FERGUS v. SONGER

Filed 5/3/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Story Continued from part I ..

We conclude that substantial evidence supports the jury's determination that Fergus was entitled to a reasonable attorney's fee of $1,200,000. Fergus's normal hourly rate was $320, but the jury could have reasonably concluded that, based on the nine factors (see ante pp. 6-7), he was entitled to considerably more than his normal hourly rate. Fergus's services were not normal; they were extraordinary. An expert witness - Bruce Hogan - testified: "The result of the judgment enforcement portion of the [contingency fee] agreement was spectacular. The $308,000 judgment that [respondent] had obtained back in 1982 turned into a $4.8 million jackpot for him when the hotel was finally sold in 2004. All of these matters required a huge amount of work by Mr. Fergus."

Fergus's work on Songer's lawsuits was so time consuming that the jury could have reasonably concluded that it had precluded him from accepting other employment. Although a computer printout of Fergus's time records showed that he had logged 1,826.5 hours, the jury could have reasonably found that he had worked many more hours. Fergus testified that the time records were not "even close to thorough" and that he had actually worked "far more" hours on respondent's matters. Fergus explained that the time records were incomplete because he had believed that he was working on a contingency basis: "[I]f I'm billing somebody on [an] hourly basis, then I try to create records of what that might be on an hourly basis; and if I'm doing it on a contingency basis, then in essence, I'm not doing it for billing purposes. I'm really doing it to have some idea of the direction I'm going and for me to be able to get a reflection over a period of time of what I may have done for office administration and management purposes."

For example, Fergus did not log all of his telephone calls. Of those that he did log, he generally allocated only 12 minutes for each telephone call irrespective of the actual length of the call. Fergus explained, "We have telephone conferences. Sometimes we may have telephone conferences that will last a couple of hours. Sometimes you don't put any record in. And when I say you don't put any record in, what I am saying is, there's no obligation upon you because you're assuming that you're going to get paid at the end based . . . on the amount of results that are obtained. If you get nothing [for your client], you get nothing [in compensation]."

Furthermore, the computer printout of Fergus's time records was not complete because the original data had been lost when his computer and back-up system had failed in the summer of 2002. Fergus hired a data recovery service to try to retrieve the lost data, and the computer printout was "the result of output to a printer of what data they were able to recover." Fergus testified: "[T]his document was recreated as best we could to show data of what went on with regards to Songer's matters. . . . And . . . there is skewed data."

Fergus introduced into evidence 24 "banker's boxes" of "work product done relating to [respondent's] matters." Based on the materials in these boxes, Fergus prepared a 123-page detailed summary of the work performed for respondent. According to this summary, the work involved 32 matters in 14 courts and administrative tribunals. Fergus prepared "390 responsive/initiating pleadings." Of these pleadings, 268 were related to actions in state courts and administrative tribunals, while 122 were related to actions in federal courts. There were 57 hearings and trials.

Considering the materials in the 24 banker's boxes, the 123-page summary of Fergus's work based on those materials, the computer printout of Fergus's time records, the trial testimony, and the nine factors set forth in the trial court's instructions, the jury could have reasonably concluded that Fergus was entitled to an attorney's fee of $1,200,000.^[1] Accordingly, the jury's verdict was not "against the law" and must be reinstated.

Appellants' Appeal From Underlying Judgment

Standard of Review

"A motion in limine is made to exclude evidence before the evidence is offered at trial, on grounds that would be sufficient to object to or move to strike the evidence. The purpose of a motion in limine is 'to avoid the obviously futile attempt to "unring the bell" in the event a motion to strike is granted in the proceedings before the jury.' [Citations.]"
(Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 26.)

The granting of respondent's motion in limine precluded appellants from proceeding on most of their causes of action. Based on the ruling, appellants informed the trial court that they had insufficient evidence to support the following causes of action: first (fraud and deceit); fourth (declaratory relief); fifth (accounting); seventh (breach of contigency fee agreement); eighth (breach of 50 per cent partnership agreement), ninth (specific performance of contingency fee agreement); tenth (specific performance of 50 per cent partnership agreement); eleventh (partnership dissolution, accounting, and appointment of receiver); twelfth (partition of proceeds from sale of the hotel); and thirteenth (imposition of constructive trust). Appellants, therefore, withdrew these causes of action while preserving their right to seek appellate review of the trial court's ruling.

Where, as here, the granting of a motion in limine disposes of one or more causes of action, it is the functional equivalent of the granting of a nonsuit as to those causes of action. In such circumstances, "we must view the evidence most favorably to appellants, resolving all presumptions, inferences and doubts in their favor, and uphold the judgment for respondent[] [on the applicable causes of action] only if it was required as a matter of law. [Citations.]" (Edwards v. Centex Real Estate Corp., supra, 53 Cal.App.4th at p. 28.)

Modification of Contingency Fee Agreement

Appellants contend that the trial court erroneously excluded evidence of the September 2001 letter agreement between Fergus and respondent increasing the contingency fee from 45 to 50 per cent and purporting to create a partnership. In the letter Fergus wrote, "All additional legal work from this time on will be done by me for an additional 5% contingency upon properties that we recover. . . . All other terms of the 1995 [original contingency fee] agreement are applicable . . . thus we are making a novation to our original agreement." Fergus agreed to "advance for a short period of time limited but substantial funds towards getting the hotel operational if the hotel is acquired through sheriff's sale and there is a need." Any funds so advanced "are to be paid back before either of us take [sic] any draws or income from the operation of the hotel and its rentals." Fergus stated that he and respondent would "in effect [be] 50%-50% partners." The letter agreement was not signed by respondent.

The unsigned September 2001 letter agreement could not transform the voidable original contingency fee agreement into a valid, binding, "50%-50%" partnership agreement. The letter agreement was in effect a 50 per cent contingency fee agreement that was also voidable for failure to comply with section 6147. Section 6147 clearly requires that such an agreement be signed by the client and that it include "a statement that the fee is not set by law but is negotiable between attorney and client." ( 6147, subd. (a)(4).) Thus, even if respondent had orally agreed to the terms of the letter agreement, that agreement would have been voidable at respondent's option. ( 6147, subd. (b).) Respondent implicitly voided the letter agreement when he expressly voided the 1995 original contingency fee agreement.

The trial court, therefore, did not erreoneously exclude evidence of the September 2001 letter agreement.^[2]

Ratification

Appellants allege "that the [1995] Retainer Agreement does not conform to the requirements of Section 6147. Therefore, it can be made enforceable only if Appellants can demonstrate that the Retainer Agreement was ratified."

As a general rule, "[a] voidable contract may be ratified." (Hanley v. Murphy (1924) 70 Cal.App. 157, 165.) Civil Code section 1588 provides: "A contract which is voidable solely for want of due consent, may be ratified by a subsequent consent." Appellants contend that the evidence is sufficient to show a ratification by respondent of the 45 per cent contingency fee agreement entered into in 1995. Therefore, appellants maintain, the trial court erroneously excluded evidence of the ratification. Respondent, on the other hand, argues that a contingency fee agreement that is voidable under section 6147 cannot be ratified. Respondent also argues that, as a matter of law, the evidence is insufficient to establish a ratification.

We need not determine whether the 1995 contingency fee agreement could have been ratified by respondent. Assuming that it could have been ratified, ratification would have required knowledge by respondent of his right to void the agreement. "[I]t is an inherent element of ratification that the party to be charged with it must have fully known what he was doing. . . . '[T]he very essence either of an election or ratification is that it is done advisedly, with full knowledge of the party's rights.' " (Brown v. Rouse (1894) 104 Cal. 672, 676.) No evidence was presented that respondent expressly or impliedly consented to the 1995 contingency fee agreement after learning of its voidability. Respondent declared under penalty of perjury that it was not until May 2004 that he learned that the contingency fee agreement was voidable, and that he voided the agreement on May 26, 2004.

In their opening brief, appellants do not contend that, before May 2004, respondent knew that the 1995 contingency fee agreement was voidable for failure to comply with section 6147. Instead, they contend that it may reasonably be inferred from the evidence that respondent knew "that contingent fees are negotiable." Such knowledge, as a matter of law, is insufficient to constitute a ratification rendering the contingent fee agreement enforceable by Fergus. Irrespective of whether the client has knowledge of the information required to be in the contingency fee agreement, the agreement is voidable if it fails to set forth that information in writing. ( 6147.) Thus, even if it were undisputed that respondent knew that contingent fees are negotiable when he signed the 1995 contingency fee agreement, that agreement still would have been voidable.

In September and October 2002 respondent wrote letters to Fergus acknowledging that, pursuant to the 1995 contingency fee agreement, Fergus was entitled to a 45 per cent share of the value of the hotel. But in these letters respondent did not acknowledge that the contingency fee agreement failed to comply with legal requirements. These letters, therefore, could not have constituted a ratification of the contingency fee agreement.

In their reply brief, appellants state: "As we demonstrated in our Opening Brief (see pp. 23-26), more than substantial evidence to contradict [respondent's] assertion [that he did not learn about his right to void the contingency fee agreement until May 2004] was presented at the [Evidence Code] Section 402 hearing [on respondent's motion in limine] (See, AOB, pp.13-14). Therefore, on the record, there is no question that ratification was an issue of fact to have been decided by the jury." We have reviewed the specified portions of appellants' opening brief. Those portions do not cite any evidence in the record from which a trier of fact could reasonably infer that, prior to May 2004, respondent knew that the 1995 contingency fee agreement was voidable.

Moreover, in their opposition to respondent's motion in limine filed in the trial court, appellants never argued that respondent knew prior to May 2004 that the 1995 contingency fee agreement was voidable. Instead, appellants argued that respondent "knew the fee was negotiable." "As a rule, parties are precluded from urging on appeal any points that were not raised before the trial court. [Citation.] To permit a party to raise a new theory is both unfair to the trial court and unjust to the opposing litigant. [Citation.]" (In re Marriage of Walker (2006) 138 Cal.App.4th 1408, 1418.)

Accordingly, the trial court did not err in excluding evidence of ratification.^[3]

Reasonable Attorney's Fee

Appellants contend that the trial court erred in refusing to instruct the jury that, in determining a reasonable fee, it could consider the contingent nature of the fee arrangement between Fergus and respondent: "It is essential that the contingent nature of the engagement be included as a factor in setting a reasonable fee because that is the only manner by which to allow for the broad range of economic considerations that can be crucial to a reasonable outcome." Therefore, appellants, argue, Fergus's fee "may properly be based on a percentage of the recovery."

Section 6147, subdivision (b), provides: "Failure to comply with any provision of this section renders the [contingency fee] agreement voidable at the option of the plaintiff, and the attorney shall thereupon be entitled to collect a reasonable fee." Where, as here, a client exercises his right to void a contingency fee agreement, section 6147 does not permit the trier of fact to consider the contingent nature of the fee arrangement in determining a reasonable fee. If the contingency fee agreement is void, there is no contingency fee arrangement. "A void contract is no contract at all; it binds no one and is a mere nullity. [Citation.] Consequently, such a contract cannot be enforced. [Citation.]" (Guthman v. Moss (1984) 150 Cal.App.3d 501, 507.)

The deterrent and protective purposes of section 6147 would be impaired if an attorney who was barred from enforcing a contingency fee agreement would nevertheless be entitled to a percentage of the recovery based on the contingent risk factor. The attorney would in effect be receiving a contingency fee even though the contingency fee agreement had been voided by the client. A contingency fee "is contingent not only on the ultimate success of the case but also on the amount recovered; that is, the fee is measured as a percentage of the total recovery." (Cazares v. Saenz (1989) 208 Cal.App.3d 279, 287-288.)

Wife's Claims

Wife testified that, during a meeting with Fergus and respondent in November 2001, she had orally agreed to advance appellants' community property funds from a home equity loan for the purpose of operating and refurbishing the hotel until it was sold. Her agreement was based on the understanding that appellants "would be 50-50 partners [with respondent] in a venture" and "would be 50 percent owners of the hotel." Appellants' amended complaint alleged that, "in reliance upon the representations made by [respondent], [appellants] provided from November 28, 2001 more than $115,000 in funds for hotel operations, the purchase of almost all of the personal property used on and at the twenty-six room Pismo Beach Hotel premises, advanced costs of suit, and provided additional legal services which they would not otherwise have done."

The trial court excluded evidence of the oral partnership agreement involving wife. It concluded that "there is no way to adequately sever and separate the extent to which [wife] entered into a partnership agreement from the underlying unenforceable fee agreement entered into by her husband." The court stated that all of the agreements "relate to and arise out of the rendition of legal services in the first instance."

Wife contends that the trial court erroneously excluded evidence of the oral partnership agreement involving wife. She argues that, even if Fergus was not entitled to enforce that agreement because of violations of section 6147 and rule 3-300, she had an independent right to enforce respondent's "promise that the Ferguses would have an equal ownership interest in the hotel . . . ."

The contention is meritorious. Wife was not an attorney and was not bound by section 6147 or rule 3-300. She was innocent of any wrongdoing. No evidence suggests that she was aware of Fergus's failure to comply with legal requirements or that she, in any way, participated in a scheme to do an impermissible "end run" around section 6147 or rule 3-300. In reliance upon the partnership agreement, wife parted with valuable consideration: she put her home at risk to obtain funds to refurbish the hotel and render it operational so that it could be sold.^[4]

As we have said before: "The purpose of the law of contracts is to protect the reasonable expectations of the parties." (Ben-Ziv v. Edmar Co. (1995) 40 Cal.App.4th 468, 475.) The trial court's ruling, in essence, extinguished her reasonable expectation and provided an unconscionable windfall to respondent. The facts here are compelling and the trial court's ruling was unsupported by any authority. Wife completely performed her end of the bargain and respondent did not. But he did accept the benefits of the bargain. "He who takes the benefit must bear the burden." (Civ. Code,  3521.) We again emphasize that wife's decision to enter into this agreement was extremely risky. She could have been rendered homeless by the decision and she knew that further litigation with Bordan was foreseeable given his track record.

Respondent needed these funds because he "didn't have any moneys. He was broke." Respondent knew that, without wife's consent, the funds would not be forthcoming. Fergus testified that he had told respondent: " 'Subject to Sue's [wife's] agreement . . . I have a home equity loan that goes up to $240,000[.] . . . I will allow that to be used for the operation of the hotel and the purchase of the necessary assets [to outfit the hotel], if she agrees.' "

During the meeting with appellants in November 2001, respondent induced wife to agree to advance funds from the home equity loan. He did not dispute wife's understanding that appellants and respondent "would be 50-50 partners in a venture." Respondent told wife that they "would make buckets of money" and that the value of the hotel would be "between four and five million." Wife said to respondent, " 'Joe, what are you going to give me for this?' " Respondent replied, " 'I'll sign any documents that you ask me to sign.' " Fergus testified that wife "was looking for a document that would secure her interest."

BGJ Associates v. Wilson, supra, 113 Cal.App.4th 1217, is distinguishable. In BGJ Associates an attorney, Janger, his client, Brittan, and a third party, Goldman, entered into an oral joint venture agreement to acquire real property. Janger failed to satisfy the requirements of rule 3-300. The appellate court concluded that the agreement was voidable by Brittan because the "agreement was the result of undue influence and hence was a violation of the [attorney's] fiduciary duties within the meaning of Probate Code section 16004." (Id., at p. 1229.) Goldman argued "that even if the agreement cannot be enforced by Janger, he should be permitted to pursue his tort claims against Brittan because he is innocent of any wrongdoing." (Id., at p. 1231.) The appellate court rejected this argument. It reasoned, "The problem is that any rights Goldman seeks to assert arise from the . . . joint venture, which was the product of undue influence and therefore voidable by Brittan." (Ibid.)  In addition, the court observed that "Goldman had notice that he and Janger were seeking to engage in a transaction with Janger's client, and notice of the fairness (or unfairness) of the terms of that agreement. The unfairness in the alleged agreement favored Goldman as well as Janger, and for that reason, Goldman's rights against Brittan are not severable from Janger's." (Id., at p. 1231.)

Here, in contrast to BGJ Associates, no evidence was presented that the oral partnership agreement involving wife was the product of undue influence. Wife did not induce respondent to enter into the agreement. Rather, it was respondent who induced wife by promising her that they "would make buckets of money" and that he would sign any documents necessary to formalize their agreement.

Nor was any evidence presented that the terms of the oral partnership agreement involving wife were unfair to respondent. The agreement provided respondent with the funds he needed to refurbish the hotel and render it operational so that it could be sold. Through wife's financial assistance pursuant to the oral partnership agreement, respondent was able to sell the hotel for $4.8 million. In these circumstances, wife's rights were severable from her husband's.

The granting of respondent's motion in limine was the functional equivalent of the granting of a nonsuit as to wife's causes of action based on that agreement. These causes of action are as follows: first (fraud and deceit); fourth (declaratory relief); fifth (accounting); eighth (breach of 50 per cent partnership agreement), tenth (specific performance of 50 per cent partnership agreement); eleventh (partnership dissolution, accounting, and appointment of receiver); twelfth (partition of proceeds from sale of the hotel); and thirteenth (imposition of constructive trust).

The trial court erred in granting the motion in limine insofar as it sought the exclusion of evidence concerning the partnership agreement involving wife. Wife's causes of action based on that agreement must be reinstated, and she is entitled to a trial on these causes of action. If on remand the jury returns a verdict in favor of wife as to any of the reinstated causes of action, she shall not be permitted to have a double recovery. Pursuant to the oral partnership agreement appellants would be entitled to half of the $4,800,000 received by respondent for the sale of the hotel. This half share ($2,400,000) would include compensation for Fergus's legal services. Since the jury awarded Fergus reasonable attorney's fees of $1,200,000 and that award stands as a final judicial determination, appellants would be unjustly enriched if wife were to be awarded more than an additional $1,200,000 on the reinstated causes of action.

RESPONDENT'S CROSS-APPEAL

Sale Price of Hotel

We reject respondent's contention that the trial court abused its discretion in admitting evidence that the hotel was sold for $4.8 million. The $4.8 million recovery resulted from Fergus's efforts. The amount involved and the result obtained are proper factors to be considered in determining a reasonable hourly rate. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1139 ["the ' "reasonable hourly rate . . . is the product of a multiplicity of factors . . . the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney's reputation, and the undesirability of the case" ' " (italics added)]; Fracasse v. Brent (1972) 6 Cal.3d 784, 792 ["one of the significant factors in determining the reasonableness of an attorney's fee is 'the amount involved and the result obtained' "]; Contractors Labor Pool, Inc. v. Westway Contractors, Inc. (1997) 53 Cal.App.4th 152, 168.)

Contingency Fee Arrangement

Respondent contends that the trial court abused its discretion in admitting evidence that Fergus was working under a contingency fee arrangement. This contention is without merit. The contingency fee arrangement was admissible to explain why Fergus had not kept records of all of the hours he had worked on the case.

Ethical Rules

Respondent contends that the trial court abused its discretion in excluding evidence that the contingency fee agreement and modification of that agreement violated "the very 'ethical codes and rules of practice' that exist to protect Respondent from precisely the kinds of illegal claims Appellants were asking the jury to enforce."

The trial court did not abuse its discretion. Whether the agreement and modification violated " 'ethical codes and rules of practice' " had no bearing on the determination of the reasonable value of Fergus's services. Furthermore, Fergus was not asking the jury to enforce an illegal claim. Because respondent had exercised his right to void the contingency fee agreement, Fergus's claim for reasonable attorney's fees was authorized under section 6147, subdivision (b).

Denial of Motion for a New Trial

Respondent contends that the trial court abused its discretion in denying his motion for a new trial on the cross-complaint's claim that Fergus had committed malpractice. In its special verdict, the jury found that Fergus had not committed any malpractice that had harmed respondent. Respondent asserts that Fergus "committed malpractice when he failed to provide the Sheriff with an accurate legal description to be used at the Sheriff's sale of the Hotel." Respondent claims that, pursuant to section 657, subdivision 5, a new trial is warranted "based upon inadequacy of the jury's damages award ($0)."

"In a legal malpractice action arising from a civil proceeding, the elements are (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence. [Citations.]" (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.)

Respondent has failed to establish that Fergus committed malpractice. An expert witness, Bruce Hogan, testified that "the property description was correct" and that Fergus had "acted appropriately." Even if Fergus had made a mistake in the legal description of the hotel, respondent has failed to refer us to testimony establishing that Fergus's performance fell below the standard of care and skill of members of his profession. (See Wilkinson v. Rives (1981) 116 Cal.App.3d 641, 647-648 [unless "failure of attorney performance is so clear that a trier of fact may find professional negligence unassisted by expert testimony," expert testimony is required "on the standard of care and the attorney's performance in relation to that standard"].) Moreover, respondent did not, and apparently cannot, indicate the amount of his loss or damage from the alleged malpractice. The jury and the trial court were both of the view that respondent was not harmed but was in fact helped by Fergus. We must agree. We cannot say that the trial court abused its discretion in denying the motion for a new trial "based upon inadequacy of the jury's damages award ($0)." " 'The burden of affirmatively demonstrating error is on the appellant. This is a general principle of appellate practice as well as an ingredient of the constitutional doctrine of reversible error.' [Citation.] The order of the lower court is ' "presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." ' [Citation.]" (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.)

Disposition

The order granting a new trial on the issue of damages is reversed and the original $1,200,000 judgment is reinstated. Wife's causes of action relating to the oral partnership agreement involving her are also reinstated. The reinstated causes of action are as follows: first (fraud and deceit); fourth (declaratory relief); fifth (accounting); eighth (breach of 50 per cent partnership agreement), tenth (specific performance of 50 per cent partnership agreement); eleventh (partnership dissolution, accounting, and appointment of receiver); twelfth (partition of proceeds from sale of the hotel); and thirteenth (imposition of constructive trust). The matter is remanded to the trial court for a trial on the reinstated causes of action pursuant to the views expressed in this opinion. Wife's recovery, if any, on the reinstated causes of action shall not exceed an additional $1,200,000. In all other respects, the original judgment on the jury verdict is affirmed. Appellants shall recover their costs on appeal.

CERTIFIED FOR PUBLICATION.

YEGAN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Martin Tangeman, Judge

Superior Court County of San Luis Obispo

______________________________

Andre, Morris & Buttery, Dennis L. Law, Lisa L. Toke; Hatch & Parent, Diane M. Matsinger for Plaintiff, Cross-defendant and Appellant and for Plaintiff and Appellant. 

Ogden & Fricks, Roy E. Ogden, C. Anthony Boyd for Defendant, Cross-complainant and Appellant.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1]We do not consider a declaration from the jury foreperson showing how the jury calculated that Fegus's fee was $1,200,000. (See Maxwell v. Powers (1994) 22 Cal.App.4th 1596, 1604 ["The juror affidavits submitted by Maxwell recited the reasoning process the jury employed during deliberations to arrive at its damages figures. . . . As such, the affidavits reflected the jurors' subjective mental processes and constitute inadmissible evidence to impeach a verdict."]; Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1683 ["evidence about a jury's 'subjective collective mental process purporting to show how the verdict was reached' is inadmissible to impeach a jury verdict"].)

^[2]One of the trial court's reasons for excluding evidence of the September 2001 letter agreement was that it failed to comply with rule 3-300. Appellants concede that the letter agreement failed to so comply because it was not signed by respondent. (ARB 9) However, appellants argue that the agreement was nevertheless enforceable because it was not the result of undue influence and hence did not constitute a violation of Fergus's fiduciary duties within the meaning of Probate Code section 16004. Appellants rely on BGJ Associates v. Wilson (2004) 113 Cal.App.4th 1217. They attempt to distinguish Fletcher v. Davis (2004) 33 Cal.4th 61, in which our Supreme Court held that, if a client grants an attorney a charging lien against the client's future judgment or recovery, the lien is unenforceable if the attorney has failed to comply with the requirements of rule 3-300. (Id., at pp. 71-72.) Since we conclude that the September 2001 letter agreement was voidable under section 6147, subdivision (b), we need not resolve this issue.

^[3]It is not clear whether appellants are also contending that there is sufficient evidence of a ratification of the September 2001 letter agreement increasing the contingency fee from 45 per cent to 50 percent. If appellants are so contending, that contention is also without merit for the same reasons discussed herein.

^[4]In these circumstances, even though she was and is married to Fergus, she is treated as a third person, i.e., a stranger, in terms of her agreement with respondent. Surely, the trial court would not have ruled that a non-spouse third party who wanted to participate in a risky hotel investment as a partner would be treated as having made a loan because a prior attorney-client contractual fee provision was voidable at the option of the client. Wife is an individual with individual rights. She should suffer no inability to enter into an enforceable contract on account of marriage.