dissenting.
[¶ 18] I respectfully dissent from the Court’s conclusion that Lilley’s 35% contingent fee should be based upon the amount deposited in the interpleader fund, rather than Steamship’s $1,500,000 jury award. The Court’s analysis is premised on the fact that Steamship never actually collected the jury award, as only $739,000.38 was deposited into the interpleader fund following a court-ordered set off against the Bank’s foreclosure deficiency judgment. The Court acknowledges that the Bank’s foreclosure action and Steamship’s tort/contract action “were not fully consoli*805dated,” and that a request for set off was never adequately pleaded. In my view, Lille/s contingent fee should be calculated based upon the amount of Steamship’s jury award.
[¶ 19] As the Court’s opinion recounts, Steamship made numerous attempts to consolidate its tort and contract claims with the Bank’s foreclosure deficiency action. Steamship filed a motion to dismiss the Bank’s action, asserting that the Bank’s claims were compulsory counterclaims that should have been raised in the Bank’s answer to Steamship’s original complaint. This motion was denied. Next, Steamship alleged its tort and contract claims as counterclaims in the Bank’s action. Steamship’s claims were dismissed with prejudice. Ultimately, the two cases were “consolidated pursuant to M.R. Civ. P. 42(a) for purposes of discovery.” In all other respects, the cases proceeded along different tracks.
[1120] Nearly a year and a half after summary judgment was entered in favor of the Bank in the foreclosure action, a jury awarded Steamship $1,500,000 in its action against the Bank. This Court affirmed the judgment on the jury verdict. S.S. Navigation Co. v. Camden Nat’l Bank, 2006 ME 11, ¶¶ 7-10, 889 A.2d 1014, 1017-18. Following this decision, Steamship filed a motion to set aside the foreclosure judgment. In its memorandum opposing Steamship’s motion, the Bank, for the first time, requested a set off of the foreclosure deficiency judgment against Steamship’s jury award. The Bank never actually filed a motion or pleading on the issue. Over Steamship’s objection, the trial court granted the Bank’s set off request. This Court approved the set off on appeal. Camden Nat’l Bank v. Dunican et al., Mem-07-84 (May 8, 2007).
[¶ 21] The Court now acknowledges that the trial court made two mistakes in the handling of this case. First, according to the Court, “the record strongly suggests that the Bank’s foreclosure action and Steamship’s tort/contract action should have been consolidated,” and that “each side’s claims were compulsory counterclaims to the other’s primary claims.” Supra n. 3. It follows, therefore, that Steamship was improperly denied the opportunity to litigate both matters together.
[¶ 22] Second, the trial court granted the Bank’s request for a set off. Set off had not been pleaded, as is required by our case law. See FDIC v. Notis, 602 A.2d 1164, 1165-66 (Me.1992). Although the Court’s opinion describes our decision to affirm the set off as the product of “unusual” circumstances, it seems clear to me that the Court believes that the Bank’s set off request should never have been granted.
[¶ 23] To avoid the legal implications of these mistakes, the Court’s opinion creates a hypothetical procedural history. Despite conceding that the Bank’s foreclosure action and Steamship’s tort/contract action “were not fully consolidated,” the Court declares that, “functionally, the Bank’s deficiency judgment and Steamship’s jury award were part of a single recovery.” Supra ¶ 12 (emphasis added). Despite acknowledging that a “request for a set off must ordinarily be adequately pleaded,” the Court chooses to “treat the set off as if it had been pleaded as a claim or counterclaim in either the foreclosure action or the tort/contract action.” Id. (emphasis added).
[¶ 24] The Court then builds its analysis on this fictional foundation. Explaining that $739,000.38, not the full $1,500,000 jury award, was deposited into the inter-pleader fund, the Court concludes that Steamship never recovered the full amount of the jury award. The Court emphasizes the physical location of the money; howev*806er, the only reason that Steamship never collected the total jury award, and that the full $1,500,000 was not deposited into a trust account, was because of the improper court-imposed set off.
[¶ 25] Absent a proper set off, the “recovery” in a contingent fee case should include all cash and credit.received by the client. See Restatement (Third) of The Law Governing Lawyers § 35 cmt. d (2000) (stating that a client’s “recovery” for contingent fee purposes “includes damages, restitution, back pay, similar equitable payments, and amounts received in settlement”); 7A C.J.S. Attorney & Client § 402 (2004) (explaining that the “amount actually recovered” by a client is the “amount allowed by the judgment less the amount of any claim, expense, or offset that may properly be deducted therefrom” (emphasis added)). Clearly, Steamship benefited financially from the amount of the jury verdict that was applied to pay off the foreclosure deficiency judgment. Even though Steamship never actually received the money, its debt was significantly reduced, and it was in a much better position to pay other creditors.6
[¶ 26] I do agree with the Court that Lilley properly established and perfected the attorney lien against the recovery Steamship received from the Bank. Because the set off was improperly granted and because the Bank’s foreclosure action and Steamship’s tort/contract action were never consolidated, Lilley’s contingent fee should be based upon the total $1,500,000 jury award. I would, therefore, affirm the judgment of the Superior Court in all respects.
. It is interesting to note that Steamship is not objecting to Lilley receiving a fee based upon the total amount of the jury verdict. Five of the six cases relied upon by the Court involve disputes between clients and their attorneys. See Underwood v. Rich, 48 Ga.App. 550, 173 S.E. 224(1934); Wooldridge v. Bradbury, 185 Ky. 587, 215 S.W. 406 (1919); Maiullo v. Genematas, 16 Mich.App. 231, 167 N.W.2d 849 (1969); Kramer v. Fallert, 628 S.W.2d 671 (Mo.Ct.App.1981); Levine v. Bayne, Snell & Krause, Ltd., 40 S.W.3d 92 (Tex.2001).