Present: Carrico, C.J., Compton, Stephenson, Whiting,1

 Lacy, and 

Keenan, JJ., and Poff, Senior Justice 

STEPHEN WAINGER 

OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR. 

 September 15, 1995 

v. Record No. 941615 

GLASSER & GLASSER 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

John E. Clarkson, Judge 

 In this litigation between a law firm and one of its former 

partners, we determine when contingent legal fees have been 

"fully earned" within the meaning of the firm's partnership 

agreement. 

 On June 24, 1992, Stephen Wainger filed a declaratory 

judgment proceeding against Glasser & Glasser, a law firm in the 

City of Norfolk, seeking an accounting to establish the balances 

of his capital account and undivided profits account and a 

judgment for any amounts due him as a result of his withdrawal 

from the firm. Wainger also sought a construction of the 

partnership agreement declaring that he is entitled to a 6/91 

share of the undivided profits from final, nonappealable consent 

judgments and final settlements obtained against The Manville 

Corporation Asbestos Disease Compensation Fund (the Manville 

Trust) prior to his withdrawal (the Manville Trust fees). In 

addition, Wainger claims a right to a 10% bonus for those cases 

against the Manville Trust that he handled personally. 

 

 1Justice Whiting participated in the hearing and decision of 

this case prior to the effective date of his retirement on August 

12, 1995. 
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 On the same date, Glasser & Glasser filed a declaratory 

judgment proceeding against Wainger, asking the trial court to 

determine that Wainger was not entitled to the Manville Trust 

fees or to any other fees not fully earned prior to his 

withdrawal from the firm. Glasser & Glasser also sought a 

judgment against Wainger in the amount of $188,580.10, claiming 

that Wainger had been paid in excess of his agreed annual maximum 

draw. 

 The trial court consolidated the two actions, and, because 

no material facts were genuinely in dispute, each party moved for 

partial summary judgment. The trial court entered summary 

judgment in favor of Glasser & Glasser, holding that Wainger was 

not entitled to share in the Manville Trust fees because the fees 

had not been "fully earned" at the time of his withdrawal. 

Additionally, the trial court ruled, in the alternative, that 

Wainger was barred from collecting any such fees, even if fully 

earned, by the provision in the partnership agreement that 

limited his share of the firm's profits. Wainger appeals. 

 The relevant facts are undisputed. In May 1987, Wainger was 

employed by Glasser & Glasser as an associate attorney, and, on 

January 1, 1990, he became a partner in the firm, subject to the 

written partnership agreement. 

 Wainger voluntarily withdrew from the firm, effective 

January 21, 1992. Pursuant to Article IX of the partnership 

agreement, a withdrawing partner was to be paid for his interest 
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in the partnership on the following basis: 

 Item A. Any unpaid monthly draw, and additional 

compensation (as described in Paragraph 3 of Section B, 

Article IV). 

 Item B. His Capital Account. 

 Item C. His Undivided Profits Account, plus his 

share, if any, of any undivided profits of the firm 

with respect to uncollected fees which were fully

earned by the firm prior to the . . . effective date of 

his . . . withdrawal . . . , but which fees are 

received by the firm subsequent to such date. 

(Emphasis in original.) 

 Since 1976, Glasser & Glasser has represented clients with 

claims against various asbestos manufacturers, including The 

Manville Corporation. All these clients employed Glasser & 

Glasser on a contingent fee basis, evidenced by written 

agreements. Generally, these agreements provided that Glasser & 

Glasser would receive a fee of one-third of the gross amount 

recovered for the client. The agreements further provided the 

following: 

 It is understood and agreed that this employment 

is upon a contingent fee basis, and, if no recovery is 

made, [the client] will not be indebted to [Glasser & 

Glasser] for any sums whatsoever as attorney fees, 

although [the client] will be indebted to [Glasser & 

Glasser] for all unpaid costs incurred. 

 In 1982, The Manville Corporation filed a voluntary petition 

for reorganization pursuant to the United States Bankruptcy Code. 

 This filing led, in 1988, to the creation of the Manville Trust, 

 which was funded to pay all uncompensated asbestos claimants on 

behalf of The Manville Corporation. 

 In the summer of 1990, while Wainger was a partner in the 
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firm, Glasser & Glasser obtained in favor of its asbestos clients 

final, nonappealable consent judgments against the Manville 

Trust. The Manville Trust, however, did not agree to pay the 

judgments; to the contrary, it was understood that the Manville 

Trust would resist payment of any judgment or any attempt by the 

judgment creditors to execute on the Manville Trust's assets. 

Consequently, protracted litigation and negotiations ensued in an 

effort to collect on the consent judgments, and Glasser & Glasser 

did not recover for its asbestos clients any money from the 

Manville Trust until January 1994, approximately two years after 

Wainger's withdrawal from the firm.2

 Wainger contends that the Manville Trust fees were fully 

earned when the firm obtained the final, nonappealable consent 

judgments. Wainger, relying upon DR 2-105(C) of the Virginia 

Code of Professional Responsibility,3 asserts that the claims 

 2In July 1990, Glasser & Glasser was enjoined by a federal 

district court in New York from executing on the consent 

judgments. Then, in November 1990, the Manville Trust filed a 

class action, together with a proposed settlement, in federal 

district court in New York, seeking to restructure its assets and 

claim resolution procedures, and, in the summer of 1991, the 

proposed settlement was approved. In December 1992, however, the 

federal appellate court held that the settlement must be set 

aside, and the federal district court again restrained execution 

on the judgments. 

 In June 1993, Glasser & Glasser, counsel for the Manville 

Trust, and others negotiated a lump sum payment of the consent 

judgments, discounted for present value. In July 1993, the 

federal district court ordered payment by the Manville Trust of 

the discounted judgments, and, on January 11, 1994, the federal 

appellate court upheld the order to pay such sums. Later in 

January 1994, the Manville Trust paid the discounted judgments. 

 3Disciplinary Rule 2-105(C) provides, in pertinent part, as 

follows: 
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upon which the contingent fees were based were liquidated by 

entry of the consent judgments and, therefore, that there accrued

to Glasser & Glasser, at that time, the right to its full 

contingent fee. 

 Glasser & Glasser contends, on the other hand, that a 

contingent fee is not "fully earned" until the firm has effected 

a recovery, i.e., payment in the event of settlement, trial, or 

appeal. We agree with Glasser & Glasser. 

 We reject Wainger's contention that DR 2-105(C) determines 

when a contingent fee is "fully earned." The purpose of the Rule 

is to ensure that a contingent fee agreement states clearly how 

the amount of the attorney's fee is to be calculated. The Rule 

does not deal with the conditions precedent to which an attorney 

and a client may agree regarding when a fee is earned. 

 We also reject Wainger's contention that the Manville Trust 

fees accrued upon the entry of the consent judgments. 

Traditionally, in personal injury cases, a client employs an 

attorney on a contingent fee basis. Under such an arrangement, a 

percentage of the amount of money actually recovered is paid to 

the attorney as compensation for services rendered. If nothing 

(..continued) 

 A contingent fee agreement shall state the method by 

which the fee is to be determined, including the 

percentage or percentages that shall accrue to the 

lawyer in the event of settlement, trial, or appeal, 

expenses to be deducted from the recovery, and whether 

expenses are to be deducted before or after the 

contingent fee is calculated. 
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is recovered, however, the attorney receives no fee. This is 

precisely the arrangement to which Glasser & Glasser and its 

asbestos clients agreed in the present case. As previously 

noted, the employment contracts provided that, "if no recovery is 

made, [the client] will not be indebted to [Glasser & Glasser] 

for any sums whatsoever as attorney fees." Thus, the fee is 

contingent upon a recovery of money, and is not, as Wainger 

contends, contingent merely upon a settlement or judgment. 

 In the present case, Glasser & Glasser had not recovered any 

money for its asbestos clients from the Manville Trust prior to 

Wainger's withdrawal from the firm. The record shows that 

Glasser & Glasser expended considerable time and effort during 

the two years subsequent to Wainger's withdrawal before effecting 

a recovery. Consequently, we conclude that the trial court 

properly ruled that the Manville Trust fees and the bonus had not 

been "fully earned" prior to the time of Wainger's withdrawal.4

 Accordingly, we will affirm the trial court's judgment. 

Affirmed. 

 

 4Given our decision that the Manville Trust fees were not 

"fully earned," we need not consider the provision in the 

partnership agreement that limited Wainger's share of the firm's 

profits.