Effect of Attorney's Discharge on Duty to Pay Fee

Ira Mark Ellman

Arizona State University College of Law; Arizona State University (ASU) - Department of Psychology


California Law Review, Vol. 61, p. 397, 1973

This article examines the California Supreme Court’s decision in Fracasse v. Brent, which upset the century-old rule of Baldwin v. Bennett which required a client to pay the full contract fee to an attorney discharged without cause. The court reasoned that the Baldwin rule unduly restrained a client from exercising his absolute right to discharge his attorney at will. The court concluded that limiting damages by the quantum meruit measure would be more consistent with this right while adequately protecting the discharged attorney's interest.

This article concludes that in this case the California Supreme Court has provided the client with substantially increased protection in his purchase of legal services, joining a growing minority of states. Although the court’s reasoning may occasionally be confusing, the result strikes the proper balance between the client’s rights to choose his attorney and the attorney’s interest in fair compensation for the effort he has expended in the client’s behalf. Protection of the expectation interest, never as compelling as the reliance interest in any event, is particularly difficult to justify in the attorney-client contract. Although in the commercial context such a measure of damages may provide a useful restraint on breach of contract, in this case it only frustrates the statutory policy of allowing the client the absolute right to discharge an attorney in whom he has lost confidence. After Fracasse, every attorney is forewarned that every contract he enters into is subject to the client's right of discharge.

Number of Pages in PDF File: 10

Keywords: Contract Law, Attorney Client Relationship, Fracasse v. Brent

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Date posted: October 8, 2009  

Suggested Citation

Ellman, Ira Mark, Effect of Attorney's Discharge on Duty to Pay Fee (1973). California Law Review, Vol. 61, p. 397, 1973. Available at SSRN: http://ssrn.com/abstract=1484822

Contact Information

Ira Mark Ellman (Contact Author)
Arizona State University College of Law ( email )
Box 877906
Tempe, AZ 85287-7906
United States
480-965-2125 (Phone)
HOME PAGE: http://www.law.asu.edu/HomePages/Ellman/
Arizona State University (ASU) - Department of Psychology ( email )
Tempe, AZ 85287-1104
United States
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