                                                                     NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 17-2606
                                                     _


                              In re: Renee Marie Thorpe,
                                                    Debtor

                        Joseph Q. Mirarchi Legal Services, P.C.,

                                                         Appellant

                                  ________________

                     Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                        (D.C. Civil Action No. 2-17-cv-00857)
                     District Judge: Honorable Wendy Beetlestone
                                  ________________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                September 28, 2018

        Before: AMBRO, CHAGARES, and GREENAWAY, JR., Circuit Judges


                          (Opinion filed: November 20, 2018)
                                                   _

                                      OPINION *
                                                     _




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
AMBRO, Circuit Judge

       Joseph Mirarchi, an attorney who previously represented Renee and Dale Thorpe

(the “Thorpes”), filed a motion in the Bankruptcy Court to recover legal fees. After a

hearing, the Bankruptcy Court recommended that the District Court enter an order

concluding that Mirarchi had no contractual right to recover fees and that his wrongful

conduct barred him from recovery in equity under the theory of quantum meruit. The

District Court adopted the substance of the Bankruptcy Court’s recommendation in an

order denying his motion, and Mirarchi appeals to us.

       In this non-core proceeding, we review de novo conclusions of law and “treat the

district court as the trial court, accepting its findings of fact unless clearly erroneous.”

Copelin v. Spirco, Inc., 182 F.3d 174, 180 (3d Cir. 1999) (citing 28 U.S.C. § 157).

“Mixed questions of law and fact must be divided into their respective components and

the appropriate test applied.” First Jersey Nat’l Bank v. Brown (In re Brown), 951 F.2d

564, 567 (3d Cir. 1991) (citing Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d

98, 101–03 (3d Cir. 1981)).

       Mirarchi represented the Thorpes in a Pennsylvania state court litigation against

Nationwide Mutual Insurance Company, during which the Thorpes filed for protection

under Chapter 12 of the Bankruptcy Code. Under the representation agreement, Mirarchi

was entitled to receive a contingency fee equal to 35% of the recovery, if any. But during

his service to the Thorpes he was administratively suspended from the practice of law

because his bar membership lapsed after he failed to meet his continuing legal education

(“CLE”) requirement by a single credit. On learning of his suspension, Mirarchi

                                               2
completed his outstanding CLE obligation and, approximately one month after the

suspension began, he was reinstated to the practice of law and continued to act as the

attorney for the Thorpes.

       While suspended, Mirarchi negotiated on behalf of the Thorpes a settlement with

Nationwide for $324,000. He did not proactively inform them of his suspension, but they

learned of it before deciding whether to accept the settlement he had negotiated and

started asking him questions about the suspension. Mirarchi reassured the Thorpes that

his administrative suspension was nothing to worry about, but the Thorpes, claiming that

they disagreed and were dissatisfied with his representation anyway, terminated his

representation and retained new counsel. Shortly after terminating Mirarchi, the Thorpes

took their new counsel’s advice and accepted a settlement agreement in the amount

Mirarchi negotiated. Because the Thorpes terminated Mirarchi before accepting the

settlement amount he negotiated, they refused to pay him the contingency fee stated in

his representation agreement or an amount equal to the reasonable value of his work. The

disputed funds are being held in escrow until this matter is resolved.

       Mirarchi argues (A) he is entitled to the agreed contingency fee because the

Thorpes’ conduct following his reinstatement ratified his representation, and (B) even if

the fee agreement were no longer enforceable, he is entitled to recover under the

equitable theory of quantum meruit. Mirarchi’s claims against the Thorpes trace to

Pennsylvania common law. Absent a controlling decision by the Pennsylvania Supreme

Court, we must predict how that Court would rule if faced with the same issues by

looking at the decisions of the state’s intermediate appellate courts. Meyer v. CUNA Mut.

                                             3
Ins. Soc’y, 648 F.3d 154, 162 (3d Cir. 2011). We hold that Mirarchi has no entitlement to

the contingency fee, but he may have a claim in quantum meruit against the Thorpes

depending on facts the District Court and Bankruptcy Court did not reach due to the legal

analyses they employed. Accordingly, we affirm in part, vacate in part, and remand the

case for further proceedings consistent with this opinion.

   A. Contract claim

       In Pennsylvania, “a client has a right to terminate his relationship with an attorney

at any time, regardless of whether there exists a contract for fees.” Meyer, Darragh,

Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C., 179 A.3d

1093, 1099 (Pa. 2018) (“Meyer Darragh II”). Here, the Thorpes terminated Mirarchi’s

representation before the contingency fee was triggered. Under a contingency agreement,

“[w]here the contingency has not occurred, the fee has not been earned.” Mager v.

Bultena, 797 A.2d 948, 958 (Pa. Super. Ct. 2002). Because the contingency did not occur

during his representation of the Thorpes, Mirarchi is not entitled to collect the fee. We

affirm the District Court’s ruling on this ground.

   B. Quantum meruit claim

       The Bankruptcy Court concluded that Mirarchi was not entitled to recovery in

quantum meruit because the way he handled his administrative suspension constituted

“wrongful conduct” that precluded recovery in equity. In re Thorpe, 563 B.R. 576, 605

(Bankr. E.D. Pa. 2017). The District Court reached the same conclusion. We thus begin

with whether Mirarchi’s conduct was “wrongful” such that he is precluded from a

recovery in quantum meruit.

                                             4
       1. “Wrongful conduct”

       To reach the conclusion that his conduct was “wrongful” enough to preclude

recovery in equity, the Bankruptcy Court first inquired whether Mirarchi materially

breached his representation agreement with the Thorpes. Thorpe, 563 B.R. at 603. It

concluded that occurred when Mirarchi failed to disclose his administrative suspension,

engaged in the unauthorized practice of law, and was not forthcoming about his

suspension. Id. at 604. Because the Bankruptcy Court viewed a “material breach” to bar

any recovery—even for quantum meruit—it concluded that Mirarchi was foreclosed from

recovery. Id. The District Court adopted this component of the Bankruptcy Court’s

opinion. (A29 (“In this case, Mirarchi failed to fulfill his professional responsibilities,

and his subsequent conduct provided just cause for termination. . . . The Court . . . adopts

the Bankruptcy Court’s finding that Mirarchi’s termination was the result of his own

wrongful acts, and concludes that he is thereby barred from recovery in quantum

meruit.”).)

       We believe the Bankruptcy Court and the District Court went too far in concluding

that the termination here was “for cause” or based on a “material breach.” Moreover,

even were there a material breach, an attorney is not barred completely from recovering

in quantum meruit in this context. The Courts’ conclusion appears to be based in large

part on the Superior Court of Pennsylvania’s decision in Lampl v. Latkanich, cited also

by the parties, which observed that the rule “appears to be that an attorney is entitled to

no compensation whatever . . . if he is discharged because of his own wrongful acts.”

231 A.2d 890, 894 (Pa. Super. Ct. 1967). But is missing one CLE credit a “wrongful act”

                                              5
for equitable purposes? Is that focus too rigid or can it be more practical? As we

observed in Pearson v. Tanner, “[n]o 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.” 513 F. App’x 152, 155 (3d

Cir. 2013).

       And even in the face of a material breach, in Lancellotti v. Thomas the Superior

Court of Pennsylvania adopted the Restatement (Second) of Contracts § 374 (1979),

which sets out the “modern” rule of restitution in favor of a party that breaches a contract:

if one party terminates a contract based on the other party’s material breach, “the party in

breach is entitled to restitution for any benefit that he has conferred by way of part

performance . . . in excess of the loss that he has caused by his own breach.” 491 A.2d

117, 119 (Pa. Super. Ct. 1985). Based on this principle, the Court sustained a claim of

restitution brought by a party that materially breached an agreement after the non-

breaching party exercised its right to terminate the agreement based on the breach. Id. at

119–21.

       We generally adopt the rulings of the Superior Court of Pennsylvania on matters

of state law unless we are aware of “other persuasive data that the highest court of the

state would decide otherwise.” Edwards v. HOVENSA, LLC, 497 F.3d 355, 361 (3d Cir.

2007) (quoting West v. AT&T Co., 311 U.S. 223, 237 (1940)). Aware of no such

persuasive data, we conclude that the Supreme Court of Pennsylvania would adopt the

modern approach to restitution in favor of a breaching party for service contracts, as

                                              6
articulated in § 374 of the Restatement (Second). 1 We also believe that § 374 applies in

full force to claims by a service provider brought under the label of “quantum meruit”

given the Pennsylvania Supreme Court’s understanding that “[a]n action in quantum

meruit sounds in quasi-contract or contract implied in law and seeks the equitable remedy

of restitution where one person has been unjustly enriched by the services of another.”

Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman,

P.C., 137 A.3d 1247, 1250 n.4 (Pa. 2016).

      For these reasons, we part with our District Court colleague’s ruling that

Mirarchi’s supposedly “material breach” of the agreement precluded him from recovering

in quantum meruit. 2 We believe the Supreme Court of Pennsylvania, when presented

with a case in which a party seeking quantum meruit is shown to have acted wrongfully,

would evaluate the conduct under the rubric of unclean hands. See Stauffer v. Stauffer,

351 A.2d 236, 244 (Pa. 1976); A.E.V., Inc. v. M.L. Harrold, Inc., No. 1106 WDA 2013,

2014 WL 10979711, at *7 (Pa. Super. Ct. Mar. 3, 2014). Thus rather than asking

whether Mirarchi committed a “material breach,” we should determine whether

Mirarchi’s equitable claim is barred under the doctrine of unclean hands.




1
  We note that courts in our Circuit have predicted that the Supreme Court of
Pennsylvania will adopt § 374 of the Restatement. See, e.g., Alstom Power, Inc. v. RMF
Indus. Contracting, Inc., 418 F. Supp. 2d 766, 779–80 (W.D. Pa. 2006) (collecting cases).
2
  We express some doubt about the sincerity of the Thorpes’ claim that Mirarchi’s brief
administrative suspension for missing a single CLE credit was important to them, given
that they accepted the very settlement amount he negotiated soon after they terminated
him. It appears to us that the Thorpes’ claim of interest in Mirarchi’s continuing legal
education may have been motivated by the significant sum they stood to gain by using his
administrative suspension to deny his agreed fees.
                                            7
       With the issue so framed, the resolution of the quantum meruit issue in this appeal

largely follows from the Supreme Court of Pennsylvania’s decision in In re Estate of

Pedrick, 482 A.2d 215 (Pa. 1984). There, the Court considered whether an attorney was

barred by the doctrine of unclean hands from recovering under a will he obtained by

visiting the decedent (Pedrick) alone on his deathbed, drafting a new superseding will

that would give the attorney Pedrick’s entire estate (including his federal pension),

obtaining Pedrick’s signature without any witnesses (despite having plenty of time to do

so), testifying as the sole witness to the will in probate court, and then having Pedrick’s

body cremated because it was cheaper than a burial. Id. at 220–22.

       On its way to holding the attorney was barred from recovery, the Court made

pronouncements that are relevant here. To begin, it expressly rejected the notion that an

attorney’s violation of the Pennsylvania ethical rules governing lawyers would

automatically trigger the doctrine of unclean hands. Id. at 222–23. Indeed, it issued a

broad proclamation stating that the Pennsylvania Code of Professional Responsibility

“does not have the force of substantive law” and generally is not “a basis for altering the

rules of law, including evidentiary rules, presumptions and burdens of proof, which

would otherwise apply to a case.” Id. at 217, 221. The Court continued that

              while it may be appropriate under certain circumstances for
              trial courts to enforce the Code of Professional Responsibility
              by disqualifying counsel or otherwise restraining his
              participation or conduct in litigation before them in order to
              protect the rights of litigants to a fair trial, we are not inclined
              to extend that enforcement power and allow our trial courts
              themselves to use the [American Bar Association] Canons
              [of Professional Ethics] to alter substantive law or to punish
              attorney misconduct.

                                               8
Id. at 221. Pedrick noted that its application of the Code is consistent with “Article V,

Section 10(c) of our Constitution which places disciplinary power in [the Supreme Court

of Pennsylvania].” Id.

       After clarifying that a violation of the attorney ethical rules was not necessarily a

sufficient ground to find unclean hands, Pedrick explained why that doctrine barred

recovery in the particular circumstances of its case. The attorney did not just violate a

rule of professional conduct while he was representing a client; rather, he attempted to

use a court process (the probate process) “to secure a benefit from the very conduct

which the accepted standards of the profession preclude.” Id. at 222. Moreover, that

conduct was so far beyond the pale of acceptable attorney behavior, and so harmful to the

individuals involved, that it was “unconscionable” and “shock[ed] the conscience” of the

Court. Id. at 223 & n.14.

       Against this background, we hold that the doctrine of unclean hands does not bar

the quantum meruit claim of Mirarchi. We acknowledge that he was placed on

administrative suspension due to his own failure, although seemingly negligent, to obtain

the requisite CLE credits to continue practicing law in Pennsylvania. We also

acknowledge that Mirarchi’s failure to disclose his administrative suspension violated the

Pennsylvania Rules of Disciplinary Enforcement, see Pa. R.D.E. 217(b), and that his

work on behalf of the Thorpes during his one-month administrative suspension

constituted the unauthorized practice of law, see 42 Pa. C.S.A. § 2524; Pa. R.D.E. 217(j).

We do not applaud the manner in which Mirarchi handled his representation of the

Thorpes once he was placed on administrative suspension. Nonetheless, we do not

                                              9
believe his conduct shocks the conscience such that he should be completely denied

recovery based on the doctrine of unclean hands.

       We note also that our holding is consistent with one of the concerns in the

preamble to the Pennsylvania Rules of Professional Conduct:

              [T]he purpose of the Rules can be subverted when they are
              invoked by opposing parties as procedural weapons. The fact
              that a Rule is a just basis for a lawyer’s self-assessment, or for
              sanctioning a lawyer under the administration of a
              disciplinary authority, does not imply that an antagonist in a
              collateral proceeding or transaction has standing to seek
              enforcement of the Rule. Accordingly, nothing in the Rules
              should be deemed to augment any substantive legal duty of
              lawyers or the extra disciplinary consequences of violating
              such a duty.

Pa. R.P.C. Preamble ¶ 19; see also Pedrick, 482 A.2d at 221–22 (favorably citing similar

language in a prior draft version of the preamble). Although the professional conduct

rules that Mirarchi violated are formed in the Pennsylvania Rules of Disciplinary

Enforcement (not the Rules of Professional Conduct), we believe the same concern exists

in this context and are troubled by the incentives created where a litigant adverse to an

attorney can escape its liability by establishing the attorney’s noncompliance with

professional rules governing lawyers and not directly their relations with clients.

       2. Prima facie claim

       The District Court held that Mirarchi was completely precluded from recovery

based on his wrongful conduct, and thus did not address in detail whether he has a viable

prima facie claim for quantum meruit. (A26–29.) To win such a claim, Mirarchi must

show (1) the benefits conferred by him on the Thorpes, (2) appreciation of these benefits

by them, and (3) “acceptance and retention of [those] benefits under such circumstances
                                           10
that it would be inequitable for [the Thorpes] to retain the benefit without payment of

value.” Meyer Darragh II, 179 A.3d at 1102 (quoting Shafer Elec. & Constr. v. Mantia,

96 A.3d 989, 993 (Pa. 2014)). The record facts as to each of these elements are clear:

the Thorpes benefitted from Mirarchi’s negotiating a settlement on their behalf, and after

they terminated him, they accepted a settlement in the same amount he negotiated. We

have no trouble concluding that Mirarchi has a viable quantum meruit claim of at least

some amount.

       But this is as far as we can go on appeal in sustaining Mirarchi’s quantum meruit

claim. We leave it to the Bankruptcy Court and the District Court to determine in the

first instance the proper amount of Mirarchi’s recovery in quantum meruit. 3 We also

leave to the courts the question—which is suggested but not presented by the record on

this appeal—of whether Mirarchi’s claim of quantum meruit is properly asserted against

the Thorpes or instead must be brought against their subsequent attorney after that

attorney is paid. See Meyer Darragh II, 179 A.3d at 1105 (“[P]redecessor counsel may

recover damages in quantum meruit against successor counsel in a contingent fee dispute

. . . where the facts demonstrate unjust enrichment . . . which would be unjust to retain

without some payment to predecessor counsel.”).

       For these reasons, we affirm in part, vacate in part, and remand the case for further

proceedings consistent with this opinion. We leave to our District Court colleague

whether to refer the case back to the Bankruptcy Court.


3
 There is arguably another thorny question related to the computation of his quantum
meruit amount—namely, whether Mirarchi can recover for legal services rendered while
he was administratively suspended.
                                           11
