No Equitable Exception Applied, Plus Appeal From Post-Trial Motion To Tax Costs Order Could Not Be Entertained By Failure To Specifically Appeal It.
McNulty v. Ottosi, Case No. B264239 (2d Dist., Div. 5 Aug. 11, 2016) (unpublished) has a series of lessons for attorneys entering into fee-splitting arrangements.
Above: Splitting. Library of Congress.
What happened here is that the attorney (McNulty) failed to get a written consent from a client on a fee-splitting arrangement with another attorney. Ultimately, McNulty recovered nothing from either the client or co-counsel in litigation after the client obtained a monetary settlement in a lawsuit. That occurred because Rules of Professional Conduct rule 2-200 requires client written consent in fee-splitting cases, and this ethical rule is strict liability in nature unless attorney not getting the consent could prove some equitable exception—most notably, when the other co-counsel blocks an attorney from getting the requisite client consent. (See Barnes, Crosby, Fitzgerald & Zeman, LLP v. Ringler, 212 Cal.App.4th 172, 186 (2012).) However, McNulty had no facts to support application of an exception to the rule 2-200 requirement.
The trial court also denied McNulty’s request for routine costs, which he challenged on appeal. However, he failed to mention this post-trial order at all in his notice of appeal, such that the order could not be reviewed, plus his failure to include a reporter’s transcript precluded a merits review also.