                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                   No. 12-2503
                                  _____________

                              JEFFRY S. PEARSON;
                              ALLEN L. FEINGOLD,
                                            Appellants

                                         v.

      MARK W. TANNER; THERESA ALLEN; JERRY ALLEN, H/W;
FELDMAN, SHEPHERD, WOHGELHERTNER, TANNER, WEINSTOCK & DODIG,
                             LLP
                        _____________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                           (D.C. Civil No. 12-cv-00798)
                  District Judge: Honorable Gene E.K. Pratter
                                  ____________

                    Submitted Under Third Circuit LAR 34.1(a)
                                January 17, 2013
                                 ____________

             Before: SMITH, CHAGARES and BARRY, Circuit Judges

                         (Opinion Filed: February 5, 2013)
                                  ____________

                                    OPINION
                                  ____________

BARRY, Circuit Judge

     Suspended attorney Jeffrey Pearson and disbarred attorney Allen Feingold
(“Plaintiffs”) appeal from a Rule 12(b)(6) dismissal of their declaratory judgment action

against their former clients, Theresa and Jerry Allen; the Allens’ current lawyer, Mark

Tanner; and Mr. Tanner’s firm, Feldman, Shepherd, Wohgelhertner, Tanner, Weinstock

& Dodig, LLP. Plaintiffs seek a declaration that they are entitled to recover, in quantum

meruit, the reasonable value of legal services provided to the Allens before Plaintiffs’

suspension and disbarment. We will affirm.

                                     I. Background 1

       In 2003, Mr. Feingold entered a contingency-fee contract to represent the Allens in

a medical malpractice case. In 2007, he “associated with and transferred responsibility”

for the Allens’ litigation and the contingency-fee arrangement to Mr. Pearson. Mr.

Pearson represented the Allens until June of 2009, at which point he “associated with and

transferred responsibility” to Theodore Schwartz, Esquire. Then, in October of 2009, the

Allens discharged Mr. Schwartz and retained Mr. Tanner and his law firm to continue

prosecuting their medical malpractice claim.

       After Mr. Tanner rebuffed requests to protect Plaintiffs’ claims against any

recovery the Allens might ultimately obtain, Plaintiffs filed a declaratory judgment action

seeking a declaration that they are entitled to recover the reasonable value of attorneys’

fees in quantum meruit in connection with their former legal representation of the Allens.

Defendants moved to dismiss and submitted copies of public records establishing that Mr.


1
 The facts are taken from the complaint with the exception of facts relating to Mssrs.
Pearson and Feingold’s disciplinary histories, which are taken from public records
                                             2
Feingold was suspended from the practice of law on March 30, 2006, and disbarred on

August 22, 2008, and that Mr. Pearson was suspended for four months effective May 28,

2009, and later for twenty months effective June 28, 2011. The District Court dismissed

the case on April 25, 2012. Plaintiffs timely appealed.

                          II. Jurisdiction & Standard of Review

       The District Court had jurisdiction under 28 U.S.C. § 2201 and § 1332. We have

jurisdiction under 28 U.S.C. § 1291. Our review of an order granting a Rule 12(b)(6)

dismissal is plenary. Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir.

2006). We must decide whether the complaint 2 contains “sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Although we must accept as true all of the complaint’s allegations and reasonable

inferences drawn therefrom, we “need not credit a complaint’s bald assertions or legal

conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132

F.3d 902, 906 (3d Cir. 1997). “[C]ourts have an obligation in matters before them to view

the complaint as a whole and to base rulings not upon the presence of mere words but,

rather, upon the presence of a factual situation which is or is not justiciable. We do draw

on the allegations of the complaint, but in a realistic, rather than a slavish, manner.” Doug


attached to Defendants’ motion to dismiss.
2
  A court may also look to exhibits attached to the complaint, matters of public record,
and records of which the court may take judicial notice. McTernan v. City of York, Penn.,
577 F.3d 521, 526 (3d Cir. 2009) (citing Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d
                                             3
Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 184 (3d Cir. 2000) (quoting City

of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 n.13 (3d Cir. 1998)).

                                       III. Analysis

                       A. Claims Against Mr. Tanner and His Firm

       Under Pennsylvania decisional law, a quantum meruit cause of action does not lie

against unrelated successor counsel. See Mager v. Bultena, 797 A.2d 948, 955 (Pa.

Super. Ct. 2002) (“[The initial] attorney . . . does not have a quantum meruit action

against the attorney who ultimately settles the case.”) (quoting Fowkes v. Shoemaker, 661

A.2d 877, 879 (Pa. Super. Ct. 1995)); see also In re LaBrum & Doak, LLP, 225 B.R. 93,

105–06 (Bankr. E.D. Pa. 1998) (stating “Pennsylvania law is clear that a quantum meruit

cause of action does not lie against an unrelated successor attorney”); Cherry v. Zucker,

57 Pa. D. & C. 4th 33, 38 (Com. Pl. 2002), aff’d, 817 A.2d 1172 (Pa. Super. Ct. 2002)

(stating that an action in quantum meruit cannot be maintained by a dismissed attorney

against successor counsel) (citing Cherry v. Weiss, 118 Del. Co. 117 (2000), aff’d, 754

A.2d 13 (Pa. Super. Ct. 2000), app. den., 2000 WL 987134 (Pa. 2000)).

       Plaintiffs’ argument to the contrary relies improperly on dicta from Johnson v.

Stein, 385 A.2d 514 (Pa. Super. Ct. 1978), and a later case citing that dicta, Feingold v.

Pucello, 654 A.2d 1093 (Pa. Super. Ct. 1995). In Johnson, the Superior Court affirmed

the dismissal of an attorney’s claim for an equitable charging lien on a former client’s

recovery and suggested the possibility of pursuing an unjust enrichment action against


Cir. 2004)).                                  4
successor counsel. Johnson, 385 A.2d at 515. This suggestion was later repudiated. See

Styer v. Hugo, 619 A.2d 347, 351 (Pa. Super. Ct. 1993) (“[T]he appellant [in Johnson]

had never sought recovery on a theory of unjust enrichment at any point in either the trial

court or on appeal. The Johnson Court’s gratuitous speculation as to whether appellant

might be able to pursue such a theory at a later time is pure dicta.”), aff’d, 637 A.2d 276

(Pa. 1994); see also Fowkes, 661 A.2d at 880 (citing Johnson and explaining that any

suggestion of quantum meruit recovery against successor counsel was “pure dicta”).

Furthermore, both Johnson and Feingold are factually distinct from the present case.

Johnson involved a lawsuit between two attorneys who practiced in the same firm.

Feingold involved a lawsuit between an attorney and former client. Neither involved a

lawsuit between the initial attorney and unrelated successor counsel. Plaintiffs fail to

identify a single Pennsylvania case that supports their quantum meruit claim against Mr.

Tanner and his firm.

                               B. Claims Against the Allens

       No Pennsylvania court has addressed whether a suspended or disbarred attorney is

entitled to recover from a former client, in quantum meruit, the value of legal services

rendered pursuant to a contingency-fee contract prior to the attorney’s suspension or

disbarment. 3 Courts in other jurisdictions addressing this issue have employed one of two


3
  Plaintiffs contend that framing the case’s central issue in this manner relies on improper
speculation because the complaint alleges that the Allens’ case was “transferred” to
another attorney and there is no mention of Plaintiffs’ disciplinary histories. This is a
frivolous contention. Although a court must assume the truth of a plaintiff’s factual
                                              5
approaches. Under the first approach, an attorney’s suspension or disbarment is treated as

a voluntary withdrawal or abandonment, amounting to a material breach of the parties’

contract and precluding recovery under the contract or on a quantum meruit theory. See

Fletcher v. Krise, 120 F.2d 809 (D.C. Cir. 1941); In re Woodworth, 15 F. Supp. 291

(S.D.N.Y. 1936); Royden v. Ardoin, 331 S.W.2d 206 (Tex. 1960); Sympson v. Rogers,

314 S.W.2d 717 (Mo. 1958); Davenport v. Waggoner, 207 N.W. 972 (S.D. 1926). Under

the second approach, an attorney’s suspension or disbarment is seen not as voluntary

abandonment, but, rather, as an automatic termination of the attorney-client relationship

by operation of law, akin to incapacitation from illness or death, which, under the theory

of impossibility, or frustration of contractual purpose, excuses nonperformance and

allows recovery for partial performance. See, e.g., Cooper v. Texaco, Inc., 961 F.2d 71

(5th Cir. 1992); Eisenberg v. Gen. Motors Acceptance Corp., 761 F. Supp. 20 (E.D. Pa.

1991); West v. Jayne, 484 N.W.2d 186 (Iowa 1992); Stein v. Shaw, 79 A.2d 310 (N.J.

1951); Rutenbeck v. Grossenbach, 867 P.2d 36 (Colo. App. 1993); Delbecarro v.

Cirignani, 633 N.E.2d 981 (Ill. App. Ct. 1994); Padilla v. Sansivieri, 815 N.Y.S.2d 173

(N.Y. App. Div. 2006). Recovery is disallowed under the second approach, however, if


allegations on a motion to dismiss, it is not required to accept as true unsupported
conclusions or unwarranted inferences. See Doug Grant, 232 F.3d at 183–84 (3d Cir.
2000). The District Court was not required to ignore the public disciplinary records which
clearly demonstrate that Mr. Feingold was suspended from the practice of law in
Pennsylvania on March 30, 2006, and Mr. Pearson, on May 28, 2009. The Court’s
framing of the issue, therefore, was not based on assumptions or speculation, but on the
fact that, as a result of their suspensions, Mssrs. Pearson and Feingold could no longer
represent the Allens.
                                               6
the misconduct leading to disciplinary action is not wholly unrelated to the representation

for which compensation is sought.

       The District Court adopted the first approach. We need not, however, decide

which is the better of the two approaches, much less endorse one over the other, because

under either one, Plaintiffs’ claims fail. Under the first approach, the disciplinary actions

taken against Plaintiffs constituted a material breach of their respective contracts with the

Allens, barring any and all recovery. Under the second approach, Plaintiffs cannot

recover because the public disciplinary documents 4 strongly suggest that the wrongful

conduct leading to Mr. Feingold’s suspension and ultimate disbarment and Mr. Pearson’s

suspension was related to their representation of the Allens. Mr. Feingold was disbarred

for continuing to engage in law-related activities after his suspension in 2006. According

to the complaint, he did not transfer the Allen case to Mr. Pearson until 2007. Mr.

Pearson was suspended for actively assisting Mr. Feingold, a suspended and later

disbarred attorney, in the unlawful practice of law from late 2007 until May 2009. This

time period coincides with Mr. Pearson’s representation of the Allens.


4
  The District Court was suitably taken aback by the “glaring absence” of Plaintiffs’
disciplinary histories from their complaint. In 2006, Mr. Feingold was suspended from
the practice of law in Pennsylvania for five years for, inter alia, “filing frivolous claims
of fraud and civil conspiracy against opposing counsel.” Feingold v. Hendrzak, 15 A.3d
937, 939 n.1 (Pa. Super. Ct. 2011). He was disbarred on August 22, 2008, because he
“failed to notify his clients of [the earlier] disciplinary action and continued practicing
law while suspended.” Id.; see also Feingold v. Office of Disciplinary Counsel, 415 F.
App’x 429, 430 (3d Cir. 2011). Mr. Pearson was suspended for actively assisting Mr.
Feingold in the unauthorized practice of law. Office of Disciplinary Counsel v. Pearson,
No. 1410 Disciplinary Docket No. 3 (Pa. 2011).
                                                 7
                              IV. Conclusion

We will affirm the order of the District Court.




                                      8
