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B. Dahlenburg Bonar, P.S.C. v. Waite, Schneider, Bayless & Chesley Co.
Citations: 373 S.W.3d 419; 2012 Ky. LEXIS 103; 2012 WL 3631386Docket: No. 2010-SC-000087-DG
Court: Kentucky Supreme Court; August 23, 2012; Kentucky; State Supreme Court
Barbara D. Bonar and her law firm, B. Dahlenburg Bonar, P.S.C. (collectively "Bonar"), claim entitlement to a share of attorney’s fees from the class action settlement of Doe v. Roman Catholic Diocese of Covington, in which they co-counseled with Waite, Schneider, Bayless and Chesley Co. L.P.A. ("WSBC"). Bonar withdrew from the case before settlement negotiations, alleging she was compelled to do so by WSBC. The Boone Circuit Court ruled that Bonar's withdrawal was voluntary, thus disallowing her claim to attorney’s fees. The court further rejected Bonar's alternative claims, stating that even if her withdrawal was involuntary, she could not recover fees based on quantum meruit because her individual claims' fees exceeded those available through quantum meruit. Moreover, the court identified several ethical violations by Bonar during her involvement, which could justify her removal and forfeiture of fees. The Court of Appeals affirmed this ruling, leading to Bonar’s discretionary review request. In her appeal, Bonar contests the trial court's findings regarding her potential removal and the ethical violations alleged against her. Both parties engaged in extensive factual disputes concerning the co-counsel relationship and fee-splitting arrangements, though the court deemed much of this irrelevant to its conclusions. The factual background includes Bonar's initial lawsuit against the Diocese, her subsequent collaboration with Steinberg of WSBC, and their agreement on fee distribution, although no formal written agreement was executed. Bonar expressed discomfort with certain allegations in a memorandum filed by WSBC, which she did not review prior to its submission.
Bonar requested the removal of her name from a memorandum, citing discomfort with her clients and peers, and indicated that the memorandum's position might conflict with her clients' interests. She filed a "Notice to Clarify the Record" stating she had no role in the memorandum's preparation. After Doe was certified as a class action, Bonar moved to withdraw, citing a conflict of interest due to changes in class membership and filed a notice of attorney’s lien. A tentative settlement in the Doe case was reached in May 2005, but when attorney's fees were addressed, Bonar alleged WSBC forced her withdrawal. The trial court later determined her withdrawal was voluntary, supported by substantial evidence, including Bonar's own letters explaining her concerns about the memorandum's implications for her professional relationships. Attorney Came Huff corroborated Bonar’s sentiments, noting that the memorandum was an attempt to discredit the Bishop's handling of the abuse crisis, and stated that Bonar's reasons for withdrawal were to avoid attracting attention and not indicative of being forced out. Ultimately, the trial court found no entitlement to fees for Bonar, confirming that her withdrawal was voluntary.
Bonar voluntarily withdrew from the case because she believed the class's stance was incompatible with her relationships with clients and colleagues. The trial court found no reason to overturn its factual finding and concluded that Bonar was not entitled to attorney’s fees. Under Kentucky law, when an attorney withdraws from a contingency fee case without good cause, they forfeit any fee. Good cause is evaluated on a case-by-case basis. Bonar's reasoning did not qualify as good cause, especially since she had pre-existing ties to the Diocese of Covington when she took on the class representation.
Bonar contended that a separate fee-splitting agreement with WSBC exempted her from these principles, claiming it did not require her continued involvement in the case. However, this claim lacked support in the record. The fee-splitting arrangement was primarily based on a percentage of the net fees from the case, which implied that she needed to remain as co-counsel until resolution. Bonar's communications about her withdrawal suggested it was unexpected and premature, reinforcing the trial court's decision.
Even if the correspondence could be viewed as a contract, the conclusion remains the same: an attorney who leaves without good cause cannot claim a share of the fees, regardless of the agreement type. Allowing an attorney to withdraw without good cause while enforcing a fee-splitting contract would contradict established legal principles. The trial court's findings were supported by substantial evidence, with the lack of good cause highlighted by Bonar's personal and professional ties to the opposing party.
Bonar forfeited any attorney fees she might have been entitled to. She contended that the trial court improperly restricted discovery, seeking information on other class actions involving WSBC, prior fee-splitting agreements, and WSBC's history with opting-out class members. However, she failed to provide legal citations to support her claims. The court's discovery orders are reviewed for abuse of discretion, and it was determined that the trial court properly limited discovery to relevant evidence concerning Bonar's entitlement to attorney fees from the Doe action. There was no indication of an abuse of discretion.
Bonar also claimed a violation of her right to a fair trial due to the trial court's comments on her conduct, specifically regarding a request by the Kentucky Bar Association for case records and the court's perceived ethical concerns. The court found no prejudice against Bonar and concluded she received a fair trial. Additionally, Bonar's argument about judicial bias was not preserved for appeal, as she did not seek recusal during the trial.
Consequently, the Boone Circuit Court's judgment was affirmed. References to unrelated matters in other tribunals made by Bonar to question Appellee Stanley M. Chesley's conduct were deemed irrelevant, leading to the court's decision to strike those portions from the appeal materials.