December 07, 2020 Top Story

Breach of Duty Results in Forfeiture of $7.5 Million Contingency Fee

Lawyer’s ex parte communication with court clerk about jury note voids fees

By Erik A. Christiansen

An attorney who violated the rules of professional conduct by engaging in improper ex parte communications with a judicial clerk during trial was denied a $7.5 million contingency fee on a $25 million settlement. A state court of appeals held that the attorney’s breach of his ethical obligations precluded recovery of the fee. Counsel also could not recover under an alternative quantum meruit theory because the attorney did not submit a fee declaration detailing his billable time.

While the jury deliberated, a judicial clerk secretly informed plaintiffs' counsel about a jury note indicating intent to find for the defense

While the jury deliberated, a judicial clerk secretly informed plaintiffs' counsel about a jury note indicating intent to find for the defense

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Lawyers Cannot Engage in Ex Parte Communications with Court Employees

In Vandenberg v. RQM, LLC, the Illinois Appellate Court held that counsel’s ex parte communications violated the rules of professional conduct and breached his fiduciary duties to his clients. While the jury deliberated, defense counsel made a $25 million settlement offer. While the offer was pending, a judicial clerk secretly informed plaintiffs’ counsel about a jury note implying the jury was not going to find liability. Defense counsel was not timely told about the note. Armed with the ex parte information, plaintiffs’ counsel quickly accepted the defendant’s $25 million offer. Defense counsel later learned about the note from the court, but given the prior accepted settlement, the case was dismissed. After dismissal, defense counsel requested that the jury be permitted to deliberate to verdict. The jury reached a verdict in favor of the defendant.

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