In this proceeding, the majority of the Court has found that the trial court
committed error in the method it used to determine attorney fee's in this case. I fully concur
in the decision reached by the majority's opinion. I have chosen to write separately,
however, to clarify Syllabus point 6 thereof.
In Syllabus point 6 of the majority's opinion, the Court has held that “[w]hile
fee structures that involve a contingent-fee arrangement are clearly enforceable despite the
existence of a fee-shifting statute, attorneys are not entitled to receive both the statutory fee
award and the full amount of the contingent fee.” I believe this syllabus point is in artfully
constructed. “Its present wording is susceptible of misinterpretation and should be more
narrowly drawn.” Taylor v. Sears, Roebuck & Co., 190 W. Va. 160, 165, 437 S.E.2d 733,
738 (1993) (Workman, C.J., concurring).
I believe that Syllabus point 6 intended to say, and should have said, that a
contingency fee agreement is enforceable despite the existence of a fee-shifting statute.
However, there must be an off-set so that an attorney only recovers, under the fee-shifting
statute, that amount of the award that is above what was obtained by the attorney under the
contingency fee agreement. The remaining amount of the statutory fee award goes to the
client.
In view of the foregoing, I respectfully concur.