We fail to find wherein an actionable wrong has been committed by Andrews. Insofar as ethical considerations are concerned, those were the subject of a proceeding before the Grievance Committee and we take it that both parties have accepted the results there reached. In In re Smith, 42 Wn.2d 188, 254 P.2d 464 (1953), that court had before it the question of discipline to be meted out to an attorney who had entered into a contingent-fee arrangement with his client. The court condemned the practice as being violative of public policy but found the case to be one of first impression in the state and thought that its decision "by furnishing a guide for future conduct will serve the only purpose which needs to be accomplished in this case."
This is strikingly true in the case of a contingent fee contract dependent upon the amount of alimony and support money awarded to the wife, such as in this case, since a contingent fee is deducted from the amount awarded to her and therefore tends to frustrate and defeat the court's effort to make suitable provisions for the wife. See, In re Smith, 42 Wn.2d 188, 196, 254 P.2d 464, 469. CONTINGENT FEE CONTRACT IN DIVORCE ACTION VOID
It is impractical to assume that the trial court can consider possible liability for attorney's fees in ascertaining a support figure. This is precisely the sort of consideration which led to our holding in [ In re Smith (1953) 42 Wn.2d 188 ( 254 P.2d 464)]. If the assertion of liens such as these became commonplace, the court's function in providing for the adequate support of minor children, the innocent parties to these actions, would be wholly frustrated.
While it is difficult to enumerate in order of their importance the elements to be considered in setting a fee by an attorney with his client, I am of the opinion that the merits of the case, the time and labor required, the novelty and difficulty of the question involved, and the skill requisite properly to conduct the case, most of which are set forth in Subdivision (1) of Canon 12, supra, are extremely important. Although there are a few authorities to the contrary, an excessive fee is generally regarded as insufficient to warrant disciplinary action unless there are other factors coupled with the excessive fee. 7 C.J.S., Attorney and Client, § 23b, p. 745; Ex parte Goodman, 377 Ill. 578, 37 N.E.2d 345; In re J.A. Magoon, 15 Haw. 244; Herrscher v. State Bar of California, 4 Cal.2d 399, 49 P.2d 832; In re Myrland, 54 Ariz. 284, 95 P.2d 56, 57; In re Smith, 42 Wn.2d 188, 254 P.2d 464; In re Wiltse, 109 Wn. 261, 186 P. 848; an annotation in 80 A.L.R. 706. But I find that coupled with this excessive fee there are other factors which the court must consider in this case, and which coupled with the excessive fee warrant disciplinary action in this case.
See, e.g., In re Smith, 42 Wn.2d 188, 197, 254 P.2d 464 (1953) (because the unethical nature of contingent fees in divorce cases had not been previously decided, no reprimand issued). A second factor justifying leniency is that McGlothlen appears to have acted in good faith and with honest intent and there is no evidence that Ward was or felt harmed.
Accord Valparaiso Bank Trust Co. v. Sims, 343 So.2d 967 (Fla. 1st DCA 1977); Salter v. St. Jean, 170 So.2d 94 (Fla. 3d DCA 1964); McCarthy v. Santangelo, 137 Conn. 410, 78 A.2d 240 (1951); In re Fisher, 15 Ill.2d 139, 153 N.E.2d 832 (1958); Dannenberg v. Dannenberg, 151 Kan. 600, 100 P.2d 667 (1940); Baskerville v. Baskerville, 246 Minn. 496, 75 N.W.2d 762 (1956); State ex rel. Neb. State Bar Ass'n v. Jensen, 171 Neb. 1, 105 N.W.2d 459 (1960); In re Smith, 42 Wn.2d 188, 254 P.2d 464 (1953). In our view, it makes no sense to have different courts and separate proceedings determine inter-related issues between spouses.
It is also entitled to be free from side agreements which would frustrate the court's effort to make suitable provision for the wife without undue burden on the husband.In re Smith, 42 Wn.2d 188, 196-97, 254 P.2d 464 (1953). A substantially similar concern has been expressed by those courts which have declared liens on child support or alimony to be void as a matter of public policy.
We recognized, however, that where the fee retained or demanded was unconscionable, it is a matter properly cognizable in a disciplinary proceeding. In In re Smith, 42 Wn.2d 188, 192, 254 P.2d 464 (1953), an attorney had entered into a contingent fee contract in a divorce case. We held the contract invalid and said that the attorney must rest his right to attorney fees upon the doctrine of quantum meruit.
The chancellor's decree, here under review, is in accord with the majority opinion that attorneys' contingent fee employment contracts in matrimonial actions are against public policy and therefore unenforceable. See: McCarthy v. Santangelo (1951), 137 Conn. 410, 78 A.2d 240; In re Fisher (1958), 15 Ill.2d 139, 153 N.E.2d 832; Dannenberg v. Dannenberg (1940), 151 Kan. 600, 100 P.2d 667; Baskerville v. Baskerville (1956), 246 Minn. 496, 75 N.W.2d 762; State ex rel. Nebraska State Bar Ass'n v. Jensen (1960), 171 Neb. 1, 105 N.W.2d 459; In re Smith (1953), 42 Wn.2d 188, 254 P.2d 464; 5 Am.Jur., Attorneys at Law, § 166; 30 A.L.R. 189. There appears to be no good reason why Florida should not join those states which hold such agreements void and unenforceable. Barrelli v. Levin, 247 N.E.2d 847 (Ind. App. 1969), involved a suit brought by a divorced wife to expunge an attorney's lien.
Restatement: Contracts, § 542 (2). Annotation, 30 A.L.R. 188. It is based on fear that such arrangements act as an inducement to divorce and as an obstacle to the court's duty to set up an equitable property settlement as among the parties to the marriage and any children. Jordan v. Westerman, 62 Mich. 170, 180. Lynde v. Lynde, 19 Dick. 736, 757-758 (N.J.). In re Smith, 42 Wn.2d 188, 196. "Agreement" where used herein without modification refers equally to the 1961 and 1965 arrangements.