In Re: Mma Law Firm, Pllc

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #030

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 29th day of June, 2026 are as follows:

BY Penzato, J.:

2026-CQ-00161 IN RE: MMA LAW FIRM, PLLC

CERTIFIED QUESTIONS ANSWERED. SEE OPINION.

Retired Judge Glen Wade Strong appointed Justice ad hoc, sitting for Justice

Cole, recused.

SUPREME COURT OF LOUISIANA

No. 2026-CQ-00161

IN RE: MMA LAW FIRM, PLLC

On Certified Question from the United States District Court for the

Southern District of Texas

PENZATO, J.*

This case presents certified questions about an attorney’s ability to recover

fees and costs under a contingent fee contract when his representation is prematurely

terminated. Premised on an assumption the attorney engaged in unethical or illegal

conduct, the questions ask what effect that conduct has on the validity of the contract

and the attorney’s right to recover fees and costs. We find a contingent fee contract

entered as the result of unethical or illegal conduct is absolutely null, and the

responsible attorney is not entitled to fees or costs. If a valid contract is formed but

the attorney engages in unethical or illegal conduct during its performance, the

attorney’s recovery of fees and costs is governed by the framework adopted in

Saucier v. Hayes Dairy Products, Inc., 373 So. 2d 102 (La. 1978), on reh’g

(6/25/79), and O’Rourke v. Cairns, 95-3054 (La. 11/25/96), 683 So. 2d 697.

FACTS AND PROCEDURAL HISTORY

Certified questions are decided on the facts presented by the federal court.

Pickard v. Amazon.com, Inc., 23-01596 (La. 6/28/24), 387 So. 3d 515, 518.

Established facts are limited at this point, but the certification confirms the dispute

is between the current and former attorneys of clients who sought recovery for

damages caused by hurricanes and other storms along the Louisiana Gulf Coast. The

*

Judge Allison H. Penzato, for the Court of Appeal, First Circuit, appointed as Justice pro tempore, sitting for the vacancy in the First District. She is now appearing as an ad hoc for Justice William Burris. Retired Judge Glen Wade Strong appointed Justice ad hoc, sitting for Justice Cole, recused.

clients were first represented by McClenny Moseley & Associates, PLLC (“MMA”),

a Houston based law firm that entered contingent fee contracts with thousands of

Louisiana residents in the wake of Hurricane Ida. In response to concerns about the

firm’s handling of the claims, multiple courts entered orders staying MMA’s cases

or sanctioning the firm’s attorneys, including actions by this Court suspending the

license of MMA’s lead attorney in Louisiana and staying the firm’s cases in

Louisiana state courts.2 A special trustee was also appointed to assist in identifying

and notifying MMA’s former clients “of the inability of MMA to represent them in

pending hurricane or storm-related litigation.” See In re: Richard William Huye, 23-B-0277 (La. 5/18/23).

MMA filed for bankruptcy protection in 2024. In a written declaration filed

in the proceeding, the firm’s managing member stated, “After negative orders were

entered by Louisiana District Courts and the licenses of MMA’s attorneys were

suspended in Louisiana, MMA was no longer able to represent clients in that state.”

According to the federal court’s certification, it is undisputed that MMA either

withdrew from representation or was discharged from virtually all of the remaining

cases. Other law firms undertook the representation of MMA’s former clients and

ultimately resolved many of the claims.

MMA filed claims in the bankruptcy proceeding against some of the successor

law firms, alleging it was owed attorney fees and costs out of the settlement proceeds

from its prior cases. The successor firms denied the claims, arguing MMA’s conduct

rendered its contracts absolutely null and barred any recovery of fees or costs. The

particular claim giving rise to this certification was filed by MMA against Morris

Bart, LLC., which requested a jury trial for the action. As a result of the jury request,

2

See In re Huye, 23-0277 (La. 3/3/23), 356 So. 3d 1000, 1001; In re: Richard William Huye, 23-B-0277 (La. 5/10/23) (stay order) and (La. 5/18/23); see also In re: McClenny Mosely & Associates PLLC, 21-CV-2258 (W.D. La. 7/30/21) (suspending MMA attorneys from practicing in Western District for 90 days); Franatovich v. Allied Tr. Ins. Co., 22-2552, (E.D. La. 3/16/23), 2023WL7005861 (imposing Rule 11 sanctions).

2

the claim was transferred from the bankruptcy court to the district court for the

Southern District of Texas. See MMA Law Firm, PLLC v. Morris Bart, LLC, 4:24-CV-4446, 2024WL5088383, at *4 (S.D. Tex. 12/12/24) (withdrawing reference to

bankruptcy court). The parties agree the merits of MMA’s claim are governed by

Louisiana substantive law.

Pursuant to Louisiana Supreme Court Rule XII, the district court certified

five questions to this Court, which granted the certification. See In re MMA Law

Firm, PLLC, 26-0161 (La. 3/13/26), 429 So. 3d 308. Before addressing the

questions, it should be emphasized that no factual findings have been made in this

proceeding concerning the allegations of misconduct against MMA. The district

court made this clear:

In this Certification Request, this Court frames the factual background

and its questions hypothetically, as it has not yet had to decide whether

MMA, its lawyers, or agents actually committed any acts of

misconduct. Although the allegations referenced in this certification

permeate the pleadings in the cases pending in this Court and in various

courts in Louisiana, the parties dispute the allegations. The [managing

member’s declaration], however, recognizes that the allegations of

misconduct—whether true or not—resulted in MMA being no longer

able to continue its representation of its Louisiana clients . . ., but this

Court has not made any findings of fact regarding the allegations of

misconduct.

In our limited role, this Court likewise makes no factual findings regarding

the allegations of misconduct. When a certified question is accepted, our task is

limited to deciding “questions of Louisiana law.” See La. S.Ct. Rule XII, § 1; La.

R.S. 72.1A; Pickard, 387 So. 3d at 526. Any fact-finding responsibility is reserved

to the federal court. See Wightman v. Ameritas Life Ins. Corp., 22-0364 (La.

10/21/22), 351 So. 3d 690, 693.

DISCUSSION

Question 1: Who Can Assert Absolute Nullity of a Contract

In the first certified question, the district court asked:

3

Can a successor law firm, in a lawsuit filed against it by a predecessor

law firm seeking fees and costs, who either no longer could continue

the representation and withdrew or was discharged by the client or the

court, raise the defense that the predecessor law firm’s earlier

misconduct renders the predecessor’s contingent fee contract an

absolute nullity?

Yes. Under Louisiana Civil Code article 2030, an “[a]bsolute nullity may be

invoked by any person or may be declared by the court on its own initiative.”

(Emphasis added.) A “person” includes a juridical person, meaning an entity to

which the law attributes personality. See La. Civ. Code art. 24. By allowing any

person to raise a contract’s absolute nullity, Article 2030 recognizes that absolute

nullities “operate similarly with respect to all members of society, not just the parties

to the transaction” and “should have no effect with respect to anyone.” Ronald J.

Scalise Jr., Rethinking the Doctrine of Nullity, 74 La. L. Rev. 663, 671-72 (2014).

Question 2(A): Does Attorney Misconduct Render Contract an Absolute Nullity

In Question 2(A), the district court asked:

If an attorney-client contingent fee contract was entered into as the

result of either unethical or illegal means implemented by an attorney

or someone acting on his or her behalf, or during the representation of

the client the attorney practiced in an unethical or illegal manner, is that

contingent fee contract a nullity?

This question addresses the effect of unethical or illegal conduct in two

different time frames, during the formation of the agreement and during its

performance. Each requires a separate answer. Given the district court’s explanation

in the certification, we construe the reference to “nullity” to mean an absolute nullity.

As further explained below, we find that a contingent fee contract entered as the

result of unethical or illegal conduct is absolutely null. If the misconduct occurs

after the parties enter a valid contract, the agreement may terminate by dissolution

but is not absolutely null.

Louisiana Civil Code article 7 establishes the basic premise that the civil law

does not sanction unlawful agreements:

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Persons may not by their juridical acts derogate from laws

enacted for the protection of the public interest. Any act in derogation

of such laws is an absolute nullity.

Similarly, Article 2030 provides:

A contract is absolutely null when it violates a rule of public

order, as when the object of a contract is illicit or immoral. A contract

that is absolutely null may not be confirmed.

The cause of an obligation is unlawful “when the enforcement of the

obligation would produce a result prohibited by law or against public policy.” La.

Civ. Code art. 1967.

While the basic relationship between client and lawyer is contractual, the

parties’ association has also been described as sui generis given this Court’s

constitutional authority to regulate the practice of law. See La. Const. art. V, § 5(B);

Chittenden v. State Farm Mut. Auto. Ins. Co., 00-0414 (La. 5/15/01), 788 So. 2d

1140, 1147-48, 51. This Court has exclusive and plenary power to define and

regulate all facets of the practice of law, including the admission of attorneys to the

bar, the professional responsibility and conduct of lawyers, the discipline,

suspension and disbarment of lawyers, and the attorney-client relationship.

Succession of Wallace, 574 So. 2d 348, 350 (La. 1991).

Thus, for applicable directives of public order and policy in the formation of

the attorney-client contract, we also look to the Rules of Professional Conduct. See

La. R.S. 37, Ch. 4, Appendix, Art. XIV. Adopted by this Court as “regulatory laws

in the interests of the public, the courts, and the legal profession,” the Rules of

Professional Conduct have the force and effect of substantive law and permeate all

facets of the practice of law. Spears v. Hall, 25-0195 (La. 3/6/26), 429 So. 3d 291,

295; Chittenden, 788 So. 2d at 1147-49. Personal solicitation of clients, particularly

paid solicitation, is generally prohibited, and an attorney is barred from entering an

agreement obtained as a result thereof. See Rules 7.2(c)(13), 7.4(a). Prohibited fee

sharing and the unauthorized practice of law are also proscribed. See Rules 5.4(a),

5

5.5(a), 7.2(c)(13); see also La. R.S. 37:213A(1), (4). As an adjunct to Rules 5 and

7, Louisiana Revised Statute 37:219A declares it to be “unlawful for any attorney to

pay money or give any other thing of value to any person for the purpose of obtaining

representation of any client.” A violation is a criminal offense subject to

imprisonment of up to five years and a substantial fine. See La. R.S. 37:219C.

These regulatory and statutory provisions embody the state’s strong public

policy against paid, personal solicitations of clients, sometimes referred to as “case

running.” See In re O’Keefe, 03-3195 (La. 7/2/04), 877 So. 2d 79. As the O’Keefe

court observed:

The legal system and the profession suffer actual injury when a lawyer

engages in runner-based solicitation, a felony under state law.

* * *

This court has long condemned the practice of soliciting clients for pay.

. . . [S]olicitation of clients for pay cannot be condoned as the

professional character of the practice of law could not survive the

hunting down and marketing of personal injury claims. Solicitation is

abhorrent to the legal profession and places lawyers in disrepute with

the public. . . . We have not hesitated to permanently disbar lawyers

who knowingly participate in such activities.

In re O’Keefe, 877 So. 2d at 85-88 (citations and internal quotation marks omitted).

A contingent fee contract resulting from this misconduct, namely

impermissible paid solicitations, prohibited fee sharing, and the unauthorized

practice of law, is an absolutely nullity. See La. Civ. Code arts. 7, 1968, 2030; Rules

5.4(a), 5.5(a), 7.2(c)(13), 7.4(a); La. R.S. 37:213, 37:219. An agreement formed as

a result of this misconduct derogates from laws enacted for the protection of the

public interest, violates rules of public order, and produces a result prohibited by law

and against public policy. See Id. “This court cannot place its stamp of approval on

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such contracts and must declare them null.” Succession of Cloud, 530 So. 2d 1146,

1151 (La. 1988).3

The second part of Question 2(A) asks about the effect of attorney misconduct

during the client’s representation. If the parties entered a valid contract, subsequent

misconduct may constitute a “failure to perform” by the attorney, which under the

Civil Code gives rise to the contract’s dissolution, but does not render it absolutely

null. See La. Civ. Code art. 1994, 2013. When an obligor fails to perform, “the

obligee has a right to the judicial dissolution of the contract or . . . to regard the

contract as dissolved. In either case, the obligee may recover damages.” La. Civ.

Code art. 2013. As explained by Professors Litvinoff and Scalise:

When no defect intervened in the formation of a contract but one party

has failed to perform his obligation as agreed, the other may avail

himself of an action to obtain the dissolution of that contract.

Litvinoff & Scalise, 6 La. Civ. L. Treatise, Law Of Obligations § 16.3 (2d ed.).

Questions 2(B) and 4: Can the Attorney Still Recover Fees and Costs

In Questions 2(B) and 4, the district court asked:

2B. If the answer to Question 2(A) is yes—that the contingent fee

contract is a nullity—can that attorney still seek attorneys’ fees and

costs on any basis, including a non-contractual (be it quasi-contract or

quantum meruit) basis?

4. Assuming an attorney with a contingent fee contract was found

to have participated in illegal conduct or conduct in violation of the

Louisiana Rules of Professional Conduct, as opposed to mere neglect

or negligence, can that attorney subsequently recover his or her fees

and/or costs on any basis from the successor law firm who takes up the

case and represents the client from the point of withdrawal to

conclusion?

An attorney who obtained a contingent fee contract as the result of unethical

or illegal means, which rendered the agreement absolutely null, is not entitled to

3

See also Gray v. Atkins, 331 So. 2d 157, 166 (La. App. 3 Cir. 1976), writ denied, 334 So. 2d 433 (La. 1976) (Where attorney conspired with an individual illegally practicing law and steering prospective clients to attorney, “any contracts entered into by them pursuant to that illegal relationship are illegal and void.”); Vidrine v. Abshire, 558 So. 2d 288, 293 (La. App. 3 Cir. 1990) (“A ‘running’ contract is unenforceable.”)

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recover fees or costs for work performed pursuant thereto. Louisiana Civil Code

article 2033 declares that an absolutely null contract is “deemed never to have

existed” and the “parties must be restored to the situation that existed before the

contract was made.” Article 2033 expressly prohibits recovery by a party who knew

or should have known of the basis for the nullity:

[A] performance rendered under a contract that is absolutely null

because its object or its cause is illicit or immoral may not be recovered

by a party who knew or should have known of the defect that makes the

contract null.

La. Civ. Code art. 2033.4

More specific to the attorney-client contract, Rule 7 of the Code of

Professional Conduct, governing the direct solicitation of clients, provides: “A

lawyer shall not enter into an agreement for, charge, or collect a fee for professional

employment obtained in violation of this Rule.” Rule 7.4(a). As previously

observed, runner-based solicitation is a criminal offense and abhorrent to the legal

profession. See In re O’Keefe, 877 So. 2d at 85-88. Attorneys who engage in this

proscribed conduct cannot be permitted to reap the rewards by collecting their fees

and costs on any basis. See Gray, 331 So. 2d at 166.

If a valid contract is entered but misconduct occurs thereafter, the attorney’s

ability to recover fees is best handled through the framework established in Saucier

and O’Rourke. Under those cases, when a discharged attorney and successor

attorney both claim interests in settlement proceeds under contingent fee contracts,

the client owes only one contingency fee, the highest ethical percentage to which the

client contractually agreed. See O’Rourke, 683 So. 2d at 702; Saucier, 373 So. 2d

at 118. The contingency fee is then allocated between the attorneys based on factors

4

Article 2033 permits two exceptions allowing recovery by a party who knew or should have known of the defect in the contract: (1) if the party invokes the nullity to withdraw from the contract before its purpose is achieved, and (2) in exceptional situations when, in the discretion of the court, recovery would further the interest of justice. See La. Civ. Code art. 2033. Neither exception was asserted or appears applicable.

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now in Rule 1.5(a) of the Rules of Professional Conduct. Id.5 If the prior attorney

was discharged for cause, his share of the contingency fee is reduced based on the

“nature and gravity of the cause” contributing to his dismissal. O’Rourke, 683 So.

2d at 704 (emphasis added). The O’Rourke court explained the basis for this

approach:

This rule serves to confine client exposure to no more than one

contingency fee in both with and without cause situations.

Furthermore, it allows courts to properly analyze the intricacies which

invariably arise in contingency fee litigation, while also taking into

consideration the conduct of attorneys which mar the profession and

client confidence by requiring dismissal for cause.

O’Rourke, 683 So. 2d at 704.

We find this reasoning and approach applicable regardless of the precise

nature of the conduct prompting the discharge of the attorney, whether nonfeasance

as in O’Rourke, unethical or illegal conduct as described in Question 2(B), or the

more intentional conducted suggested by Question 4. In each instance, the

Saucier/O’Rourke framework provides a flexible approach that allows for a

discretionary determination based on the facts of each case. For relatively minor

misconduct, the O’Rourke adjustment may be minimal, while more egregious

conduct could warrant a significant reduction or, in appropriate cases, a complete

denial of a fee.

Questions 2(C) and 4 also ask if the discharged attorney can recover his costs.

The recovery of costs was not addressed in Saucier or O’Rourke; however, similar

to attorney fees, Rule 1.5(a) prohibits a lawyer from charging or collecting “an

5

The factors are (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.

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unreasonable amount for expenses.” See also Rule 1.8(e) (providing limitations on

lawyer’s advances to client for financial assistance). In determining what costs, if

any, a discharged attorney is entitled to recover, similar consideration must be given

to the limits set by the Rules of Professional Conduct and, where appropriate, an

O’Rourke reduction or denial may be imposed as well.

Question 2(C): Recover against whom -- Former Client, Successor Attorney, or

Both

In Question 2(C), the district asked:

If the answer to Question 2(B) is yes—that the attorney can seek fees

and costs despite his or her misconduct—against whom can he or [she]

seek fees: the former client, the successor law firm, or both?

Subject to certain requirements, the discharged attorney has a right of action

to recover fees and costs against the former client and the successor law firm.

Generally, Louisiana Revised Statute 37:218 grants an attorney a “special privilege”

for his fees and certain costs on any recovery obtained in the suit. See La. R.S.

37:218A-B; see also La. Civ. Code arts 3190, 3216 (defining special privileges). A

related law provides a similar privilege on proceeds from a judgment. See La. R.S.

9:5001. A written contract is required under Section 37:218, and the parties may

record the agreement in the public records, all as more fully set forth in the statute:

By written contract signed by his client, an attorney at law may

acquire as his fee an interest in the subject matter of a suit, proposed

suit, or claim in the assertion, prosecution, or defense of which he is

employed, whether the claim or suit be for money or for property. Such

interest shall be a special privilege to take rank as a first privilege

thereon, superior to all other privileges and security interests under

Chapter 9 of the Louisiana Commercial laws. In such contract, it may

be stipulated that neither the attorney nor the client may, without the

written consent of the other, settle, compromise, release, discontinue,

or otherwise dispose of the suit or claim. Either party to the contract

may, at any time, file and record it with the clerk of court in the parish

in which the suit is pending or is to be brought or with the clerk of court

in the parish of the client’s domicile. After such filing, any settlement,

compromise, discontinuance, or other disposition made of the suit or

claim by either the attorney or the client, without the written consent of

the other, is null and void and the suit or claim shall be proceeded with

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as if no such settlement, compromise, discontinuance, or other

disposition has been made.

La. R.S. 37:218A. “Fee” means the agreed fee, whether fixed or contingent, and

any advances to or for the client permitted by the Rules of Professional Conduct.

See La. R.S. 37:218B.

Morris Bart maintains an attorney cannot pursue a claim against the former

client unless the contingent fee contract is recorded. This Court has not specifically

addressed this question in earlier cases. For other parties, recordation of the contract

is not necessary to enforce the privilege against a creditor of the client, see Calk v.

Highland Const. & Mfg., 376 So.2d 495, 499 (La. 1979); however, recordation is

necessary to impose an obligation on a defendant “to retain settlement funds until

determination of [the discharged attorney’s] fee entitlement.” See Scott v. Kemper

Ins. Co., 377 So. 2d 66, 68 (La. 1979). The circuit courts are split on whether

recordation is a prerequisite to pursuing a claim against a former client.6

We need not decide the issue in this case. As Saucier made clear, a client is

obligated to pay only one contingency fee. Saucier, 373 So. 2d at 118. MMA seeks

recovery only against successor attorneys, not former clients. Whether recordation

of the contract is essential to maintain a claim against a former client is not

“determinative of the cause” in this proceeding and thus inappropriate for

6

For cases finding contract recordation is not necessary to pursue recovery against a former client, see F. Q. Hood, Jr., APLC v. Ashton, 54,830 (La. App. 2 Cir. 1/11/23), 354 So. 3d 854, 860, writ denied, 23-0201 (La. 4/12/23), 359 So. 3d 33; Breeden v. Crumes, 11-1098 (La. App. 4 Cir. 4/4/12), 102 So. 3d 133, 138, writ denied, 12-1091 (La. 9/12/12), 98 So. 3d 312; Hall v. St. Paul Fire & Marine Ins. Co., 03-1333 (La. App. 5 Cir. 2/23/04), 868 So. 2d 910, 912, writ denied, 04-0756 (La. 5/7/04); 872 So.2d 1087; Francis v. Hotard, 00-0302 (La. App. 1 Cir. 3/30/01), 798 So. 2d 982, 985, writ not considered, 2001-1323 (La. 6/22/01); 793 So. 2d 1263; Rush, Rush & Calogero v. Barrios, 97-1532 (La. App. 3 Cir. 4/22/98), 716 So. 2d 23, 25, writ denied, 98-2114 (La. 11/6/98), 728 So.2d 868. For cases finding recordation of the contract is necessary to pursue recovery from the former client, see Law Office of John D. Sileo, LLC v. Kruse, 17-474 (La. App. 5 Cir. 2/21/18), 239 So. 3d 1057, 1065, writ denied, 18-0469 (La. 5/11/18), 241 So.3d 312; Ferguson v. W. Jefferson Levee Dist. Bd. of Comm’rs, 96-385 (La. App. 5 Cir. 11/14/96), 685 So.2d 273, 275, writ granted in part and remanded, 96-3005 (La. 2/7/97), 688 So. 2d 486; Reis v. Fenasci & Smith, 93-1785, (La. App. 4 Cir. 4/14/94), 635 So.2d 1319; Murray, Murray, Ellis, Braden & Landry v. Minge, 516 So. 2d 213, 216 (La. App. 4 Cir. 1987), writ denied, 516 So.2d 369 (La. 1988).

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certification. See La. Sup. Ct. Rule XII § 1. For these reasons, we decline to address

this issue.

For claims against a successor attorney, this Court has also not specifically

addressed whether recordation of the contract is necessary for that action. The

discharged attorney in Saucier recorded his contract, but the facts of O’Rourke do

not indicate whether the attorney recorded his contract in that case. The O’Rourke

opinion does confirm the attorney filed an intervention in the pending suit that was

ultimately tried and produced the judgment under review. O’Rourke, 683 So. 2d at

699. The circuit courts are more uniform here, finding recordation of the contract is

not necessary to maintain a claim against a successor attorney, but some form of

timely notice to the attorney is required.7 We agree.

When the claimants are both attorneys, or, as in Calk, an attorney and a

creditor, both parties are asserting rights to the same corpus of money based on a

privilege or security interest. Under those circumstances, the recordation of the

contract is not necessary to effectuate the privilege. See Calk, 376 So. 2d at 496. As

observed in Calk and applied in Scott, the recordation provision in Section 37:218

provides the discharged attorney a means to ensure his fee will be protected when a

defendant pays a settlement, either by including the discharged attorney’s name on

the check or requiring his consent to disburse. See Calk, 376 So. 2d at 499-500;

Scott, 377 So. 2d at 70. The defendant is the client’s obligor, not a competing

claimant. Id. Once the settlement is paid, the privilege attaches and is effective

against other claimants. See La. R.S. 37:218A; Calk, 376 So. 2d at 499.

However, while recordation is not necessary, the discharged attorney “must

assert his claim by intervention or other legal proceedings prior to disbursement of

the proceeds to a third party.” Calk, 376 So. 2d at 499. In this context, the successor

7 See Sileo, 239 So. 3d at 1065; Reis, 635 So. 2d at 1322-23; Murray, 516 So. 2d at 216; Ferguson, 685 So. 2d at 275.

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attorney is the third party, and the discharged attorney must provide him the required

notice before the contingent fee is paid, meaning the funds have been received, are

no longer held in trust for the client, and have become the property of the successor

attorney. Once commingled with the successor attorney’s funds, the contingent

fee—the thing subject to the privilege—has lost its identity, and, absent notice, the

privilege is extinguished. See La. Civ. Code art. 3277(1) (“Privileges become extinct

[by] the extinction of the thing subject to the privilege.”).8

Question 3: Can Attorney Recover Fees and Costs if He Withdraws

In the third certified question, the district court asked two questions, which

are addressed together:

A. Does the Saucier/O’Rourke framework apply to a case in which

a law firm is not discharged but instead withdraws from representation

because it was no longer able to represent the client, or would the

withdrawal from such cases render the withdrawing firm ineligible for

the collection of attorneys’ fees and costs?

B. Assuming an attorney with a contingent fee contract withdraws

from the representation of a client in an attempt to either avoid an

adverse ruling by a court or to avoid sanctions or accusations due to

some form of misconduct by the attorney or his or her employees or

agents, can that attorney subsequently recover his or her fees and/or

costs on any basis from the successor law firm who takes up the case

and represents the client from the point of withdrawal to conclusion?

Yes, in a case involving multiple contingent fee contracts, the

Saucier/O’Rourke fee-allocation framework applies to any termination of an

attorney’s representation, whether by discharge or withdrawal. The Rules of

Professional Conduct contain both mandatory and permissive grounds for an

attorney to withdraw from representing a client. See Rule 1.16. Similar to when an

attorney is discharged, a withdrawal can occur due to no fault of the attorney, such

as an unexpected health issue, or, on the other extreme, may involve unethical or

illegal conduct. Where the attorney bears some culpability, an O’Rourke reduction

8

Here, we note counsel for Morris Bart indicated that settlements of MMA’s former cases are subject to an injunction requiring Morris Bart to withhold the full fee and MMA’s claimed costs pending resolution of any disputes associated therewith.

13

or denial based on the nature and gravity of the misconduct is appropriate,

particularly where the withdrawal had a material adverse effect on the client’s

interests. See Rule 1.16(b)(1).

Use of this approach in both discharge and withdrawal cases “allows courts to

properly analyze the intricacies which invariably arise in contingency fee litigation,

while also taking into consideration the conduct of attorneys which mar the

profession and client confidence by requiring dismissal for cause.” O’Rourke, 683

So. 2d at 704; see also Wright v. Tschirn, 03-1676 (La. App. 3 Cir. 6/9/04), 875 So.

2d 1037, 1040 (applying Saucier and rejecting blanket rule that would deny fee

recovery by attorney who withdrew without cause).

Question 5: Does the Judge or Jury Make the O’Rourke Adjustment

In the fifth question, the district court asked:

If the ‘modified quantum meruit analysis’ espoused in O’Rourke v.

Cairns is found to apply to the matters pending in Texas, who would

reallocate the attorneys’ fees and costs based on the ‘nature and gravity’

of the misconduct—the Court or the jury?

Supreme Court Rule XII authorizes a certification request for “questions of

Louisiana law that are determinative of the cause” in a federal proceeding. La. Sup.

Ct. Rule XII, § 1. In this case, Louisiana law does not determine whether the court

or the jury should decide the O’Rourke adjustment.

The U.S. Supreme Court has long held that the right to a jury trial in federal

court, including diversity cases applying state substantive law, is to be determined

as a matter of federal law. Simler v. Conner, 372 U.S. 221, 222; 83 S.Ct. 609, 610;

9 L.Ed.2d 691 (1963) (per curiam). In Simler, a client challenged the validity of a

contingent fee contract and the fees owed to an attorney. See Simler v. Conner, 295

F.2d 534 (10th Cir. 1961), rev’d, 372 U.S. 221; 83 S.Ct. 609; 9 L.Ed.2d 691 (1963).

The client requested a jury trial, which was granted by the district court, but the court

of appeal reversed, relying on state law to conclude the claim was purely equitable

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in nature. Id. The U.S. Supreme Court reversed the court of appeal and reinstated

the jury demand, finding the appellate court erred by applying state law to determine

the issue. The Court explained:

We agree with respondent that the right to a jury trial in the federal

courts is to be determined as a matter of federal law in diversity as well

as other actions. The federal policy favoring jury trials is of historic

and continuing strength. Only through a holding that the jury-trial right

is to be determined according to federal law can the uniformity in its

exercise which is demanded by the Seventh Amendment be achieved.

In diversity cases, of course, the substantive dimension of the claim

asserted finds its source in state law, but the characterization of that

state-created claim as legal or equitable for purposes of whether a right

to jury trial is indicated must be made by recourse to federal law.

Simler, 372 U.S. at 222; 83 S.Ct. at 610-11 (citations and footnotes omitted).

Although the subject certified question focuses on one issue—the O’Rourke

reduction—federal law still governs whether that issue will be submitted to the jury

in a federal proceeding. As explained by the U.S. Fifth Circuit:

[A]lthough the substantive issues are governed by state law pursuant to

Erie, federal law governs the allocation of issues raised between judge

and jury. ‘It cannot be gainsaid that there is a strong federal policy

against allowing state rules to disrupt the judge-jury relationship in the

federal courts.’ Byrd v. Blue Ridge Rural Electric Cooperative,

1958,356 U.S. 525, 538, 78 S.Ct. 893, 901, 2 L.Ed.2d 953; Simler v.

Conner, 1963,372 U.S. 221, 222, 83 S.Ct. 609, 610, 9 L.Ed.2d 691.

Hence, where federal rules would entitle litigants to a jury

determination of a particular issue, the court will not yield to a state

practice to the contrary. Byrd; Magenau v. Aetna Freight Lines, Inc.,

1959, 360 U.S. 273, 278, 79 S.Ct. 1184, 1188, 3 L.Ed.2d 1224.

Nunez v. Superior Oil Co., 572 F.2d 1119, 1125 (5th Cir. 1978) (footnotes and some

citations omitted).

In this case, applying federal law, the district court determined that Morris

Bart has a right to a jury trial. See MMA Law Firm, PLLC v. Morris Bart, LLC,

4:24-CV-4446, 2024 WL 5088383, at *4 (S.D. Tex. 12/12/24). The allocation of

issues between the jury and the presiding judge will be determined by federal law,

not Louisiana law. For this reason, we decline to answer this certified question. See

La. Sup. Ct. Rule XII § 1.

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CONCLUSION

Pursuant to Louisiana Supreme Court Rule XII, the judgment rendered by this

court upon the questions certified shall be sent by the clerk of this court under its

seal to the United States Southern District of Texas.

CERTIFIED QUESTIONS ANSWERED.

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