Shabbat Parashat Korach 5776

P'ninat Mishpat: Lawyer’s Rights to Full Fees from Reluctant Client – part III

Case: The plaintiff (=pl) is a lawyer (/owner of a law firm) who represented the defendant (=def), a wealthy businessman (/businesses he owned) in many matters, including several multimillion-shekel (attempted) purchases. Def paid pl more than 1.6 million shekels over 4 years, but pl claims that he is still owed more than 2 million shekels.

Issue #3: Pl handled several cases that included advanced preparations for major purchases, which def eventually decided against. In some cases, they had agreed on a large lump-sum fee after the completion of the deal, and in others there was no agreed upon commission. Def claims that it is accepted for a lawyer who works on a potential purchase to get paid only if it comes to fruition. Pl says that this makes sense regarding simple purchases where initial stages are not intensive, not for deals that require tens of hours of legal preparation.

Issue #4: Def produced documentation of several payment demands and settlement offers made by pl, which ignored matters about which he is now making claims. Def claims that this is proof that he does not owe for those cases, either because of: 1) prior payment (from the 1.6 mil. shekels paid, much of which was not earmarked) covered cases in question; 2) pl realized money was never due, or 3) pl waived rights (mechila) to certain payments in return for other benefits.

Ruling: Issue #3. The gemara (Bava Kama 116b) says that if Reuven gave up his animal in danger to save Shimon’s and he did not succeed, he receives only pay for his toil and not for his animal. We see that even a worker who did not get the desired result deserves some pay.

Perhaps, though, one can distinguish between cases where regular compensation was promised for success, in which one gets paid something without success, and those with the chance of exceptional gain, in which case great potential could be instead of modest profit without success. The latter applies in some of our cases. [We will not get into pl’s claim that the great reward was for suggesting the deal, not the legal preparations.] Still, we do not have a clear source to legitimize def’s “all or nothing” claims when def did not bother to stipulate it, considering that is not the common practice.

Issue #4: Regarding the possibility of prior payment, where there was a definite obligation and a definite claim by pl and def’s claim is only that he might have paid, def is obligated to pay. This is reinforced by beit din’s strong impression that def avoided answering far too many questions posed to him (see Rama, Choshen Mishpat 75:1, that a suspicious lack of answers can be held against a litigant).

Pl’s explanation, that he concentrated on only certain payments at one time in order to make at least partial payment more likely, is legitimate when someone refuses to pay that which he owes. Silence on other claims at that time thus does not preclude making claims later (see Ketubot 44a). Even if pl expressed explicit mechila due to def’s improper lack of payment (which was clear in certain cases), def would still have a moral obligation to pay, and there is a machloket if beit din can force him to pay (Shulchan Aruch, CM 12:14 and Rama, CM 12:6).

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