No. 12-0206 – Gaddy Engineering Co. v. Bowles Rice McDavid Graff & Love, LLP
                                                                             FILED
                                                                          June 14, 2013
                                                                          released at 3:00 p.m.
                                                                          RORY L. PERRY II, CLERK
                                                                        SUPREME COURT OF APPEALS
                                                                            OF WEST VIRGINIA
LOUGHRY, Justice, concurring, and DAVIS, Justice, joining:



              While I agree with the decision reached by the majority to affirm the trial

court’s grant of summary judgment, I find it necessary to write separately to fault the

majority for its absolute failure to recognize the critical need–as the body charged with the

responsibility to both oversee and enforce this state’s rules of professional conduct1–to

address the illegality of a fee-sharing agreement between a lawyer and a nonlawyer. From

the outset of this case, the respondents sought to dismiss the case on the grounds that the

alleged fee-sharing agreement was an illegal contract and, thus, unenforceable. See Syllabus

Ben Lomond Co. v. McNabb, 109 W.Va. 142, 153 S.E. 905 (1930) (holding that contracts

aimed at accomplishing fraudulent or illegal purposes are unenforceable). In denying the

motion, the trial court found the lack of precedent on the issue to be determinative.2 Despite

       1
       See Syl. Pt. 3, in part, Comm. on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d
671 (1984) (recognizing that “[t]his Court is the final arbiter of legal ethics problems”).
       2
        As further support its ruling, the trial court wrongly relied upon Watson v. Pietranton,
178 W.Va. 799, 364 S.E.2d 812 (1987). That case, which upheld a fee-splitting agreement
between lawyers, is both factually and legally inapposite. Fee-sharing agreements between
lawyers and nonlawyers, as is the case here, invoke distinct ethical issues which have at their
core the protection of the public. As discussed within this concurrence, it is that crucial need
to protect the public’s interest which regularly compels the conclusion that fee-sharing
                                                                                  (continued...)

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the clear invitation from the trial court to resolve this previously unaddressed issue,3 the

majority opted not to decide that a fee-sharing agreement between a lawyer and a nonlawyer

that is in violation of Rule 5.4 of the Rules of Professional Conduct is unenforceable as being

contrary to the public policy of this state. In so doing, I believe that the majority did a serious

disservice to both the bench and the bar of this state.



               In resolving whether the violation of a rule of professional conduct constitutes

a public policy violation, the trial court stated:

                      The court is of the opinion, then, that the W.Va. Rules of
               Professional Conduct do not amount to positive statements of
               the law or of public policy sufficient to render the alleged fee-
               sharing agreement between Gaddy and Defendants void and
               unenforceable. In other words, these words do not define
               “illegal conduct” but do define “unethical conduct” for which an
               attorney may be disciplined or sanctioned by the Supreme Court
               of Appeals.

Numerous other courts, when presented with the issue of whether rules which govern


       2
         (...continued)
agreements between lawyers and nonlawyers violate public policy and are thus unenforceable
as illegal agreements.
       3
         While the grant of summary judgment was on different grounds, this Court was free
to affirm the lower court’s ruling on grounds other than those relied upon by the trial court.
See Schmehl v. Helton, 222 W.Va. 98, 106 n.7, 662 S.E.2d 697, 705 n.7 (2008) (“[T]his
Court may in any event affirm the circuit court on any proper basis, whether relied upon by
the circuit court or not.”); Murphy v. Smallridge, 196 W.Va. 35, 36-37, 468 S.E.2d 167,
168-69 (1996) (“An appellate court is not limited to the legal grounds relied upon by the
circuit court, but it may affirm or reverse a decision on any independently sufficient ground
that has adequate support.”).

                                                2

attorney conduct constitute statements of public policy, have resoundingly determined that

rules of professional conduct contain explicit declarations of a state’s public policy. See

Fields v. Ratfield, No. A132766, 2012 WL 5359775 at *9 (Cal. App. 2012) (“The Rules of

Professional Conduct are not only ethical standards to guide the conduct of members of the

bar; but they also serve as an expression of public policy to protect the public.”) (internal

quotation marks omitted); Cruse v. O’Quinn, 273 S.W.3d 766, 776 (Tex. App. 2008) (finding

that disciplinary rules constitute an expression of Texas public policy on issue of fee-sharing

agreements); Evans & Luptak, PLC v. Lizza, 650 N.W.2d 364, 370 (Mich. App. 2002)

(recognizing “fundamental principle that contracts that violate our ethical rules violate our

public policy and therefore are unenforceable”); Brandon v. Newman, 532 S.E.2d 747, 747

(Ga. App. 2000) (upholding trial court’s ruling that state bar disciplinary provisions establish

public policy of disapproving of fee-sharing agreements with nonlawyers); Albert Brooks

Friedman, Ltd. v. Malevitis, 710 N.E.2d 843, 846 (Ill. App. 1999) (“Supreme court rules have

the force of law and are indicative of public policy in the area of attorney conduct”).



              In Martello v. Santana, 713 F.3d 309 (6th Cir. 2013), the Sixth Circuit Court

of Appeals recently affirmed the district court’s decision that a fee-sharing contract between

a physician and an attorney was unenforceable as being void against public policy. As the

appellate court related, “[c]entral to its breach of contract determination was the district

court’s belief that the Kentucky Rules of Professional Conduct inform public policy, and that


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Martello’s agreements with Santana violated Rule 5.4” which bars fee agreements between

lawyers and nonlawyers.4 713 F.3d at 312-13. Specifically rejecting the appellant’s

argument that “public policy can only be created by the Kentucky Legislature,” the Sixth

Circuit reasoned that “the Kentucky Rules of Professional Conduct are public policy set by

the Kentucky Supreme Court.” Id. at 313. As further support for its conclusion, the Sixth

Circuit observed that the Restatement (Second) of Contracts, in referring to the use of

legislation to identify public policy violations, defines “legislation ‘in the broadest sense to

include any fixed text enacted by a body with authority to promulgate rules. . . .’” Id.

(quoting Restatement (Second) of Contracts § 178 cmt. (1981)).



              Addressing the issue of whether fee-sharing agreements between lawyers and

nonlawyers violate public policy, the Supreme Court of Indiana reasoned as follows in

Trotter v. Nelson, 684 N.E.2d 1150 (Ind. 1997), abrogated on other grounds by Liggett v.

Young, 877 N.E.2d 178 (Ind. 2007):

                     The Rules of Professional Conduct, as enacted by this
              Court, contain both implicit and explicit declarations of public
              policy. The Indiana Rules of Professional Conduct exist, to a
              large extent, as a means of protecting the interests of the public
              as potential clients. “These Rules and this Court’s willingness
              to enforce them help ensure that the public is well served by the


       4
         Rule 5.4 of the Kentucky Rules of Professional Conduct mirrors this Court’s Rule
5.4, a codification of the Model Rules of Professional Conduct adopted by the ABA, which
provides in pertinent part that “[a] lawyer or law firm shall not share legal fees with a
nonlawyer. . . .” W.Va. R. Prof’l Cond. 5.4.

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              bar. Forces that undermine the standards on which the Rules of
              Professional Conduct are founded disserve the public by
              weakening the client-lawyer relationship.

Id. at 1153 (footnote and internal citation omitted). Continuing its discussion, the Court in

Trotter underscored the heightened import of the Rules that are framed imperatively:

              Certain of the Rules are explicit declarations of what an attorney
              can or cannot do. They are “cast in the terms ‘shall’ or ‘shall
              not.’” Prof. Cond. R. Preamble, Scope. Some of these
              imperatives concern agreements that an attorney can or cannot
              enter into. The Rules at issue in this case (Rules 5.4(a) and
              7.3(f)) are such imperatives. Rules 5.4(a) and 7.3(f) are explicit
              judicial declarations of Indiana public policy and, akin to
              contravening a statute, agreements in violation of these rules
              are unenforceable.

684 N.E.2d at 1153 (emphasis supplied).



              The reasons for the general prohibition5 against fee-splitting agreements are

detailed in Trotter:

              Rule 5.4(a) prohibits an attorney from sharing legal fees with a
              nonlawyer. This Rule states the public policy against fee-
              splitting with a nonlawyer. . . . [F]ee-splitting with a nonlawyer
              is disfavored because of its potential affect on the client-attorney
              relationship. For example, fee-splitting with a nonlawyer
              provides the incentive for a nonlawyer to recommend an
              attorney’s services for their own pecuniary interests rather than
              the client’s legal best interests. Furthermore, fee-splitting


       5
        Rule 5.4 contains exceptions to the general prohibition, none of which apply to this
matter. See R. Prof’l Cond. 5.4 (setting forth exceptions that pertain to payments following
a lawyer’s death and permit inclusion of nonlawyer employees in compensation or retirement
plans).

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              provides a potential disincentive to the attorney to devote their
              full time and energy to the client, as the attorney must share fees
              with another who has done little to earn it. Finally, fee-splitting
              might interfere with the attorney’s “professional independence
              of judgment.” Thus, in general, fee-splitting agreements with a
              nonlawyer are contrary to Indiana public policy and
              unenforceable.

684 N.E.2d at 1154-55 (internal citations omitted); accord O’Hara v. Ahlgren, Blumenfeld

& Kempster, 537 N.E.2d 730, 734-35 (Ill. App. 1989) (discussing “variety of harms”

associated with fee-sharing agreements and recognizing that “[t]he public is best served . .

. by [attorney] recommendations uninfluenced by financial considerations”).



              All decisions that involve issues of public policy have at their core a recognized

need to act in furtherance of the public’s interest. Observing the difficulty in formulating a

precise definition of public policy, we articulated in Cordle v. General Hugh Mercer Corp.,

174 W.Va. 321, 325 S.E.2d 111 (1984):

              All are agreed that its meaning is as “variable” as it is “vague,”
              and that there is no absolute rule by which courts may determine
              what contracts contravene the public policy of the state. The
              rule of law, most generally stated, is that “public policy” is that
              principle of law which holds that “no person can lawfully do
              that which has a tendency to be injurious to the public or
              against public good * * * ” even though “no actual injury” may
              have resulted therefrom in a particular case “to the public.” It
              is a question of law which the court must decide in light of the
              particular circumstances of each case.

Id. at 325, 325 S.E.2d at 114 (quoting Allen v. Commercial Cas. Ins. Co., 37 A.2d 37, 38-39

(N.J. 1944 and emphasis supplied). That the prohibition of fee-sharing agreements between

                                              6

lawyers and nonlawyers set forth in Rule 5.4 of the Rules of Professional Conduct is rooted

in the need to protect the public from various potential injuries is clear. See O’Hara, 537

N.E.2d. at 734; Trotter, 684 N.E.2d at 1154; see also Malevitis; 710 N.E.2d at 847 (“A single

focus animates our rules of professional conduct and the common law of this state: the

client’s best interest.”). In view of this recognized need to protect the public from the

harmful consequences of fee-sharing agreements, and like the majority of courts that have

addressed the concerns at issue, this Court should have reached the conclusion that a fee-

sharing agreement between a lawyer and a nonlawyer that is in violation of Rule 5.4 of the

Rules of Professional Conduct is unenforceable as being contrary to the public policy of this

state.



              With regard to the trial court’s concern that litigants may not rely upon the

Rules in the course of civil actions,6 this issue has been firmly rejected. In Evans & Luptak,

the Michigan Court of Appeals considered the argument that the Michigan Rules of

Professional Conduct could not be used as a defense to the plaintiff’s breach of contract

claim based on the provision within the rules which states that the rules “do not give rise to

a cause of action for enforcement of a rule or for damages caused by a failure to comply with


         6
        There is an obvious distinction between the concern expressed in the scope section
of the Rules that they are not to serve as a basis for civil liability and the assertion by a
defendant of a rule in defense to the enforcement of an allegedly illegal contract. The
respondents neither sought to invoke the Rules as a procedural weapon nor to demonstrate
the existence of a legal duty as a result of a breach of the Rules. See R. Prof’l Cond., scope.

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an ethical obligation.” 650 N.W.2d at 368 (discussing MRPC 1.0(b)). In rejecting the

plaintiff’s argument, the court specifically approved of the use of the rules “as a defense that

the alleged contract is unethical because it violates our public policy as expressed in the

Michigan Rules of Professional Conduct.” 650 N.W.2d at 368 (emphasis in original).

Similarly, the court rejected any reliance on the language which indicates that the rules are

for disciplinary purposes only and that they may not be used to support or shield against civil

liability. Id. at 369. As the court observed in Evans & Luptak, it would be absurd for the

judicial system to assist a party to enforce an agreement that is in furtherance of a purpose

which violates public policy. Id. Succinctly stated, “a party to a contract which is contrary

to public policy is not precluded from raising its illegality as a defense.” O’Hara, 537

N.E.2d at 738.



              The fact that one party may benefit from an illegal fee-sharing agreement does

not tip the proverbial scales of justice in favor of enforcement. As one court observed,

                      Martello asserts that voiding these contracts would create
              a windfall for Santana at Martello’s expense. This argument,
              while possibly true, is unpersuasive. The Rules of Professional
              Conduct were not created to protect non-lawyers who enter into
              contracts with attorneys, but were instead designed to ensure
              both that the judicial process is ethical and to protect potential
              clients.

Martello, 713 F.3d at 314; accord Trotter, 684 N.E.2d at 1155 (“[W]hen a court determines

that a contract must be declared void as against public policy, it does so on the grounds that


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the good of the public as a whole must take precedence over the circumstances of the

individual, no matter the hardship or inequities that may result.”); see also Infante v.

Gottesman, 558 A.2d 1338, 1344 (N.J. Super. 1989) (“While we recognize that our decision

may unjustly enrich defendant to the extent that he has received the benefit of any

investigative and paralegal services performed by plaintiff, the pervasive proscriptions

against such agreements require that we not render any assistance to these parties.”); O’Hara,

537 N.E.2d at 737-38 (rejecting plaintiff’s argument that lay persons be permitted to enforce

fee-sharing agreement, stating that “[b]y refusing in every case to assist the lay party, courts

may deter laypersons as well as attorneys from attempting such agreements” and “in this way,

the public will be protected more effectively from the potential harms posed by fee-sharing

agreements”).



              To borrow from the astute observation of an esteemed former member of this

Court: “For the majority to completely fail to tackle at least an examination of the ethical

considerations of the . . . fee [sharing agreement]. . . , undermines this Court’s responsibility

to uphold the ethical principles of the legal profession and sends the wrong message to the

members of our Bar.” Bass v. Coltelli-Rose, 207 W.Va. 730, 739, 536 S.E.2d 494, 503

(2000) (Scott, J., dissenting).



              For these reasons, Justice Davis and I concur.


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