specially concurring:
I concur with the majority, but write separately to address the availability of a statutory award of attorney fees where the underlying fee agreement between the attorney and the taxpayer is violative of the spirit and requirements of the rules governing contingent fees. See C.R.C.P. eh. 23.3.
After the complaint in this action was filed, the taxpayer plaintiffs and their attorney, Kevin Pratt, entered into a zero-percent contingent fee arrangement with a specific provision for specially awarded attorney fees. See C.R.C.P. ch. 23.3, Rule 7 (Disclosure Statement). The trial court denied the recovery of attorney fees and cost, holding that the taxpayers whom Pratt represented bore no financial risk in this suit and that the fee agreement between Pratt and the taxpayers did not comply with “the intent, spirit or letter” of chapter 23.3. The court noted that plaintiff Carl Cerveny did not recall meeting Pratt until the first deposition was taken, after Pratt had filed the complaint. The court concluded:
[I]t appears to the Court that there is only really one disputed fact which the Court has to resolve ... and that is that Mr. Pratt was actually hired by Mr. Bruce and/or the Tabor Committee to bring this lawsuit and the companion suit in North-glenn and that in order to provide this Court with jurisdiction, it was necessary to obtain citizens of the City of Wheat Ridge to be named as plaintiffs;
That the three plaintiffs in this case, Mr. Cerveny, Mr. Langdon, and Mr. Siler, were actually nominal plaintiffs in order to meet the requirement of this Court’s jurisdiction[.]
The court then stated:
The Court notes and, again, it’s undisputed that this complaint was filed in this Court on March 2, 1993; that each of the letters which were sent by Mr. Pratt to the nominal plaintiffs in this case is dated March 4,1993, which advises them of what the fee arrangement is and that is that it is a contingent fee, and he collects only if he’s successful, and that is against the governmental body, that being the City of Wheat Ridge, the defendant; and that they have no obligation for fees whether he’s successful or not.
First of all, I don’t find that this complies with Chapter 23.3, the intent, spirit or *1120letter of that chapter, that particular rule, as read along with the Code of Professional Conduct. I don’t think it complies at all. But I can understand why it was done this way because there was no obligation on the part of the plaintiffs, so therefore I guess there was a feeling that there was no necessity to explain to them what their alternative arrangements could be.
Also, the evidence discloses that some of the fees and costs have, in fact, been paid by either Mr. Bruce or the Tabor Committee or both, those being reimbursement to Mr. Pratt.
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The intent of the Amendment, I think, should be clear to it [sic] all of us. And that is that it was to encourage a citizen or group of citizens to bring an action to enforce the Tabor Amendment, or Amendment No. 1, in those instances where they felt that it was being violated by a governmental unit.
And in order to lessen the financial risk to those citizens, the Amendment provides that if they are successful, that the governmental unit will reimburse them for their reasonable attorneys’ fees and costs.
In my view, this court should not encourage champerty or maintenance, or award statutory attorney fees to an attorney who has violated the ethical rules governing the collection of fees. See 1 Robert L. Rossi, Attorney’s Fees § 3:41 at 211 (2d ed.1995) (stating that authorities differ as to whether an attorney can recover for services rendered under a contingent fee contract which is “ehampertous, violative of statute or rule”).
I agree with the trial court’s denial of attorney fees in this case.