concurring. The initial constice, Fowler and Ed Daniel occurred the day following a motor-vehicle accident in Pine Bluff when Daniel, an attorney with offices in Little Rock, called Fowler at the request of a non-family member and testified that he was told by Fowler to discuss the matter with her uncle, David Lisenby. It is not controverted that Fowler did not personally request that Daniel come and see her during their telephone conversation. Nonetheless, Daniel arrived at the hospital in Pine Bluff that evening, sought an audience with Fowler who was either in her hospital bed, or in a wheelchair, receiving medication from an IV tube in her arm to limit pain and to halt untimely labor in order to prevent the premature birth of a child. Daniel sought and obtained her signature on a conditional fee contract for herself, as well as another conditional fee contract for recovery of damages for her child, Larry Lee Jr., who was at that moment recovering from an operation amputating his right arm as a result of the collision. A third contract was signed for her other less severely injured child. Larry Lee Jr.’s father, Larry Lee Sr., did not participate in the execution of this conditional fee contract on behalf of his minor child.
It is not controverted that Daniel was terminated as an attorney within a week. It is not disputed that Daniel’s efforts on behalf of Fowler consisted of not more than a few hours of work, including the mailing of a notice of his attorney’s lien to Waste Management of Arkansas on the Saturday following the Friday night signatures on the conditional fee contracts. Now Daniel asserts a lien in the amount of one million dollars as an attorney’s fee based upon virtually no performance of services.
As expressed by counsel for appellants in oral argument, “this case, in the final analysis, presents the unique and troubling question of whether this state’s attorney’s lien statute [Ark. Code Ann. § 16-22-301 etseq. (Repl. 1999)] permits an attorney to recover a fee of one million after having rendered virtually no services to the clients.”
The attorney’s Hen statute was passed in response to our decision in Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987) (limiting recovery on a terminated conditional fee contract to quantum merit). The General Assembly stated that the court’s interpretation of the law “is contrary to what was intended by the enactment of. . . the Attorney Lien Law.” Act 293 of 1989. The statute further provides, “Therefore it is the intent of [this section] to allow an attorney to obtain a lien for services based upon his or her agreement with his or her client and to provide compensation in case of a settlement cfr compromise without the consent of the attorney.” Ark. Code Ann. § 16-22-301.
As stated by the majority opinion, this court accepted review to consider whether this legislative enactment seeking to overturn our decision in Goodman, supra violated the principles of separation of powers. I concur with the majority that the issue of the constitutionality of the statute is not before us because Fowler did not preserve it for appellate review. This issue, like that of the reasonableness of the proposed fee, is simply not addressed by our decision in the case before us. In my opinion, it is clear that these issues may be raised in any subsequent or continuing action seeking to enforce a one million dollar conditional fee proposed to be charged for work not performed.
As the issue of the interpretation and constitutionality of Ark. Code Ann. § 16-22-301 et seq. is not before us for review, the trial court’s ruling that there was no good cause for termination of the contract is irrelevant to the disposition of the matters under consideration, and that issue should be deferred pending further development. During oral argument, counsel for appellee expressed his views on whether a one million dollar attorney’s fee would be ordered on remand.
A member of the court asked, “Are you saying that Mr. Daniel is entitled to forty percent of the contract?” Counsel for Mr. Daniel candidly responded:
In this particular case, no your honor, we are not. I don’t think anyone would come before this court and suggest that the probate judge is going to award 40% of the settlement proceeds to Mr. Daniel and 33 1/3% and a rather large cost bill to the other [attorneys], as well. That would be in excess of $1.8 million out of a $2.5 million setdement. Practically speaking, I don’t see any probability that the probate judge is going to satisfy both of these contracts in their entirety.
I note that the majority, by an appropriate footnote, has indicated that the reasonableness of the amount of Daniel’s fee remains to be determined by the probate court upon our remand for further consideration.
In summary, I concur that we should not reverse as clearly erroneous the trial court’s findings that a conditional fee contract was executed, that a lien was perfected, and that Daniels was subsequently fired. I only wish to emphasize that today’s opinion does not establish the reasonableness of a one million dollar fee, or resolve the issue whether this court has authority under principles of separation of powers to exercise our constitutional authority to regulate the practice of law, including the determination of the reasonableness of fees.
Corbin, J., joins.