back to the fee sharing agreement that mr patten was a party to and to re mandate to back to the court with instructions to apply the fee agreement as written there are two dollars reasons for this one there was a valid fee sharing agreement between the counsel in this case that met all the requirements of rule one dollar of the minnesota rules of professional responsibility and two and perhaps more significantly if the court doesn't enforce that the agreement as written will be significant public policy concerns that will seriously up and in the need to unnecessary litigation and motion practice in all cases involving the sharing agreements i want to talk about the st point though with respect to the few sharing agreement itself minnesota rule of professional responsibility one dollar b is the controlling profession responsibility role we're all here to talk about it today it's modeled after one in fact verbatim adopts the a b a rule and it sets forth the requirements for a fee sharing agreement between attorneys have to have three feel like in any fee agreement has to be reasonable there is no dispute here that that fee was reasonable judgment government will never found that the fee was on reasonable or excessive two the client has to agree to the fee sharing agreement in writing and the fee sharing agreement has to be fully disclosed to the client with the perspective shares being allocated to each attorney with the work that each attorney has to perform again there is no dispute in this particular case that that occurred in fact it occurred on multiple occasions as the court's aware there were numerous iterations of counsel that were involved in this case from time to time and at every stage of counsel's involvement when new counsel came into the dollar of two things either way the division of fees has to be proportional to the services performed by the respective attorneys or are be the attorneys to the agreement each have to assume joint responsibility for the representation it doesn't matter which of those two standards the court was to look at willow because the pattern for met both of them i'll talk so i'll still go ahead on proportionality sure st if you wouldn't mind sure do you agree that the court properly has to consider whether the fee allocation in the agreement is proportional i don't you're just arguing factually that it was proportional or do you say the court is not allowed to examine whether the agreement matches the proportionality of the work sure i think that that's a interesting question and frankly it's a question of st impression in minnesota because we don't have any controlling case in the minnesota state courts supreme's who have dealt with the proportionality question nor were either of the parties to this appeal able to locate any case in the th circuit addressing the proportionality argument our position here is simply that it to reiterate some of the positions that you heard during the last hearing this is a summary proceeding where the court didn't have the benefit of a full briefing on it didn't have the benefit of an evidentiary hearing it was submitted on the briefs but at the very least here's what we know mr magnusson spoke at the last hearing just a few minutes ago about how the success of this case was due to all of the other lawyers who stayed on it that was his words one of those for the lawyers was the patent law for just before you go into the facts could you answer the question whether as a legal matter you think the district court is permitted to re examiner examine the proportionality and see whether it matches the agreement i think the court i was has that power it's inherent within the court's authority when you're dealing with an attorney for the agreement that has that power because it wants to up at the public policy purposes behind the rule so you agree that the court may do that and so we're just fighting about whether the court properly decided that the  proportionality the work here didn't match the the three thousand and fifteen dollars breakdown that's one argument but it's not the only argument but yes that's what we're saying the court got it wrong because it didn't understand the totality of patterns involved not terribly surprising when you look at it from the perspective of  to make sure i understood well in fairness here's here's the reason why i think you have the perspective as a trial court judge of seeing the case through the eyes of a trial court judge and what a trial court judges see they see motion practice and they see the trial they don't necessarily see the discovery it involved among other things initiating the client contact identifying the other attorneys who could assist in the case so putting together the trial team engaging the experts identifying the fact this was a sudden acceleration case i think it comes out more in the reply brief or there was a section in there that had like a bullet point list of here's all the stuff we did to justify or existence is that is that soon enough to to challenge that proportionality ruling from the district court know all of those were submitted to the district court in the briefings in affidavits as well so whether the judge weighed them properly again that's one of the reasons we're here now but i think the question is whether you have to raise in your opening brief appeal any challenge the district court's order oh i didn't argue in your opening analysis under the proportionality of services it doesn't change the fact that there was joint responsibility here this is where the court's going to have to look to extra jurisdictional cases though because no minnesota case has ever talked about what constitutes  responsibility under rule one dollar there are several extra jurisdictional cases that whether it's the aiello case out of new york the nickerson case out of georgia or the scott case out of colorado and by the way that's an interesting cross section of america there  for now there's an issue whether that was raised in the district court which it was been there were two separate motions the nd motion addressed that point specifically and that was appealed and was briefed so i think that is properly before the court today but with respect to the joint responsibility argument the reports from those jurisdictions similar to the comment to minnesota's rule one five have said there are two factors to evaluate when it comes to joint responsibility the st is whether there is share financial responsibility i e liability for malpractise by co counsel and the nd plane is ethical responsibility in other words a duty to actively monitor the case making efforts to ensure the co counsel comports with the applicable ethical involved and a malpractise suit it is inconceivable at some point that the patent firm will not be joined to that suit implicating its own malpractise policy thereby showing sharing financial responsibility for that problem but even if that malpractise suit financial responsibility here with respect to ethical responsibility those various other factors such as the duty to monitor the case we know that happened here because again when the issue arose with the file transfer that you heard about the previous case mr repeatedly stated in the letters that mr paddon knows the case better than anybody and he's been our trial or our counsel since day one and he continues to be our counsel and never terminated mr paddon or is law firm in any point prior to the resolution of this case he remained on all the pleading submitted to the court and the appeals in this case he was counsel in this case so from a joint responsibility perspective he's actually met that element of the of the test but i do think it's more important to talk about  policy underlying here the reason we have a one dollar and the requirement that fee sharing agreements be in writing and the client's concern to him is to protect the client clients are entitled to transparency in their dealings with their lawyers they need to know who's working on their case and how they're dividing their fees and how they're dividing the workloads but that rule doesn't exist to give lawyers a sword to swing at each other at the end of a case and that is exactly what's happening here i don't want the court to mistake for a minute case this is not what we're trying to pull when you go into the public policy of this let's assume that this case is firm everybody working under a contingency agreement is going to end up being in a situation we're always going to be looking over their shoulder and questioning whether that's going to be challenged at some point by co counsel and you end up having a situation where the lawyers are going to be adverse essentially to each other in this case always looking out for their own best interest and necessarily subordinating the client's best interest to make sure that they get as much of that fee generated as possible that's not good public policy and it's not with this court should the bottom line is this particular tourney fee sharing agreement was negotiated by and between medical highly skilled law firms with experience that all consented to it we have right courts to get into this at all and i thought it initial part of your argument and you said no that in minnesota that they can do that well so that they have the the right to do that whether they should do something whether they can do something or two different things as people tell their children but in this particular case you know if you look at the nickerson case out of georgia they seem to hit the nail right on the head and what they're talking about here is how the purpose of the rule regarding fee splitting is to to protect the clients from the payment o this wasn't a referral fee patent didn't just take a fee for acting as a gatekeeper and giving the work off to other clients you actually actively was involved in the case from day one through the end the other thing than nickerson quite said that i think is telling in this is the role of the court talked about how and this is the quote as long as both attorneys have done some work on the case beyond signing in referring the client the courts will not engage in the cumbersome task of evaluating after the fact the relative contributions made by the bickering attorneys that's we have here we have bickering attorneys fighting over a feat none of which really affects the client well i wonder when you have acknowledged at the beginning of the court can do that well what's the authority in minnesota that a court can reallocate a that's again i haven't given you my answer this is a question of st impression i get in minnesota i'm what's your base i'm telling you that i think they can because at the go it's ability to understand like the christianson versus egg in today proportionality of those they concern the procedural aspects of it number one was it in writing and did the client consent and those are the issues that really bear on those cases so you're in the wilderness here judges and you've got to look outside of minnesota for the answer to that particular question there are at least three cases where courts outside of minnesota have analyzed this issue and all of them have come down the side of stating we're not in the position or  job to protect lawyers from the bogans that they strike or to rewrite those bargains after they're made and that's essentially what the court did in this case it rewrote a contract between attorneys as to how the fee should be split it's not the role of the court to protect parties from bad bargains it's the role of the court to protect sorry yeah it's late and i did nickerson is in there how come it's not under the table cases starting with and are you looking at the primary briefer the reply brief primary might be the reply brief  i could take my time and find it your honor but perhaps i don't know if he has any rebuttal time left to go well i just quoted it i thought maybe we should take another look at it i'll give him a minute at the clients did when mike peden agreed to represent them he said he'd be lead local council and he would walk them through the trial process and mike hadn't pulled the disappearing act about halfway through the case right before trial the mark of its firm came in because the prior lead counsel had been discharged as you've heard mr paddon never showed up at trial he sat in the back of the courtroom when the verdict was read he did nothing with regard to the motions prior to trial he did nothing at trial he did nothing on the extensive post trial motions that were pivotal to this case and he did absolutely nothing on the appeal and when the markets firm came on board because napoli had been fired they said we need a new fee agreement and we need it because st of all the earlier fee agreements don't talk about what's going to happen a poster on motions an appeal in fact one of them specifically said this doesn't apply to that and the clients and new counsel recognize that there was a problem with how the work had been going on in this case who had been doing what and so what the clients ultimately authorized in writing and it's the clients not the lawyers is at the end of the day will be an equitable relocation of the fee and mr patten could have said i quit i don't want that and under minnesota law he would have been able to assert a claim for the hourly time that he had put in that's the trente case he didn't do that he waited until the case was over and then he would not abide by the client's wishes were honored referring to when you say the client is an agreement of some kind it's if you look at the last operative fee agreement it's market stock and demarco letterhead i apologize for not having the specific site but that's the one dollar that talks about at the end of the case there will be an equitable apportionment of the contingent fee forty percent contingent fee with that to account for the work post trial and on appeal or was that it was for it was occasioned by what had happened up to that but it was also to account for that additional work that was going to be done is that the february two thousand and if every two thousand and fifty now and  says minnesota courts have authority to review contingent fees for reasonable mess and they should scrutinize them closely the madsen case a wrongful death case like this and it part of this was a wrongful death case which requires the court to make an order authorizing the distribution of the recovery and in minnesota law there's a wrongful death trustee and in this case it was bridget trice she couldn't pay out any money to anybody without court approval so that's another reason the court got into it the madsen case difference that i'm i know i think it's fair to say that minnesota has adopted a very strong pro client perspective on a contingent fees and attorneys fees in general go back to the forty's a case  versus dunn the rule in minnesota is that a contingent fee lawyer can be fired by their client at any time and for any reason and it's not a breach of contract is that is that unique or relatively unusual do you know i  don't know i think it's you know i think other courts have different views which is why the nickerson case is completely in apis that in georgia the rule if any lawyer does any better work they get to split the fee and i think it's fi real clear that the rule one point five is going to be clyde by its terms and the client gets to make the call if you want to look at cases to survey the law outside of minnesota the barricades from the colorado court of appeals does a good survey of the law you'll find it there and then there's a case called drag live it's from the northern district of ohio that cited in the briefs that's another one that does a survey of the law i agree with my colleague there is no minnesota a proportionate appellate decision that specifically says the court can modify the fee split agreement but what minnesota law is absolutely clear is the client's consent to the feast split is an absolute requirement and if the client has the right to fire the lawyer which is and doubted lee true lawler vs done then the client has the right to withdraw the consent to a fee agreement that looked good when it started and it went bad as the case went along it looked fine to give mr patten his thirty percent share of the contingent fee at the beginning of the matter of caswell from the minnesota court of appeals the client cannot remake when the work is all done they get quantum merit for the full contingent fee and so at a certain point in time the client can't do that the parade of horribles co out for you simply doesn't exist you know that the court has the risk of the attorneys constantly related gating wow how much they produce what proportion there is that risk but how do you guard against that st of all you have a clearly defined fee splitting agreement in the st place and then you do what you promise you're going to do it live up to it that's what the problem is here mr paddon didn't do it he took a powder on this case he basically disappeared and mr white and the mark of his firm had to dig in they had to repair the damage done by the napoli firm they had to go it alone basically without mr paddon the opinion where she says a cynic might say he was more interested in his own interests than the client interests but he never showed up at any of these things he didn't do anything and if you're going to be lead to local counsel you know expect you to at least show up at trial now we're not saying he isn't entitled to something he is if he had made it quantum error a claim he might have gotten more or less he didn't do that he simply said my contract my contract and i get my contract and under minnesota law you're not entitled to a contract a measure of damages as it a lawyer you're entitled to what the rules of professional conduct authorized now i think there's an interesting point here that the court h addressed mike my colleague i'm the only argument they made front of judge my grammar it was proportionality they never raised until they're fifty nine emotion this joint responsibility argument she rejected it willing an appeal they can't raise a new issue in a rule fifty nine motion and so if the only argument they made on appeal was the rule five thousand nine hundred proportionality motion you should say i'm sorry that wasn't preserved now i think that really was in their opening brief the only argument that they made i think i don't know that proportionality the word may not even be in their brief although i'd hate to say that categorically because they're a lot of words in their brief but i think it's clear they didn't i mean that wasn't their argument and the proportionality argument resurrected itself in their reply brief which is too late to raise it and so i don't i don't think you should decide this case based on the rules of appellate practice you should say if issues waived it's a monthly payment he wasn't assuming any of the overall financial responsibility if you look at brigitte trice his affidavit she'll say she never talked to me about how the case was going he didn't he wasn't my contact he was supposed to be my conduit you know i never heard from him and so i don't think that there's a basis for a joint responsibility finding this is not a cutting edge minnesota law as we've discussed minnesota courts say that the rules of professional conduct have to be complied with in order for fee agreements to be enforceable here the client withdrew the clients withdrew their consent and when they do that which they're entitled to then they can consent to a new fee agreement and the lawyer can accept it or not if the lawyer doesn't accept it if you look at like for example the trente case in minnesota the contingent fee lawyer got discharged and the court said well you can wait and see how the case comes out claim or you can come in and you can say i've got this many hours and at this hour early rate and i get this much that's permissible under minnesota law those alternatives were there for mr pat he didn't avail himself of them and that happens on a regular basis that doesn't happen on a regular basis because the lawyers in minnesota are pretty careful about what they do if you make a deal you live up to it if you say i'm going to be lead local counsel you act like if you say i'm going to be the conduit to the client you actually have some contact with the client none of that happened here mr patten got the case in the door he got some lawyers to handle it and then he disappeared and at the end of the day he wants to get his full thirty percent contract because if you read their brief a contract is a contract it's not when it comes to attorneys fees that under minnesota law judge my gum really did the right thing by honoring the client's wishes this was a decision by bridget trice and quincy adams that they wanted the lawyers who really got them their recovery to be appropriately rewarded they have the right as clients to do that and if you're going to worry about public policy the public policy should be you know recognizing the client's interests and protecting those interests