June 24, 2026

By: Gaetan J. Alfano , Alexander M. Owens

When a contingency fee client chooses to switch counsel mid-litigation, predecessor counsel has no right under Pennsylvania law to enforce the contingency fee clause in the original retainer agreement. That rule is premised on two key principles: clients have a sacrosanct right to select new counsel (and their freedom in that regard is diminished if the initial fee agreement remains in effect); and if the condition precedent for the fee (i.e., a recovery) has not been triggered, then no fee has been earned.

Predecessor counsel is not left empty-handed when a client changes firms. In the absence of an alternative, non contingency-based fee provision in the contract, predecessor counsel’s right to recovery lies in quantum meruit. Historically, that was bad news for predecessor counsel. In Mager v. Bultena, 797 A.2d 948 (Pa. Super. 2002), an attorney left his former law firm and hung up his own shingle. One of the predecessor firm’s then-clients, a qui tam relator, left with the departing attorney. As the whistleblower’s case settled, predecessor counsel sought to enforce its contingency fee agreement. The Superior Court held that predecessor counsel could only seek relief through a quantum meruit claim and that the measure of such relief was counsel’s lodestar(i.e., counsel’s hours multiplied by a reasonable hourly rate) plus its costs. This result created a difficult environment for contingency-fee practitioners, particularly personal injury attorneys. Personal injury attorneys often take substantial risk in litigating cases, and a lodestar award provides no compensation for this contingency risk. Further, personal injury attorneys rarely record their time contemporaneously. Tethering an award to the lodestar may create a slew of issues—not the least of which is the temptation for predecessor counsel to inflate their hourly estimate.

Early Signs of Change

Mager’s holding that a base lodestar is the sole measure for a quantum meruit award has been chipped away over the years. In Mager, Judge Michael Joyce wrote a concurrence concluding that a lodestar award in contingency fee cases is “too narrow” and that a broader approach that balances the equities is appropriate. In Angino & Rovner v. Jeffrey R. Lessin & Associates, 131 A.3d 502 (Pa. Super. 2016), a personal injury plaintiff changed counsel mid-litigation. Predecessor counsel later sought to enforce its contingency fee agreement. The Superior Court held that predecessor counsel could not enforce the agreement, limiting the firm to quantum meruit relief. Notably, however, the Superior Court recognized that given predecessor counsel’s critical work on the case, it would be unfair to limit an award to counsel’s lodestar. Instead, the court, relying on the Mager concurrence, found that the award should reflect “a fair assessment of the contributions of the discharged attorney to any eventual recovery.” Angino’s expansion of the scope of quantum meruit relief is arguably dicta in that: the court was only asked to determine whether predecessor counsel’s contingency agreement was enforceable; and the court explicitly “made no determination as to whether amore-than-lodestar-based recovery is still available to Angino in this case.” Nevertheless, federal and state courts have treated Angino as a full-throated embrace of the Mager concurrence. See Haines & Associates v. Khalil, 236 A.3d 1086, at *4 (Pa. Super. 2020) (nonprecedential) (relying on Angino’s embrace of the Mager concurrence); see also Joseph Q. Mirarchi Leg. Services v. Thorpe, No. CV 19-3102, 2020 WL 2030036, at *6 (E.D. Pa. Apr. 28, 2020) (describing Angino as having adopted the Mager concurrence); In re Thorpe, 602 B.R. 906, 918 (Bankr. E.D. Pa. 2019) (finding Angino apt and finding that Angino’s holding conforms with other decisions in the Eastern District of Pennsylvania). Against this backdrop, predecessor counsel litigating a fee dispute may now have a strong basis to argue that the Mager concurrence should be accepted law in Pennsylvania. But that raises a key question: if not a lodestar award, then what? The answer remains unsettled, but it is clear that the contingency fee set out in predecessor counsel’s agreement remains void. Instead, Angino suggests that courts should look to the following nonexhaustive factors in assessing a quantum meruit award: the labor and time involved; the complexity of the litigation; the results achieved; the character of the services rendered; the litigation’s importance; the skill needed to pursue the case; the attorney’s standing; the benefit provided by counsel to the case; the ability of the client to pay; and the amount of money involved. See Angino, 131 A.3d at 511 (quoting Mager, 797 A.2d at 960-61).

Emerging Models: Lodestar Plus and Percentage Approaches

An approach that has increasing support within the trial courts is to use those factors to provide alodestar-plus recovery where the lodestar serves as the anchor for the fee award, with the courtretaining discretion to increase (or potentially decrease) that amount through a lodestar multiplieror similar methodology. See Paddick v. Butt, No. CV 09-4285, 2018 WL 1991737, at *15 (E.D. Pa.Apr. 27, 2018), aff’d sub nom. Butt v. United Brotherhood of Carpenters & Joiners of America, 999F.3d 882 (3d Cir. 2021) (“[W]e look to his lodestar calculation as a starting point for the work heasserts he has done on the case.”); In re Thorpe, 602 B.R. at 918 (“The foundation of my quantum meruit analysis will be the lodestar approach, but that calculation will be subject to modificationbased on other factual and equitable considerations that may be relevant.”).

One variation of this lodestar-plus approach is to look at the total fees to be awarded (e.g., based on successor counsel’s fee) and tether predecessor counsel’s award to a percentage of successor counsel’s own recovery. Earlier this year, in
Greenblatt Pierce Funt & Flores v. Marrone, No.20091437 (Phila. Ct. Com. Pl, Apr. 11, 2025), Judge Abbe Fletman of the Philadelphia Court of Common Pleas was tasked with addressing predecessor counsel’s fee in a class action. Fletman awarded predecessor counsel the firm’s costs, its lodestar, and a percentage-based portion of the successor firm’s fees (less the successor firm’s own lodestar).Greenblatt’s approach is admittedly easier to apply in the class action context where class counsel nearly always record time contemporaneously, thereby allowing the court to weigh each firm’s relative lodestar investment in the case. In Greenblatt, the court measured predecessor counsel’s lodestar against the entire lodestar on the case to come to its percentage figure.

The Tradeoffs

These approaches may be more appealing insofar as they compensate for the real contingency risk that plaintiffs attorneys take in litigating cases. There are, however, some downsides to the Angino model. The standard is far more fact-intensive than simple lodestar arithmetic and may require an evidentiary hearing. It requires a degree of Monday morning quarterbacking by the court(e.g., to measure each firm’s relative contribution to the recovery). The standard invites more litigation over fees because predecessor counsel arguably now has a basis to seek a greater, lodestar-plus award. Angino’s standard raises more questions than it answers—not the least of which is whether Angino compels a lodestar multiplier or percentage-based award. Finally, the Angino criteria still include an assessment of predecessor counsel’s likely unrecorded hours (and potentially a comparison to successor counsel’s hours, which also may be unrecorded).But these imperfections may be a small price to pay for a more equitable fee dispute system that appropriately recognizes the economics of the contingency fee-based practice of law. If Judge Joyce’s concurrence continues to eclipse the Mager majority’s ruling, one should expect more fee litigation and further refinement of the Angino framework as caselaw develops.

Reprinted with permission from the June 23, 2026 edition of the Legal Intelligencer© 2026 ALM Media Properties, LLC. All rights reserved.