CONTINGENT-FEE CONTRACT REMEDIES UNDER
TEXAS LAW: How AND WHEN SUING A FORMER CLIENT MAY PROTECT HER BEST INTEREST DANIEL RAY CORREA*
I.
INTRO DU CTION ............................................................................... 12 1
II.
A CONTINGENT-FEE CONTRACT IS NOT EQUIVALENT TO AN ACTUAL ASSIGNMENT IN TEXAS ....................................................
A.
Cannot Createan OrdinaryAssignment, Void of Public Policy Considerations............................................................. Terminated Counsel Working Under a Contingent-Fee Contract May PursueHer Mandell Remedies Against Her Former Client, But Courts Heavily Scrutinize Contracting Around These Remedies ..........................................................
130
A CONTINGENT-FEE CONTRACT CANNOT CHILL A CLIENT'S RIGHT TO TERMINATE OR SETTLE .................................................
134
B.
III.
123
ContractsInvolving the Attorney-Client Relationship 125
A.
Attorney Fee Arrangements CannotImpose an Undue Burden on the Client's Ability to Change Counsel ................. 134 B. Attorney Fee Arrangements CannotImpose an Undue Burden on the Client's Right to Settle ..................................... 135
IV. V. V I.
A PETITION IN INTERVENTION IS NOT THE PROPER REMEDY TO RECOVER ON A CONTINGENT-FEE CONTRACT ............................... 137 TIME TO RETHINK THE MANDELL REMEDIES ................................. 140 C ON CLU SION .................................................................................. 146
I.
INTRODUCTION
Suing former clients to recover a contingent fee is never ideal. But, neither is working for free. Like any other contract for services, when an attorney enters into a contingent fee agreement with a client, the attorney expects she will be paid for her services if her client recovers. What if the * Daniel Correa is an Associate Attorney at Cowles & Thompson, PC in Dallas, Texas. Daniel would like to thank Kelsie Haaland and the South Texas Law Review editors for their insight and work on this Article, and his wife, Wendy Correa, for her inspiration and encouragement, and daughter, Abigail, for making everyday wonderful. Special thanks to Byron K. Henry for a great discussion on this topic and for his passion on getting this issue right, both of which influenced section IV of this Article.