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corresponds to the discharged lawyer’s contribution to the ultimate result. Third, a subsequent lawyer under a contingent fee agreement who knows of a previous lawyer’s representation is responsible for paying the predecessor’s fee out of the subsequent lawyer’s fee.

More questions than answers Saar illustrates a point we have made before: lawyer discipline cases decided on the basis of an agreement of the parties in the form of a brief (in this case, just over one page) order of discipline tend to give sometimes-complicated issues short shrift and leave the reader with more questions than answers. It is not clear whether the citation to Galanis was part of the parties’ Conditional Agreement (which is a non-public document) or whether the Court cited Galanis as part of its own independent analysis of the agreement. According to The Bluebook, the signal “accord” is used “when two or more sources state or clearly support the proposition, but the text quotes or refers to only one; the other sources are then introduced by ‘accord.’ ” Thus, Galanis was apparently cited as clearly supporting the proposition that the Respondent’s fee agreement was unreasonable. Yet, what percentage constitutes a reasonable fee under Rule 1.5 was not at issue in Galanis – in fact, Rule 1.5 was not cited by the Court in that case. The issue was what the rule should be, absent an express contractual agreement, when deciding who receives how much in fees in successive representations in contingency fee cases. Galanis held that an attorney could alter the default rule by contract: “… it is incumbent upon the lawyer who enters a contingent fee contract with knowledge of a previous lawyer’s work to explain fully any obligation of the client to pay a previous lawyer and explicitly contract away liability for those fees.” Under Galanis, a lawyer may expressly – and ethically – contract away her default responsibility for known predecessor counsel’s fees. Under Rule 1.5(c),

however, that contract must be written. Presumably, if the subsequent lawyer asks too much, the client might try to drive a harder bargain, find new counsel who will charge less, or possibly even return to predecessor counsel. In Saar, both the Disciplinary Commission and the Supreme Court appear to have had Galanis’ third default rule,

and its exception, in mind. In the Verified Complaint, the Disciplinary Commission alleged that the Respondent had “failed to explicitly contract away liability for the attorney fees owed to the prior law firm on behalf of her current firm.” It further alleged she had drafted an “Agreement for Retention of Counsel” that encompassed

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Profile for Indiana State Bar Association

Res Gestae - October 2018  

October 2018 edition of Res Gestae, the journal of the Indiana State Bar Association

Res Gestae - October 2018  

October 2018 edition of Res Gestae, the journal of the Indiana State Bar Association