rel: 06/20/2014

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter . Readers are requested to notify the Reporter of Decisions , Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter . 

# SUPREME COURT O F ALA BAMA

OCTOBER TE RM, 2 013-2 014

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_____ _____ _____ _____ Mary Hall, pers onal repre senta tive of th e Est ate o f Ado lphus Hall, Sr., and AnayaMcKi nnon, pers onal repre senta tive of

the E state of Wanzy Lee B owman

v. Envir onmen tal L itiga tion Group , P.C . Appea l from Jef ferso n Cir cuit Court

(CV-1 3-901 014)

BRYAN , Jus tice. Mary Hall, the perso nal repre senta tive of the estat e of A d olphu s Hall, Sr., and Anaya McKin non, the perso nal repre senta tive of the estat e of Wanzy Lee Bowma n (here inaft er11303 01

colle ctive ly refer red to as "the plain tiffs "), appea l from the Jeffe rson Circu it Court 's order dismi ssing their comp l a i nt filed again st Envir onmen tal Litig ation Group , P.C., a law firm ("ELG "). For the reaso ns set forth herei n, we rever se and

reman d. Facts and Proce dural Hist ory On March 19, 2013, the plain tiffs filed a compl aint in the Jeffe rson Circu it Court again st ELG, reque sting a decla rator y judgm ent and alleg ing one count of unjus t

enr i c h m e n t and one count of breac h of contr act. The plain tiffs asser ted those claim s on behal f of the estat es they repre sente d andon b ehalf of " other s sim ilarl y sit uatedas a

c l a ss actio n pursu ant to Rule 23," Ala. R. Civ. P. T h e plain tiffs ' compl aint inclu ded the follo wing factu al alleg ation s: in the 1990s , ELG agree d to repre sent hundr eds of clien ts wh o hadbeen expo sed t o asb estos , inc ludin g Ado lphus Hall an d Bowma n; ELG enter ed into an attor ney-e mployment agree ment with each clien t; pursu ant to that agree ment, ELG agree d to "take all legal steps neces sary to enfor ce the said tort claim , " a n d in retur n ELG would recei ve 40% of amoun ts colle cted from any settl ement or judgm ent as i t s fee; the

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agree ment also permi tted ELG to reimb urse itsel f for

reaso na b l e expen ses relat ed to the clien ts' claim s; on Febru ary 23, 2012, ELG sent a memor andum to all of its "asbe stos clien ts" stati ng that, as a resul t of addit i onal work requi red to obtai n the proce eds of a settl ement that ELG had n egoti ated, ELG wouldbegi n cha rgingan " admin istra tiveservi ce-ex pense charg e" in the amoun t o f $ 250 for livin g clien ts and $600 for clien ts who were decea sed, which could be deduc ted f rom s ettle ment proce eds d ue to be p assedon t o the clien t; betwe en April 2011 and July 2012, the estat e of Adolp hus Hall recei ved settl ement proce eds from three asbes tos defen dants and, fromthos e pro ceeds , ELGdedu cted $192. 01 in expen ses and a $600 admin istra tive- servi ce-ex pense charg e, in addit ion to deduc ting 40% of the settl ement proce eds a s an attor ney f ee; a nd, i n Dec ember 2012 , the esta te of Wanz y Lee B o w m a n recei ved settl ement proce eds from one asbes tos defen dant and ELG deduc ted $68.6 4 as an "admi n i strat ive credi t" in addit ion to deduc ting 40% of the proce eds as an attor ney fee. The plain tiffs alleg ed that the admin istra tiveservi ce-ex pense charg e "is nothi ng more than an extra attor ney fee col l e c t ed by ELG in addit ion to the 40% conti ngent fee"

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provi ded as the at t o rney fee in the attor ney-e mployment agree ment. The plain tiffs asked the circu it court to enter an order decla ring that ELG had breac hed the attor ney-e mploymen t agree ment "by charg ing, witho ut legal autho rity, more than 40% for attor ney staff servi ces"; t h a t ELG had been unjus tly enric hed by its wrong ful activ ities ; that the plain tiffs were due monet ary relie f; and that the plain tiffs were entit led to

recov er an attor ney fee and reaso nable expen ses relat ed to the prose cu t i o n of this actio n. In addit ion, the plain tiffs alleg ed separ ate count s of unjus t enric hment and brea c h of contr act , w h i ch were based on ELG's alleg ed breac h of the attor ney-e mployment agree ment. In respo n se to the plain tiffs ' compl aint, ELG moved the circu it court to dism i s s the compl aint pursu ant to Rule 12(b) (6), Ala. R. Ci v. P. , for fail ure t o sta te a claimupon which relie f could be grant ed. ELG attac hed sever al 1

ELG also reque sted that the circu it court seal the recor d 1 and enter a prote ctive order in favor of ELG so that it would n o t be requi red to respo nd to the plain tiffs ' disco very reque sts, in order to prote ct the attor ney-c lient privi lege of ELG's clien ts that were not parti es to the proce eding . On June 3, 2013, the circu it court enter e d a n order grant ing ELG's motio n for a prote ctive order and its motio n to seal the recor d. 411303 01

docum ents to its motio n to d ismis s, inclu ding the attor neyemplo yment agree ment sig ned by Adolp hus Hall and Mary Hall, the attor ney-e mployment agree ment signe d by Bowma n, a n d an "adop tion and ratif icati on" of Bowma n's attor ney-e mployment agree ment signe d by McKin non. ELG also attac hed the

memor andumdate d Feb ruary23, 2012, fromELG to it s asb estos clien ts infor ming them of the imple ment a t i on of the admin istra tive- servi ce-ex pense char ge. ELG subse quent ly filed a suppl e m e n t to its motio n to dismi ss, argui ng that the plain tiffs had, "in essen ce , ... asser ted that ELG has charg ed its clien ts an exces sive fee and [they ] ask this court to enter a decla rator y judgm ent to that effec t." ELG furth er argue d, among oth e r thing s, that Rule 1.5, Ala. R. Pro f . C o nd., direc tly addre sses the issue of

exces sive a t t o r n e y fees; that the Alaba ma State Bar was not 2

a party to the actio n; and that a decla rator y judgm ent in the prese nt case would const itute only an advis ory opini on by the circu it court becau s e, it argue d, the Alaba ma State Bar has sole autho rity to enfor ce the Alaba ma Rules of Profe ssion al

Rule 1.5(a ), Ala. R. Prof. Cond. , provi des, in perti nent 2 part: "A lawye r shall not e n t e r into an agree ment for, or charg e, or coll ect a clea rly e xcess ive f ee." 511303 01

Condu ct and to deter mine wheth er an attor ney fee is exces sive under Rule 1.5. Thus, ELG argue d, the circu it court was requi red to dismi ss the plain t i ffs' compl aint for lack of subje ct-ma tter juris dicti on. S ee Ru le 12 (b)(1 ), Al a. R. Civ. P. (prov iding that "lack of juris dict i o n over the subje ct matte r" i s a d e f e nse that may be made by motio n). ELG cited B.W.T . v. Hayne s & Hayne s, P.C., 20 So. 3d 815, 822 (Ala. Civ. App. 2009) , to suppo rt it s pos ition . Th e pla intif fs fi led a respo nse to ELG's motio n to dismi ss, argui ng, among o t h er thing s, t h a t t heir compl aint was not "base d merel y on an ethic s charg e of 'exce ssive fees' " but was b a sed on an alleg ation that "ELG ha[d] breac hed the terms of the [atto rney- emplo yment agree ment, ] which ELG draft ed and enter ed into with each clien t." On June 19, 2013, t h e circu it court enter ed an order denyi ng ELG's motio n to dismi ss and order ed "revi ew b y t he A l a b ama State Bar as it relat es to Rule 1.5 of the Al a b a m a Rules of Profe ssion al Condu ct." The circu it court staye d the proce eding s "un til r ulingfromthe Alaba ma St ate B ar." On Septe mber 4, 2013, the plain tiffs filed a motio n to

recon sider the circu it court 's June 19 order . The plain tiffs

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alleg ed th at, i n the time that had passe d sin ce th e ent ry of that order , the Alaba ma State Bar had not respo nded to the circu it court 's orde r. The plain tiffs also reite rated that their compl aint was based on a breac h of contr act by ELG, not

a purpo rted viola tion of the Alaba ma Rules of Profe ss i onal Condu ct by ELG. In respo nse, ELG filed a n o t h er motio n to dismi ss the plain tiffs ' compl aint becau se, it alleg ed , t he

c ircui t court was witho ut subje ct-ma tter juris dicti on. ELG argue d tha t the Disc iplin ary C ommis sion and t he Di scipl inary Board of the Alaba ma State Bar have exclu sive disci pl i nary juris dicti on over attor neys a dmitte d to pract ice law in Alaba ma and that "the only claim made by the plain tiffs

–- that ELG is engag ing in profe ssion al mi scond uct by charg ing

exces sive fees –- falls outsi de the [circ uit] court 's juris dicti on." On November 20, 2013, the circu it e n t e red an order denyi ng the plain tiffs ' motio n to recon sider its June 19 order and dismi ssing the case with preju dice. The plain tiffs timel y filed a notic e of appea l. On appea l, the plain tiffs argue that the circu it court erred in dismi ssing their comp l aint becau se, they say, the alleg ation s in their compl aint

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artic ulate d a breac h-of- contr act claim again st ELG and becau se t h e ir compl aint was not an ethic s compl aint again st ELG , which , they conte nd, would have been subje ct to the exclu sive juris dicti on of t h e A l abama State Bar. In respo nse, ELG

asser ts that the circu it court prope rly dismi ssed the plain tiffs ' compl aint becau se, ELG says, the circu it court did not have subje ct-ma tter juris dicti on over the p laint iffs' compl aint. Discu ssion In Newma n v. Savas , 878 So. 2d 1147 (Ala . 2 0 03), this Court set forth the stand ard of revie w of a rulin g on a motio n to di smiss for lack of su bject -matt er ju risdi ction : "A rulin g on a motio n to dismi ss is revie wed witho ut a presu mptio n of corre ctnes s. Nance v. Matth ews , 622 So. 2d 297, 299 (Ala. 1993) . This Court must accep t the alleg ation s of the compl aint a s true. Creol a Land D ev., Inc. v. Bentb rooke Housi ng, L.L.C ., 828 So. 2d 285, 288 (Ala. 2002) . Furth ermor e, in revie wing a rulin g on a m o tion to dismi ss we will not con s i d e r wheth er the plead er will ultim ately preva il but wheth er the plead er may possi bly p revai l. Na nce, 622 S o. 2dat 2 99." 878 S o. 2dat 1 148-4 9. ELG argue d below , and maint ains on appea l, that the Court of Civil Appea ls' decis ion in B.W.T . v. Hayne s & Hayne s, P.C., supra , requi red the dismi ssal of the plain tiffs ' compl aint for

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lack of subje ct-ma tter juris d ictio n. The plain tiffs argue d below , and they maint ain on appea l, that B.W.T . is disti nguis hable fromthe prese nt ca se. In B.W.T ., B.W.T ., the clien t and an at t orney , enter ed into a fee agree ment with Hayne s & Ha y n e s , P.C. ("the law firm" ), which had agree d to repre sent B.W.T . in an emplo yment

discr imina tion case. Pur suant to t he fe e agr eemen t, th e law firm was entit led to 45% of all amoun ts recov ered as a resul t of a judgm ent or settl ement in favor of B.W.T ., plus expen ses incur re d b y t he law firm. In addit ion, the law firm was entit led to 100% of any attor ney-f ee award asse ssed again st the a dvers e par ty. In th e emp loyme nt-di scrim inati on ac tion, the jury retur ned a verdi ct in favor of B.W.T ., and B.W.T . was award ed attor ney fees in the trial c o u r t and on appea l; the total award to be divid ed betwe en B.W.T . and the law firm was $437, 920. When the law f i r m propo sed to give B.W.T . only $127, 034.8 2 as his port ion of the recov ery, B.W.T . objec ted and sent t he law firm sever al opini ons from other juris dicti ons holdi ng that an attor n e y is not entit led to

recov er a conti ngenc y fee i n addit ion to court -orde red attor ney f ees p rovid ed bystat ute.

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The l a w firm subse quent ly filed a compl aint in the Jeffe rson Circu it Co urt r eques ting a jud gment decl aringthat the fee agree ment be t w e e n the law firm and B.W.T . was valid and enfor ceabl e. In his answe r, B.W.T . alleg ed that the issue in the case was wheth er the law firm' s reten tion of $310, 885.1 8 const itute d a doubl e recov ery and was, there fore,

a viola tion of Rule 1.5, Ala. R. Prof. Cond. , which provi des: "A lawye r shall not enter into an agree ment for, or charg e, or colle ct a clear ly exces sive fee." B.W.T . furth er alleg ed that only th e A labam a State Bar had juris dicti on to deter mine whet h e r t h e law firm had viola ted Rule 1.5. The law firm movedfor a summary judgm ent, argui ng th at th e fee agre ement

was v alid and e nforc eable and that the p ropos ed di strib ution of the award was consi stent with the fee agree ment and did not viola te Rule 1.5. Accor ding to t h e Court of Civil Appea ls, the l aw fi rm re cogni zed " that the c rux o f the matt er di d not actua lly relat e to the exist ence of a contr act but, rathe r, to the quest ion wheth er the fee agree ment viola ted Rule 1.5." 20 So. 3d at 818. Thus, the law firm argue d that "the fee it charg ed B.W.T . for its work on his behal f was reaso nable under the circu mstan ces prese nted by B.W.T .'s case and, as a resul t,

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did not viola te Rule 1.5." Id. B.W.T . maint ained that the actio n shoul d be dismi ssed but argue d, in the alter na t ive, that the circu it cou r t s hould enter a judgm ent in his favor becau se "'any conti ngent fee cont r a ct that award s [to] an attor ney fees and expen ses of nearl y 71% of the total recov ery is unfai r, exces sive, and uncon scion able under the Rules of Prof e ssion al Condu ct.'" Id. The circu it court grant ed the law firm' s motio n and enter ed a summa ry judgm ent in its favor . Becau se th e lawfirmhad sough t a j udgme nt de clari ng wh ether the fee agree ment viola ted Rule 1.5 and becau se B.W.T . h ad argue d that issue exten sivel y in his respo nse, t he Court of Civil Appea ls "inte rpret [ed] the [circ uit] court 's judgm ent as holdi ng that the fee agree ment [did] not viola te Rule 1 . 5, Ala. R. Pr of. C ond." 20 S o. 3dat 8 19. In concl uding that the appea l was due to be dismi ssed as havin g been taken from a void judgm ent, the Court of Civil Appea ls st ated: "The legis latur e has confe rred on the [Ala b a m a ] State B a r ' s Board of Commi ssion ers the power 'to formu late rules gover ning the condu ct of all perso ns admit ted to pract ice and to inves tigat e, or cause to be inves tigat ed, an d t o pass upon all compl aints that may be made conce rning the profe ssion al condu ct of any perso n who has been, or may herea fter be, admit te d to the pract ice of the law.' §

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34-3- 43(a) (3)[, Ala. Code 1975] . As to the inves tigat ion and prose cutio n of compl aints again st attor neys for, among other thing s, viola tions of the R u les of Profe ssion al Condu ct, the legis latur e has empow ered the Board of Commi ssi oners of the [ A labam a] State Bar '[t]o appoi nt one or mo r e commi ttees from the membe rship of the board , or from the membe rship of the entir e bar, or partl y from one and partl y from t h e o t her, to take evide nce in conne ction with any compl ai n t f iled again st any attor ney and forwa r d t h e same to the board .' § 34-3- 43(a) (5). That subse ction furt her p rovid es: "'The distr ict att o r n e y of the circu it in which such accus ed attor ney resid es shall prose cute any such charg e or case, inter rogat e the witne sses, intro duce the evide nce in suppo rt of such charg es a n d, when reque sted by any membe r of the board , argue the mat t er befor e the board . The board shall admin ister such disci pline , by publi c or priva te repri mand, suspe nsion from the pract ice of law or exclu sion and disba rment there from, as the case shall , in its j udgme nt, w arran t.' "Id. Thus, a s i t relat es to the prese nt case, the legis latur e autho rized the State Bar to creat e Rule 1.5, and the legis latur e has commi tted to the State Bar t he au thori ty to enfo rce t hat r ule. "... [A] decla rator y judgm ent is bindi ng only on the parti es to the action in which the judgm ent was sough t. The State Bar was not made a party to this actio n. As a resul t, the trial court 's deter minat ion as to wheth er the fee agree ment viola tes Rule 1.5 is not bindi ng on the State Bar. T h u s, the State Bar, which is charg ed with enfor cing Rule 1.5, is free to inter pret and enfor ce Rule 1.5 with r e g ard to the fee agree ment at issue in t h is case witho ut regar d to the trial court 's judgm ent, and witho ut regar d to any dispo sitio n by this court o f t he appea l from

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tha t judgm ent. The trial court 's judgm ent, and any dispo sitio n by this court that affir ms or rever ses that judgm ent, is, a s a r esult , mer ely a dviso ry. "Beca use this case prese nts a di s p u t e that is not justi ciabl e and for which any judgm ent const itute s merel y an advis ory opini on, the trial court never obtai ned subje ct-ma tter juris dicti on over the actio n; its judgm ent is there fore void. See Stamp s [v. Jeffe rson Cnty. Bd. of Educ. ], 642 So. 2d [941, ] 945 [(Ala . 1994) ] . Becau se a void judgm ent will not suppo rt an appe a l, we are left with no choic e but to dismi ss the appea l and to instr uct the trial cour t to dismi ss th e act ion. Id." 20 So . 3d at 82 1-22. In the prese nt case, unlik e B. W .T., the "crux " of the plain tiffs ' case is not wheth er ELG's fee arran gemen t with the plain tiffs viola ted Rule 1.5, Ala. R. Prof. C o nd. Altho ugh ELG a ttemp ted t o mak e tha t iss ue th e cru x of the p laint iffs'

case , t h e plain tiffs did not ask the circu it court to deter mine wheth er ELG had viola ted R ule 1.5, and a deter minat ion of wheth er ELG viola ted Rule 1 . 5 i s not

neces sary to the resol ution of the plain tiffs ' claim s. Thus, 3 unlik e B.W.T ., the circu it court in this case has not been askedto d eterm ine o nly w hethe r ELGhas viola ted t he Al abama Rules of Profe ssion al Condu ct. The "crux " of the plain tiffs '

We note that ELG, in its initi al motio n to dismi ss, 3 state d: "The plain tiffs make alle g a t ions which essen tiall y asser t a s imple brea ch of cont ract. " 1311303 01

claim s is that ELG breac hed the attor ney-e mployment agree ment by alleg edly takin g as a n a t t o r n e y fee more than 40% of the settl ement proce eds. Thus, unlik e B.W.T ., there is no reaso n that the Alaba ma S t a t e B a r shoul d have been a party to this actio n, nor w o u l d a judgm ent on the claim s prese nted by the plain tiffs const itute merel y an "advi sory o p i n ion" to the Alaba ma State Bar. Thus, we concl u d e t h a t B.W.T . is disti nguis hable from the prese nt case and does not re q uire dismi ssal of the plain tiffs ' actio n for lack of subje ct-ma tter juris dicti on. The claim s broug ht by the p l a i ntiff s fall withi n the subje ct-ma tter juris dicti on of the circu it court . Accor dingl y, the circu it court ' s judgm ent dismi ssing the plain tiffs ' comp l a i n t with preju dice is rever sed, and the

cause is r emand ed fo r fur ther proce eding s. E L G filed a motio n to dismi ss the plain tiffs ' appea l, argui ng that th i s Court does not have subje ct-ma tter juris dicti on ov er th e pla intif fs' a ppeal beca use " [o]nl y the Alaba ma State Bar has juris dicti on t o resol ve the dispu te betwe en the parti es." In light of our c o n c l usion in this case, we d eny E LG's motio n to dismi ss.

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MOTIO N TO DISMI SS DE NIED; REVE RSED AND R EMAND ED. Moore , C.J ., an d Bol in, M urdoc k, an d Mai n, JJ ., co ncur.

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