24
This duty is further limited by D.C. Code § 29-604.01(k), which states that
a partner who participates in the winding up of the partnership business is entitled to
“reasonable compensation for services rendered.”
 33

Having answered these questions, we direct the Clerk of the Court to transmit

a copy of this opinion to the United States Court of Appeals for the Ninth Circuit

and to the parties.

So ordered.