Retainer Agreement Trumped Everything.
USA v. $186,416.00 in U.S. Currency, Case No. 07-56549 (9th Cir. July 17, 2013) (for publication) shows that fee agreements directing payment of fees to attorneys from a collective perspective can and do make a difference.
In this one, a suspended California corporation had assigned collection of fees to attorney under a retainer agreement involving a Civil Asset Forfeiture Reform Act (CAFRA) case which allowed client/claimant as prevailing party to collect fees from the U.S. 28 U.S.C. § 2465(b)(1)(A). Claimant did win, with attorney intervening (intervention motion granted) to receive payment of the fee award actually granted in the case.
Government fought, arguing that the fee award could not be made in favor of intervening attorney.
The Ninth Circuit disagreed. Giving credence to U.S. Supreme Court Justice Thomas’s reasoning in certain cases, the appellate court found that the client’s assignment of rights to fees should govern in CAFRA cases, much like cases doing the same under the False Claim Act, federal civil rights statute, and Clayton Act (antitrust).
The equities also favored the end result. Client dissolved and no other creditor came forward to contest the assignment to attorney. Because the client assigned the right to collect fees versus the right to seek/waive fees, the retainer provision was fully effective and conferred standing on attorney.