dissenting.
I respectfully dissent.
Because I disagree with the conclusion that Dudding v. Norton Frickey & Associates, 11 P.3d 441 (Colo.2000), controls the outcome in this case, I respectfully dissent from Part II of the majority opinion.
The majority reads Dudding to say that an attorney may be able, under the theory of quantum meruit, to recover attorney fees when a contingent fee agreement fails in circumstances such as those presented here, but only if the client was notified that the attorney could seek such recovery. I do not read Dudding so broadly.
It is true that in Dudding, the supreme court held that "an attorney may proceed on a quantum meruit claim if that eventuality is outlined in the contingency fee agreement." Dudding v. Norton Frickey & Associates, 11 P.3d at 443. On its face, that statement would seem to compel the majority's conclusion. However, in Dudding, unlike here, the contingency contemplated by the fee agreement did not occur. There, the client, who was suing his employer, negotiated a return to employment, an eventuality not provided for in the fee agreement. When the attorney attempted to collect one-third of the client's first year's salary as a fee, the client objected and terminated the attorney-client relationship. In such cireumstances, it would be inequitable for the attorney to recover in quantum meruit, because the client may not have been aware of such a possibility. See Dudding v. Norton Frickey & Associates, supra (client deserves to know that if fee agreement fails, client may still be responsible for paying attorney some sum of money).
Similarly, in Elliott v. Joyce, 889 P.2d 43 (Colo.1994), on which the supreme court in Dudding relied, the contingency contemplated by the fee agreement did not occur. The attorney withdrew from representation because of an irreconcilable conflict. The su*1204preme court held that the attorney could not recover in quantum meruit because the contingent fee agreement did not provide that the client would be liable for payment if the attorney withdrew.
Here, in contrast to both Dudding and Elliott, the contingency contemplated by the fee agreement was achieved. In such circumstances, the concern addressed in Dud-ding and Elliott-that the client may not realize that he or she may be lable for some payment even if the contingency or contingencies outlined in the agreement do not oceur-is not implicated.
In Dudding, the supreme court repeatedly discussed situations in which the contingency did not occur, either because the client terminated the relationship or because the attorney withdrew from representation. Nowhere in the opinion did the court discuss the circumstance presented here, where the contingency contemplated by the agreement occurred. Indeed, in a footnote the court stated, "The case before us today does not encompass the question of whether substantial performance of the agreement entitles the attorney to the full contingent fee." Dudding v. Norton Frickey & Associates, 11 P.3d at 448 n. 5. Here, not only was the agreement substantially performed, it was completely performed.
Furthermore, I find it significant, though not dispositive, that the supreme court in Dudding did not expressly overrule or even mention Beeson v. Industrial Claim Appeals Office, 942 P.2d 1314 (Colo.App.1997). In that case, the client retained the attorney to represent her on a workers' compensation claim. No written agreement was signed, but the client orally agreed to a contingent fee. Two years after the claim had settled and the attorney had retained his fee, the client sought recovery of the fee on the ground that the agreement did not comply with the rules governing contingent fee agreements, and, therefore, the fee must be disgorged. A division of this court held that, although the agreement was unenforceable because it did not comply with the requirements for contingent fee agreements, the fee was justified under the equitable theory of quantum meruit. Similarly, here, there was an oral contingent fee agreement, the case was successfully settled, attorney retained his fee, and only years later did client object to the fee. Accordingly, I would apply the rationale of Beeson in this case.
Attorney, by failing to reduce the contingent fee agreement to writing, violated the Rules of Civil Procedure Governing Contingent Fees. See C.R.C.P. ch. 28.8, rule 4(b). As a result, he may be subject to professional discipline. See In re Wimmershoff, 3 P.3d 417 (Colo.2000) (attorney was disciplined for, among other things, entering into contingent fee agreement that did not comply with rules governing contingent fee agreements). Therefore, attorney's conduct is not without consequences.
However, attorneys, no less than judges and clients, are human and therefore fallible. In this case, the contingency contemplated by the oral fee agreement occurred, attorney achieved a settlement of over $250,000 on the bad faith claim covered by the oral agreement, and client expressed no displeasure with the fee until years after the matter was settled. Weighing the equities, I would find that under these cireumstances, attorney's oversight in failing to reduce the agreement to writing does not warrant forfeiture of all compensation for the services he rendered. See Beeson v. Industrial Claim Appeals Office, supra.
The supreme court might well announce that the rule stated in Dudding applies even in a case such as this, where the contingency contemplated by an unenforceable fee agreement was fully achieved. However, my reading of the cases convinces me that it as yet has not done so. Accordingly, I dissent.