(dissenting)—I believe the record contains sufficient evidence to support the jury's verdict for Belli. I would reverse the trial court's judgment notwithstanding the verdict and remand for a reinstatement of Belli's judgment.
I
Where there is a challenge to the sufficiency of evidence, including a judgment notwithstanding the verdict, this court has said that such challenge
*579admits the truth of the opponent's evidence and all inferences which can reasonably be drawn therefrom, and requires that the evidence be interpreted most strongly against the moving party and in a light most favorable to the opponent. No element of discretion is involved. Such motions can be granted only when the court can say, as a matter of law, there is no substantial evidence to support the opponent's claim.
Bell v. Hegewald, 95 Wn.2d 686, 689, 628 P.2d 1305 (1981), quoting from Powers v. Hastings, 93 Wn.2d 709, 713, 612 P.2d 371 (1980). The term "substantial evidence" is defined as "evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premise." Powers, at 713; Holland v. Boeing Co., 90 Wn.2d 384, 390-91, 583 P.2d 621 (1978); In re Snyder, 85 Wn.2d 182, 185-86, 532 P.2d 278 (1975).
In State v. O'Connell, 83 Wn.2d 797, 839, 523 P.2d 872 (1974), this court explains its reluctance to overturn jury verdicts at the appellate level:
As we have said on so many occasions, this court will overturn a jury's verdict only rarely and then only when it is clear that there was no substantial evidence upon which the jury could have rested its verdict. This court will not willingly assume that the jury did not fairly and objectively consider the evidence and the contentions of the parties relative to the issues before it. . . . The credibility of witnesses and the weight to be given to the evidence are matters within the province of the jury and even if convinced that a wrong verdict has been rendered, the reviewing court will not substitute its judgment for that of the jury, so long as there was evidence which, if believed, would support the verdict rendered.
(Citations omitted.) In the present case, the jury held for plaintiff but it did not specify whether it based its judgment on the contract theory, the quantum meruit theory, or both.
There was substantial evidence before the jury to find either a written or an oral contract between Belli and Tonkoff. On October 5, 1959, Church forwarded copies of the libel file including a complaint and further information to *580Belli and Tonkoff, indicating that Belli would take charge of the case and Tonkoff would be his assistant. Belli testified that at this point he assumed responsibility for the litigation. Belli's letter of December 15, 1959, sets out the proposition that the attorneys would take as their fee one-third of any recovery, to be split equally between Belli, Tonkoff and any local Arizona counsel. In response to Tonkoff's April 21, 1962, request for information regarding what fee arrangements had been made, Church sent Tonkoff a copy of the earlier correspondence between Belli and Church. On May 10,1962, Tonkoff sent a copy of this letter to Belli and also sent a letter to Church indicating that the earlier agreement between Church and Belli was agreeable to him. Certainly there is substantial evidence to support Belli's claim under the written contract.
Belli, who did not appear at trial, testified that he sent his associate, Mr. Gerry, to Phoenix to try the case. There is no support in the record for the majority's conclusion that "Gerry was instructed by Belli that if Goldstein and Tonkoff tried the case, he was not to sit in on the case with them." Majority, at 571. Gerry and Tonkoff both participated in in-chamber conferences with the trial judge and opposing counsel prior to the commencement of the trial. The three attorneys between themselves agreed that tactically it should not appear to the jury that Church had three attorneys while the defendant had only one. For that reason, Gerry was present at the start of the trial, but left shortly thereafter.
The defendant newspaper appealed the judgment for Church, and the Supreme Court of Arizona set this judgment aside in 1968. Before the Supreme Court opinion was released, Belli conferred with Tonkoff on the appropriate action to take to speed up the appellate process. Belli referred Tonkoff to specific recently decided cases, which Tonkoff then used to elicit a response from the appellate court.
I am not persuaded by Shaw's argument that even if a contract existed, it was abandoned shortly before the first *581trial. If the jury found an abandonment of the contract had occurred, this would result in a failure of consideration, thus discharging any obligation of Tonkoff under the agreement. 1 S. Williston, Contracts § 119A (3d ed. 1957). Shaw bases his abandonment argument on Belli's letter of April 10, 1963, stating that "If you can put the case over, I will try it. . . . If you can't put it over, you will have to count me out". While this statement might be interpreted as an abandonment of the contract by Belli, it may also be interpreted as a statement that if the trial itself cannot be postponed, Belli could not be present during the trial. The jury apparently chose to adopt the latter interpretation in returning a verdict in Belli's favor. There is enough ambiguity in this written statement for the jury to reach this conclusion. This court is bound by the jury's factual determination of this issue.
Even if the jury did not find the written agreement to be a binding contract, there was sufficient evidence to support the jury award under a quantum meruit theory. Where two attorneys engage in the prosecution of a cause for a contingent fee, without any other agreement, they may be held to share equally in case of success. Brauns v. Housden, 195 Wash. 140, 145, 79 P.2d 981 (1938). We have previously labeled the relationship created and existing between parties engaged in prosecuting or defending a particular lawsuit a special or limited partnership. Swanson v. Webb Tractor & Equip. Co., 24 Wn.2d 631, 648, 167 P.2d 146 (1946). We do not know if the jury was given a separate instruction on the quantum meruit theory of recovery, as neither party brought up that part of the record on appeal. Based on the type of evidence presented by Belli, I presume a separate quantum meruit instruction was given.
There was substantial direct and inferential evidence for the jury to award Belli that part of the attorney fees to which they found him entitled by virtue of the services he performed. Belli testified that he analyzed Church's complaint and the answer, did research and analyzed current libel cases, met with Church on various occasions to discuss *582the case, reviewed proposed jury instructions, interviewed character witnesses in Phoenix and discussed the case at least twice a month with Tonkoff and/or Dauber. There was sufficient evidence to support the jury's verdict in favor of Belli, whether based on a written contract or a quantum meruit claim, for reasonable recovery for services rendered. I would have, therefore, declined to overturn the jury's verdict.
II
The trial court concluded Belli had failed to render performance, and any agreement between Belli and Tonkoff was based on an unenforceable "referral" or "finder" fee theory. Implicit in the jury's verdict for Belli is the finding that he performed sufficient services under the written contract for a quantum meruit recovery. Because I would hold there was substantial evidence to support the jury's verdict, it is not necessary for me to address the issue of whether the agreement between Belli and Shaw was a referral. I am troubled by the majority's analysis on this subject, however, and will comment at this time. CPR DR 2-107 provides:
(A) A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm or law office unless:
(1) The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made.
(2) The division is made in proportion to the services performed and responsibility assumed by each.
(3) The total fee of the lawyers does not clearly exceed reasonable compensation for all legal services they rendered the client.
(Italics mine.)
ABA Comm, on Ethics and Professional Responsibility, Informal Op. C 723 (1964) states:
In Opinion 204 the Committee held that it would not measure the proportion of service or responsibility or apportion fees between the attorneys. . . .
The Committee believes that Canon 34 [predecessor of *583CPR DR 2-107] should be followed in all cases. It disapproves of the practice of a forwarding attorney receiving a one-third, or any other division of fees, solely for forwarding a claim to another attorney. In this case the forwarding attorney has done some work and is presumably going to continue to assume responsibility in the cases. Therefore, he would be entitled to a fee within the provisions of Canon 34.
This "hands-off" policy is based upon the fact that it is difficult to measure such intangibles as experience, expertise and geographical proximity which factor into a decision on how to split attorney fees. When a fee splitting arrangement is entered into, "fees are then to be divided in proportion to the work performed and the responsibilities assumed, and the total fees charged must not clearly exceed the reasonable compensation for all legal services performed". Hansen v. Wightman, 14 Wn. App. 78, 95, 538 P.2d 1238 (1975); H. Drinker, Legal Ethics 186-88 (1953). Therefore, assuming there is enough evidence to suggest that the attorney did more work than merely refer the case to another attorney, any division of fees will not be questioned so long as the total fees charged do not clearly exceed the reasonable compensation for all legal services performed.
In the present case, the total fee charged does not appear unreasonable considering the time span of the case, two trials, and the lengthy appellate process. Because there is substantial evidence supporting Belli's position that he rendered considerable legal services, I would decline to question the division of fees agreed upon.
I would reverse and remand for a reinstatement of plaintiff Belli's judgment.
Rosellini and Dimmick, JJ., concur with Dore, J.