COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 72303, 72324, 72362, 72363, 72557, 73140 FRED SIEGEL COMPANY, Plaintiff-appellant vs. PROVIDENT MANAGEMENT INC. JOURNAL ENTRY [72303], EXECUTIVE PROPERTIES, INC., ET AND AL. [72324, 72363, 72557], CONSOLIDATED MANAGEMENT INC., OPINION ET AL. [72362], DUNHAM ROAD ASSOCIATES, ET AL. [73140] Defendants-appellees DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 19, 1998 CHARACTER OF PROCEEDING: Civil appeals from Cleveland Municipal Court, Case Nos. 96- CVF-26959, 96-CVF-26955, Common Pleas Court, Case Nos. CV- 319599, CV-321013, CV-321014, and Garfield Heights Municipal Court, Case No. 96-CVF-2363, respectively. JUDGMENT: Reversed And Remanded. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: For defendants-appellees: FRED SIEGEL GEORGE L. McGAUGHEY DANIEL S. SIEGEL MICHELE SMOLIN JAY P. SIEGEL McDONALD HOPKINS BURKE & HABER FRED SIEGEL CO., L.P.A. 2100 Bank One Center 2700 National City Center 600 Superior Ave., E. 1900 East Ninth Street Cleveland, Ohio 44114-2653 Cleveland, Ohio 44114-3499 -2- KARPINSKI, J.: Plaintiff-appellant, Fred Siegel Co., L.P.A., brings this consolidated appeal from the judgments of six lower court cases. In each case plaintiff filed suit seeking the recovery of attorney's fees, and the trial court granted a motion to stay the matter and to refer the case to arbitration. On appeal, plaintiff raises one assignment of error, which argues that DR 2-107 does not apply to the cases at bar and, therefore, the trial court erred by referring the case to arbitration. For the reasons that follow, we find merit to plaintiff's argument and reverse the judgments of the courts below. Each of the defendants in this consolidated appeal was a former client of plaintiff. Plaintiff's representation of these clients consisted of efforts to reduce or abate each client's property taxes. In the complaint, plaintiff alleged that it was to be paid a contingent fee of 50% to 75% of the tax savings achieved for the client. In 1992, one of plaintiff's associates left his employ and was hired by the law firm of Arter & Hadden. Subsequently, various clients discharged plaintiff and retained Arter & Hadden. In their brief, defendants state that the clients agreed to pay one fee to Arter & Hadden and, thereafter, Arter & Hadden would then negotiate and determine the appropriate amount of fees owed to plaintiff based on quantum meruit. Plaintiff was not a party to or aware of these agreements between the clients and Arter & Hadden. Specifically, plaintiff alleges that the new agreements -3- negotiated between the clients and Arter & Hadden contained lower contingency-fee arrangements. None of these new agreements between Arter & Hadden and the clients is contained in the record. In its brief, plaintiff questions whether any of these subsequent agreements were ever memorialized. After the clients had their property tax liability reduced, plaintiff sought to recover fees for services rendered prior to discharge. When no agreement could be reached, plaintiff filed against each client an individual complaint seeking compensation for the services plaintiff had provided. In each case, the trial court stayed the action and referred the case to arbitration by the Ohio State Bar Association. Plaintiff timely appealed and raised the following assignment of error: THE TRIAL COURT ERRONEOUSLY REFERRED THE DISPUTE BETWEEN THE PLAINTIFF AND DEFENDANTS TO ARBITRATION PURSUANT TO DR 2-107 OF THE CODE OF PROFESSIONAL RESPONSIBILITY. In each motion to stay filed in the trial court, the client cited DR 2-107, which provides for mandatory arbitration for fee disputes among lawyers of different firms. The rule states as follows: (A) Division of fees by lawyers who are not in the same firm may be made only with the prior consent of the client and if all of the following apply: (1) The division is in proportion to the services performed by each lawyer or, if by written agreement with the client, all lawyers assume responsibility of the representation; (2) The terms of the division and the identity of all lawyers sharing in the fee are disclosed in writing to the client. (3) The total fee is reasonable. (B) In cases of dispute between lawyers arising under this rule, fees shall be divided in accordance with mediation or arbitration provided by a local bar -4- association. Disputes that cannot be resolved by a local bar association shall be referred to the Ohio State Bar Association for mediation or arbitration. (C) This rule does not prohibit payment to a former partner or associate pursuant to a separate or retirement agreement. In order for the arbitration provision of DR 2-107(B) to apply, the dispute must arise under DR 2-107(A). Schulman v. Wolske & Blue Co., L.P.A. (Jan. 15, 1998), Franklin App. Nos. 97APE07-924, 97APE07-931,unreported. The Schulman court stated as follows: Initially, this court notes that DR 2-107(B) provides that mediation or arbitration is appropriate in cases of disputes between lawyers arising under DR 2- 107(A). This court notes that there is nothing in the record to demonstrate that DR 2-107(A) was complied with. There is no evidence that the oral agreement between the parties in this matter was ever made with the prior consent of the client. Moreover, DR 2-107(A)(2) provides that the terms of the division and the identity of all lawyers sharing in the fee should be disclosed in writing to the client. The only writing contained in the record before this court is Mr. Schulman's letter to Jason Blue confirming their conversation regarding the sharing of fees. * * * The trial court correctly determined that there is a difference between a dispute in which the lawyers are arguing what the amount of the fee or percentages should be, and a dispute in which the lawyers are arguing whether that is an enforceable fee agreement in the first place. Wolske at 3-4. Additionally, in Putnam v. Hogan (Aug. 14, 1997), Franklin App. No. 96 APE12-1640, unreported, the Tenth District held that DR 2-107 does not encompass disputes between an attorney and his or her client.1 1See, also, Endicott v. Johrendt (Apr. 30, 1998), Franklin App. No. 97APE08-1122, unreported, which held that even in the absence of a proper DR 2-107(A) agreement, the attorneys can still (continued...) -5- In the cases at bar, the requirements of DR 2-107(A), a prerequisite to arbitration, have not been satisfied. This rule applies to fee disputes between attorneys. See Vogelhut v. Kandel (1986), 308 Md. 183, 517 A.2d 1092, DR 2-107 contemplates concurrent representation of a client by more than one attorney insofar as the rule requires an attorney to obtain the consent of the client upon employment of a second attorney. (Emphasis added.) In the cases at bar there was no concurrent representa- tion. These are disputes between plaintiff and its former clients over unpaid fees for services plaintiff provided to them. Contrary to defendants' argument, these cases are not merely fee disputes between attorneys. Additionally, DR 2-107(A)(2) requires that the agreement regarding the division of fees be in writing which is disclosed to the client. In the cases at bar plaintiff and Arter & Hadden never agreed on the division of fees. Thus there was no agreement, written or otherwise disclosed, between plaintiff, Arter & Hadden, and the clients that would satisfy DR 2-107(A). DR 2-107(A) applies only under a very narrow set of circumstances. Because there was no agreement with plaintiff, as well as no concurrent representation, the mandatory arbitration provided for in DR 2-107 does not apply. Accordingly, in each of these cases the trial court erred by staying the case and referring the matter to arbitration. Plaintiff's sole assignment of error is well taken. 1(...continued) agree to submit the dispute to arbitration. This is not the case sub judice; plaintiff has not agreed to arbitration. -6- Judgments reversed and remanded. -7- This cause is reversed and remanded. It is, therefore, ordered that appellant recover of appellees its costs herein taxed. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, P.J., and MICHAEL J. CORRIGAN, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .