Shapiro v. Drummond, Woodsum, Plimpton & MacMahon

HORNBY, Justice,

dissenting.

The result the Court reaches may be sound legislative policy, but that is not the question before us. And we cannot arrive at the meaning of this ancient statute providing a summary process for the “Recovery of Collection Payments from Attorneys” by applying the ethical standards for the behavior of lawyers that the Supreme Judicial Court has more recently laid down in the Maine Bar Rules. Instead, we must confront directly the language of the statute which is alarmingly (for lawyers) simple. Specifically, if a lawyer “receives money ... on a claim left with him for collection or settlement and fails to account for and pay over the same to the claimant for 10 days after demand, he is guilty of a breach of duty as an attorney.” 14 M.R.S. A. § 7101 (1980). If the client files in the *865Superior Court a motion under oath setting forth the facts, an order to show cause issues. Id. The lawyer must then “file an answer to such motion under oath,” and a Superior Court Justice must “examine the parties and the evidence pertinent thereto” and “render such decree as equity requires.” 14 M.R.S.A. § 7102 (1980). It is the client’s, not the lawyer’s, choice whether to use this summary proceeding, or pursue the suit at common law, 14 M.R.S.A. § 7105 (1980), or seek binding fee arbitration, M.Bar.R. 3.3(c).

The Federal District Court in Vermont awarded the plaintiff (the client) damages of $59,479.56, $4,000 in costs and $20,000 in attorney fees. It stated explicitly that “[t]he court leaves to plaintiff the task of allocating this [attorney fee] award between the two firms that contributed to his representation.” During an appeal, the case was settled for a smaller amount. Thus, when this law firm recovered that amount, it received money on a claim left with it by the client for collection or settlement under Section 7101. Since it then refused to pay over to the client approximately $20,500, he was entitled to proceed by motion under Section 7101 and did so. The Superior Court, however, refused to issue an order to show cause. As a result, the law firm never filed an answer under oath and the Superior Court never examined the parties and evidence, nor rendered a decree on the merits. The Superior Court simply concluded that because there was a dispute over the fees, the client could not use the summary proceeding. I see nothing in the statute to support that conclusion.1 I also see nothing in our case law to support this Court’s reading of the statute to eliminate good faith retention of a reasonable fee from its purview, nor do I see the inconsistency that the Court finds between People’s Savings Bank v. Chesley, 138 Me. 353, 26 A.2d 632 (1942), and State v. Grant, 487 A.2d 627 (Me.1985), vacated on other grounds, 510 A.2d 240 (Me.1986).2 To the extent this statute is still used now that binding fee arbitration is available, the Court’s decision today will likely result in summary proceeding litigation over a collateral issue — the “good faith” of the dispute — rather than quick resolution of the underlying dispute as the legislature surely intended.

As the Court recognizes, other jurisdictions have conflicting positions on the availability of this summary process. Some have reached their conclusion as a matter of common law, e.g., In Re Paschal, 77 U.S. (10 Wall.) 483,19 L.Ed. 992 (1870), and some have dealt with statutes more directly concerned with punishment and disbarment than our own, e.g., Balogh v. Jackson, 272 Pa. 482, 116 A. 377 (1922). But I believe the language of the Maine statute is clear in affording the client a summary proceeding to resolve the fee dispute. I agree with the position taken by the Iowa Supreme Court in 1901:

The [Iowa] statute does not limit the remedy to cases of bad faith, and evidently contemplated such a proceeding whenever the claim by the client against the attorney is for money received in his professional capacity_ There is nothing unreasonable or unjust in compelling the attorney, as an officer of the court, to answer summarily as to money collected for his client.... The fact that the client has a legal remedy for the recov*866ery of the money does not affect the right of the court to see that its own officer does not act contrary to his duty.... In the summary proceeding the court has the power to adjust any set-off which the attorney may have on account of fees or other charges due to him in connection with the proceeding in which he received the money in question, or as the result of any other services for which he has a lien on money of his client coming into his hands.

Union Bldg. & Sav. Ass’n v. Soderquist, et al., 115 Iowa 695, 87 N.W. 433, 434 (1901) (citations omitted).

I would therefore vacate and remand for further summary proceedings under the statute.

. The Superior Court relied on language in People’s Savings Bank v. Chesley, 138 Me. 353, 26 A.2d 632 (1942), for its conclusion that a fee dispute prevented use of the summary proceeding, but that language dealt specifically with actions at common law, not proceedings under the statute. Id. at 357-58, 26 A.2d 632.

. Chesley was careful to state that discretion whether to entertain a summary proceeding existed at common law, 138 Me. at 356, 26 A.2d 632, not under the Maine statute, id. at 357, 26 A.2d 632 (“There is no provision here [in the statute] for discharge of the motion and rule as a matter of discretion”). Grant dealt with the Court’s common law power to protect the integrity of the judicial system and quoted Chesley's references to discretion in that context, 487 A.2d at 630, while recognizing explicitly that "a client’s proceeding to recover money on a claim 'left with’ the attorney for collection” is governed by the statute. Id. at n. 3.