IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 81,251
EXCEL CORPORATION,
Appellee,
v.
LUDIVINA JIMENEZ, Defendant,
and
HENRY GOERTZ,
Appellant.
SYLLABUS BY THE COURT
1. A person who willfully or intentionally commits a fraudulent or abusive act or practice under the Workers Compensation Act may be sued under the fraud and abuse sections of the Act. See K.S.A. 44-5,120 et seq.
2. The provisions in K.S.A. 44-5,120 through 44-5,125 of the Workers Compensation Act were designed to afford a remedy to those who are damaged by fraudulent acts or practices under the Act.
3. A conviction for workers compensation fraud is not a prerequisite for liability under K.S.A. 44-5,125. A violation is required, but a conviction is not.
4. Under the facts of this case, an attorney who is innocent of any willful or intentional conduct, but who retains a contingency fee from a fraudulent workers compensation recovery for a client, although not liable under either K.S.A. 44-5,121 or 44-5,125, is liable for the retained fee.
5. In a case brought by an employer against an attorney for recovery of a contingent attorney fee representing 25 per cent of fraudulently obtained workers compensation benefits, the record is examined and it is held: (1) The provisions of K.S.A. 44-5,120, 44-5,121, and 44-5,125 do not provide a basis for imposing liability, and (2) as a matter of policy this court will not condone an attorney's retention of a contingent fee that is precluded by statutory provisions and the fruit of a client's fraud.
Appeal from Ford district court; DANIEL L. LOVE, Judge. Opinion filed June 2, 2000. Affirmed as modified.
Kelly W. Johnston, of The Johnston Law Offices, P.A., of Wichita, argued the cause and was on the brief for appellant.
Stephen M. Kerwick, of Foulston & Siefkin, L.L.P., of Wichita, argued the cause, and David J. Rebein, of the same firm, of Dodge City, was with him on the brief for appellee.
Constance L. Shidler and Kurt A. Level, of Herndon & Level, Chtd., of Overland Park, were on the brief for amicus curiae Kansas Trial Lawyers Association.
The opinion of the was court delivered by
SIX, J.: This summary judgment case concerns an employer's claim against an attorney for return of a 25 per cent contingent attorney fee arising from a fraudulent workers compensation award.
Plaintiff Excel Corporation filed a K.S.A. 44-5,120 et seq. "fraud and abuse" civil action. The district court ordered the defendant attorney, Henry Goertz, to return the fee. Goertz appeals.
The Kansas Trial Lawyers Association filed an amicus brief in support of Goertz.
Our jurisdiction is under K.S.A. 20-3018(c) (a transfer from the Court of Appeals on our own motion). We hold that Goertz, because of the contingent nature of the fee and his status as an officer of the court, must return the fee. The fee in issue is precluded by statutory provisions and is the fruit of a client's fraud. Thus, we affirm the judgment below in part; however, we disagree with the district court's rationale for imposing liability on Goertz.
We initially address Excel's claims under K.S.A. 44-5,120, 44-5,121, and 44-5,125. The fundamental question is who may be sued under the fraud and abuse provisions of K.S.A. 44-5,120 et seq. The answer is a defendant who "willfully or intentionally" commits a fraudulent or abusive act or practice. Goertz is an innocent party and, thus, is not liable to Excel under its statutory fraud claims.
We note that the legislature has amended 44-5,120 since this case arose. See K.S.A. 1999 Supp. 44-5,120. Our analysis is confined to the 1993 version of K.S.A. 44-5,120.
The parties submitted the statutory fraud claim to the district court on stipulated facts. A summary of the stipulation follows.
FACTS
Ludivina Jimenez was injured while working for Excel at its meat packing plant. Goertz represented Jimenez in her workers compensation claim against Excel. At the time, Jimenez, who is not a party to this appeal, was a resident alien born in Mexico. After reviewing the medical evaluations and a disputed videotape surveillance of Jimenez, the administrative law judge (ALJ) entered an award. The ALJ found Jimenez was entitled to $7,349.65 based on a 6 per cent permanent partial impairment to her body as a whole.
Goertz sought a larger award for his client. He appealed the ALJ's decision to the Director of Workers Compensation. The Director affirmed the 6 per cent award. Goertz then appealed to the district court. The district court increased the award to $30,614.55, plus benefits previously paid, finding that Jimenez suffered from a 25 per cent permanent partial disability. The additional $30,614,55 award was to be paid in weekly installments.
Jimenez informed Goertz she had moved to Texas. She asked Goertz to pursue a lump-sum settlement. Settlement negotiations commenced. Excel filed a motion for review and modification of the district court award. Goertz informed Jimenez of the pending motion. He reported to Excel that Jimenez was working 25 to 30 hours per week within her restrictions at a plastics factory in Texas. He submitted another settlement offer. Excel told Goertz that it suspected Jimenez was working full time at National Beef in Kansas performing similar work to that done for Excel. Jimenez did not tell Goertz of her Kansas employment. Goertz tried unsuccessfully to contact Jimenez in Texas. He verified the allegation with National Beef and withdrew from his representation.
Jimenez admitted that she misrepresented her employment status to receive a higher award. The ALJ found Jimenez lied to receive additional benefits. He restored the original 6 per cent award. The ALJ also referred the case to the Attorney General's office for further investigation.
After the ALJ's ruling on modification, Goertz, without deducting a fee, returned $1,401.63 in weekly disability payments held in his trust account. However, he had previously retained $1,588.46 in attorney fees from the fraudulent award. This lawsuit followed Goertz' refusal to return the $1,588.46 to Excel. Excel obtained a $6,352.94 judgment against Jimenez (the entire amount of fraudulent benefits paid to Jimenez during the settlement negotiations). Excel did not attempt to collect the judgment.
Excel does not claim reimbursement for any fees paid to Goertz on the legitimate $7,349.65 (6 per cent) award. Excel's petition asserted three theories of liability: (1) a civil action under K.S.A. 44-5,121; (2) unjust enrichment; and (3) constructive fraud based on the assertion that Goertz did not fully investigate his client's claims. (The latter two theories were dismissed with prejudice before summary judgment.) The case was submitted to the district court solely on the K.S.A. 44-5,121 claim. The parties stipulated Goertz committed no intentional or willful misconduct with respect to the fraud.
The district court examined the class of persons against whom an action may be brought under K.S.A. 44-5,121. According to the district court, the class includes anyone who has been paid benefits or other amounts of money under the Workers Compensation Act (Act), K.S.A. 44-501 et seq. Because K.S.A. 44-5,120(b) expressly included attorneys as persons subject to the fraud and abuse provisions, the district court reasoned Goertz was liable to Excel for the fee arising from the fraudulent benefits. The district court also awarded Excel interest on the fee under 44-5,125(b).
This case presents issues of first impression concerning the nature of the rights created under the Act for fraud. The fundamental question is whether the fraud and abuse provisions require a defendant to have knowingly participated in the fraud. We note that attorneys are not the only persons expressly subject to 44-5,120 et seq. Hospitals, doctors, and other health care professionals are also covered. See K.S.A. 44-5,120(b)(4) and (5).
The Statutory Fraud Claims
We now turn to a discussion of Excel's statutory fraud claims. A brief review of legislative history is appropriate. In 1993, the insurance industry and the Kansas Insurance Commissioner's Workers Compensation Task Force set out to reform the Act. See Shultz & Shultz, For Workers Compensation A Civil Remedy: Fraud and Abuse, 19 J.K.T.L.A. 32 (July 1996). The result was the enactment of the K.S.A. 44-5,120 et seq. fraud and abuse provisions. These provisions were designed to afford a remedy to those who are damaged by fraudulent acts or practices in a workers compensation proceeding. Elliott v. Dillon Companies, 21 Kan. App. 2d 908, 911-12, 908 P. 2d 1345, aff'd 260 Kan. 411, 918 P.2d 1305 (1996). The only substantial changes were in 1997 (L. 1997, ch. 125, § 20) and 1998 (L. 1998, ch. 114, § 7 and 8). In 1997, the legislature added an exhaustion of administrative remedies requirement and in 1998, it strengthened the criminal penalties for committing fraudulent or abusive acts.
Elliott is the only case discussing the statutory fraud and abuse provisions. Elliott, a workers compensation claimant, sued her employer, its insurer, and defendants' attorney. The defendants maintained K.S.A. 44-5,121 did not authorize a suit by a workers compensation claimant. In rejecting the defendants' contentions, the Court of Appeals held that the statute "authorizes any person, including a claimant, who has suffered economic loss by a fraudulent or abusive act or practice to bring a cause of action under K.S.A. 44-5,121." 21 Kan.App. 2d at 912. Elliott also observed "K.S.A. 44-5,125(b) requires any person who received any payment or otherwise benefitted monetarily as a result of such criminal conduct to repay the amount with interest." 21 Kan. App. 2d at 912. Elliott did not say who is included in the definition of "any person," which is at issue here. Elliott answered only the question of who may sue under the fraud and abuse provisions. We must now answer the question of who may be sued under K.S.A. 44-5,120 et seq. A search of legislative history is unproductive.
We have de novo review of cases decided on stipulated facts. Lightner v. Centennial Life Ins. Co., 242 Kan. 29, Syl. ¶ 1, 744 P.2d 840 (1987). The parties agree the interpretation of a statute is a question of law over which we exercise unlimited review. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
Goertz' primary argument is that no one may be held liable under either K.S.A. 44-5,121 or 44-5,125 unless his or her conduct is knowing, willful, or intentional. K.S.A. 44-5,120(d) defines fraudulent or abusive acts or practices in a nonexclusive list: "(d) Fraudulent or abusive acts or practices for purposes of the workers compensation act include, but are not limited to, willfully or intentionally: [Twenty separate fraudulent or abusive acts are listed.]"
Claims to recover losses due to fraudulent or abusive acts are set out in both K.S.A. 44-5,121(a) and 44-5,125(c). Excel brought its claim under K.S.A. 44-5,121, but the district court found Goertz liable under K.S.A. 44-5,125.
The legislature's intent, according to Excel, was to provide a basis for recovery of economic losses due to fraudulent or abusive practices in workers compensation cases. Excel asserts "the statute carefully elects not to tie the ability to recover under such a cause of action in every situation to participation in the fraudulent or abusive act." We disagree.
We hold that liability rests only with persons who act willfully or intentionally. (K.S.A. 1999 Supp. 44-5,120[d] now includes the word "knowingly" as well.) K.S.A. 44-5,120(d) creates two classes: (1) those who will have a claim (plaintiffs), and (2) those who have committed fraudulent or abusive acts or practices (defendants). Only those who have actually committed a fraudulent or abusive act may be liable.
K.S.A. 44-5,121(a) says:
"Any person who has suffered economic loss by a fraudulent or abusive act or practice shall have a cause of action against any other person to recover such loss which was paid as benefits or other amounts of money which were paid under the workers compensation act and to seek relief for other monetary damages from such other person based on a fraudulent or abusive act or
practice . . . ." (Emphasis added.)
K.S.A. 44-5,125 states in part:
"(b) Any person who has received any amount of money as a benefit or other payment under the workers compensation act as a result of a violation of subsection (a) and any person who has otherwise benefited monetarily as a result of a violation of subsection (a) shall be liable to repay an amount equal to the amount so received by such person or the amount by which such person has benefited monetarily, with interest thereon. . . .
"(c) Any person aggrieved by a violation of subsection (a) shall have a cause of action against any other person to recover any amounts of money erroneously paid as benefits or any other amounts of money paid under the workers compensation act, and to seek relief for other monetary damages . . . ." (Emphasis added.)
We read K.S.A. 44-5,121(a) to mean any person (entity) who has suffered economic loss by a fraudulent or abusive act or practice (here Excel) has a cause of action against any other person (Jimenez) to recover the loss which was paid as benefits under the Act. The recovery must be based on "a fraudulent or abusive act or practice" by the person against whom recovery is sought.
Here, Jimenez has admitted that her conduct was willful and intentional; thus, there is no doubt that a fraudulent act was committed. Excel is an entity that has suffered economic loss due to Jimenez' fraudulent act. Goertz is a person who received a portion of the fraudulently paid benefits. However, his act was neither willful nor intentional. He committed no "fraudulent or abusive act or practice."
The class of potential defendants in 44-5,121(a) and 44-5,125(c) appears to be identical, as the same two categories are delineated in each statute as those receiving: (1) "benefits" or (2) "other amounts of money which were paid under the workers compensation act." But, 44-5,125 has the added language italicized below:
"(c) Any person aggrieved by a violation of subsection (a) shall have a cause of action against any other person to recover any amounts of money erroneously paid as benefits or any other amounts of money paid under the workers compensation act, and to seek relief for other monetary damages for which liability has accrued under this section against such other person. " (Emphasis added.)
The K.S.A. 44-5,125(c) language tells us that the cause of action in 44-5,125(c) is limited to those for whom liability has accrued under 44-5,125. Subsection (b) of 44-5,125 sets out who is liable:
"(b) Any person who has received any amount of money as a benefit or other payment under the workers compensation act as a result of a violation of subsection (a) and any person who has otherwise benefited monetarily as a result of a violation of subsection (a) shall be liable to repay an amount equal to the amount so received by such person or the amount by which such person has benefited monetarily, with interest thereon.
Subsection (a) of K.S.A. 44-5,125 sets out the elements of criminal liability. The version applicable here listed specific knowing and intentional acts that would constitute a violation and lead to criminal liability. (The criminal liability sections have been expanded since enactment.) (See K.S.A. 1999 Supp. 44-5,125[a], [b], [c] and [d].) We acknowledge that the language of K.S.A. 44-5,125(b) is less than clear. The statute would appear to make anyone who ever received money from a fraudulent award liable. However, as a matter of policy and statutory construction, this cannot be the case.
Doctors and hospitals could be sued to repay insurance carriers for medical services offered to the "injured" worker. Under similar circumstances, court reporters, vocational experts, copy services, nurse case managers, and insurance adjusters could be made to repay earned fees even if they did not intentionally perpetrate a fraud or abuse the system. We do not believe the legislature intended this result.
Not only is such an interpretation of 44-5,125(b) against public policy, it is contrary to a fundamental rule of statutory construction. A construction that makes part of a legislative act surplusage should be avoided if reasonably possible. State ex rel. Stephan v. Kansas Racing Comm'n, 246 Kan. 708, 719, 792 P.2d 971 (1990).
The district court held Excel had a cause of action under either 44-5,121 or 44-5,125. The two statutes proscribe similar conduct, but there are notable differences. K.S.A. 44-5,125(a) sets out the criminal penalties for specific fraudulent or abuse acts. Damages under 44-5,121 include monetary damages but not "nonpecuniary loss." K.S.A. 44-5,125 permits recovery of monetary damages and prejudgment interest and has no exclusion of "nonpecuniary loss." These differences in available damages lead us to question whether, as Excel urges, 44-5,121 and 44-5,125 are identical causes of action. Under Excel's interpretation, 44,5-121 is surplusage.
We conclude that K.S.A. 44-5,121(a) and 44-5,125(c) are different causes of action based on the culpability of the wrongdoer. K.S.A. 44-5,121(a) is applicable where one is able to simply prove a "knowing or willful" act was committed. However, 44-5,125 is a more specific statute. K.S.A. 44-5,125 addresses specific knowing and willful acts. The three acts specifically outlined in subsection (a)(1) are: (A) making a false or misleading statement, (B) misrepresenting or concealing a material fact, or (C) fabricating, altering, concealing or destroying a document. (The current version lists additional specific acts constituting crimes. See K.S.A. 1998 Supp. 44-5,125[A][1][D] and [E]; 44-5,125[b] and [c].) Those found guilty of committing the knowing and willful acts specified in 44-5,125(a) may be convicted of a misdemeanor or felony (depending on how much money was received). Those who suffered a loss as a result of the acts specified in 44-5,125(a) may collect damages not available under 44-5,121(a). Thus, the difference in damages one may collect is commensurate with the level of culpability one must show.
We construe 44-5,125(b) as applicable only to those who have violated subsection 44-5,125(a). Such an interpretation carries out the legislature's intention and gives effect to 44-5,121(a), instead of rendering it surplusage. See State v. ex rel. Stephan, 246 Kan. at 719.
We note that, contrary to Goertz' argument, a conviction is not a prerequisite to liability under K.S.A. 44-5,125. A violation is required, but a conviction is not. Goertz could not be found liable under 44-5,125(b) because he committed no act enumerated in 44-5,125(a).
The provisions of K.S.A. 44-5,120 et seq. seek to punish only those who commit fraudulent or abusive acts; consequently, we need not reach Goertz' final contention that focuses on the reimbursement provisions of K.S.A. 44-534a(b).
Notice to Counsel
After oral argument, we issued a notice to counsel stating three factual premises and inviting comment upon the following issue:
"Whereas:
"1. The parties have stipulated to the facts;
"2. The Administrative Law Judge has reinstated the original award herein in the amount of $7,349.65; and
"3. Henry Goertz has received attorney fees in excess of the 25% maximum contingent fee allowable on said award pursuant to K.S.A. 44-536.
"The court invites counsel to comment on the following question:
Why should not judgment for the excess fee ($1,588.46) be entered against Goertz and in favor of Excel Corporation?
Any response should be filed in writing with the Clerk within 20 days from the date hereof."
Both parties timely responded.
We must consider the interplay between Goertz' status as an officer of the court, the character of a contingent fee, and the fraudulent funds in issue here.
Excel's petition in counts II and III asserted the 25 per cent K.S.A. 44-536 limitation on Goertz' contingent fee entitlement. A copy of the ALJ's order on review and modification was attached as a petition exhibit. The stipulated facts reflect the ALJ modified the larger award by reinstating the original 6 per cent award, thus vacating the fraudulent award.
K.S.A. 44-536(a) provides in part:
"[N]o claim of any attorney for services rendered in connection with the securing of compensation for an employee or the employee's dependents, whether secured by agreement, order, award or a judgment in any court shall exceed a reasonable amount for such services or 25% of the amount of compensation recovered and paid, whichever is less." (Emphasis added.)
The $1,588.46 at issue is more than the maximum 25 per cent contingent fee permitted by K.S.A. 44-536. Goertz has received a 25 per cent contingent fee from the legitimate $7,349.65 award to Jimenez. This fee is not in issue. The question is whether Goertz may retain an additional 25 per cent of the fraud-induced monies as an attorney fee over the K.S.A. 44-536(a) statutory maximum.
Excel sees no reason why judgment should not be entered against Goertz based on K.S.A. 44-536. Of course, Goertz disagrees. Goertz makes two arguments in response to our notice to counsel: (1) Under K.S.A. 44-556 "excess payments" (including excess attorney fees) made to injured workers are recoverable only through the workers compensation fund; and (2) only an administrative law judge may determine whether an attorney fee is prohibited by K.S.A. 44-536.
The first argument is not persuasive. Goertz reasons that because injured workers (and their attorneys) are not forced to refund excess payments under K.S.A. 44-556, attorneys may not be forced to do so under the facts here. K.S.A. 44-556 is not applicable. This case does not concern excess benefits. This case involves a fraudulently obtained award. The legislature clearly distinguished fraudulently obtained benefits from excess payments when it enacted K.S.A. 44-5,120 et seq. An employee may be held personally and criminally liable for acting fraudulently in obtaining workers compensation funds under K.S.A. 44-5,121(a) and 44-5,125. Conversely, K.S.A. 44-556(d) expressly prohibits an employer from seeking reimbursement of excess benefits from injured workers. A legislative distinction exists between excess benefits and fraudulently obtained benefits; the latter is recoverable under K.S.A. 44-5,121(a) and 44-5,125.
Goertz' second argument deserves further discussion. All disputes regarding attorney fees in workers compensation cases must be initiated with and heard by the ALJ. K.S.A. 44-536(h). Excel has not challenged Goertz' fee under the provisions of K.S.A. 44-536.
We acknowledge Goertz' jurisdictional argument. Nevertheless, we are troubled by the blending here of Jimenez' fraud, the disputed fee as a per cent of her fraudulent recovery, and Goertz' status as an officer of the court. A contingent fee is based on the concept that a claimant's lawyer will not receive compensation until the matter is concluded and only if the lawyer has been successful in securing a judgment for the client. Gigot v. Cities Service Oil Co., 241 Kan. 304, 316, 737 P.2d 18 (1987) (quoting Shutts v. Phillips Petroleum Co., 235 Kan. 195, 223-24, 679 P.2d 1159 [1984]). A contingent fee owes its existence to a recovery. No recovery, no fee. Because the fraudulent award was vacated, there is no recovery.
A discussion of contingent attorney fee restitution claims provides background for our analysis. We have no Kansas cases on the question.
The Eighth Circuit, in a contingency fee case arising from Minnesota, said:
"Although we agree that the law of restitution generally will not require an attorney to repay legal fees paid by a client from a judgment that is subsequently reversed on appeal, restitution by the attorney is appropriate where such a payment is made pursuant to a contingent fee." Mohamed v. Kerr, 91 F.3d 1124, 1126 (1996) (Mohamed II).
Joan Mohamed and Ivan Kerr were married. As part of his employment compensation, Ivan completed a benefits enrollment form designating Joan as the beneficiary of a group life insurance policy. Two years later, the marriage was dissolved. A marriage termination agreement provided that each party was awarded life insurance policies with any cash value thereon free and clear of any claim by the other party.
Ivan died. Joan sued the life insurance company for the proceeds of Ivan's life insurance. Because Ivan's estate and son contested Joan's claim, the company removed the action to federal court, brought an interpleader action, and deposited the insurance proceeds with the court.
Joan's motion for summary judgment was granted. Under the court's order, the clerk disbursed the funds ($279,012.86) to Joan's attorney. After receiving an advisory opinion from the Lawyer's Board of Professional Responsibility that he was obligated to turn over the funds to his client, Joan's attorney disbursed the judgment to Joan, except for his contingent fee.
The Eighth Circuit reversed summary judgment in favor of Joan and ordered that summary judgment be granted in favor of Ivan's estate and son. Mohamed v. Kerr, 53 F.3d 911, 917 (8th Cir. 1995) (Mohamed I). On remand, the federal district court ordered Joan to return the life insurance proceeds to the clerk of the court. Ivan's estate and son moved to compel Joan's attorney to return the contingent fee paid to him from the judgment proceeds. The magistrate judge declined. The Court of Appeals reversed. 91 F.3d at 1124.
The Mohamed II court observed:
"[W]here a judgment creditor pays her attorney for legal services rendered from the judgment proceeds, the attorney is under no duty to repay the money if the judgment is subsequently reversed. Restatement of Restitution § 74 cmt. h, illus. 20. Thus, were the proceeds retained by McCullough [the attorney] simply payment for services rendered--and therefore, a tangible debt owed to him by Mohamed--requiring repayment would not be appropriate.
"The relevant fact that distinguishes this case from the protection normally afforded payments to attorneys, as innocent payees, is the nature of the fee arrangement: a contingent legal fee. In other words, McCullough was to be paid a set percentage of any recovery made on behalf of Mohamed. The contingent fee is dependent on success; the attorney assumes, along with the client, the inherent risks of litigation." (Emphasis added.) 91 F.3d at 1126-27.
We agree. We also agree with the Mohamed II court's reliance on the Restatement of Restitution in a contingent fee case. "In this type of case, McCullough's relationship to the litigation's outcome is analogous to that of a real party in interest, and he is similarly under a duty to restore the amount received by him. See Restatement of Restitution § 74 cmt. k." 91 F.3d at 1127. See also Pocius v. Halvorsen, 30 Ill. 2d 73, 84-85, 195 N.E.2d 137 (1963) (a contingent fee must be returned to its source if the litigation is ultimately unsuccessful on appeal).
By signing a contingency contract, Goertz acquired a beneficial interest in the final award. Thus, he became a beneficial owner of the award. Because he is entitled to a percentage of the award, he may be responsible for restitution should the award be vacated. Goertz can have no greater right than the validity of the award.
The Colorado Court of Appeals, in Berger v. Dixon & Snow, P.C., 868 P.2d 1149, 1154 (Colo. App. 1993), said: "[A]n attorney who accepts fees with the knowledge that the award on which those fees depend could be later reversed, vacated, modified, or otherwise set aside may be ordered to restore the fees." Berger cited the following cases for authority: "In re Marriage of Mason, 48 Wash. App. 688, 740 P.2d 356 (1987) (because the attorney for the prevailing party was on notice of an appeal, aware of possible reversal, and therefore not a bona fide purchaser, restitution of fees was ordered); see also Brown v. Howard, 86 Cal. App. 532, 261 P. 732 (1927) (after judgment set aside, plaintiff's entitlement to restitution pursuant to stipulation signed by defendant's attorney meant that attorney must return fees he had retained from that money); Champion International Corp. v. McChesney, 239 Mont. 287, 779 P.2d 527 (1989) (since attorney in workers' compensation proceeding was aware that claimant could be required to reimburse employer for overpayment and his fees were based solely on benefits received by claimant, the attorney was required to repay the employer); Bruns v. Mattocks, 6 N.J.Super. 174, 70 A.2d 780 (1950) (restitution entered against attorney who was aware that return of taxed costs paid under compulsion would be expected in the event of a reversal on appeal); Transamerica Insurance Group v. Adams, 62 Or. App. 419, 661 P.2d 937 (1983) (restitution allowed when attorney knew or should have known that if referee's approval of settlement was later set aside, the fees awarded as part of the settlement would also be set aside)." 868 P.2d 1153-54. As Berger aptly recognized, a lawyer may be required to return a contingent fee in many different contexts. 868 P.2d at 1153. One of those contexts is present here. The fraudulent award was vacated.
We also comment on an older attorney fee case from Florida relied on by the dissent, Wall v. Johnson, 80 So. 2d 362 (Fla. 1955), where the court held the trial court did not abuse its discretion in refusing to order restitution. Wall did not involve contingent fees and, therefore, is not applicable here.
The dissent also relies on Martin v. Lenahan, 658 So.2d 119 (Fla. Dist. App. 1995). Martin arose in a fraudulent medical malpractice context. At trial, the jury returned a verdict of $2,488,000 in dama