Unpublished Disposition, 855 F.2d 862 (9th Cir. 1988)

MEMORANDUM^* 

Marian Plough appeals the district court's finding that she entered into an enforceable agreement to pay her attorney, John Phillips, a one-third share of her settlement recovery. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

DISCUSSION

We review the district court's finding that Plough and Phillips entered into an enforceable agreement for clear error. See Interpetrol Bermuda Ltd. v. Kaiser Aluminum Intern., 719 F.2d 992, 998 (9th Cir. 1983) (factual findings by the court as to what the parties said and did during contracting must be accepted unless clearly erroneous). In this case, the district court's determination that the parties terminated their prior agreement and entered into a new agreement providing for Phillips to receive a one-third contingency fee was not clearly erroneous.

The district court found that over the two and one-half years that Phillips represented Plough, she discharged him and then sought to rehire him on three separate occasions. After his last dismissal, Phillips indicated that he was ready to turn Plough's complete file over to her new attorney. Plough, however, had been unsuccessful in retaining new counsel and she insisted that she had changed her mind again and wanted Phillips to continue to represent her. Phillips agreed to represent her on the condition that his contingency fee be increased from 25 percent to 33 percent. The court found that Plough agreed to the increase and that Phillips reduced the new contract to writing.

An attorney and client may change their initial contingency fee agreement and their second agreement may serve as a valid substituted contract. See Malanca v. Falstaff Brewing Co., 694 F.2d 182, 184 (9th Cir. 1982). In support of its finding that a new agreement had been reached, the district court noted that, after the parties had talked, a written fee agreement was executed, something that had not been done in the past when Phillips had been terminated and subsequently reinstated as Plough's counsel. The court concluded that there would have been no reason for a new contract in late 1984, unless there had been a new agreement as to the fee. We cannot say that this finding is clearly erroneous; thus, we accept the district court's conclusion that the parties entered into a new contract.

Appellant argues that this case involved overreaching by Phillips, as Plough's attorney, that should have nullified or precluded the finding of a new contract. We have reviewed the facts in the record and find no such overreaching. Accordingly, the district court's finding that the parties entered into a valid, enforceable agreement calling for Phillips to receive a one-third share of Plough's recovery is AFFIRMED. Phillips' request for attorneys' fees pursuant to A.R.S. Sec. 12-341.01(A) is DENIED.