Mercantile Adjustment Bureau v. FloodAnnotate this Case
After losing on her Colorado Fair Debt Collection Practices Act claim at the county court, Elizabeth Flood's trial counsel, Gary Merenstein, paid the fees of several appellate attorneys who represented Flood in an appeal to the district court and later to the Supreme Court because they were not willing to work on a contingency basis. Flood ultimately prevailed in her appeal, and the Supreme Court awarded attorneys' fees. On remand to the county court to determine Flood's entitlement to and the amount of the attorneys' fees, the opposing party, debt collector Mercantile Adjustment Bureau(MAB), argued that Flood was not entitled to receive attorneys' fees for her appellate counsel's work. MAB argued that the arrangement between Merenstein and Flood, wherein he agreed to pay her appellate attorneys' fees and expected to be reimbursed for these fees from any court award of attorneys' fees received by Flood, constituted unethical financial assistance of a client in violation of Rule 1.8(e) of the Colorado Rules of Professional Conduct. The county court rejected MAB's argument and awarded Flood the requested attorneys' fees. MAB appealed to the district court, which affirmed the county court. Upon review, the Supreme Court held that Merenstein did not violate Rule 1.8(e) by paying the fees of Flood's appellate counsel and therefore affirmed the district court's decision in part. However, the Court concluded that the district court erred in applying the Colorado Appellate Rules, which require an appellee to make her request for attorneys' fees in her answer brief, to an appeal to the district court from the county court. The Court reversed that part of the district court's ruling applying the Colorado Appellate Rules to deny Flood's request for attorneys' fees incurred in the current appeal. The case was remanded to the district court to return it to the county court for proceedings to determine whether Flood was entitled to appellate fees as the prevailing party in this appeal and, if so, the amount of Flood's reasonable attorneys' fees and costs incurred in connection with this appeal—including the proceedings before the Supreme Court.