Brown

I concur in all of my colleagues’ analysis except for the conclusion that James L. Brown’s breach of a condition not found in the written fee-sharing agreement to pay Ross for services rendered discharged Milton C. Grimes from his duty to perform under the agreement.

The problem with my colleagues’ argument is that Grimes, not Brown, is guilty of breaching the fee-sharing agreement. Grimes was obligated to handle and settle the cases and collect the fees. The clients paid Grimes, and Grimes was then to pay Brown an amount equivalent to 40 percent of the fees less expenses: “Grimes would then pay certain expenses and have the contractual obligation to send Brown and the Ammons firm the amounts owed them.” (Maj. opn., ante, at p. 271.) This is what Grimes did with the first 13 cases that settled. He negotiated the settlements, collected the fees and “As contemplated by the parties, Grimes, after receiving the distributions, *287 sent Brown his 40 percent share of the fees—$1,342,000—for the cases then settled.” (Maj. opn., ante, at p. 271.) By paying this sum to Brown, Grimes discharged his contractual obligation to Brown insofar as the 13 settlements were concerned. Grimes did not…

INTRODUCTION

For the following three reasons, the trial court refused to enforce a fee-sharing agreement between lawyers—plaintiff James L. Brown and *269 defendant Milton C. Grimes—arising out of cases they handled in Texas: Brown had not performed his contractual responsibility to pay Paul Ross, a third party; Brown had unclean hands because he had unethically agreed to share his fees with Ross, a former lawyer who had resigned from the bar; and the fee-sharing agreement violated applicable Texas law because the clients did not consent to the arrangement at the outset of the litigation. The trial court also ordered Brown to return fees he had already received from Grimes under the fee-sharing agreement less an amount for the reasonable value of Brown’s services. Brown does not challenge the sufficiency of the evidence supporting the trial court’s factual conclusions.

We hold as follows: the trial court did not commit legal error in excusing Grimes from any further obligation to Brown under a fee-sharing agreement because of Brown’s failure to perform one of his contractual obligations; the trial court erred in requiring Brown to repay monies already paid to him…