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Three appeal court justices seemed to have little sympathy Wednesday for a man who claimed to have been cheated out of his share of nearly $20 million in attorneys fees from a class action against Bank of America. But they were also disdainful of the lawyer who won the case, indicating he had entered into a fee-splitting agreement with a BofA insider that violated ethical rules. “What we’re left with here if you win this case — and so far you are,” First District Court of Appeal Justice J. Anthony Kline told Jonathan Bass, an attorney for the lawyer, “your client is going to walk away with $20 million based on a violation of the rules of professional conduct.” The BofA insider, J. Nicholas McIntosh, sued Robert Mills in Marin County Superior Court for breach of contract, claiming that the San Rafael solo practitioner had backed out of an oral agreement to hand over up to 15 percent of any fees won in a class action accusing BofA of overcharging fees in trusts. McIntosh, a former BofA employee who had sued the bank in a separate wrongful termination action after he reported improprieties, said Mills “coerced” him into providing insider information and documents by threatening to drag him into court. McIntosh insisted that Mills and his then-attorney, Davis solo David Anton, had made the fee arrangement with the proviso that McIntosh be kept ignorant of the details. McIntosh said Mills insisted that McIntosh be kept in the dark so he could say in depositions he didn’t stand to profit from his work. Mills said there never was a fee-splitting agreement. Marin County Superior Court Judge Vernon Smith found in 2002 that there had been an agreement, but that it violated ethical rules prohibiting lawyers from sharing fees with non-lawyers. During oral arguments on Wednesday, First District Justices Kline, Paul Haerle and Ignazio Ruvolo found problems with both sides’ arguments. They obviously were troubled that Mills apparently agreed to split fees in violation of ethical rules, and that McIntosh seemed to have lied during the BofA depositions about his financial expectations. “You’re advancing the proposition that Mr. Mills has unclean hands,” Kline told McIntosh’s attorney, Brentwood solo Bryce Anderson. “Well, what about the hands of your client?” Anderson responded by saying the agreement was a contract between Mills and Anton, with McIntosh aware of none of the details until the class action settled. “And that was a rather deliberate contract, wasn’t it?” Justice Haerle asked. Both Kline and Ruvolo also wanted to know how McIntosh could accuse Mills of coercing him into participating in the class action. “All the evidence is that Mr. McIntosh said, �I’m not going to do anything unless I get a piece of the action,’” Ruvolo said. “The better they did, the better he did. How is that coercion?” In response, Anderson said McIntosh realized he had no choice but to cooperate with Mills, and decided “he might as well get the best deal he could get.” “That’s a heck of a spin on it,” Ruvolo sighed. Mills’ lawyer, Bass, also came under attack. Kline said his biggest problem with Mills was that he would “profit enormously” from engaging in an agreement he should have known — as a lawyer of nearly 20 years — violated the rules of professional conduct. “It’s hard for me to assume that McIntosh would be clear about that,” Kline said. “But that’s not true of Mr. Mills. “It seems to me that Mr. Mills was the dominant party here,” the justice continued. “He had a lot of money at stake.” Bass, a partner at Coblentz, Patch, Duffy & Bass, argued that McIntosh wasn’t an innocent in the transaction. Davis lawyer Anton, Bass said, was McIntosh’s “proxy.” In court papers, both sides sniped at each other in footnotes. Bass noted that Anton had subsequently been suspended from practicing in the federal courts of the Northern District “as a result of having forged a critical document in another wrongful termination case.” Anderson responded by citing two Marin County cases in support of his contention that Mills “is no stranger to committing breach of contract, conversion and breach of trust in fee-splitting agreements.” The case is McIntosh v. Mills, A101673.

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