FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RYAN RODRIGUEZ, on behalf of 

himself and all others similarly

situated; REENA B. FRAILICH, on

behalf of herself and all others

similarly situated; JENNIFER

BRAZEAL; LISA GINTZ; LOREDANA

NESCI; LORRAINE RIMSON; KARI No. 10-55309

BREWER,

D.C. No. Plaintiffs-Appellees, 

2:05-cv-03222-

v. R-Mc

SANDRA DISNER, Executor of the

Estate of Eliot G. Disner, as

successor-in-interest to Eliot G.

Disner and Disner Law

Corporation, Class Counsel,

Appellant. 

9063
RYAN RODRIGUEZ, on behalf of 

himself and all others similarly

situated; REENA B. FRAILICH, on

behalf of herself and all others

No. 10-55342 similarly situated; JENNIFER

No. 10-56730 BRAZEAL; LISA GINTZ; LOREDANA

NESCI; LORRAINE RIMSON; KARI  D.C. No.

BREWER, 2:05-cv-03222-

Plaintiffs-Appellees, R-Mc

v.

MCGUIREWOODS LLP,

Appellant. 

RYAN RODRIGUEZ, on behalf of 

himself and all others similarly

situated; REENA B. FRAILICH, on

behalf of herself and all others

similarly situated; JENNIFER

BRAZEAL; LISA GINTZ; LOREDANA

NESCI; LORRAINE RIMSON; KARI No. 10-56700

BREWER,

D.C. No. Plaintiffs-Appellees, 

2:05-cv-03222-

v. R-Mc

DAVID FELDMAN; CAMERON

GHARABIKLOU; EMILY GRANT; JEFF

LANG; SARAH MCDONALD; CARA

PATTON; RACHEL SCHWARTZ; GREG

THOMAS,

Objectors-Appellants. 

9064 RODRIGUEZ v. DISNER
RYAN RODRIGUEZ, on behalf of 

himself and all others similarly

situated; REENA B. FRAILICH, on

behalf of herself and all others

similarly situated; JENNIFER

BRAZEAL; LISA GINTZ; LOREDANA

N No. 10-56703 ESCI; LORRAINE RIMSON; KARI

BREWER, D.C. No.  Plaintiffs-Appellees, 2:05-cv-03222-

R-Mc v.

JAMES JURANEK, Unnamed Class

Member; AUDREY JURANEK,

Unnamed Class Member; RICHARD

P. LE BLANC, III,

Objectors-Appellants. 

RYAN RODRIGUEZ, on behalf of 

himself and all others similarly

situated; REENA B. FRAILICH, on

behalf of herself and all others

similarly situated; JENNIFER

BRAZEAL; LISA GINTZ; LOREDANA

NESCI; LORRAINE RIMSON; KARI No. 10-56724

BREWER,

D.C. No. Plaintiffs-Appellees, 

2:05-cv-03222-

v. R-Mc

GEORGE SCHNEIDER, Class Member;

JONATHAN M. SLOMBA, Class

Member; JAMES PUNTUMAPANITCH,

Class Member; JUSTIN HEAD; RYAN

HELFRICH,

Objectors-Appellants. 

RODRIGUEZ v. DISNER 9065
RYAN RODRIGUEZ, on behalf of 

himself and all others similarly

situated; REENA B. FRAILICH, on

behalf of herself and all others

similarly situated; JENNIFER

No. 10-56737 BRAZEAL; LISA GINTZ; LOREDANA

NESCI; LORRAINE RIMSON; KARI D.C. No.  BREWER, 2:05-cv-03222-

Plaintiffs-Appellees, R-Mc

v.

AARON LUKOFF; JOHN PRENDERGAST;

DAVID ORANGE,

Objectors-Appellants. 

RYAN RODRIGUEZ, on behalf of 

himself and all others similarly

situated; REENA B. FRAILICH, on

behalf of herself and all others

similarly situated; JENNIFER

BRAZEAL; LISA GINTZ; LOREDANA

NESCI; LORRAINE RIMSON; KARI No. 10-56803

BREWER,

D.C. No. Plaintiffs-Appellees, 

2:05-cv-03222-

v. R-Mc

DAVID ORIOL, Unamed

Classmembers; JASON TINGLE;

JENNIFER BROWN MCELROY; DANIEL

M. SCHAFER; SARAH SIEGEL; EVANS

& MULLINIX, P.A.,

Objectors-Appellants. 

9066 RODRIGUEZ v. DISNER
RYAN RODRIGUEZ, on behalf of 

himself and all others similarly

situated; REENA B. FRAILICH, on

behalf of herself and all others

similarly situated; JENNIFER No. 10-57037

BRAZEAL; LISA GINTZ; LOREDANA D.C. No.

NESCI; LORRAINE RIMSON; KARI  2:05-cv-03222-

BREWER, R-Mc

Plaintiffs-Appellees,

OPINION

v.

ROBERT GAUDET, JR.; SANDEEP

GOPALAN,

Objectors-Appellants. 

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted

March 5, 2012*—Pasadena, California

Filed August 10, 2012

Before: Jerome Farris, Richard R. Clifton, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

*The panel unanimously concludes that Appeal Nos. 10-56700, 10-

56703, 10-56737, 10-56803, and 10-57037 are suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

RODRIGUEZ v. DISNER 9067
COUNSEL

Margaret A. Grignon, Reed Smith LLP, Los Angeles, California, for appellant Sandra Disner (Appeal No. 10-55309).

9070 RODRIGUEZ v. DISNER
Terry W. Bird and Thomas R. Freeman (argued), Bird,

Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg,

P.C., Los Angeles, California, and Sidney Kanazawa,

McGuireWoods LLP, Los Angeles, California, for appellant

McGuireWoods LLP (Appeal Nos. 10-55342, 10-56770).

John W. Davis, Law Office of John W. Davis, San Diego,

California, and Steven F. Helfand, Helfand Law Offices, San

Francisco, California, for objectors-appellants David Feldman, Cameron Gharabiklou, Emily Grant, Jeff Lang, Sarah

McDonald, Cara Patton, Rachel Schwartz, and Greg Thomas

(Appeal No. 10-56700).

Charles A. Sturm, Steele Sturm PLLC, Houston, Texas, for

objectors-appellants James Juranek, Audrey Juranek, and

Richard P. Le Blanc (Appeal No. 10-56703). 

J. Garrett Kendrick and C. Benjamin Nutley (argued), Kendrick & Nutley, Pasadena, California, and John Pentz, Maynard,

Massachusetts, for objectors-appellants George Schneider,

Jonathan M. Slomba, James Puntumapanitch, Justin Head,

and Ryan Helfrich (Appeal No. 10-56724).

Joshua R. Furman (argued), Joshua R. Furman Law Corp.,

Beverly Hills, California, and John M. Zimmerman, Law

Offices of John M. Zimmerman, Seattle, Washington, for

objectors-appellants Aaron Lukoff, John Prendergast, and

David Orange (Appeal No. 10-56737).

J. Darrell Plamer, Law Offices of Darrell Plamer PC, Solana

Beach, California, for objectors-appellants Evans & Mullinix,

P.A., David Oriol, Sarah Siegel, Jennifer Brown McElroy,

Daniel Schafer, and Jason Tingle (Appeal No. 10-56803).

Robert J. Gaudet, Jr., The Hague, The Netherlands, and

Sandeep Gopalan, Maynooth, Ireland, appearing pro se

(Appeal No. 10-57037).

RODRIGUEZ v. DISNER 9071
OPINION

IKUTA, Circuit Judge:

These thirteen consolidated appeals brought by class counsel1

and six groups of objectors (collectively, “Objectors”)2 challenge the district court’s decisions regarding attorney fee

awards after the settlement of an antitrust class action against

West Publishing Corp. and Kaplan, Inc. In this opinion, we

address nine separate appeals, which challenge the propriety

of the district court’s decision to deny attorneys’ fees to class

counsel McGuireWoods on account of a conflict of interest

and to deny fees to objectors for their efforts in securing that

decision.3 Because the district court’s decisions were not

legally erroneous, and in light of the deference we give to

such determinations, we affirm the respective fee orders with

the exception of the order denying fees to the Schneider

Objectors, which we vacate and remand for further proceedings consistent with this decision.

1McGuireWoods LLP and Zwerling Schachter & Zwerling LLP. Sandra

Disner, as successor in interest to Eliot Disner, a former partner of

McGuireWoods, joins in and adopts class counsel McGuireWoods’s briefing. 

2David Feldman, Cameron Gharabiklou, Emily Grant, Jeff Lang, Sarah

McDonald, Cara Patton, Rachel Schwartz, and Greg Thomas (collectively,

the “Feldman Objectors”); James Juranek, Audrey Juranek, and Richard

P. Le Blanc (collectively, the “Juranek Objectors”); George Schneider,

Jonathan M. Slomba, James Puntumapanitch, Justin Head, and Ryan Helfrich (collectively, the “Schneider Objectors”); Aaron Lukoff, John Prendergast, and David Orange (collectively, the “Lukoff Objectors”); Evans

& Mullinix, P.A., David Oriol, Sarah Siegel, Jennifer Brown McElroy,

Daniel Schafer, and Jason Tingle (collectively, the “Oriol Objectors”); and

Robert J. Gaudet Jr. and Sandeep Gopalan. We have considered all arguments raised by the objectors, and any argument not specifically mentioned here is rejected. 

3We address the remaining four appeals in concurrently filed memorandum dispositions. 

9072 RODRIGUEZ v. DISNER
I

This case is before us for the second time. See Rodriguez

v. W. Publ’g Corp. (Rodriguez I), 563 F.3d 948 (9th Cir.

2009). Because the facts are laid out at length in that opinion,

we describe them only briefly. 

A

At the onset of litigation, the law firm of Van Etten Suzumoto & Becket LLP (which later merged with McGuireWoods LLC) entered into “incentive agreements” with five

plaintiffs, Ryan Rodriguez, Reena Frailich, Loredana Nesci,

Jennifer Brazeal, and Lisa Gintz, in connection with a potential antitrust class action against West Publishing. Id. at 957.

In these agreements, each of these clients authorized Van

Etten to apply to the court for a fee award based on recovery

against West Publishing, and Van Etten agreed to seek incentive compensation for each client in an amount equal to

between $10,000 and $75,000, depending on the value of the

settlement or verdict. Id. Specifically, the incentive agreements provided that, if the settlement amount was greater than

or equal to $500,000, class counsel would seek a $10,000

award for each client who signed an agreement; if the settlement amount were $1.5 million or more, counsel would seek

a $25,000 award; if it were $5 million or more, counsel would

seek $50,000; and if it were $10 million or more, counsel

would seek $75,000. Id. 

Plaintiffs brought federal antitrust claims against BAR/BRI

(a subsidiary of West Publishing at that time) and Kaplan, for

their activities in the market for bar preparation courses. Id.

at 955. The operative complaint alleged that West Publishing

illegally acquired the assets of its direct competitor West Bar

Review in violation of Section 7 of the Clayton Act, unlawfully conspired with Kaplan to prevent competition in the

market for full-service bar review courses in violation of Section 1 of the Sherman Act, and wrongfully monopolized the

RODRIGUEZ v. DISNER 9073
full-service bar review course market in violation of Section

2 of the Sherman Act. Id. at 955-56. 

The district court certified a nationwide class comprised of

all persons who purchased a bar review course from

BAR/BRI between August 1, 1997 and July 31, 2006. Id. at

956. Plaintiffs Rodriguez, Frailich, Nesci, Brazeal, and Gintz,

who had signed incentive agreements, were designated as

class representatives, and McGuireWoods was appointed

class counsel. Id. at 955. Two other class representatives, Kari

Brewer and Lorraine Rimson, did not enter into incentive

agreements, and were separately represented by the law firms

Zwerling Schachter and Finkelstein Thompson LLP. Id. at

957-58.

The parties settled shortly before trial. Under the settlement

agreement, West Publishing and Kaplan agreed to pay $49

million into a settlement fund that would be allocated pro rata

to class members, with 25 percent of the fund set aside for

attorneys’ fees. Id. at 956-57. Before the final fairness hearing, class counsel filed motions seeking $325,000 in incentive

awards for the class representatives and seeking fees for their

representation of the class. Id. at 957, 963. 

Multiple nonnamed members of the class challenged the

fairness, reasonableness, and adequacy of the settlement pursuant to Rule 23(e) of the Federal Rules of Civil Procedure,

and objected to the applications for $325,000 in incentive

awards for the class representatives and to class counsel’s fee

request. These class members, organized into groups of objectors, were also represented by counsel. Id. at 957-58. The

Schneider Objectors argued that the court should reduce

McGuireWoods’s fee award because the incentive agreements

created a conflict of interest between class counsel and the

five representatives who had entered into the agreements, on

9074 RODRIGUEZ v. DISNER
the one hand, and the remaining members of the class, on the

other.4

On September 10, 2007, the district court approved the parties’ settlement agreement, holding that the settlement was

fair, adequate, and reasonable despite the conflict of interest

between class representatives and class members. Id. at 958.

The court awarded McGuireWoods over $7 million (subject

to further increases for post-settlement work), the full amount

of the requested fees. In a separate order, the district court

declined to approve incentive awards totaling $325,000 to the

class representatives, finding that the incentive agreements

created an appearance of impropriety, violated the ethics rule

against fee-sharing with non-lawyers, and created conflicts of

interest between the class representatives and unnamed class

members. Id. at 959. The court also denied fees to the objectors’ counsel because they “did not add anything to the court’s

order denying” the motion for incentive awards. Id. at 958.

Several groups of objectors appealed.

B

The respective appeals came before this court in Rodriguez

I. There, we affirmed the class action settlement as fair and

adequate, but reversed and remanded the district court’s

orders granting class counsel attorneys’ fees and denying fees

to objectors’ counsel. Id. at 968-69. The incentive agreements

between McGuireWoods and five class representatives played

a central role in our decision.

We first considered the incentive agreements in the context

of determining whether the settlement agreement “should

4The Feldman Objectors argued that the incentive awards requested on

behalf of the class representatives should be denied, but did not argue that

the incentive agreements affected class counsel’s entitlement to fees. None

of the other objectors challenged the incentive agreements during the settlement hearings or before this court in Rodriguez I. 

RODRIGUEZ v. DISNER 9075
have been rejected because the incentive agreements prevented the class representatives from providing adequate representation,” id. at 958, as required to certify a class. See Fed.

R. Civ. P. 23(a)(4) (“One or more members of a class may sue

or be sued as representative parties on behalf of all members

only if: . . . the representative parties will fairly and adequately protect the interests of the class.”). We expressed disapproval of these incentive agreements, and stated that they

“created an unacceptable disconnect between the interests of

the contracting representatives and class counsel, on the one

hand, and members of the class on the other.” Rodriguez I,

563 F.3d at 960. We noted that class counsel’s agreement to

request incentive awards based on the amount of recovery

“put class counsel and the contracting class representatives

into a conflict position from day one,” and that the effect of

the incentive agreements “was to make the contracting class

representatives’ interests actually different from the class’s

interests in settling a case instead of trying it to verdict, seeking injunctive relief, and insisting on compensation greater

than $10 million.” Id. at 959. 

Notwithstanding these serious concerns, we affirmed the

district court’s approval of the class action settlement. We

held that even though “the ex ante incentive agreements created conflicts among the five contracting class representatives, their counsel [McGuireWoods], and the rest of the

class,” the adequacy of representation was not a basis to reject

the settlement because “there were two other class representatives who had no incentive agreements and whose separate

counsel [Zwerling Schachter and Finkelstein Thompson] were

not conflicted.” Id. at 955. 

We next considered the incentive agreements in the context

of evaluating objectors’ challenge to the award of attorneys’

fees to class counsel. We expressed concern that “the district

court nowhere appears to have considered the effect on the

award of attorney’s fees of the conflict of interest that resulted

from the incentive agreements.” Id. at 967. We explained that

9076 RODRIGUEZ v. DISNER
“ ‘[s]imultaneous representation of clients with conflicting

interests (and without written informed consent) is an automatic ethics violation in California and grounds for disqualification,’ ” and that “ ‘[a]n attorney cannot recover fees for

such conflicting representation.’ ” Id. at 967-68 (quoting

Image Technical Serv., Inc. v. Eastman Kodak Co., 136 F.3d

1354, 1358 (9th Cir. 1998)). Although we did not express an

opinion “on the impact of these principles on the fees request

in this case,” we stated that it was “appropriate for the district

court to consider whether counsel could represent both the

class representatives with whom there was an incentive agreement, and absentee class members, without affecting the entitlement to fees.” Id. at 968. Accordingly, we reversed the

award of attorneys’ fees to McGuireWoods and remanded for

the district court “to consider in the first instance the effect,

if any, of the conflict arising out of the incentive agreements

on the request by class counsel for an attorney’s fee award.”

Id.

Finally, we considered certain objectors’ argument that the

district court improperly denied them fees attributable to their

successful challenge to the $325,000 in incentive awards to

class representatives. We held that the district court’s rejection of objectors’ fee requests on the ground that the objectors

“did not add anything” to the court’s decision to deny incentive awards was “clearly erroneous,” because the district court

did not consider the impropriety of the incentive agreements

until the objectors raised this argument; only then did the district court reject the incentive awards. Id. at 963. “The net

effect was to leave $325,000 in the settlement fund—for distribution to the class as a whole—that otherwise would have

gone to the class representatives.” Id. Accordingly, we

remanded for the district court “to reconsider the extent to

which Objectors added value that increased the fund or substantially benefitted the class members, and to award attorney’s fees accordingly.” Id.

RODRIGUEZ v. DISNER 9077
C

On remand, the district court first considered the objectors’

challenge to the award of attorneys’ fees to class counsel

McGuireWoods.5 Relying on our decision in Rodriguez I and

Image Technical (which Rodriguez I had cited with approval),

the court concluded that the incentive agreements gave rise to

a conflict of interest between the class representatives and the

other members of the class that “tainted McGuireWoods’s

representation,” and that, under California law, such a conflict

“constitutes an automatic ethics violation that results in the

forfeiture of attorneys’ fees.” Accordingly, the district court

held that McGuireWoods was not entitled to any attorneys’

fees for its representation of the class. 

In response to McGuireWoods’s motion to reconsider, the

district court reaffirmed its ruling, stating that the “conflict of

interest constituted an egregious breach of McGuireWoods’

ethical duties, and thus further justif[ied] the forfeiture of

McGuireWoods’ fees for the period this conflict was in

effect.” The district court awarded McGuireWoods the costs

and expenses it incurred in bringing the action, and a quantum

meruit award of $500,000 for services provided after the

court’s rejection of the incentive awards, at which point the

conflict of interest had come to an end. McGuireWoods

timely appealed. 

Following this decision denying fees to McGuireWoods,

several objectors’ counsel filed additional fee applications.

The objectors reasoned that the elimination of fees to

McGuireWoods meant class members would receive more

from the settlement fund, and thus the objectors’ efforts benefited the class. The district court denied all objectors’ fee

5The district court also ruled on certain objectors’ motions for attorneys’

fees for their efforts in challenging the class representatives’ requests for

$325,000 in incentive awards. We address the appeals from this ruling in

a concurrently filed memorandum disposition. 

9078 RODRIGUEZ v. DISNER
requests, reasoning that it had relied on its own analysis of the

applicable case law in reaching its determination that

McGuireWoods was not entitled to fees due to the conflict of

interest, and that “the work performed by the objectors’ counsel conferred no benefit on the class” and “was merely cumulative.” Six groups of objectors timely appealed.

II

We review a district court’s decision to grant or deny attorneys’ fees for abuse of discretion, Class Plaintiffs v. Jaffe &

Schlesinger, P.A., 19 F.3d 1306, 1308 (9th Cir. 1994), and

must affirm unless the district court applied the wrong legal

standard or its findings of fact were illogical, implausible, or

without support in the record, see United States v. Hinkson,

585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). We generally

give broad deference to the district court’s determinations on

fee awards because of its “superior understanding of the litigation and the desirability of avoiding frequent appellate

review of what essentially are factual matters.” Hensley v.

Eckerhart, 461 U.S. 424, 437 (1983).

III

We turn first to McGuireWoods’s challenge to the denial of

its fees on account of an ethical violation.

A

[1] In class action litigation, a district court “may award

reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement.” Fed. R. Civ. P.

23(h). If there is no contractual or statutory basis to award

attorneys’ fees in a class action case, a court may rely on the

“common fund doctrine,” a traditional equitable doctrine

“rooted in concepts of quasi-contract and restitution.” Vincent

v. Hughes Air West, Inc., 557 F.2d 759, 770 (9th Cir. 1977).

Federal courts award attorneys’ fees under the common fund

RODRIGUEZ v. DISNER 9079
doctrine as a matter of federal common law, based on “the

historic equity jurisdiction of the federal courts.” Sprague v.

Ticonic Nat’l Bank, 307 U.S. 161, 164 (1939).6 Under the

common fund doctrine, “a litigant or a lawyer who recovers

a common fund for the benefit of persons other than himself

or his client is entitled to a reasonable attorney’s fee from the

fund as a whole.” Boeing Co. v. Van Gemert, 444 U.S. 472,

478 (1980). The guiding principle is that attorneys’ fees “be

reasonable under the circumstances.” Florida v. Dunne, 915

F.2d 542, 545 (9th Cir. 1990). 

[2] In determining what fees are reasonable, a district court

may consider a lawyer’s misconduct, which affects the value

of the lawyer’s services. See, e.g., Image Technical, 136 F.3d

at 1358. A court has broad equitable power to deny attorneys’

fees (or to require an attorney to disgorge fees already

received) when an attorney represents clients with conflicting

interests. See, e.g., Silbiger v. Prudence Bonds Corp., 180

F.2d 917, 920 (2d Cir. 1950) (“Certainly by the beginning of

the Seventeenth Century it had become a common-place that

an attorney must not represent opposed interests; and the

usual consequence has been that he is debarred from receiving

any fee from either [client], no matter how successful his

labors.”). 

[3] For example, we have held that a law firm’s representation of antitrust plaintiffs against a defendant whom the law

firm represented in an unrelated matter constituted a “clear

violation of the applicable ethical rules,” Image Technical,

6Therefore, we disagree with McGuireWoods’s assumption that the district court’s decision regarding the award of attorneys’ fees is controlled

by California law. Because the litigation in this case alleged violation of

federal antitrust law, the award of attorneys’ fees is governed by federal

equitable doctrines, and state decisions are merely persuasive authority. If,

on the other hand, we were exercising our diversity jurisdiction, state law

would control whether an attorney is entitled to fees and the method of

calculating such fees. See Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d

1470, 1478-79 (9th Cir. 1995). 

9080 RODRIGUEZ v. DISNER
136 F.3d at 1359, and that “an attorney cannot recover fees

for such conflicting representation . . . . even where, as here,

the matters in which the firm represents the clients with conflicting interests are unrelated,” id. at 1358. We reasoned that

“payment is not due for services not properly performed,” id.

(quoting Cal Pak Delivery, Inc. v. United Parcel Serv., 60

Cal. Rptr. 2d 207, 215 n.2 (1997)), and that it “compounds

injustice” to allow the attorney to recover fees from the very

party injured by the ethical violation, id. at 1359. Similarly, in

United States ex rel. Virani v. Jerry M. Lewis Truck Parts &

Equip., Inc., 89 F.3d 574 (9th Cir. 1996), a qui tam action

under the False Claims Act, we noted that a reasonable fee for

an attorney who represents clients with conflicting interests is

“zero” at least “when the violation is one that pervades the

whole relationship.” Id. at 579.

Our sister circuits are in accord. See Petrovic v. Amoco Oil

Co., 200 F.3d 1140, 1156 (8th Cir. 1999) (affirming the district court’s decision to deny attorneys’ fees and costs to a

firm that had been disqualified for a conflict of interest, reasoning that the district court “could properly deny the firm

any recovery for services rendered prior to the disqualification, even if those services conferred some benefit on the

class”); see also So v. Suchanek, 670 F.3d 1304, 1310-11

(D.C. Cir. 2012) (holding that the district court has broad

equitable power to require counsel who represented clients

with conflicting interests to disgorge fees); In re E. Sugar

Antitrust Litig., 697 F.2d 524, 533 (3d Cir. 1982) (upholding

the disgorgement of attorneys’ fees where “breach of professional ethics is so egregious that the need for attorney discipline and deterrence of future improprieties of that type

outweighs” the concerns of providing “the client with a windfall” and depriving the “attorney of fees earned while acting

ethically”).

[4] Although the application of the common fund doctrine

is a matter of federal courts’ equitable powers, see Van

Gemert, 444 U.S. at 478; Wininger v. SI Mgmt. L.P., 301 F.3d

RODRIGUEZ v. DISNER 9081
1115, 1120-21 (9th Cir. 2002), we have frequently looked to

state law for guidance in determining when an ethical violation affects an attorney’s entitlement to fees, see Rodriguez I,

563 F.3d at 967-68 (citing California cases for the proposition

that an attorney cannot recover fees for services provided

after a conflict of interest arose); Image Technical, 136 F.3d

at 1358 (same). California courts have affirmed a trial court’s

decision to deny fees to attorneys laboring under an actual

conflict of interest, such as where an attorney represented two

entities with adverse interests entering a business deal without

informed consent, Fair v. Bakhtiari, 125 Cal. Rptr. 3d 765,

792 (Ct. App. 2011), a law firm represented both wife and

husband in marital dissolution proceedings, Jeffry v. Pounds,

136 Cal. Rptr. 373, 377 (Ct. App. 1977), and an attorney

undertook to represent a client in a proxy fight with a corporation for which the attorney had been general counsel, Goldstein v. Lees, 120 Cal. Rptr. 253, 254-55 (Ct. App. 1975). By

contrast, where the ethical violation is less severe, for example where the attorney represented clients with only a potential conflict of interest, California courts have affirmed

decisions to award attorneys some fees depending on the

equities. See Pringle v. La Chapelle, 87 Cal. Rptr. 2d 90, 94

(1999). In Pringle, the state court held that a trial court may

consider “ ‘the gravity and timing of the violation, its willfulness, its effect on the value of the lawyer’s work for the client,

any other threatened or actual harm to the client, and the adequacy of other remedies’ ” in determining whether and to

what extent fee forfeiture is appropriate. Id. at 94 n.5 (quoting

Restatement (Third) of Law Governing Lawyers § 49 (Tentative Draft No. 1, 1996)). The egregiousness of the violation

is often the critical factor. See Mardirossian & Assocs., Inc.

v. Ersoff, 62 Cal. Rptr. 3d 665, 682 (Ct. App. 2007); see also

Paul W. Vapnek et al., California Practice Guide: Professional Responsibility, ch. 4 ¶ 4:238; ch. 5 ¶¶ 5:1026, 5:1026.3

(2011). We are not aware, however, of any California case

that has overturned a trial court’s decision to deny attorneys’

fees to an attorney engaged in dual representation of clients

9082 RODRIGUEZ v. DISNER
with actual conflicts of interest, rather than a potential one as

in Pringle. 

We apply these equitable principles even more assiduously

in common fund class action cases, such as this one, because

“the district court has a special duty to protect the interests of

the class,” Staton v. Boeing Co., 327 F.3d 938, 970 (9th Cir

2003), and must “act with a jealous regard to the rights of

those who are interested in the fund in determining what a

proper fee award is,” In re Wash. Pub. Power Supply Sys. Sec.

Litig. (WPPSS), 19 F.3d 1291, 1302 (9th Cir. 1994) (internal

quotation marks omitted); see also In re Mercury Interactive

Corp. Sec. Litig., 618 F.3d 988, 994 (9th Cir. 2010). In serving this “fiduciary role for the class,” the district court must

consider whether class counsel has properly discharged its

duty of loyalty to absent class members. Rodriguez I, 563

F.3d at 968. As we noted in Rodriguez I, “ ‘[t]he responsibility of class counsel to absent class members whose control

over their attorneys is limited does not permit even the

appearance of divided loyalties of counsel.’ ” Id. (quoting

Kayes v. Pac. Lumber Co., 51 F.3d 1449, 1465 (9th Cir.

1995)). This general principle has exceptions; we have

acknowledged that “conflicts of interest among class members are not uncommon and arise for many different reasons,”

id., and a court may tolerate certain technical conflicts in

order to permit attorneys who are familiar with the litigation

to continue to represent the class, see, e.g., In re Agent

Orange Prod. Liab. Litig., 800 F.2d 14, 18-19 (2d Cir. 1986).

But a court may appropriately determine that a conflict of

interest affects class counsel’s entitlement to fees where the

conflict was not one “that developed beyond the control or

perception of class counsel,” and where the conflict was never

disclosed to the district court “so that it could take steps to

protect the interests of absentee class members.” Rodriguez I,

563 F.3d at 958; cf. In Re Agent Orange, 800 F.2d at 18

(observing that “ ‘when a potential conflict arises between the

named plaintiffs and the rest of the class, . . . . the attorney’s

duty to the class requires him to point out conflicts to the

RODRIGUEZ v. DISNER 9083
court so that the court may take appropriate steps to protect

the interests of absentee class members’ ” (quoting Pettway v.

Am. Cast Iron Pipe Co., 576 F.2d 1157, 1176 (5th Cir. 1978)).

[5] In sum, under long-standing equitable principles, a district court has broad discretion to deny fees to an attorney

who commits an ethical violation. In making such a ruling,

the district court may consider the extent of the misconduct,

including its gravity, timing, willfulness, and effect on the

various services performed by the lawyer, and other threatened or actual harm to the client. See Restatement (Third) of

Law Governing Lawyers § 37 (2000). The representation of

clients with conflicting interests and without informed consent is a particularly egregious ethical violation that may be

a proper basis for complete denial of fees. See Image Technical, 136 F.3d at 1358-59; see also Petrovic, 200 F.3d at 1156.

A district court has a special obligation to consider these equitable principles at the fee-setting stage in common fund class

action cases, given the district court’s fiduciary role to protect

absent class members. Rodriguez I, 563 F.3d at 968.

B

Applying these principles here, we first confirm the district

court’s conclusion that McGuireWoods committed an ethical

violation. Indeed, McGuireWoods does not dispute that its

representation of conflicting interests constituted an ethical

violation. Nor could it. 

[6] Under the district court’s local rules, California law

governs a district court’s determination whether an ethical

violation has occurred.7 Rule 3-310(C) of the California Rules

7Central District Local Rule 83-3.1.2 provides that: 

“the standards of professional conduct required of members of

the State Bar of California and contained in the State Bar Act, the

Rules of Professional Conduct of the State Bar of California, and

9084 RODRIGUEZ v. DISNER
of Professional Conduct generally prohibits the representation

of clients with actual or potential conflicts of interest absent

an express waiver.8 The interests of clients “actually conflict”

for purposes of Rule 3-310 “whenever a lawyer’s representation of one of two clients is rendered less effective because of

his representation of the other.” Gilbert v. Nat’l Corp. for

Housing P’ships, 84 Cal. Rptr. 2d 204, 212 (Ct. App. 1999).

“The primary value at stake in cases of simultaneous or dual

representation is the attorney’s duty—and the client’s legitimate expectation—of loyalty.” Flatt v. Super. Ct., 885 P.2d

950, 955 (Cal. 1994). A potential conflict exists whenever a

lawyer’s representation of one client might, in the future,

become less effective by reason of his representation of the

other. See id. at 954. 

[7] In Rodriguez I we indicated that the incentive agreements created an actual conflict of interest between the named

members and class counsel, on the one hand, and the other

members of the class, on the other. We explained that the

the decisions of any court applicable thereto . . . . are hereby

adopted as the standards of professional conduct, and any breach

or violation thereof may be the basis for the imposition of discipline. The Model Rules of Professional Conduct of the American

Bar Association may be considered as guidance.” 

However, the decision whether to sanction or impose other discipline is a

question of federal law. See, e.g., C.D. Cal. R. 83-3.1.3. 

8Rule 3-310(C) of the California Rules of Professional Conduct states:

A member shall not, without the informed written consent of

each client: 

(1) Accept representation of more than one client in a matter in

which the interests of the clients potentially conflict; or 

(2) Accept or continue representation of more than one client in

a matter in which the interests of the clients actually conflict; or

(3) Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in

the first matter is adverse to the client in the first matter. 

RODRIGUEZ v. DISNER 9085
incentive agreements “put class counsel and the contracting

class representatives into a conflict position from day one”

because “[b]y tying their compensation—in advance—to a

sliding scale based on the amount recovered, the incentive

agreements disjoined the contingency financial interests of the

contracting representatives from the class.” Rodriguez I, 563

F.3d at 959. This meant that “once the threshold cash settlement was met, the agreements created a disincentive to go to

trial; going to trial would put their $75,000 at risk in return

for only a marginal individual gain even if the verdict were

significantly greater than the settlement.” Id. at 959-60. We

then noted that under California law, “[s]imultaneous representation of clients with conflicting interests (and without

written informed consent) is an automatic ethics violation in

California and grounds for disqualification,” id. at 960 (quoting Image Technical, 136 F.3d at 1358), and faulted the district court for not considering “the effect on the award of

attorney’s fees of the conflict of interest that resulted from the

incentive agreements,” id. at 967. 

[8] We are bound by our decision in Rodriguez I, both as

law of the case and law of the circuit, see Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc), and

therefore conclude that the district court could reasonably

have found that, by entering into the incentive agreements

without informed consent, McGuireWoods engaged in conflicted representation, as defined in Rule 3-310. Therefore, the

district court did not err in determining that McGuireWoods

had committed an ethical violation under its local rules.

C

We next consider whether the district court abused its discretion in concluding that McGuireWoods was not entitled to

any fees as a result of this ethical violation. McGuireWoods

argues that the district court erred in concluding that a conflict

of interest resulted in an automatic forfeiture of legal fees.

Relying on Pringle, McGuireWoods asserts that a court may

9086 RODRIGUEZ v. DISNER
not deny counsel fees where the client suffered no injury as

a result of an ethical violation, unless counsel engaged in

egregious conduct by knowingly or willfully violating an ethical rule. Pringle, 87 Cal. Rptr. 2d at 94. Under the Pringle

standard, McGuireWoods argues, it was improper for the district court to deny all fees, because the class suffered no hardship as a result of the conflict of interest and the record

provided no basis for holding that McGuireWoods had knowingly or willfully disregarded established ethical rules. 

We disagree with McGuireWoods’s analysis. As explained

above, although a federal court may consider California cases

as persuasive authority, the district court’s award of attorneys’

fees in this case is guided by “the historic equity jurisdiction

of the federal courts,” Sprague, 307 U.S. at 164, and the district court was not bound by Pringle or other state law. In

light of federal equitable principles, we cannot say the district

court abused its discretion in denying McGuireWoods all

fees. 

[9] First, the district court here could reasonably determine

that by entering into the incentive agreements that created a

conflict of interest “from day one,” Rodriguez I, 563 F.3d at

959, McGuireWoods did not properly discharge its duty of

loyalty to absent class members. As Rodriguez I explained,

this was not a case where the conflict of interest developed

during the course of litigation, or that developed “beyond the

control or perception of class counsel”; rather, it was a conflict that “was inserted into the retainer agreement.” Id. at

968. A knowing and willful creation of a conflict of interest

is egregious conduct even under the standard for fee forfeiture

under the test enunciated in Pringle, which McGuireWoods

urges us to adopt. 87 Cal. Rptr. 2d at 94 (explaining that the

denial of attorneys’ fees may be appropriate where “the purported violation of the rules was serious, if any act was inconsistent with the character of the profession, or if there was an

irreconcilable conflict”). Moreover, McGuireWoods took no

steps “to disclose their agreement to the court, and to the

RODRIGUEZ v. DISNER 9087
class,” in violation of its “fiduciary duties to the class and

duty of candor to the court.” Rodriguez I, 563 F.3d at 959.

Accordingly, the district court could reasonably conclude that

because McGuireWoods knowingly and willfully represented

conflicting interests, its services were “not properly performed,” Image Technical, 136 F.3d at 1358, and therefore it

was not entitled to fees. 

[10] McGuireWoods argues that fee forfeiture was

improper here because the incentive agreements did not lead

to an actual injury to the class: the class representatives did

not settle for just $10 million (which would have given the

class representatives the maximum amount of incentive

award), but achieved a $49 million settlement. The district

court could have considered this factor, among others, in

exercising its equitable discretion, and could have reasonably

concluded that McGuireWoods was entitled to some attorneys’ fees for its efforts and notable success in this case. But

our conclusion that the district court could have reasonably

taken this approach does not make its failure to do so an abuse

of discretion. A district court has the primary responsibility

for determining a reasonable fee award and must weigh any

benefits McGuireWoods conferred on the class against the

pervasive conflict of interest caused by the incentive agreements with class representatives. Given our deferential review

of the district court’s fee determinations, and in light of Image

Technical and Rodriguez I, we cannot say the district court

abused its discretion in denying all fees. We therefore affirm

the district court’s decision.9

IV

We next consider the objectors’ applications for fees based

on their contributions to the district court’s decision to award

no fees to McGuireWoods. Because we uphold the district

9Because Sarah Disner joins in and adopts all parts of McGuireWoods’s

Brief, we also dismiss her appeal. 

9088 RODRIGUEZ v. DISNER
court’s decision on forfeiture, we must consider the objectors’

challenge to the district court’s denial of their fee applications.

A

Under certain circumstances, attorneys for objectors may

be entitled to attorneys’ fees from the fund created by class

action litigation. Nonnamed members of a certified class have

the authority to object to the fairness of a settlement at the

fairness hearing required by Rule 23(e) of the Federal Rules

of Civil Procedure, as well as appeal the court’s decision to

ignore their objections. See Devlin v. Scardelletti, 536 U.S. 1,

8-9, 14 (2002). 

[11] If these objections result in an increase to the common

fund, the objectors may claim entitlement to fees on the same

equitable principles as class counsel. Vizcaino v. Microsoft

Corp., 290 F.3d 1043, 1051-52 (9th Cir. 2002). Conversely,

objectors who do “not increase the fund or otherwise substantially benefit the class members” are not entitled to fees, even

if they bring “about minor procedural changes in the settlement agreement.” Id. at 1051; see also Reynolds v. Beneficial

Nat’l Bank, 288 F.3d 277, 288 (7th Cir. 2002) (explaining that

“[t]he principles of restitution that authorize” the award of

fees to objectors “also require, however, that the objectors

produce an improvement in the settlement worth more than

the fee they are seeking; otherwise they have rendered no benefit to the class”). Nor is it error to deny fees to objectors

whose work is duplicative, or who merely echo each others’

arguments and confer no unique benefit to the class. See

Reynolds, 288 F.3d at 288-89; see also WPPSS, 19 F.3d at

1298.

B

[12] The district court did not abuse its discretion in denying attorneys’ fees to the Feldman, Juranek, Lukoff, Oriol, or

RODRIGUEZ v. DISNER 9089
Gaudet objectors. These objectors did not confer any material

benefit on the class though their appeals in Rodriguez I. To

the contrary, in Rodriguez I we rejected the Feldman Objectors’ challenges to the inadequacy of the class notice and class

counsel, the Juranek Objectors’ argument regarding the inadequacy of the settlement and the use of the cy pres doctrine, the

Oriol Objectors’ contention that the attorney fee award was

excessive, and Gaudet and Gopalan’s argument that the district court should have considered treble damages. See Rodriguez I, 563 F.3d at 962-68. The Lukoff Objectors did not

participate in the Rodriguez I appeal, and therefore did not

render any ascertainable benefit to the class on this basis. On

remand, the Feldman, Juranek, Lukoff, Oriol, and Gaudet

objectors filed briefs capitalizing on arguments already made

by the Schneider Objectors regarding why class counsel’s fees

should be reduced. With respect to these efforts, we agree

with the district court that, where objectors do not add any

new legal argument or expertise, and do not participate constructively in the litigation or confer a benefit on the class,

they are not entitled to an award premised on equitable principles. See Vizcaino, 290 F.3d at 1051-52. 

C

[13] Finally, we turn to the arguments of the attorneys for

the Schneider Objectors, who claim their efforts were instrumental in causing the district court to deny fees to class counsel. The record shows that the Schneider Objectors first

brought the incentive agreements to the district court’s attention. These objectors argued in Rodriguez I that the incentive

agreements implicated McGuireWoods’s entitlement to fees,

and briefed the same issue on remand to both the district court

and to us. Our decision in Rodriguez I acknowledged the serious implications of McGuireWoods’s conflict of interest, and

remanded to the district court with instructions to consider the

effect of the incentive agreements on McGuireWoods’s entitlement to fees. 563 F.3d at 969. Consistent with the Schneider Objectors’ arguments, the district court determined on

9090 RODRIGUEZ v. DISNER
remand that McGuireWoods was not entitled to fees, a decision we now affirm, resulting in direct savings to the class in

the amount McGuireWoods would have otherwise received.

The district court concluded that the Schneider Objectors

did not add anything because the district court relied on “its

own analysis of the case law laid out by the Ninth Circuit” in

Rodriguez I. Based on our review of the record, this finding

is a clear error. Although we do not doubt that the district

court made its own interpretation of our decision in Rodriguez

I and applied that interpretation to the facts before it, the district court failed to consider that our ruling in Rodriguez I was

a response to the Schneider Objectors’ arguments on appeal.

Accordingly, we remand for the district court to calculate the

appropriate amount of attorneys’ fees that should be awarded

to counsel for the Schneider Objectors in light of the benefit

they conferred on the class.10

Our determination that the district court clearly erred in

denying fees to the Schneider Objectors is consistent with our

similar ruling in Rodriguez I. In that case, we considered the

district court’s decision to deny fees to the objectors who had

first challenged the $325,000 in incentive awards to the class

representatives, a challenge which directly led to the district

court’s rejection of the $325,000 award. See Rodriguez I, 563

F.3d at 963. We held that the district court clearly erred in ruling that the objectors’ actions “did not add anything” to its

decision to deny incentive awards, given that the court had

not focused on the incentive agreements before the objectors

raised the issue. Id. The same analysis applies here.

[14] Because the district court abused its discretion by

10Relying on In re Synthroid Marketing Litigation, 325 F.3d 974, 980

(7th Cir. 2003), the Schneider Objectors ask us to calculate the appropriate

award of attorneys’ fees, rather than remanding this determination to the

district court. Because the district court is in the best position to make such

equitable determinations in the first instance, we decline to do so. 

RODRIGUEZ v. DISNER 9091
denying attorneys’ fees to the Schneider Objectors on the

ground that the court relied on “its own analysis of the case

law,” we vacate that fee order and remand for further proceedings consistent with this opinion.11

V

In awarding attorneys’ fees from the common fund generated by litigation, courts are bound by traditional principles of

equity and we must review awards to class counsel and objectors in that light. See Van Gemert, 444 U.S. at 478. We conclude that the district court did not abuse its discretion in

declining to award fees to McGuireWoods from the common

fund on the ground that its representation of conflicting interests made it undeserving of such compensation. Therefore, we

affirm the district court’s decision. We conclude the district

court abused its discretion in not awarding attorneys’ fees to

the Schneider Objectors for their work leading to the forfeiture of McGuireWoods’s fees, and therefore vacate the district court’s determination and remand for further

11We grant the Schneider Objectors’ requests for judicial notice of

briefs filed in Rodriguez I. See Corder v. Gates, 104 F.3d 247, 248 n.1

(9th Cir. 1996). 

We reject class counsel’s argument that the Schneider Objectors lack

standing to appeal the order denying their request for fees because they did

not file a claim to receive a share of the settlement proceeds. Even assuming that none of the Schneider Objectors submitted a claim, this argument

fails because an attorney who confers a benefit on the class is entitled to

fees based on equitable principles of unjust enrichment, and has standing

to challenge the denial of such fees, regardless whether the attorney’s client will receive any of the savings. See Class Plaintiffs, 19 F.3d at

1307-08 (addressing whether attorneys in related state action were entitled

to fees for services benefiting the class in federal action). While it is true

that objectors who do not participate in a settlement lack standing to challenge class counsel’s (as opposed to objectors’) fee award because, without a stake in the common fund pot, a favorable outcome would not

redress their injury, see Knisley v. Network Assocs., Inc., 312 F.3d 1123,

1128 (9th Cir. 2002), class counsel does not make this argument. 

9092 RODRIGUEZ v. DISNER
consideration in light of this decision. We affirm the district

court on its denial of fees to the other objectors.12

AFFIRMED (Nos. 10-55309, 10-55342, 10-56700, 10-

56703, 10-56730, 10-56737, 10-56803, 10-57037).

VACATED AND REMANDED (No. 10-56724).

12We reject the argument raised by the Lukoff Objectors that the district

court abused its discretion by awarding $500,000 to McGuireWoods for

work performed after July 2007, the date on which the district court

refused to honor the incentive agreements and denied the class representatives’ requests for incentive awards. The district court properly determined

that its rejection of the incentive awards cured any conflict of interest and

that McGuireWoods’s services thereafter were properly performed and

conferred a benefit on the class. See, e.g., Jeffry, 136 Cal. Rptr. at 377. 

RODRIGUEZ v. DISNER 9093