Danzig v. Danzig

Thompson, C.J.,

dissenting — I agree the trial court’s order compelling Jeffrey to pay $89,000 into the registry of court must be reversed. However, I would affirm the dismissal of Steven’s claim.

As the majority recognizes, contracts which are illegal or which are connected with an illegal act are against public policy and are unenforceable. Golberg v. Sanglier, 96 Wn.2d 874, 883, 639 P.2d 1347, 647 P.2d 489 (1982). Contracts may also be unenforceable as against public *622policy independent of any statute prohibiting their subject matter. Belli v. Shaw, 98 Wn.2d 569, 578, 657 P.2d 315 (1983) (contract violating former CPR DR 2-107 contrary to public policy and unenforceable); Walsh v. Brousseau, 62 Wn. App. 739, 815 P.2d 828 (1991) (contract violating RPC 7.2(c) contrary to public policy and unenforceable); Wright v. Corbin, 190 Wash. 260, 267, 67 P.2d 868 (1937) (contracts "obnoxious to the pure administration of justice, or . . . injurious to the interest of the public” can be declared illegal because against public policy).

The contract between Steven and Jeffrey should not be enforced because it is contrary to RPC 7.2(c). It is contrary to RCW 9.12.010. Further, it is contrary to the general public policy of this state which disapproves of the brokerage of lawyer services. See Goodier v. Hamilton, 172 Wash. 60, 19 P.2d 392 (1933) (layperson’s contract with insurance agent to locate attorney who would secure a certificate from state board of public works void as against public policy).

The policy behind the nonenforcement of illegal contracts and contracts against public policy is to protect the public, not to protect or punish either party to the contract. Lewis v. Davis, 145 Tex. 468, 477, 199 S.W.2d 146, 151 (1947). Accordingly, courts generally leave the parties as they find them. Plumlee v. Paddock, 832 S.W.2d 757, 758 (Tex. App. 1992). That is just where Steven and Jeffrey should be left. While application of the doctrine of "in pari delicto” is appropriate in exceptional cases such as Golberg, its application here is misplaced. Steven is not only presumed to know the law which made Jeffrey’s actions illegal, his own acts in aiding and abetting Jeffrey in those illegal acts should not be rewarded. Further, by his own assertion, Steven completed and submitted hourly time sheets for services he never performed.

It is with some hesitation that I reach this conclusion, which enables a lawyer, who himself violates the law and the Rules of Professional Conduct, to urge his own violation as a defense to a suit for monies owing. However, we *623cannot allow use of our courts to enforce such illegal contracts and thereby infer approval of the brokering of legal services. Further, there is little doubt that any inequity generated by a decision not to allow Steven to enforce the contract will be remedied in subsequent litigation and hearings between the offending lawyer and others who are not parties to this litigation.

Reconsideration denied December 4 and 12, 1995.

Review denied at 129 Wn.2d 1011 (1996).