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Encino attorney Brent Rosenzweig had uttered possibly one syllable Tuesday during oral arguments in the California Supreme Court when he suddenly found himself reeling like a boxer taking a beating. Four justices, including Chief Justice Ronald George, dealt blow after blow to Rosenzweig’s contention that his firm owes no money to another law firm that had put 20 hours of work into a medical malpractice case both had handled. The other firm, he argued, had violated a fee-splitting agreement by failing to get the mutual client’s written consent, and therefore was entitled to neither fees nor money for its work. Unfortunately for Rosenzweig, the court’s justices, sitting in San Francisco, appeared to believe strongly that even if there is a violation of the state’s fee-splitting law — California Rule of Professional Conduct 2-200 — the offending law firm is still entitled to a quantum meruit award. In other words, reasonable value for services rendered. “Why would it not be an unjust enrichment not to allow quantum meruit?” George asked. “Isn’t there enough of a punishment, if you want to use that word, to limit [recovery] to quantum meruit” and not allow a portion of the overall fee award? The underlying dispute began when Huskinson & Brown, a Manhattan Beach firm specializing in the defense of health care providers, entered into an oral agreement with Rosenzweig’s Appell & Wolf, to represent Beverly Sanchez in portions of a medical malpractice case against a health care company. The firms agreed Huskinson would get 25 percent of attorneys fees. When Sanchez got a $250,000 judgment, Appell & Wolf received fees of nearly $74,000, but balked on Huskinson’s 25 percent. A trial court later awarded Huskinson more than $18,000 — which equaled a 25 percent share of fees — on a claim of unjust enrichment and a quantum meruit award of $5,800. Los Angeles’ Second District Court of Appeal overturned the lower court on the ground that any division of attorneys fees that violates Rule 2-200 is illegal. But on Tuesday that didn’t seem to sit well with most of the Supreme Court justices, which took the case only on the quantum meruit issue. “Why would it violate this particular rule when we have here a rendering of services, 20 hours of services?” Justice Joyce Kennard asked. “Why would that not be a violation of public policy?” In response, Rosenzweig explained his theory and said, “We think we need a rule–” “– that gives you everything,” Kennard interrupted. Earlier, San Francisco solo practitioner Jerome Fishkin, Huskinson’s appellate lawyer, had argued that a quantum meruit award is always allowed. Even more to the point, he said, is the fact that both law firms violated Rule 2-200 by not getting the client’s written consent. “They have both violated or neither have violated,” Fishkin said. “You’re talking about taking more money from the attorney who was punished [by getting only a quantum meruit award] and giving more to the other attorney who also violated the rule. We think that is bad public policy.” Justice Marvin Baxter took up that idea during Rosenzweig’s ordeal at the podium. If both firms violate the fee-splitting rule, he asked, “Why doesn’t the client get the money? Why shouldn’t the client get those fees back?” Justice Ming Chin later asked Fishkin the same question — whether he thought the court should issue a rule that gives clients the fees back if their lawyers violate the fee-splitting agreement. “Wouldn’t that, in the end, encourage attorneys not to violate the rule?” he asked. Fishkin said he thought that would only invite problems with what he called “the predatory client.” “If you forfeit all the fees to the client, it encourages the client to look for rules violations,” he said. “It encourages a new kind of bad behavior by people.” A ruling in the case, Huskinson & Brown v. Wolf, S107616, is due within 90 days. Also Tuesday, the Supreme Court, in an odd 4-3 alignment of justices, affirmed the death penalty for Alfredo Reyes Valdez, convicted of the 1989 robbery murder of Pomona resident Ernesto Macias. Justice Carlos Moreno authored the 82-page majority opinion, the second time he’s written to affirm a death sentence. Joining him were Chief Justice George and Justices Baxter and Kathryn Mickle Werdegar. Justice Chin, who tends to be more conservative in criminal matters, wrote a dissent. It was signed by Justices Janice Rogers Brown, who is usually at the right edge of the court, and Joyce Kennard, who is often at the left edge. Chin wrote that Los Angeles County Superior Court Judge Thomas Nuss should have instructed jurors on second-degree murder because there was evidence that could have led them to reasonable doubt that Valdez murdered Macias for the purpose of robbery. “Because the instructions gave the jury no alternatives other than first-degree robbery murder or acquittal,” Chin wrote, “it was faced with an unwarranted all-or-nothing choice on the charged offense.” The case is People v. Valdez, 04 C.D.O.S. 108.

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