Heldreth v. Rahimian, etc. (concurring)
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No. 32779 - Holly D. Heldreth v. Dr. Ali Rahimian and Regional Women s Health Care, Inc. FILED February 22, 2006 released at 3:00 p.m. RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Davis, C.J., concurring: In this proceeding, the majority of the Court has found that the trial court committed error in the method it used to determine attorney fee s in this case. I fully concur in the decision reached by the majority s opinion. I have chosen to write separately, however, to clarify Syllabus point 6 thereof. In Syllabus point 6 of the majority s opinion, the Court has held that [w]hile fee structures that involve a contingent-fee arrangement are clearly enforceable despite the existence of a fee-shifting statute, attorneys are not entitled to receive both the statutory fee award and the full amount of the contingent fee. I believe this syllabus point is in artfully constructed. Its present wording is susceptible of misinterpretation and should be more narrowly drawn. Taylor v. Sears, Roebuck & Co., 190 W. Va. 160, 165, 437 S.E.2d 733, 738 (1993) (Workman, C.J., concurring). I believe that Syllabus point 6 intended to say, and should have said, that a contingency fee agreement is enforceable despite the existence of a fee-shifting statute. However, there must be an off-set so that an attorney only recovers, under the fee-shifting statute, that amount of the award that is above what was obtained by the attorney under the 1 contingency fee agreement. The remaining amount of the statutory fee award goes to the client. In view of the foregoing, I respectfully concur. 2
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