specially concurring:
I agree with the majority’s application of the principle of relation-back, and its consequent determination that there are, in this case, a valid contract and a valid attorney’s lien. I, therefore, concur in the conclusion that the trial court’s order striking respondent’s answer should be reversed and the cause remanded. I disagree, however, as to the directions for further proceedings upon remandment.
Since plaintiff’s petition denied the existence of a valid contract with Arnold, it cannot be said with certainty that the cause is at issue on the pleadings. In my opinion, plaintiff should first be given an opportunity to reply to respondent’s answer. Issues of fact not now presented may then be raised and require solution before the ultimate adjudication of respondent’s fee.
I also consider it beyond the proper scope of this opinion for us to direct any determination of DeParcq’s fee. The record is silent as to the contractual arrangements between plaintiff and DeParcq other than that she. retained him to prosecute the claim against the railroad. Whether she undertook to pay him a fixed fee, a contingent fee, or any fee at all, is not before the court, and I believe it would therefore be inappropriate for the court to allocate to DeParcq any of the funds now on deposit with the Clerk. Nor has DeParcq requested either this court or the trial court to make any such award to him.
The only ultimate issue to be determined (so far as we can now see in the absence of a reply) is the amount of the fee, if any, to which Arnold is entitled. Such a proceeding is not an equitable action but a statutory one (Berkemeier v. Dormuralt Motor Sales, 263 Ill App 211, 215), and should not, as I understand it, involve any kind of equitable “allocation” of fees between attorneys based upon evidence of services rendered.
If it should be decided by the trial court (on the pleadings or after resolution of any factual dispute which might arise) that Arnold, after complying with the statute in the giving of notice, etc., was discharged by plaintiff without cause, then he would be entitled to enforcement of his lien even though DeParcq, alone, procured the settlement. (Goldberg v. Perlmutter, 308 Ill App 84, 31 NE2d 333.) That we appear to agree upon, but I differ with the majority as to the extent of the right secured by the lien.
As stated in the Goldberg case at page 88:
“A client unquestionably has the right to discharge his attorney at will and engage another, but where he exercises such right without good cause and thus renders it impossible for such first attorney to perform his contract of employment he is bound to compensate the first attorney in accordance with his contract with him” (Emphasis supplied.)
I believe it has been the law in Illinois, and in most of the states, that an attorney discharged without his fault from rendering services under a contingent fee contract is entitled to recover on his lien as for full performance. (Caruso v. Pelling, 271 Ill App 318; Goldberg v. Perlmutter, 308 Ill App 84, 31 NE2d 333; 136 ALR 231; 4 Williston, Contracts, § 1029.)
In the Caruso case this court entered judgment in favor of the original attorney for the full one-third of the recovery, pursuant to his contract and lien, despite the fact that, as here, another attorney had accomplished the settlement. At pages 323-324 it was said:
“Nor is there any merit in the contention of defendants that petitioner was bound by Eule 43 of the probate court of Cook county which provides that in any claims for personal injuries in case of settlement without suit, not more than 25 per cent of the amount recovered will be allowed for attorney’s fees. Nor is there any merit in the further contention that petitioner was entitled to receive only the reasonable value of the services which he rendered, and that there was no evidence on this question. Petitioner was not in the probate court and if the defendants were desirous of securing a settlement for a less amount by reducing petitioner’s fee, they should not have settled the matter behind petitioner’s back. They are in no position to invoke the rule of the probate court. Nor are the defendants in a position to contend that petitioner should receive only the reasonable value of the services rendered because the Attorney’s Lien Act provides that the attorney shall have a lien ‘for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or, in the absence of such agreement, for a reasonable fee, for the services of such attorneys rendered or to be rendered.’ The amount of the fee having been agreed upon between the petitioner and his client, petitioner is entitled to the amount specified in Ms contract, of which the defendants were notified.” (Emphasis supplied.)
In the Goldberg case the first attorney rendered no services under his contract; all the work was done by the second attorney; and yet this court enforced the original attorney’s lien to the full extent of the one-third agreement. This court said at pages 90-91:
“. . . Respondent’s attorney’s lien accrued and attached to the minor’s claim from the time it was placed in his hands for prosecution and it was never lost to him, notwithstanding the fact that the parents of the minor made it impossible for him to institute suit to enforce the claim and notwithstanding the further fact that such suit was instituted by another attorney. So long as respondent was properly employed and his attorney’s lien had legally accrued and attached to the claim, such lien is none the less valid because the interests of a minor are involved or because respondent actually rendered no services in the prosecution of the claim when he was prevented from so doing without fault on his part. In our opinion his lien remains in full force and effect and is just as enforceable under the statute as if he had instituted the suit and effected the settlement of the minor’s claim.” (Emphasis supplied.)
It appears to me that these decisions declare a principle inconsistent with an allocation based on services, or on quantum meruit. So far from requiring proof of services to support recovery, our Supreme Court has held that compliance with the lien statute effectuated an assignment of a share in the cause of action. Under such a doctrine there is, of course, no place for any allocation. In Baker v. Baker, 258 Ill 418, 101 NE 587, the court stated at page 421:
“. . . By serving the notice claiming a lien the attorney in effect becomes a joint claimant with his client in any judgment or decree that may be rendered or in the proceeds of any settlement that may be made by the client, and to the extent of the amount of his fee has the same interest in such proceeds, judgment or decree as his client and is entitled to his pro rata share thereof. In short, when the notice claiming a lien is served on the defendant or debtor under this statute it has the effect of an assignment of an interest in any judgment or decree that may be rendered or in the proceeds of any settlement that may be made by the client, and is such an assignment that the defendant or debtor is bound to respect. This creates a new and a substantial right in favor of the attorney and divests the client of substantial rights that he theretofore possessed.” (Emphasis supplied.)
This holding in the Baker case, declaring the attorney to be, in effect, an assignee claimant to the extent of his contract, has been cited with approval in numerous decisions, including: Mid-City Trust & Sav. Bank v. Chicago, 292 Ill App 471, 475, 11 NE2d 617; McKeown v. Pridmore, 310 Ill App 634, 645, 35 NE2d 376; Smith v. Louisville & N. R. Co., 313 Ill App 396, 404, 40 NE2d 539; Scott v. New York, C. & St. L. R. Co., 159 F2d 618, 620; and more recently in Peresipka v. Elgin, J. & E. Ry. Co., 7 Cir., 1956, 231 F2d 268.
In the latter case the facts were remarkably similar to those of the case at bar. The original contract attorney in Illinois was discharged without cause after he had rendered only minor services. Another attorney filed suit in Indiana and prosecuted the claim to a judgment for $25,000. Settlement was agreed upon and a petition was filed to determine the rights, if any, of the Illinois attorney. He answered claiming a full one-third of the settlement proceeds under his contract. A conflict of laws question as to whether Indiana or Illinois law would apply was settled by the trial court in favor of Indiana law (under which the original attorney would admittedly receive nothing), but reversed by the Court of Appeals.
After finding Illinois law applicable, the reviewing court cited the Baker case as declarative of the Illinois law and quoted the portion of that opinion quoted above. The court then cited Goldberg and other cases, and said further at page 273:
“Thus, under the Illinois Attorney’s Lien Act as construed by the courts of that state, intervenor became a joint claimant and by assignment acquired a one-third interest in any judgment rendered in favor of plaintiff or in the proceeds thereof. It would thus appear that he acquired a right or interest the same as if plaintiff had made an assignment to him of a one-third interest in any other property or property rights. (Emphasis supplied.)
“. . . Cases are cited which hold that a client has a right to discharge his attorney at any stage of a proceeding and that under certain circumstances the attorney’s right to recover fees is limited to quantum meruit. We need not cite or discuss such cases because they did not involve the rights of an attorney under the Illinois Attorney’s Lien Act and are clearly inapplicable.”
To uphold, as we do, the Arnold contract and lien, and then to limit his recovery thereunder to payment for the minimal services actually rendered, is to make of the Lien Act a weak reed, indeed, highly ineffectual in the accomplishment of its declared purpose. It is my conviction that the vice of such a result would have far-reaching consequences, as it might reasonably be taken, to mean that lawyers could, with practical impunity, permit themselves to be retained extensively by clients already under contract to other lawyers in the personal injury field. I say “practical impunity” because I believe that the principal barrier to such undesirable activities up to the present time may well have been the lien-protected contract for the original attorney’s full contingent fee. With this decision, as I see it, no lawyer will ever be certain of any contract protection, to the full extent of his agreed contingent fee, until after judgment, and perhaps not even then. If this were to become the situation in such cases, it could hardly fail to affect adversely the quality of professional services rendered to the public in this important segment of litigation.
We have not been briefed by either party on the question of the proper amount of the fee if the lien were declared valid, because that issue had not been reached by the trial court. The point is too important, in my opinion, to be determined in this manner at this time.