Gordon Neilson, Plaintiff/Appellant, v. Mark T. McCloskey and Mark T. McCloskey, P.C., Defendant/Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Gordon Neilson, Plaintiff/Appellant, v. Mark T. McCloskey and Mark T. McCloskey, P.C., Defendant/Respondents. Case Number: ED86199 Handdown Date: 11/22/2005 Appeal From: Circuit Court of the City of St. Louis, Hon. Steven R. Ohmer Counsel for Appellant: Lawrence O. Willbrand and Thomas Ducey Counsel for Respondent: Party Acting Pro Se Opinion Summary: Gordon Neilson appeals from the trial court decision granting Mark McCloskey's motion to dismiss for failure to state a claim. Neilson and McCloskey, both attorneys, entered into an oral agreement to jointly represent one of Neilson's clients. They were not in the same firm and agreed to divide the fee 50/50. McCloskey ultimately settled the client's case for $2,500,000 of which $1,000,000 was attorney's fees. McCloskey subsequently sent Neilson a check for $225,000. Neilson never deposited the check, demanding full payment of $500,000, which McCloskey never paid. Neilson filed his petition in the circuit court, but failed to allege that a written contract ever existed or that he performed half the work, as required by Rule 4-1.5(e). The trial court subsequently granted Neilson leave to amend his petition five times, but he never alleged the required elements of his case. McCloskey subsequently moved to dismiss, which was granted. AFFIRMED. Division Two holds: The trial court did not err in dismissing Neilson's case for failure to state a claim. Pursuant to Rule 4-1.5(e), which has the force and effect of law, an attorney must allege either a written contract or that he performed services in proportion to his fee when two attorneys from different firms agree to jointly represent a client. The court did not err, as a matter of law, in dismissing Neilson's petition because Neilson never alleged either of these facts.

Citation: Opinion Author: Kenneth M. Romines, Judge Opinion Vote: AFFIRMED. Gaertner, Sr., P.J., and Draper III, J., concur. Opinion:

This case involves the application of the Rules of Professional Conduct. The trial court granted Defendant- Respondents' Motion to Dismiss for failure to state a claim. We affirm. The record before the trial court consists of several amended petitions and motions to dismiss. Stripped of the non-essential, Neilson alleges that he entered into an agreement with McCloskey that McCloskey would represent one of Neilson's clients in an automobile accident; that the representation would be joint; and, the fee would be evenly divided between counsel. Clear is the fact that a settlement was reached in the sum of two million five hundred thousand dollars ($2,500,000), of which one million dollars ($1,000,000) was attorney fees. Clear also are the facts that McCloskey sent Neilson a check for two hundred and twenty-five thousand dollars ($225,000)—Neilson refused to negotiate the check—and stop payment was then made on the check. Neilson and McCloskey are not in the same firm. Neilson filed suit alleging, inter alia, several tort theories. Neilson was granted leave to amend five times; on the sixth request to amend, the trial court granted McCloskey's Motion to Dismiss for failure to state a claim. Our standard of review goes to whether the trial court abused its discretion. Downey v. Mitchell, 835 S.W.2d 554, 556 (Mo. App. E.D. 1992). Rule 4-1.5(e) states, in pertinent part: (e) A division of fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation; (2) the client is advised of and does not object to the participation of all the lawyers involved; and (3) the total fee is reasonable. The Comment to 4-1.5(e), as pertinent, states:

Paragraph (e) permits the lawyers to divide a fee on either the basis of the proportion of services they render or by agreement between the participating lawyers if all assume responsibility for the representation as a whole and the client is advised and does not object. It does not require disclosure to the client of the share that each lawyer is to receive. Joint responsibility for the representation entails the obligations stated in Rule 5.1 for purposes of the matter involved. Neilson, after five tries, made no allegation that he was in the same firm with McCloskey, that the fee was to be divided in proportion to the efforts by each, or that there was a written agreement with the client that each attorney would assume joint responsibility. None of the pleadings set out a claim that would be justiciable given the dictates of Rule 4-1.5(e). None of the pleadings set out a claim for quantum meruit. Neilson failed to state a claim. There was no abuse of discretion in the trial court dismissing this cause. Attorney's fees "...are not owned, they are earned...". If an attorney wants a share of the fee, he must perform an appropriate share of the legal services in the case. (Risjord v. Lewis, 987 S.W.2d 403, 406 (Mo. App. W.D. 1999). This requires actual participation in the handling of the case, or the assumption of a financial and ethical responsibility for the case. This fundamental requirement applies to attorneys seeking fees for legal services performed and to those claiming fees for assuming joint responsibility for representation in the case. In sum, an agreement to share attorney fees that does not comply with Rule 4-1.5(e) is unenforceable. Londoff v. Vuylsteke, 996 S.W.2d 553, 557 (Mo. App. E.D. 1999); see also Risjord v. Lewis, 987 S.W.2d 403, 404 (Mo. App. W.D. 1999) and McFarland v. George, 316 S.W.2d 662, 670 (Mo. App. 1958) (construing predecessor Rule 4.34).(FN1) Clearly the rules of professional conduct have the force and effect of judicial decision. In re Ellis, 221 S.W.2d 139, 141 (Mo. banc 1949). We on this Court are not so far removed from the real world not to know that in commerce between attorneys, attorneys must rely on the integrity of one another, and that promises made are to be promises kept. While difficult to reconcile the two hundred and twenty-five thousand dollar ($225,000) check to Neilson from McCloskey,(FN2) Rule 4-1.5(e) does not let us engage in the inquiry. The Judgment is affirmed. Footnotes: FN1. We note that this body of law is well known to Neilson and his counsel. See Dairyland Ins. v. Cobbs, 8 S.W.3d 191 (Mo. App. E.D. 1999). FN2. Callously explained in the McCloskey brief as follows: "What plaintiff fails to understand is that when a

young lawyer offers an old lawyer a gratuity out of generous spirit, that gift if rejected, does not create a right." (Resp. Br. at 7.) Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.