concurring. I fully agree with the opinion of the majority in this matter. I write separately only to emphasize one issue not fully addressed by the majority opinion.
Appellants premised their motion to intervene in the settlement agreement between the State and the tobacco companies upon what they alleged to be a contractual right to seek fees directly from the tobacco companies. This contractual right, they argue, stems from paragraph 3.D. of the contingency fee contract negotiated between Appellants and the State, which provides:
In order to reduce the amount of attorneys’ fees due Milberg Weiss, Milberg, Weiss will seek to recover the State’s attorneys’ fees and costs to [sic] the defendants pursuant to any applicable fee shifting statutes or legal doctrines in the event the State prevails in litigation. If the State successfully receives such an award of fees and costs from the defendants, any amount awarded shall be deducted from any fees and costs otherwise due Milberg, Weiss pursuant to the contingent fee provisions of this Contract.
Appellants’ reliance upon this provision is misplaced. Assuming for our purposes that the contract is valid, it does not bestow a right upon the Appellants. Rather, it creates an obligation. Appellants have a duty, not a right, under the contract to seek fees from the tobacco companies. The State, to whom the benefit of this obligation would flow, appears to have waived this obligation and relieved Appellants of their duty to seek fees directly from the tobacco companies by choosing not to designate Appellants as outside counsel on Exhibit S to the Master Settlement Agreement. Appellants may disagree with the State’s decision regarding this matter, but no right exists that is subject to impairment by the denial of intervention.