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Simar v. Tetra Technologies Inc.

United States District Court, W.D. Louisiana, Lafayette Division

August 13, 2019

Tetra Technologies Inc et al



         Before the Court is Motion For Attorney's Fees Cost and Expenses of Intervenors, Errol Cormier and Errol L. Cormier APLC's (collectively “Cormier”) [Rec. Doc. 183], a Brief Opposing Motion For Attorney's Fees filed by Joseph F. Gaar, Jr. (“Gaar”) [Rec. Doc. 185] and Cormier's Reply thereto [Rec. Doc. 188].


         Wendell Simar (“Plaintiff”) hired Cormier as his attorney on July 21, 2014 to represent him in connection with an accident and injury that occurred on June 24, 2014, while he was employed as a rigger on an offshore platform. Cormier and Plaintiff executed a Contingency Fee Agreement on July 21, 2014 that provided compensation to Cormier in the amount of one-third (33 1/3%) of the aggregate recovery if Plaintiff's claims were settled prior to filing suit and forty (40%) percent if recovery was obtained after a lawsuit was filed. Plaintiff's lawsuit in this case was filed on June 23, 2015.

         In an Affidavit dated June 19, 2019, Plaintiff states that on February 17, 2017, he terminated the services of Cormier expressing his dissatisfaction with Cormier's representation, in particular his failure to bring any partial or full resolution to the case. R. 185-3, Plaintiff's Aff. On the same day, Plaintiff retained Joseph F. Gaar, Jr., APLC, as his new attorney. Id. Gaar enrolled in this action as counsel for Plaintiff on March 15, 2017. R. 49. Cormier filed a Complaint in Intervention on March 16, 2017. R. 52.

         On May 14, 2019, Plaintiff and the defendants and/or intervenors in this action reached an amicable resolution in this case. The settlement did not include Cormier's intervention claiming attorney's fees and expenses prior to March 20, 2017. Therefore, on June 5, 2019, the Court ordered Cormier on or before June 14, 2019, to “file a motion for attorney's fees and costs complete with billing records and supporting affidavits outlining and documenting the hourly rates and time incurred in the representation of this action before March 20, 2017.” R. 182.


         Louisiana courts have long approved of the contingent fee contract to compensate attorneys. O'Rourke v. Cairns, 683 So.2d 697, 700 (La.1996). Contingency fee contracts, like all other attorney fee contracts, are subject to review and control by the courts-most notably for reasonableness. Id. (citing Model Rules of Professional Conduct Rule 1.5(a)).

         Under Louisiana law, when two attorneys provide legal services to the same client on a contingency-fee basis and one attorney is discharged before the case is resolved, the client is obligated to pay only one contingency fee that the court allocates between the attorneys. Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 118 (La.1979). The amount of the fee is “determined according to the highest ethical contingency percentage to which the client contractually agreed in any of the contingency fee contracts which he executed.” Id. And the apportionment of the fee between the attorneys is based on the factors listed in Rule 1.5 of the Louisiana Rules of Professional Conduct, which together are directed at assessing the reasonableness of a fee. See id. at 116, 118. The factors (commonly known as “the Saucier factors”) include, inter alia “the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;” “the amount involved and the results obtained;” and “the nature and length of the professional relationship with the client.” La. R. Prof'l Conduct 1.5; accord Saucier, 373 So.2d at 116. The purpose of applying these factors is to ensure that the fee is divided “according to the respective services and contributions of the attorneys for work performed and other relevant factors.” Saucier at 118. An attorney's representation must “advance [the] client's case” and have some “productive value to [the] client” in order for the attorney to recover any part of the applicable contingency fee. See City of Alexandria v. Brown, 740 F.3d 339, 351-52 (5th Cir.2014).

         If the first attorney was discharged without cause, then the application of the Saucier factors marks the end of the analysis. Id. at 118. If, however, the first attorney was discharged for cause, then the court must next “consider the nature and gravity of the cause which contributed to the dismissal and reduce by a percentage amount the portion discharged counsel would receive after the Saucier allocation.” O'Rourke v. Cairns, 683 So.2d 697, 704 (La.1996). Here, Plaintiff contends he discharged Cormier for cause.


         1. Discharge For Cause

         Under Louisiana law, a finding of discharge for cause does not simply depend upon a finding that the Rules of Professional Conduct were violated. Osborne v. Vulcan Foundry, Inc., 699 So.2d 492, 497 (La.App. 4 Cir. 1997). Rather, Louisiana courts look to whether the client's confidence was eroded by the actions or inactions of the attorney. See, e.g., O'Rourke v. Cairns, 683 So.2d 697, 703 (La. 1996).

         In his Motion, Cormier argues that “no compelling argument can be made that he was discharged for cause.” He contends that after Plaintiff's surgery was approved in February 2017, Plaintiff left a voice mail stating that he would “take the $75, 000” offer to settle his worker's compensation case. Contrary to Cormier's contention, Plaintiff stated in his Affidavit, executed on June 19, 2019, that during the 2 1/2 years as his attorney, July 1, 2014 to February 17, 2017, Cormier “did not talk [with him] much on the phone or in person” and “when he did ... could not tell [him] that any ...

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