In the United States Court of Federal Claims

No. 16-1633L

(Filed: April 6, 2020)

NOT FOR PUBLICATION

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WILLIAM O BANKS, et al., 

Plaintiffs, 

v. 

THE UNITED STATES, 

Defendant. 

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ORDER

Pending in this rails-to-trials takings action is a motion to intervene 

brought by the law firm of Arent Fox, which previously represented the 

plaintiffs. The plaintiffs are now split in their representation between two 

different attorneys, formerly of Arent Fox. The firm seeks to intervene under 

Rule 24 to “protect its property interest in its fees and expenses incurred in 

successfully representing the plaintiffs.” Mot. to Intervene 1 (ECF No. 89). 

Defendant opposes the motion; the plaintiffs do not. The motion is fully 

briefed, and oral argument was held telephonically on April 1, 2020. As 

announced at the conclusion, because Arent Fox’s interests are adequately 

represented without intervention, the motion is denied. 

Liability for the taking was determined in our opinion of May 17, 

2018. Banks v. United States, 138 Fed. Cl. 141 (2018). The parties have 

since undertaken an effort to settle the matter. They have represented to the 

court in periodic status reports that they have reached agreement on the value 

of the property taken. All that remains is to reach agreement on the amount 

of attorney fees and costs to be included in the settlement amount.1 

1 The Uniform Relocation Assistance and Real Property Acquisition Polices 

Act (“URA”) mandates that the court award, or the Attorney General include 

Rails-to-trails; Fifth Amendment 

takings; Motion to Intervene by 

former law firm; RCFC 24; Duty of 

Loyalty; Former law firm’s interests 

are adequately represented. 
2

Resolution of that issue has reportedly been delayed, at least according to 

defendant, by the representation issues arising from the change of firm and, 

for two of the plaintiffs, change of attorney of record.2 On January 15, 2020, 

Arent Fox filed a notice of Attorney’s Lien (ECF No. 85) against any 

recovery by plaintiffs or award of fees and costs in order to protect its right 

to payment for legal services previously rendered. Arent Fox now expresses

concern that Ms. Brinton may compromise her client’s award of fees to 

incentivize settlement and more quickly get her clients paid. Thus the present 

motion. 

Arent Fox has no such concern with Mr. Hearne because they have 

agreed previously that he would represent Arent Fox’s interest in recovering 

the fees owed to it for the work performed by attorneys at that firm. And, as 

the firm cites in its papers, Mr. Hearne owes a continuing duty of loyalty 

“’with regards to matters arising and events occurring before the partner’s 

disassociation.’” Diamond v. Hogan Lovells US LLP, No. 18-SP-218, 2020 

WL 717809, at*10 (D.C. Feb. 13, 2020) (quoting D.C. Code § 29-606.3 

(2013)). 

Arent Fox argues that intervention is proper because it has a vested 

property interest in the award to plaintiffs under DC law. The obligation to 

pay for work performed was contingent on winning the case. If the plaintiffs 

recovered, Arent Fox was to be paid the larger of 1) a percentage of the 

ultimate recovery or 2) the amount awarded by the court for fees and 

expenses. Because its being paid was contingent on the plaintiffs receiving 

an award or settlement, Arent Fox argues that it has a property interest in any 

judgment or settlement achieved by the plaintiffs. 

in a settlement, for taking of property by a Federal agency, “such sum as will 

. . . reimburse such plaintiff for his reasonable costs, disbursements, and 

expenses, including reasonable attorney, appraisal, and engineering fees, 

actually incurred because of such proceeding.” 42 U.S.C. § 4654(c) (2012).

2 By order of April 26, 2019, we granted the motion on behalf of the plaintiff, 

Mr. Banks, to substitute Ms. Brinton as his counsel. We denied a separate

motion as to the plaintiff, Mr. Carney, because the ownership his parcel is

alleged to be joint with his ex-wife and co-plaintiff, Dixie Flynn. Ms. Flynn 

remains represented by Mr. Hearne. A third plaintiff, Mr. Oliva, has since 

switched counsel to Ms. Brinton as well. 
3

All of the present parties aver that they share the same interest in 

coming to resolution and getting the plaintiff landowners paid. The 

government shares that goal because interest is running on the underlying 

value of the taken property. Defendant opposes the intervention, however, 

because it feels it is being dragged into another collateral dispute between 

former and current counsel. It argues that the firm fails to satisfy the 

requirements of Rule 24 and points out that the firm neither cited which 

provision it was moving under (either mandatory or permissive intervention) 

nor attached a proposed pleading as required by the rule. 

Rule 24 of the Rules of the United States Court of Federal Claims

(“RCFC”) states in section (a) that the court must permit intervention “on [a] 

timely motion” brought by anyone who “claims an interest relating to the 

property or transaction that is the subject of the action, and is so situated that 

disposing of the action may as a practical matter impair or impede the 

movant’s ability to protect its interest, unless existing parties adequately 

represent that interest.” RCFC 24(a) (2019). Permissive intervention is 

proper when the person or entity seeking intervention “has a claim or defense 

that shares with the main action a common question of law or fact.” Id. § 

(b)(1)(B). Plainly the law firm does not share a claim or defense with the 

plaintiffs or the government that has a common question of law or fact. It 

neither owns any property alleged to have been taken nor has participated in 

the taking of it.

The law firm thus must show that it has “an interest relating to the 

property or transaction that is the subject of the action” and that the 

disposition of the matter without its input may prevent it from protecting that 

interest. RCFC 24(a). The firm cites several DC cases for the proposition 

that a contingency fee arrangement creates a property interest for the attorney

in a monetary judgment. See, e.g., Cont’l Cas. Co. v. Kelly, 106 F.2d 841, 

843-44 (D.C. Cir. 1939); Kellog v. Winchell, 273 F. 745, 747-48 (D.C. Cir. 

1921). Because Ms. Brinton owes it no duty of loyalty or care, the firm 

believes this property interest may be compromised to its detriment by her 

clients. 

We find that Arent Fox has established a property interest resulting 

from its fee arrangement with its former clients. The law is clear enough on 

that point. We note, however, that none of the cases on which it relies have 

then applied RCFC 24 and come to the conclusion that counsel may intervene 

to protect that interest in the Court of Federal Claims. We need not reach 
4

that question, however, because we believe it is unnecessary for Arent Fox 

to intervene in this action because its interests are adequately protected.

Mr. Hearne owes a duty of loyalty and care to Arent Fox as a former 

partner in the law firm, organized as a partnership under DC law, to ensure 

that the firm be able to collect fees for work performed while Mr. Hearne 

was still a partner there, which we note is presumably the bulk of the hours 

expended (prior to the court’s liability determination). D.C. Code §§ 29-

604.7(b), 606.3(b)(3). Ms. Brinton, although owing no duty of loyalty under 

partnership law, represents the interests of her clients in not breaching their 

agreement to pay Arent Fox for the work it performed. Any compromise that 

would seriously impair the firm’s ability to be adequately reimbursed for its 

work would likely open the plaintiffs to liability for breach of contract or 

liability to reimburse the firm in quantum meruit. We have no doubt, as 

buttressed by Ms. Brinton’s representations at oral argument, that she will 

zealously and with care represent her clients so as to avoid that possibility.3 

We thus conclude that the “existing parties adequately represent 

[Arent Fox’s] interest” in getting paid for its work on the case. RCFC 

(a)(2). Accordingly, the motion to intervene (ECF No. 89) is denied. The 

parties are directed to file a joint status report regarding their efforts to settle 

this matter on or before May 1, 2020. 

s/ Eric G. Bruggink

ERIC G. BRUIGGINK

Senior Judge 

3 And we note, although she thought it unnecessary, Ms. Brinton and her 

clients did not oppose intervention by Arent Fox, which indicates to the court 

that they have no interest in settling to the detriment of her former employer.