Davis

CHARLESTON – When West Virginia circuit judges approve settlements, they must resolve any fee disputes between lawyers and previous lawyers, the Supreme Court of Appeals has ruled.

The Justices on Feb. 5 ordered Monongalia Circuit Judge Robert Stone to adjudicate a lien that Morgantown lawyer Gary Wigal filed against Howard Trickett of Hartville.

Wigal seeks a portion of a settlement in a suit he filed for Trickett, though Trickett had changed lawyers prior to settling the suit in Stone's court.

Wigal filed an attorney's lien with Stone, but Stone advised him to file a separate suit.

The Justices held that state law allowed Wigal to choose between starting a new case and seeking relief from Stone.

The Justices didn't award the entire lien to Wigal. They told Stone to consider any credits, counterclaims or defenses that Trickett might raise.

Trickett's family retained Wigal in 1994, to represent them in two lawsuits over mining leases with coal companies.

The family agreed to pay Wigal one third of any recovery by settlement or verdict.

"If the client terminates the attorney," the contract read, "the client agrees to pay the attorney his accrued fees to date, as well as costs and expenses."

The contract allowed Wigal to associate with other counsel, and Wigal chose Patrick McGinley of Morgantown.

Trickett terminated the contract in 1998, and in 1999 he filed a motion on his own to remove Wigal and McGinley.

They objected that it wouldn't serve justice if Trickett proceeded without a lawyer.

Trickett filed notice that he would appear "pro se," for himself.

He asked Wigal's firm -- Gianola, Barnum and Wigal -- for a statement of charges. The firm sent him a bill for $21,376.40.

In 2000, Trickett retained the firm of Allen, Guthrie and McHugh. They apparently reached a $525,000 settlement in 2002, but he denied that he settled.

Wigal's firm petitioned for fees in 2002 and filed a notice of attorney's lien against Allen, Guthrie and McHugh in 2003.

Stone entered an order enforcing the settlement in 2004. He ignored Wigal's petition and his lien.

Wigal moved for reconsideration, and in 2007 Stone denied it.

He wrote that "the contract called for any payment of attorney's fees following the dissolution of the attorney-client relationship to be paid by the client, and as such, there is no basis for a recovery or sharing of such fees received by plaintiff's subsequent counsel."

To recover from Trickett, he ruled, the firm would have to start a new action for breach of contract.

The firm appealed, and to Justice Robin Davis the case looked familiar. She wrote that in a 1997 opinion, "we answered this very question."

The opinion read, "A charging lien brought against another attorney may proceed in a separate suit or the underlying action in which the attorneys had formerly worked on together."

That applies with equal force when an attorney seeks fees from a client rather than from another attorney, she wrote.

"Accordingly, we hold that an attorney may bring a charging lien against his/her client or former client premised upon an oral or written contract between the attorney and his/her client or former client which provides for the attorney's compensation," she wrote.

The Justices remanded the case so Stone can fully consider the firm's claim.

Davis wrote that "no determination has been made regarding the extent to which Mr. Wigal's legal services contributed to the ultimate settlement of the underlying actions or the exact amount of the charging lien attributable thereto."

In a footnote she observed that it was unclear whether McGinley would seek additional costs and fees.

David Jecklin of Morgantown represented Wigal's firm. So did Wigal and McGinley.

Trickett represented himself.




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