Ky. Supreme Court throws out contingent fee when attorney fired. Limits use of police ruses to gain entry to search residence.

    This week the Ky. Supreme Court issued 35 rulings. LawReader subscribers may review our complete synopsis and the full text of the case.
 Two cases are very important.   First the court overruled prior Law and held that when an attorney who had a contingent fee contract is fired from the case, he cannot enforce the contract and is only entitled to quantum merit damages.


 The second case limited the use of police ruses to gain entry to a residence to conduct a search.  This decision did not outlaw police ruses, but does discuss the standard for their review.  In this case the majority found the police violated the 4th. Amendment rights of the defendant.  Justices Roach and Wintersheimer both dissented.   This decision may be a telling prediction of Justice Roach’s view of the Bill of Rights in future cases and places his claim as Justice Wintersheimer’s philosopical replacement. 

 Justice Wintersheimer, who is retiring from the bench in January, follows his predictable pattern of overwhelming denial of defendant’s rights.
 

LawReader case #4 OVERRULING PRIOR LAW: when an attorney employed under a contingency fee contract is discharged without cause before completion of the contract, he or she is entitled to fee recovery on a quantum meruit basis only, and not on the terms of the contract.
LawReader Synopsis:
WO SIN CHIU v.  RICHARD SHAPERO AND CARL FREDERICK JEFFERSON CIRCUIT COURT NO. 98-CI-6240
Appellants, Kenneth H . Baker and Wo Sin Chiu, appeal from an opinion of the Court of Appeals which affirmed in part and vacated in part a decision of the Jefferson
Circuit Court. On discretionary review to this Court, we reverse the Court of Appeals and remand the case for further consideration.
This matter involves the enforcement of an attorney’s lien by Appellees, Richard Shapero and Carl Frederick.
With Baker as his attorney, Chiu ultimately received a total settlement of $175,000 . Shapero and Frederick immediately filed an attorney’s lien against the
settlement, claiming entitlement to the contingency fee set forth in the Employment Agreement signed by Chiu on April 1, 1998 . Pursuant to the standards set forth in
LaBach v. Hampton, 585 S.W.2d 434 (Ky. App. 1979), the trial court determined that Shapero and Frederick were dismissed without cause, and thus, were entitled to a fee based on this employment contract.
 The Court of Appeals affirmed, but vacated and
remanded for a recalculation of the fee actually due to Shapero and Frederick.
Appellants petitioned for discretionary review to this Court, which we granted . We now overrule LaBach v. Hampton , supra, and therefore, must reverse both the Court of Appeals and the trial court.
Since this 1979 ruling, it has been noted that Kentucky’s policy of allowing attorneys who are discharged without cause to claim entitlement to a contingency fee
on a former client’s final recovery, even though they never completed the contracted work, is an extreme minority position .
 Most jurisdictions only allow these discharged attorneys to claim fees on a quantum meruit basis.
 See Lester Brickman, Setting the Fee when the Client Discharges a Contingent Fee Attorney,  41 Emory L.J . 367, 373 n . 37 (Spring 1992) (citing the vast majority of jurisdictions which apply  true quantum meruit recovery for attorneys who are discharged without cause); Limitation to Quantum Meruit Recovery, Where Attorney Employed under Contingent-Fee Contract is
Discharged without Cause, 56 A.L.R. 5th 1, § 3(a) (1998) (same).
In accordance with the vast majority of other jurisdictions that have addressed this issue, we hold that when an attorney employed under a contingency fee contract is
discharged without cause before completion of the contract, he or she is entitled to fee
recovery on a quantum meruit basis only, and not on the terms of the contract.
 As such, the Court of Appeals’ opinion is reversed, and this matter is remanded for proceedings in conformity with this opinion . Specifically, Shapero and Frederick shall be permitted to prove the quantum meruit value of the services they provided to Chiu prior to their final discharge on July 14, 1998 .
LawReader Synopsis:
LawReader case #5 IMPORTANT 4THH. AMENDMENT RULING: “the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means . . .[fjor, no matter how subtly the coercion was applied, the resulting 'consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed ." JUSTICE ROACH AND JUSTICE WINTERSHEIMER DISSENT.
FREDERICK CARL KRAUSE III v. COMMONWEALTH OF KENTUCKY MCCRACKEN CIRCUIT NO . 03-CR-00162-002
Appellant, Frederick Carl Krause, III, entered conditional guilty pleas in McCracken Circuit Court to First Degree Possession of a Controlled Substance,
Cocaine ; Use/Possession of Drug Paraphernalia, Second Offense; and Possession of Marijuana. For these crimes, Appellant was sentenced to three days' imprisonment and two and one-half (2'/2) years of probation ....we reverse the Court of Appeals' opinion, vacate  Appellant's convictions and sentence, and remand for further proceedings.
When one of the residents, most likely Appellant, opened the door, Trooper Manar stated that a young
girl had just reported being raped by Yamada in the residence. He asked if he could look around in order to determine whether her description of the residence and its furnishings was accurate.
 The trial court found that Trooper Manar "knew there would be no such evidence because he knew there was no assault. His intention was to gain consent to search for drugs."
Despite finding that "the ruse employed [by Trooper Manar] raises serious Constitutional rights questions and is not an appropriate police practice,” the trial court
ultimately concluded “that Defendants voluntarily consented to a search for evidence of an assault.”
On appeal to this Court, the sole issue for our consideration is whether the consent given by Appellant and his roommate was constitutionally valid. In Cook v.
Commonwealth, 826 S.W.2d 329 (Ky. 1992), this Court stated that “consent is one of the exceptions to the requirement for a warrant.” Id. at 331 (citing United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L .Ed .2d 598 (1976)).
We further indicated that the “test for determining if consent is constitutional is set out in Schneckloth v.
Bustamonte, 412 U.S. 218, 93 S .Ct. 2041, 36 L.Ed.2d 854 (1973).” Id .
In Schneckloth, supra, the Supreme Court held that “the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means . . .[fjor, no matter how subtly the coercion was applied, the resulting 'consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed ." Id. at 228, 93 S .Ct . at 2048. Whether consent is the result of express or implied coercion is a question of fact, id, at 227, 93 S.Ct. at 2048, and thus, we must defer to the trial court's finding if it is supported by substantial evidence. RCr 9.78 .
The ruse in this instance was employed for the purpose of gaining consent (1) to make a warrantless entry into a home ; and (2) to conduct a plain view warrantless
search of the residence. Thus, the underlying purpose and policies in this case differ from the purpose and policies in the Adcock case. The guiding factor here is to determine whether this particular ruse frustrated the purpose of the constitutional requirement that consent to make a warrantless entry into and search of a home must be voluntary, and thus, free of implied or express coercion .
Finally, we believe that if the type of ruse utilized by Trooper Manar was sanctioned by this Court, citizens would be discouraged from "aiding to the utmost of
their ability in the apprehension of criminals" since they would have no way of knowing whether their assistance was being called upon for the public good or for the purpose of incriminating them. Schneckloth, supra, at 243, 93 S.Ct. at 2056 (internal quotation
omitted).
Moreover, widespread use of this type of tactic could quickly undermine "the set of values reflecting society's deeply felt belief that the criminal law cannot be used as an instrument of unfairness." Id. at 225, 93 S.Ct. at 2046.
We are careful to note that our holding is limited and narrow. We do not hold that the use of ruses, in general, is unconstitutional . The United States Supreme Court has long held that "[a]rtifice and stratagem may be employed to catch those engaged in criminal enterprises.” Sorrells v. United States , 287 U.S . 435, 441-42, 53 S.Ct. 210, 212, 77 L.Ed . 413, 416-17 (1932)
Because the record lacks sufficient evidence to support a finding of voluntary consent, the decision of the Court of Appeals is reversed, and Appellant’s sentence and
convictions are vacated. This matter is remanded to allow Appellant to withdraw his guilty pleas pursuant to RCr 8 .09 and for further proceedings consistent with this
opinion.
Lambert, C.J ., Graves, McAnulty, Minton, and Scott, J .J., concur.


 DISSENTING OPINION BY JUSTICE ROACH:
I must respectfully dissent from the majority opinion because it misinterprets the clear statement of the circuit judge which found that the police were given consent to search . The order denying the motion to suppress evidence entered on July 25, 2003 clearly states that the defendants gave consent for the police to search for evidence of  an assault.: Under all the circumstances, I believe that consent was given and that this judgment of conviction should be affirmed in all respects.
Roach, J ., joins this dissent.
DISSENTING OPINION BY JUSTICE WINTERSHEIMER
I must respectfully dissent from the majority opinion because it misinterprets the clear statement of the circuit judge which found that the police were given consent to search . The order denying the motion to suppress evidence entered on July 25, 2003  clearly states that the defendants gave consent for the police to search for evidence of an assault.

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