text:
    Reginald R. JONES, Jr., Appellant, v. STATE of Alaska, Appellee.
    No. A-7826.
    Court of Appeals of Alaska.
    March 14, 2003.

      Dan S. Bair, Anchorage, for Appellant.
    John A. Scukanee, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Petitioner.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

During his custodial interrogation, Reginald R. Jones, Jr., asked his interrogator several times if they could speak “off the record.” The officer agreed that Jones could speak “off the record, between you and me.” The conversation was actually recorded and Jones made several damaging admissions. After the grand jury indicted him, Jones moved to suppress the “off the record” statements. The superior court denied Jones’s motion and much of Jones’s statement was admitted at trial.

Based on our independent evaluation of the record, we conclude that Jones’s statement was involuntary. Because the admission of Jones’s involuntary statement was not harmless error, we reverse the superior court.

Background facts

Jones and two other males were charged with sexually penetrating E.C., a fourteen-year-old female, on April 18, 1998, without her consent. On July 20, 1998, the Anchorage police arrested Jones for two counts of first-degree sexual assault and two counts of second-degree sexual abuse of a minor. Detective Harold Strahle questioned Jones when Jones was in custody at the police station in an interview room. Strahle started the interview by advising Jones of his Miranda rights. Jones said he understood his rights and agreed to talk with Strahle. Jones also signed a form waiving his rights.

At first, only Strahle questioned Jones. During this first part, Jones admitted that he attended a party at the victim’s home, but claimed that he was very drunk and could not remember everything that happened there. However, Jones denied any wrongdoing, and specifically denied any intercourse with E.C. Jones remarked that he could not “snitch” or “tell on anyone.”

Strahle suggested a number of times that the interview was Jones’s chance to tell his story; Jones commented several times that he had to see something in writing before he would talk. Jones also asked whether there was any way he could “beat this” or “get around this.” Strahle said that he could not promise Jones anything and advised Jones that he could not drop any charges. Jones stated several times that he was going to jail for this no matter what, “more’n likely, cause I’m black, I’m young....”

Detective Alvin Kennedy, an African American police officer, joined the interview. Both Kennedy and Strahle continued questioning Jones but Jones continued to deny sexual assault or any sexual contact with the victim. Kennedy encouraged Jones to look out for himself, and told him that he knew the other suspects and that they would do the same. The officers explained how aggra-vators and mitigators work during sentencing and talked about how unfounded charges would be dropped. They told Jones they did not think he was a “bad guy,” that they did not believe he initiated the assault, and that he might be as much a victim as E.C. They mentioned Jones’s own children, and asked Jones how he would feel if his daughter was assaulted.

Jones said he thought the officers were trying to trick him, that whatever he did would not make any difference, that none of the charges would be dropped, that he was going to jail for 20 years, and again he declined to implicate the other suspects. However, Jones offered to say something if the detectives could tell him that some charges would be dropped. Again, the detectives refused to make any promise. During this part of the interview, Jones requested and was granted some time alone. The detectives offered him coffee or a soft drink, but Jones declined.

Strahle announced he was leaving to interview the other suspects and said specifically that he was taking “the tape recorder and stuff.” Strahle told Kennedy he could continue to talk with Jones to “see if he wants to decide to change his mind or not.”

After Strahle left, Kennedy asked Jones whether or not he had tried to help E.C. Jones said that he was scared, that “Dew” (Jones’s co-defendant Kevick Pruitt, also called “K”) had a gun, that he had pointed the gun at Jones before, and that “K” told him to “hurry up” and “start doin’ something.” Jones claimed that he thought “K” might hit him with the gun, and that he had told E.C. that he was scared too. Jones alleged that “K” told him to “get in behind.”

At this point, the following exchange occurred:

Jones: This is off the record, right?
Kennedy: You and I ... there’s no tape recorder.
Jones: Seriously_officer ...
Kennedy: This is ’tween you and I, and everybody know what I say is ’tween you and I what that means. You ask around about me. When I say it’s between you and I, it’s between you and I.
Jones: This is off the record?
Kennedy: Off the record between you and I.
Jones: Yeah ... I know y’all got about 15 mikes in here ... tryin’ to get nobody in trouble ... I gotta get this off my chest man ... cause I been holdin’ it in man ... the only person I told’s my girl ... Dude, every time I kickin’ with him I get in trouble.

After this, Jones discussed some of the events without any significant detail about his alleged misconduct. Kennedy left the interview room momentarily and when he returned, Jones asked who else the police were interviewing. He told Kennedy one person who was not involved. Kennedy then asked about one of Jones’s co-defendants whose nickname was “Short”:

Kennedy: ... What about Short?
Jones: Is this still off the record?
Kennedy: You and I talking ... I’m trying to get you to realize how important this is for you.
Jones: I don’t know man.
Kennedy: And see the way you’re sitting here ... just you and I conversin’ back and forth ... he [Detective Strahle] can come in here and turn that tape recorder on and you can converse with him the same way ... but you gotta be comfortable what you’re doin’? OK....

After this, Jones admitted he had sex with E.C.: “... I’m gonna say this ... I mean I did have sex with her but I ... I ain’t even ... I ain’t even _ havin’ sex or whatever, I don’t know ... all I know is she kept sayin’ she wanted to do with me, only.” Jones next said that both he and Kevick had sex with the victim. Kennedy sought details:

Kennedy: What’d he do to her?
Jones: I don’t know.
Kennedy: You know what happened ... what’d he do to her?
Jones: What’j you mean?
Kennedy: What’d he ... what’d he do?
Jones: Just ... nn ... is this off the ... _got a ... got a tape recorder in there ...
Kennedy: No, it ain’t no tape recorder ...
Jones: A video camera ...
Kennedy: Video camera, whatever, just me and you talkin’ man ... gotta have a tape in the thing for it to record ...
Jones: The lights on ...
Kennedy: Lights always on ... secretaries work back there, that’s who you keep hearing going in and out that door ... that’s where all the typing’s done at.

Jones then described the various acts of sexual penetration performed by himself and his two co-defendants. He also admitted that he knew E.C. was fourteen years old, but maintained that E.C. wanted to have sex with him but not the others.

After Jones finished with the story, Kennedy suggested he tell it to Strahle. Jones replied, “Yeah, I think I might as well ...” When Strahle came back into the room and Kennedy left, Strahle continued the ruse that what Jones told Kennedy had been confidential. They discussed the possibility that the assault charges could be dismissed, and Strahle told Jones that only the district attorney changes charges. Jones offered to tell his story to the district attorney directly, and asked Strahle if they were speaking “on record.” Strahle verified that they were on the record, and assured Jones that it was not necessary to wait and tell the district attorney.

Strahle said that he did not know what Jones had told Kennedy, but that, “I’m gonna find out ... and ... y’know if I have to bring [Kennedy] into court and say ... this is what he told me, I will, and I don’t want to....” Jones responded, “But he can’t do that because it’s off the record ... officer I know that one.”

Jones asked Strahle if he could tell him his story, and Strahle said, “Yeah ... you gonna let me turn the tape recorder on, we’ll go through it.” Jones agreed, and Strahle re-advised him of his rights. However, Jones invoked his right to counsel.

The grand jury returned an indictment that charged Jones with two counts of first-degree sexual assault and two counts of second-degree sexual abuse of a minor. Jones moved to suppress his statement. Superior Court Judge Larry D. Card suppressed all that occurred after Jones invoked his right to counsel. Judge Card found that Jones had prior experience with the police and had been previously convicted of an offense. He found that the questioning was relaxed, that Jones did not suffer any physical deprivation or mistreatment, that he was treated very well at all times, and was allowed time to relax and be alone upon request. Judge Card also found that no threats were made against Jones, and that no inducements were offered. Although the police deceived Jones by recording his statement, Judge Card ruled that the statement the police said was “off the record” was nonetheless voluntary. At trial, the State offered a redacted transcript of Jones’s statement and it was admitted. The jury convicted Jones on all counts. This appeal followed.

Was Jones’s statement involuntary?

The Alaska Supreme Court has adopted a totality of the circumstances test to analyze whether a statement is voluntary. This analysis presents a mixed question of law and fact. First, a court must find the external, historical facts surrounding the confession. Second, the court must infer the defendant’s mental state from the external, historical facts. Third, the court must assess the legal significance of the inferred mental state. The first step in this analysis depends on the trial judge’s fact-finding; we uphold those findings unless the findings are clearly erroneous. The last two steps in the analysis require us to evaluate the record independently and form our own conclusion, based on the totality of the circumstances, about the defendant’s inferred mental state and its legal significance. Among the circumstances to consider are “the age, mentality, and prior criminal experience of the accused; the length, intensity and frequency of the interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement.”

In Webb v. State, the supreme court recognized that “certain improper conduct is so coercive as to render a Miranda waiver involuntary without regard to the totality of circumstances.” The police stopped Webb soon after he picked up a package at a delivery service. A police officer took Webb’s driver’s license and told him that it would be returned to him only if he “followed [the troopers] back up to their office and made a statement.” Webb followed the troopers to the office where he provided an inculpatory statement. The supreme court noted that Webb was presented with the choice of exercising his right to remain silent and losing a valuable property interest, his driver’s license, or making an incriminating statement to secure his license. The court ruled that conditioning the exercise of the right to remain silent against the loss of another constitutionally protected interest was involuntary per se.

In Beavers v. State, the police were investigating a series of robberies and were interviewing sixteen-year-old Beavers in a patrol car parked outside his place of employment. Beavers was not under arrest and was told that he could leave at any time. The Alaska Supreme Court held that a police officer’s warning to the suspect that if he tried to hide the truth about the robberies, he would be “hammered,” rendered the suspect’s following inculpatory statements presumptively involuntary in the absence of affirmative evidence that the suspect’s will was not overborne.

However, not all improper conduct triggers the per se rule or the presumption that a statement is involuntary. For example, in Sovalik v. State, the Alaska Supreme Court ruled that Sovalik’s inculpatory statement was voluntary even though a police officer deceived Sovalik by falsely claiming that the police had physical evidence implicating So-valik in a double homicide. The court ruled that the officer’s deceit about the evidence was merely one factor to consider in the totality of the circumstances.

But courts analyzing an officer’s deceit concerning the legal significance of a defendant’s inculpatory statement have been more restrictive. In State v. McDermott, the New Hampshire Supreme Court held a statement involuntary when it was obtained after a promise that the information provided “would not leave the office.” The court explained that this type of promise is to be distinguished from other promises frequently made by law enforcement:

A confession made in rebanee upon a promise of confidentiality or a promise of immunity is involuntary and coereed[.] ... Promises to inform other authorities of the defendant’s cooperation, or to recommend reduced bail in exchange for incriminating evidence, which promises are not dispositive of the issue of voluntariness but add to the State’s burden of proof, are categorically different from a promise of confidentiality or of immunity from prosecution in exchange for a statement or confession.[]

The court concluded that a promise of confidentiality, not honored by the government, violates due process under New Hampshire law, and therefore must be excluded.

In United States v. Conley, a federal agent engaged in a series of conversations with the defendant in order to get information about others involved in illegal activity. At the start of these meetings, the agent assured the defendant that their conversation was “off the record,” but after the defendant admitted he broke the law, the agents arrested the defendant and his statements were offered at trial. The court found these statements to be involuntary:

A promise by a law-enforcement officer may qualify, under the circumstances, as coercion. In particular, where an express or implied promise not to use statements against, or not to prosecute, a declarant is made, is not contingent or qualified, and in fact induces the statement, the promise is of such a nature that it can easily be found to have overcome a person’s resistance to giving a statement to authorities.... A promise that statements made will not be used against the declarant purports to remove the specter of proving one’s own guilt by making a statement. Such a promise is a truly powerful one, going to the heart of a declarant’s reservations about giving a statement.[]

Other courts have reached the same conclusion. In State v. Nash, the Nebraska Supreme Court ruled that a defendant’s statement made to the police in the presence of his attorney was rendered involuntary and inadmissible when the police promised the statement would be confidential. And in State v. McConkie, the Maine Supreme Judicial Court held that the defendant’s noncustodial statement to the police was involuntary. The officer interviewing McConkie told him that what he said in the interview would “stay [] confidential.” The court reasoned that the statement was involuntary because the police officer affirmatively misled McConkie as to his constitutionally protected right against self-incrimination.

In United States v. Swint, the court held that Swint’s statements during an interview were involuntary when no government agents told Swint that the interview to discuss potential assistance Swint could provide in other prosecutions would not be off the record, contrary to the reasonable understanding of Swint and his attorney. Also in Linares v. State, the court held that the defendant’s incriminating statements were involuntary when made after a police officer promised that nothing the defendant said would be used against him.

In the related area of determining whether a waiver of Miranda rights is voluntary, the California Supreme Court held that a waiver was involuntary when a defendant asked to speak to an officer “off the record,” and the officer agreed. The court explained that in asking to speak confidentially, the defendant demonstrated that he did not understand the nature of his rights, a prerequisite to a valid waiver:

A request to speak “off the record” cannot constitute a knowing and intelligent waiver of rights which include the advisement that “anything (a suspect) says can be used against him in a court of law.” Indeed, defendant’s request revealed a marked lack of understanding of the Miranda warnings. [The officer] then contributed to defendant’s lack of understanding by agreeing to the request rather than informing defendant that there could be no such thing as an off the record discussion.[]

Similarly, in State v. Stanga, the South Dakota Supreme Court held that the police subverted the required Miranda warning that any admissions can be used in court by promising that any statements the defendant made were “between you and me.”

Promises that a statement will remain confidential or will not be used against the de-clarant appear similar to promises of leniency or immunity from prosecution. In these situations, the declarant is made to believe his statements would not be used to prove his guilt in court. In Edwards v. State, we held that “[t]he police are ... barred from promising benefits such as immunity from prosecution that would cause a suspect to put aside normal efforts at self-preservation.” And in Smith v. State, we held that a confession plainly induced by a promise of leniency must be deemed involuntary.

In this case, Jones did not give incriminating information until he was assured by the police that his statement was off the record. Only after receiving that assurance did Jones provide the police with the detailed information about his sexual misconduct that the State used against Jones at trial. From our review of the record, and considering the totality of the circumstances, we conclude that Jones’s statement was plainly induced by the officer’s agreement that the conversation would be “off the record.” Therefore, we conclude that Jones’s subsequent statement was involuntary.

Was admission of the involuntary statement harmless error?

The State argues that even if Jones’s statement is involuntary, admission of the statement was harmless error. When constitutional error has occurred, the test is whether the State has proved beyond a reasonable doubt that the error did not contribute to the verdict. But Jones’s statement provided evidence on several essential elements of both sexual assault and sexual abuse of a minor. The State relied on Jones’s statement to rehabilitate E.C.’s testimony after she was impeached. And the statement allowed the jury to hear, in Jones’s own words, a graphic description of his misconduct. The jury heard Jones’s statement that he knew that E.C. was afraid, and that she was “not into it.”

The State relied on Jones’s statement throughout its case. In its opening, the State said that there were four ways to prove its case, one of which was Jones’s own statement that corroborated E.C.’s version of events. Detective Strahle testified as to what Jones said during the interview, including that he changed his story, that he admitted having intercourse and fellatio with E.C., that he admitted “switching” sex positions with Pruitt, that he admitted that he knew E.C. was scared, that he was scared he might look weak, and that he watched while “Short” had sex with E.C. In its closing argument, the State reiterated that there were four ways to prove its case. The State stressed that Jones had changed his story during the interview, first denying all involvement. It also argued that Jones must have known E.C. was younger than sixteen because he knew her older sister was only sixteen or seventeen. Throughout its argument, the State emphasized how Jones’s statement corroborated E.C.’s testimony. The State relied entirely on Jones’s statements to prove that he was reckless in his disregard of E.C.’s lack of consent, a necessary element of the sexual assault charges. From our review of the record, we conclude that admission of Jones’s involuntary statement was not harmless error.

Because we conclude that admission of the involuntary statement was not harmless error beyond a reasonable doubt, we must reverse Jones’s conviction. Because we have reversed his conviction, we need not resolve the other claim that Jones raised in this appeal.

Conclusion

The judgment of the superior court is REVERSED.

      . AS 11.41.410(a)(1) & AS 11.41.436(a)(1) respectively.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      .See AS 12.55.155.

      . See Stobaugh v. State, 614 P.2d 767, 772 (Alaska 1980).

      . See State v. Ridgely, 732 P.2d 550, 554 (Alaska 1987).

      . Id.

      . Id.

        .Id.

      . Sprague v. State, 590 P.2d 410, 414 (Alaska 1979) (quoting Brown v. United States, 356 F.2d 230, 232 (10th Cir.1966)).

      . 756 P.2d 293 (Alaska 1988).

      . Id. at 297.

      . Id. at 294.

      . Id. at 295.

      . Id.

      . Id. at 297.

      . Id.

      . 998 P.2d 1040 (Alaska 2000).

      . Id. at 1041.

      . Id. at 1042.

      . Id. at 1048.

      . 612 P.2d 1003 (Alaska 1980).

      . Id. at 1007.

      . Id. at 1007 n. 4.

      . 131 N.H. 495, 554 A.2d 1302 (1989).

      . Id. at 1304, 1306 (basing decision on New Hampshire's state constitution).

      . Id. at 1305-06 (citing inter alia State v. Nash, 228 Neb. 69, 421 N.W.2d 41, 43-44 (Neb.1988) (statement that reasonably could be interpreted as a promise of confidentiality would prevent finding that statement was voluntary)).

      . Id.

      . 859 F.Supp. 830 (W.D.Penn.1994).

      . Id. at 833-35.

      . Id. at 837.

      . Id. at 836 (citations omitted).

      . 228 Neb. 69, 421 N.W.2d 41 (1988).

      . Id. at 43-44.

      . 755 A.2d 1075 (Me.2000).

      . Id. at 1078.

        .Id. at 1077.

      . Id. at 1078.

      . 15 F.3d 286 (3rd Cir.1994).

      . Id. at 290.

      . 266 Ga. 812, 471 S.E.2d 208 (1996).

      . Id. at 212, 471 S.E.2d 208.

      . People v. Braeseke, 25 Cal.3d 691, 159 Cal.Rptr. 684, 602 P.2d 384, 391 (1979).

      . Id. (citations omitted).

      . 617 N.W.2d 486 (S.D.2000).

      . Id. at 487.

      . 842 P.2d 1281 (Alaska App.1992).

      . Id. at 1285 (citing Smith v. State, 787 P.2d 1038 (Alaska App.1990)).

      . 787 P.2d 1038 (Alaska App.1990).

      . Id. at 1039.

        . Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Love v. State, 457 P.2d 622, 631 (Alaska 1969). Compare Motta v. State, 911 P.2d 34, 39-40 (Alaska App.1996) (citing Arizona v. Fulminante, 499 U.S. 279, 306-12, 111 S.Ct. 1246, 1262-66, 113 L.Ed.2d 302 (1991)) (The constitutional harmless error standard applies when a confession is admitted in violation of defendant's Miranda rights).


source: Caselaw Access Project

author: Justice MARTINEZ Justice KOURLIS

license: Public Domain

text:
    Steven U. MULLENS, Petitioner, v. Victoria Lynn HANSEL-HENDERSON, Respondent.
    No. 01SC622.
    Supreme Court of Colorado, En Banc.
    Dec. 16, 2002.
    As Modified on Denial of Rehearing Jan. 13, 2003.

      Pasing Law Firm, P.C., Gregory J. Fasing, Denver, Colorado, Attorneys for Petitioner.
    Law Offices of J.E. Losavio, Jr., J.E. Losa-vio, Jr., Pueblo, Colorado, Attorneys for Respondent.
    Law Offices of Bennett S. Aisenberg, P.C., Bennett S. Aisenberg, H. Paul Himes, Jr.,
    Denver, Colorado, Attorneys for Amici Curiae Colorado Trial lawyers Association.
   Justice MARTINEZ

delivered the Opinion of the Court.

I. Introduction

We granted certiorari to decide whether the court of appeals erred in holding that an attorney must return fees received for legal services when the services were successfully completed but the agreement was not in writing. The court of appeals ordered attorney Steven Mullens to return fees earned during representation of Victoria Hansel-Henderson in claims against her former employer because the underlying contingent fee agreement did not comply with the requirements of Colorado Rules of Civil Procedure Chapter 23.3, and was therefore unenforceable. We hold that an attorney is entitled to fees under quantum meruit when the agreed upon services are successfully completed but the contingent fee agreement is not in writing. Therefore, we reverse and remand the ease to the court of appeals with directions to decide any remaining issues in accordance with the views expressed in this opinion.

II. Facts and Procedural History

In 1990, respondent Victoria Hansel-Henderson entered into a written contingent fee agreement with petitioner Steven Mullens, a Colorado attorney with over twenty years experience in Workers’ Compensation claims. Under the terms of this initial contract, Mullens agreed to represent Hansel in a Workers’ Compensation claim against her employer Public Service Company for injuries sustained on the job. In exchange for representation, Mullens would receive twenty percent (20%) of any monies received by him on her behalf. Mullens agreed to carry all costs related to this litigation.

As Mullens worked on the Workers’ Compensation claim over the next two years, he learned of attempts by Public Service Company to influence medical diagnoses being made for purposes of evaluating Hansel’s injuries. Mullens recognized that these tactics supported a potential Bad Faith claim for the intentional mishandling and manipulation of the Workers’ Compensation claim. Mul-lens discussed this potential claim with Hansel and the two agreed that he would also represent her in this Bad Faith claim for an additional fee. Although testimony regarding the precise fee to be paid under this new agreement varied somewhat, the trial court found that Mullens and Hansel had an agreement for a fee of forty percent (40%) of any monies received for this new claim. This separate agreement was never committed to writing.

In 1993, after three years of work, Mullens settled the two claims. The employer agreed to pay Hansel $37,560 to settle the Workers’ Compensation claim and $262,440 to settle the Bad Faith claim for a total on the two claims of $300,000. From the settlement amounts Mullens retained thirty-three percent (33%) of the total settlement amount, instead of twenty percent (20%) of the Workers’ Compensation claim and forty percent (40%) of the Bad Faith claim. This arrangement allowed Hansel to receive $12,488 more than she could have expected to receive under the terms of the oral contingent fee agreement. Hansel accepted the amounts and signed two documents, one for each claim, releasing the employer from further liability. The trial court found that at disbursement Hansel was very pleased with the outcome of the claims and did not object to the amounts of attorney’s fees. Hansel negotiated the settlement checks.

In 1995, two years after Mullens received his attorney’s fees and Hansel accepted the settlement money, Hansel initiated action against Mullens to recover all of the attorney’s fees paid for the Bad Faith settlement. Hansel asserted in her complaint that Mul-lens was not entitled to attorney’s fees from the Bad Faith settlement because the contingent fee agreement for the Bad Faith claim was not in writing as required by Colorado Rules of Civil Procedure Chapter 23.3, and was therefore not enforceable. Hansel argued that because Mullens was not entitled to payment under an oral contingent fee agreement, Mullens should be required to return to Hansel all of the attorney fees that she paid for the Bad Faith-claim.

After finding an oral agreement for forty percent (40%) of all settlement monies on the Bad Faith claim, the trial court held that the agreement was not enforceable because it was never reduced to writing as required by Chapter 23.3. However, the court determined that the fees collected by Mullens were reasonable for the services performed and allowed Mullens to retain fees under quantum meruit. Hansel appealed the trial court holding allowing Mullens to retain the fees acquired from the settlement of the Bad Faith claim.

On appeal, the court of appeals decided that Dudding v. Norton Frickey & Assoc., 11 P.3d 441 (Colo.2000), controlled. According to the court of appeals, Dudding holds that under Chapter 23.3, Rule 5(d), there can be no recovery under quantum meruit where the underlying contingent fee agreement fails, unless the agreement contains a statement clearly giving the client notice that she may be liable to pay compensation to the attorney under quantum meruit. Because the court of appeals found no evidence of any notification that recovery under quantum me-ruit might be possible, the court of appeals reversed the trial court’s judgment.

Since we have not had the opportunity to examine whether quantum meruit recovery is available for unenforceable contingent fee agreements where the agreed upon legal services have been completed, and because Chapter 23.3 does not specifically answer this question, we granted certiorari. After considering this issue we conclude that the rule in Dudding applies only to those situations where the attorney-client relationship terminates before the agreed upon legal services are completed. Because the court of appeals’ application of Dudding is overly broad, we reverse.

III. Analysis

This case requires us to examine whether an attorney may keep attorney’s fees paid for services performed pursuant to an unenforceable oral contingent fee agreement when the services were successfully completed. Our examination of this issue is broken into three areas. First, we consider how attorney’s fees under unenforceable contingent fee agreements are limited by our rules. Specifically, we examine the Rule 5(d) notice requirement found in Chapter 23.3 of Colorado Rules of Civil Procedure, and the example of this notice provided in Rule 7. Second, we address whether our earlier decisions resolve the issue now before us. Finally, we examine quantum meruit and the function of the Rule 5(d) limitation in the context of a contingent fee agreement where the legal services were successfully completed.

A. Rules Governing Contingent Fees

Whether or not the terms of a contingent fee agreement are enforceable is controlled by Chapter 23.3 of Colorado Rules of Civil Procedure. Rule 6 of Chapter 23.3 states that “no contingent fee agreement shall be enforceable by the involved attorney unless there has been substantial compliance with all of the provisions of this chapter.” C.R.C.P. Ch. 23.3, Rule 6. Hence, if a contingent fee agreement fails to substantially comply with the rules of Chapter 23.3, it is unenforceable.

According to Rule 1, a contingent fee agreement must be in writing. C.R.C.P. Ch. 23.3, Rule 1; Beeson v. Indus. Claim Appeals Office, 942 P.2d 1314, 1316 (Colo.App.1997). Therefore, an oral contingent fee agreement is not enforceable and the attorney cannot recover the fee amount specified in the oral agreement. This, however, does not necessarily preclude the attorney from recovering fees altogether. Generally attorneys may recover on an unenforceable contract on the basis of quantum meruit. Restatement (Third) of the Law Governing Lawyers § 39 (2002) (If a client and lawyer have not made a valid contract providing for another measure of compensation, a client owes a lawyer who has performed legal services for the client the fair value of the lawyer’s services); 7 Am.Jur.2d § 289 (attorneys may recover on a quantum meruit basis even where the parties have entered an unenforceable fee contract).

Although recovery under quantum meruit is generally allowed for unenforceable fee agreements, Chapter 23.3 limits such recovery. Elliott v. Joyce, 889 P.2d 43, 46 (Colo.1994). Chapter 23.3 limits compensation under quantum meruit through a notice requirement detailed in Rule 5(d). Rule 5(d) mandates that contingent fee agreements contain “a statement of the contingency upon which the client is to be liable to pay compensation otherwise than from amounts collected for him by the attorney.” C.R.C.P. Ch. 23.3, Rule 5(d). If the client is to be required to pay the attorney from monies not obtained for the client by the attorney through settlement or judgment, the fee agreement must contain a statement giving the client notice of such a possibility.

The limitation that Rule 5(d) imposes on quantum meruit is central to our discussion. Hansel argues that Rule 5(d) requires that for there to be any compensation under quantum meruit, there must be notice of the possibility of liability under quantum meruit in the contingent fee agreement. Hansel argues that without such notice of potential quantum meruit recovery, Mullens cannot receive any payment under quantum meruit for legal services that resulted in a settlement of the Bad Faith claim. Thus, the initial question before us is whether Rule 5(d) broadly applies to limit any compensation of attorney’s fees under quantum meruit when the agreed upon legal services have been completed. In answering this question we look to Form 2 in Rule 7 to enhance our understanding of Rule 5(d).

Chapter 23.3, Rule 7, entitled Forms, offers two examples of conforming contingent fee agreements. Form 2, subsection 3 is an example of how the quantum meruit notice statement should be drafted in order to allow for quantum meruit recovery. C.R.C.P. Ch. 23.3, Rule 7, Committee Comment. The example is significant in that by stating when compensation under quantum meruit is allowed, it demonstrates that the Rule 5(d) notice requirement applies to situations where the attorney-client relationship terminates before the agreed upon legal services are completed. Subsection 3 states in pertinent part:

The client is not to be liable to pay compensation otherwise than from amounts collected for the client by the attorney, except as follows:
In the event that the client terminates this contingent fee agreement without wrongful conduct by the attorney ... or if the attorney justifiably withdraws from the representation, the attorney may ask the court ... to order the client to pay the attorney a fee based upon the reasonable value of the services provided by the attorney.

C.R.C.P. Ch. 23.3, Rule 7, Form 2, subsection 3. As stated, this example of a notice statement demonstrates that the Rule 5(d) notice requirement applies when the client terminates the agreement without wrongful conduct by the attorney, or the attorney justifiably withdraws from representation, before the agreed upon legal services are completed.

Form 2 of Rule 7 has no application where the attorney-client relationship is not terminated prematurely. Where the attorney-client relationship is not terminated prematurely and the agreed upon services are completed, as is the ease here, the notice requirement as given in Form 2 of Rule 7, does not notify the client whether the attorney is entitled to compensation. Rather, it is the contingent fee agreement itself that provides the client notice that compensation is expected when the legal services are completed.

Specifically, the language in both Rule 5(d) and Form 2 of Rule 7, “... otherwise than from amounts collected for him by the attorney,” serves to limit the application of Rule 5(d) to cases where the attorney-client relationship is terminated before the attorney collects a recovery for the client. The client, under the contingent fee agreement itself, has notice that once the attorney obtains a recovery for the client, the client must compensate the attorney for his services. Thus, the example in Rule 7 helps to explain that the Rule 5(d) notice requirement does not apply to situations where the agreed upon legal services have been completed. Although we have not previously examined this issue, our conclusion is supported by our prior cases.

B. Elliott and Dudding

Two prior decisions of this court hold that the Rule 5(d) notice requirement works to limit quantum meruit recovery of attorney’s fees, when the agreed upon legal services have not been completed because of termination of the attorney-client relationship. In Elliott v. Joyce, 889 P.2d 43 (Colo.1994), we held that where there is a contingent fee agreement and the attorney voluntarily withdraws from representation prior to completing the contingency of the fee agreement, the attorney may recover under quantum meruit only if that possibility is outlined in the fee agreement or a subsequent written agreement. Elliott, 889 P.2d at 45.

In Elliott, attorney Elliott and client Joyce entered into a written contingent fee agreement. After Elliott expended about 120 hours of time on Joyce’s behalf, Elliott moved to withdraw from the case. The motion was granted and Joyce retained new counsel who was able to obtain a settlement. Elliott then sought attorney’s fees based on quantum meruit for the time and efforts he expended on Joyce’s behalf. Applying Rule 5(d), we held that where an attorney voluntarily abandons the contingent fee agreement by withdrawing from representation, there can be no recovery in quantum meruit unless the client’s possible liability is expressly stated in the agreement. Id. at 45. We did so because without notice to the contrary, a client has no expectation to pay if the attorney withdraws prior to completion of the work agreed upon. Id. at 46. Therefore, for the attorney to be compensated under quantum meruit where the agreed upon services are not completed, it must be shown that in the agreement the client had notice of this potential liability to the attorney in the event that the services were not completed.

Citing our Rule 5(d) analysis in Elliott, in Dudding v. Norton Frickey & Assoc, we determined that although recovery for fees under a theory of quantum meruit generally exists for attorneys, it was not available because Dudding did not have notice that Norton Frickey & Associates could seek such recovery. Dudding, 11 P.3d at 444.

In Dudding, client Dudding and attorneys with Norton Frickey & Associates entered into a written contingent fee agreement which set forth the conditions of payment as a percentage of damages recovered for representation in a wrongful termination suit against Dudding’s employer. The agreement did not address any payment in the event that Dudding was reinstated in his employment and no monies were recovered. Although, Norton Frickey attorneys filed suit on Dudding’s behalf, Dudding independently settled the case, obtaining reinstatement in his employment without the assistance of his attorneys. In Dudding, as in Elliott, the attorneys did not recover the monies from which the contingency fee was to be paid.

In the case before us, the court of appeals based its decision on Dudding. Quoting Dudding, the court of appeals stated that “attorneys may seek quantum meruit recovery even when a contingent fee contract fails, provided that the attorney gave the client some notice in writing of the possibility of a quantum meruit claim.” Id. at 449. In the case before us Mullens did not provide Hansel with written notice that payment for legal services was required even if the services were not completed. Hence, based on this language from Dudding the court of appeals determined that Mullens was not entitled to attorney’s fees under quantum meruit.

We believe that our holding in Dudding is limited to those circumstances where the attorney has failed to substantially perform the agreed upon legal services. We specifically recognized this limitation in Dudding by stating “[t]he ease before us today does not encompass the question of whether substantial performance of the agreement entitles the attorney to the full contingent fee.” Therefore, we conclude that the rule in Dud-ding, and in Elliott, does not apply to those situations where the agreed upon services have been completed.

C. Quantum Meruit When the Legal Services are Completed

We have never before examined whether the Rule 5(d) notice requirement applies to situations where the agreed upon legal services, such as a settlement or judgment, have been completed. However, the court of appeals explored such a situation in Beeson v. Indus. Claim Appeals Office, 942 P.2d 1314 (Colo.App.1997).

In Beeson, the contested fees arose from an oral contingent fee agreement where attorney Fogel had obtained a settlement for client Beeson, thereby completing the contingency of the contract. Beeson, 942 P.2d at 1315. Two years after accepting the distribution of funds, Beeson sought to retrieve her payment of attorney’s fees because the fee agreement failed to comply with Chapter 23.3, and hence the contract was unenforceable. Id. at 1315-16. Under the unenforceable contract, Beeson reasoned, Fogel should not have received the bargained-for amount. Id. at 1315. In Beeson, the court of appeals agreed that the underlying contingent fee agreement was unenforceable, however, the court allowed Fogel to be compensated for his services under a quantum meruit analysis. Id. at 1316.

The Beeson court determined that fees may be recovered on the basis of quantum meruit so long as the attorney shows that a benefit was conferred, appreciated, and accepted by the client under such circumstances that it would be inequitable for the benefit to be retained without payment of its value. Id. Because the services agreed upon in the unenforceable oral agreement were completed, the Rule 5(d) notice requirement was not applicable. Id. Specifically, the Bee-son court reasoned that because Fogel was not seeking fees after having been terminated by the client; because Fogel had not unilaterally withdrawn while the claim was pending; and because he had fully performed the requested services, completely resolving the matter, he was entitled to reasonable compensation for his work. Id. We agree with the analysis of the court of appeals in Beeson in light of the nature of contingent fee agreements and the function the Rule 5(d) notice requirement serves.

The notice requirement fulfills an important function. The purpose of Rule 5(d) is to assure that the client knows whether she will be liable for attorney’s fees under quantum meruit when there is not already an expectation to pay. In a contingent fee relationship, the client is put on notice by the nature of the contingent fee agreement itself that should the attorney fulfill his end of the bargain to the benefit of the client, the client will be required to pay the attorney from the funds the attorney receives for the client. Hence, where the agreed upon legal services are completed, the client has the expectation that she must pay the attorney. This expectation exists even if the fee agreement is later found unenforceable because it is not in writing. Since the client already has an expectation that she must pay the attorney from the monies the attorney recovers for her, requiring a statement expressing such does not advance the essential function of Rule 5(d) of giving the client notice as to her potential liability.

In contrast, if the agreed upon legal services are not completed, the client will have no notice that she may be expected to pay the attorney. The expectation to pay for services that have not been completed will arise only if there is express notice of such an obligation. Only in situations where the attorney fails to complete the agreed upon services, and the client therefore has no expectation of needing to pay, is the presence of the notice statement meaningful.

When an attorney completes the legal services for which he was retained, the fact that the underlying fee agreement was unenforceable does not in itself preclude the attorney from being paid the reasonable value of his services. When a contract fails, equity steps in to prevent one party from taking advantage of another. Quantum me-ruit, founded upon the principle of equity, exists to prevent unjust enrichment. D. Dobbs, Handbook on the Law of Remedies, § 4.2 (1973); 1 D. Dobbs, Law of Remedies § 4.2(3) (2d ed.1993). Not allowing an attorney to receive reasonable payment for completing legal services agreed to by both the attorney and client to the benefit of the client, under a good faith belief that he would receive an agreed upon compensation for his services, solely because the contract was not in writing is inequitable and unjustly enriches the client.

In her complaint Hansel asserts a claim for “money had and received,” under which she argues that all fees retained by Mullens should be returned to her. Under this principle, a party will not be allowed to keep money which in equity and good conscience should be returned to another. D. Dobbs, Handbook on the Law of Remedies, § 4.2 (1973). Under the claim “money had and received” the task of the court is not to determine whether something was taken away from the client but whether the attorney was unjustly enriched by wronging the client, such as accepting payment he was not entitled to. Recovery Based on Tortfeasor’s Profits in Action for Procuring Breach of Contract, 5 A.L.R.4th 1276 (2002); D. Dobbs, Handbook on the Law of Remedies, § 4.2 (1973).

“Money had and received,” like quantum meruit, exists to prevent unjust enrichment. In the circumstances before us, “money had and received” operates to return funds to a client from an attorney who has been unjustly enriched. Quantum meruit, on the other hand, assists the attorney in obtaining fees from the client to prevent unjust enrichment of the client. The difference between the two doctrines in the circumstances before us is merely whether the fees have been received by the attorney. Both doctrines seek to prevent unjust enrichment in the attorney-client relationship, and to determine the reasonable value of the legal services rendered. For this reason, our discussion of quantum meruit completely resolves the claim for “money had and received.”

Neither the Rules Governing Contingency Fees under Chapter 23.3 nor our prior cases maintain that equity is unavailable to the attorney who completes the agreed upon legal services solely because the agreement was not in writing. Further, the client has notice that she must pay for legal services because she agreed to do so from the monies recovered by the attorney on her behalf. Here, Hansel agreed to pay for legal services from the monies her attorney recovered. Mullens completed the agreed upon legal services, thereby obtaining a substantial settlement for Hansel. While it is true that Mullens may not enforce the terms of the contingent fee agreement, we find that he may be compensated under quantum meruit for the reasonable worth of the legal services he provided to Hansel.

IV. Conclusion

We hold that Mullens earned reasonable attorney fees, despite an unenforceable contingency agreement, under quantum meruit. Thus, we reverse the judgment of the court of appeals and remand for the court to decide any remaining issues consistent with this opinion.

Justice KOURLIS dissents, and Justice RICE joins in the dissent.

Justice BENDER does not participate.

Justice KOURLIS

dissenting:

While I sympathize with Mullens’s position that he earned and should be permitted to keep payment for the services rendered to Hansel for the Bad Faith claim, it is my view that Mullens is not entitled to that payment because he failed to follow the requirements of chapter 23.3 and because Hansel had no notice of the possibility of a quantum meruit claim. The underlying purpose of our Rules governing contingency fees remains unchanged whether the attorney has secured a recovery for the client or not. That purpose is that a client entering into a contingency fee agreement must understand all conditions that will trigger attorney fees, and the amount of those fees. Absent such notice to the client, the attorney is not entitled to recover.

I. Facts

As the facts were thoroughly outlined in the majority opinion, I review them here only briefly. Petitioner Mullens began his representation of Respondent in connection with a Workers’ Compensation claim Hansel had against her employer, Public Service Company, involving a head injury. To initiate his services, Mullens and Hansel entered into a written contingency fee agreement, dated September 6, 1990, which provided that Mul-lens would receive twenty percent of any recovery obtained, whether through award, compromise, or otherwise. The agreement made no mention of any fees that might be recoverable if their relationship terminated or if Mullens failed to obtain a recovery — the condition precedent to payment. In the course of Mullens’s representation in the Workers’ Compensation claim, he discovered actions taken by an employee of Public Service to influence medical diagnosis, thus implicating the possibility of a claim of Bad Faith against the employer. While there was conflicting testimony at trial, the trial court found that Mullens discussed the claim with Hansel and that she agreed to Mullens’s representation in both the Workers’ Compensation and Bad Faith claims. The trial court determined that an oral agreement existed between Mullens and Hansel pursuant to which Mullens would receive forty percent of any settlement of the Bad Faith claim. Mul-lens failed to reduce the oral agreement to writing.

Mullens eventually settled both claims on behalf of Hansel. He retained thirty-three percent of the total recovered amount, rather than the twenty percent agreed to in the contingency fee agreement for the Workers’ Compensation claim, or the forty percent for the Bad Faith claim. The Workers’ Compensation claim settled for $37,500, of which Mullens retained $12,500. The Bad Faith claim settled for $262,440, of which Mullens retained $87,440. Two years after the settlement, Hansel brought this claim to recover the attorney fees paid to Mullens for settlement of the Bad Faith claim.

II. Analysis

As noted by the majority, this court faces the question of whether quantum meruit recovery is available for unenforceable contingent fee agreements where the contingency has been satisfied. Maj. op. at 994-995. While I agree that attorneys can recover under the theory of quantum meruit in certain circumstances, I believe our precedent and the spirit of the Colorado Rules Governing Contingent Fees, chapter 23.3, require us to limit those circumstances to situations where the client has adequate notification of the attorney’s option to seek such equitable recovery.

Reviewing chapter 23.3 and this court’s precedent, I do not read the law pertaining to contingent fee arrangements and quantum meruit so narrowly as to say that quantum meruit recovery is limited only to instances where the contingency fails. Chapter 23.3, in pertinent part, requires that an attorney disclose to a prospective client in writing the statement of the contingency upon which the client is to be hable for services and the exact percentage of the contingency. C.R.C.P. Ch. 23.3, Rules 4-5. Both the attorney and client must sign the written document. Id. No contingent fee agreement shall be enforceable unless there has been substantial compliance with the rules. C.R.C.P. Ch. 23.3, Rule 6. Mullens does not debate that the contingent fee agreement between himself and Hansel failed to meet the requirements of the Rules, and that he is thus not entitled to the contingency fee. However, he seeks to retain the sums paid him on a theory of quantum meruit.

The fundamental purpose underlying our Rules concerning fee agreements is tó ensure that clients understand the terms and conditions of payment when contracting for attorney services. See Budding v. Norton Frickey & Assoc., 11 P.3d 441, 446 (Colo.2000); see also Fasing v. LaFond, 944 P.2d 608, 612 (Colo.App.1997) (noting that the plain language of chapter 23.3 imposes an absolute burden on an attorney to ensure that a valid contingency fee agreement is in place). The strict requirements found in chapter 23.3 for contingency fee agreements, and the unen-forceability of agreements that fail to meet those standards, exemplify the importance of requiring attorneys to disclose the nature of the parties’ financial relationship. Clients often lack the knowledge to make informed financial decisions pertaining to legal services so the law has stepped in to protect clients and to require attorneys to make full disclosure as to the nature of their relationship. Even in non-contingent attorney-client arrangements, the attorney has a duty to communicate the fee to the client in writing before or early in the representation. Colo. RPC 1.5(b).

The questions concerning quantum meruit recovery arise when the attorney seeks a contingency fee but fails to obtain a complying fee agreement under the Rules. In the absence of such an agreement, the attorney turns to quantum meruit and asks the court to do equity.

As we have previously stated, we are obliged to examine such requests for quantum meruit recovery in light of the unique nature of the contractual relationship between attorneys and their clients, based on trust and confidence. Budding, 11 P.3d at 445. In a traditional contract context, the failure of a written agreement poses precisely the situation in which quantum meruit is most reasonable. However, here, we cannot rely on traditional contract principles, because the whole thrust of the Rules is to assure that clients understand both the circumstances in which they would be liable for fees, and the amount of those fees. An attorney is likely to have a greater understanding of such principles and has the corresponding duty to inform his or her clients. Id. at 448.

In both Budding and Elliott v. Joyce, 889 P.2d 43 (Colo.1994), this court determined that the Rules did not preclude an attorney from seeking recovery in quantum meruit if the attorney notified the client that circumstances may exist where he or she would seek quantum meruit recovery. See Budding, 11 P.3d at 447; Elliott, 889 P.2d at 46. Both of these cases arose in circumstances where the specified contingency failed because the attorney-client relationship was prematurely terminated; however, in my view, the outcomes in those cases hinged on notice and not on the fact that the contingency failed. Budding, 11 P.3d at 448 (“The case law and Rules in Colorado require clear written statements of the fee arrangements between the attorney and the client early in the relationship. Even in the area of quantum meruit recovery, which has arisen precisely to address the absence of a written agreement, we feel compelled to honor that precedent by requiring the attorney to provide some notice to the client of the possibility that he or she may seek quantum meruit recovery if the contract fails.”); Elliott, 889 P.2d at 46 (“[W]e do not disapprove of contingent fee arrangements permitting recovery by attorneys from clients in quantum meruit. However, in order to enforce such agreements, a client’s liability must be expressly provided within the written contingent fee agreement, as required by our rules.”).

The policies behind requiring client notification of fee arrangements are not altered when the contingency has been satisfied. The notification requirements regarding fee arrangements are not, in any scenario, conditioned on whether the contingency is met. By allowing quantum meruit where there has been no notification of the possibility of such recovery, we essentially allow Mullens to recover despite the prohibitions set forth in chapter 23.3. Presumably, under the majority opinion, if the attorney receives a benefit for the client, then he or she can always recover in quantum meruit despite fading to meet the requirements of chapter 23.3. I believe that this outcome undermines the import of the Rules.

Even though the trial court found that an oral agreement existed for the Bad Faith claim, that agreement was a contingency fee agreement and is, of course, unenforceable, as it did not comply with the Rules. There is no evidence to suggest that Hansel was ever notified of the possibility that she might be responsible for paying Mullens in quantum meruit because he failed to secure a written agreement outlining the contingent agreement. If we look to the written contingency fee agreement for the Workers’ Compensation claim, for the purpose of determining what Hansel may have been aware of, we find that the only written agreement failed to mention the possibility of recovery in quantum meruit, whether the contingency was met or not.

III. Conclusion

Quantum meruit recovery where a contingency fee agreement is unenforceable for failing to meet the requirements of chapter 23.3 requires that an attorney notify the client of the possibility of such equitable recovery. This is true irrespective of whether a defined contingency has been met or not. In my view, to hold otherwise vitiates the intent of the Rules. Accordingly, I respectfully dissent and would affirm the holding of the court of appeals.

I am authorized to state that Justice RICE joins in this dissent.

      . Referred to throughout opinion as "Hansel," following respondent’s example in her opening brief.

      . Hansel admitted she retained Mullens to represent her on this new claim, and that she expected to pay for his services. However, she claimed that the terms of the fee agreement were not clear to her. In contrast, Mullens testified that Hansel agreed to a fee of forty percent (40%) of any monies received. The trial court found that "[t]he testimony presented was that the Defendant (Mullens) discussed a 40% fee for any monies that may be received out of this separate claim. During her testimony at trial, the Plaintiff (Hansel) stated she did not remember whether such an oral contract was entered into, but the testimony of the Defendant was unequivocal on this issue and the Court will find that such a conversation, agreed to by the Defendant, did occur.”

      . Attorney’s fees for Mullens included $12,520 from the Workers’ Compensation claim and $87,480 from the Bad Faith claim. Subtracting costs, Hansel received slightly less than $200,000.

      . In her complaint. Hansel claimed that Mullens was only entitled to twenty percent (20%) of the Worker’s Compensation settlement, not thirty-three percent (33%), as agreed to in the written contingent fee agreement. The trial court agreed with Hansel and awarded her the difference between the thirty-three percent (33%) taken and the twenly percent (20%) specified in the written contingent fee agreement. The fee on the Workers' Compensation claim is not an issue on appeal.

      . Hansel's argument that Mullens should receive nothing because the agreement was unenforceable contradicts her testimony at trial where she admitted that Mullens deserved to be paid for the services he performed and that prior to settlement she had in fact expected to pay him.

      . Issue as stated in Petition for Certiorari upon which certiorari was granted: "Whether the Colorado court of appeals erred in holding an attorney, who has satisfactorily completed a retention in the good faith belief that he had an enforceable contingency fee agreement, and the client fully paid the fee and accepted settlement funds without complaint, must later refund the fee when, long after the- cases ended, the client first complained only that the fee contract was not in writing.”

      . Rule 5(d) existed in its current form prior to the initiation of the attorney-client relationship between Mullens and Hansel, and has remained unchanged throughout the evolution of this case. Rule 5(f) and Rule 6 were amended effective November 16, 1995, and July 1, 2001, to include more specific cross-references. However, the meaning of these rules did not change and, in any event, the changes do not affect this case.

      . Form 1 does not offer any example of the notice statement.

      . Form 2, subsection 3 was adopted in its present form on May 24, 2001, and became effective July 1, 2001. Prior to that, Rule 7 did not include an example of the notice statement.

      . Subsection 3 in its entirety is as follows: The client is not to be liable to pay compensation otherwise than from amounts collected for the client by the attorney, except as follows: In the event that the client terminates this contingent fee agreement without wrongful conduct by the attorney which would cause the attorney to forfeit any fee, or if the attorney justifiably withdraws from the representation, the attorney may ask the court or other tribunal to order the client to pay the attorney a fee based upon the reasonable value of the services provided by the attorney. If the attorney and client cannot agree how the attorney is to be compensated in this circumstance, the attorney will request the court or other tribunal to determine: (l) if the client has been unfairly or unjustly enriched if the client does not pay a fee to the attorney; and (2) the amount of the fee owed, taking into account the nature and complexity of the client's case, the time and skill devoted to the client's case by the attorney, and the benefit obtained by the client as a result of the attorney’s efforts. Any such fee shall be payable only out of the gross recovery obtained by or on behalf of the client and the amount of such fee shall not be greater than the fee that would have been earned by the attorney if the contingency described in this contingent fee agreement had occurred.
      C.R.C.P. Chapter 23.3, Rule 7, Form 2, subsection 3.

      . Dudding v. Norton Frickey & Assoc., 11 P.3d 441, 448 n. 5 (Colo.2000).

      . In his brief, Mullens alleged that Hansel is really asserting a claim for disgorgement based on malfeasance. Partial or complete forfeiture of attorney’s fees may be required when an attorney engages in a "clear and serious violation of duty to a client.” Restatement of the Law Gov-eming Lawyers, § 37 (2002). Hansel has never alleged any misconduct on the part of Mullens other than failing to put the agreement in writing. As such, disgorgement of fees does not apply to this case.

      . The tried court required that Mullens pay back the difference between the thirty-three percent retained and the twenty percent agreed to for the Workers’ Compensation claim. This decision surrounding the Workers’ Compensation claim is not at issue.


author: Justice KOURLIS

text:
    The PEOPLE of the State of Colorado, Petitioner, v. Walter A. SEPULVEDA, Respondent.
    No. 02SC6.
    Supreme Court of Colorado, En Banc.
    Jan. 13, 2003.

      Ken Salazar, Attorney General, John J. Fuerst III, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Petitioner.
    David S. Kaplan, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, Attorneys for Respondent.
   Justice KOURLIS

delivered the Opinion of the Court.

In this case, a jury convicted defendant, Walter Sepulveda, of first-degree murder after deliberation. Over the objections of the defendant, the trial court instructed the jury that it could not consider intoxication as a defense to the “after deliberation” element of first-degree murder. Sepulveda appealed his conviction.

In People v. Harlan, 8 P.3d 448 (Colo.2000), published after Sepulveda’s trial, we concluded that the trial court should instruct the jury that the “after deliberation” element can be negated by evidence of self-induced intoxication. Because the People thus anticipated reversal of Sepulveda’s first-degree murder conviction based upon Harlan, the People requested that the court of appeals afford the prosecutor the option of either conducting a new trial or accepting a judgment of conviction on the lesser included offense of second-degree murder. The court reversed the conviction but declined the People’s request, remanding the case for a new trial. People v. Sepulveda, No. 00CA762, slip op. at 5 (Colo.App. Nov. 8,2001) (not selected for official publication).

We agree with the court of appeals’ conclusion that the jury instruction error was not harmless beyond a reasonable doubt. However, because the jury verdict on first-degree murder, absent the tainted element of “after deliberation” established all of the elements of second-degree murder, we grant the prosecution the option on remand to request the trial court to enter a conviction for that charge. Therefore, we reverse that portion of the court of appeals’ opinion.

I. Facts

Walter Sepulveda and Robert Kuzov were not friends. They knew each other, and may even have been distant relatives; however, when Kuzov became a prosecution witness in a case against Sepulveda’s brother, Sepulve-da was angry. Friends apparently recognized that the two needed to keep their distance.

On February 6, 1999, friends gave a birthday party for Sepulveda at their home. They did not invite Kuzov because they did not want to encourage a confrontation. Nonetheless, one guest invited him to the party, while apparently cautioning him that Sepulveda would obviously be there.

In the early hours of that morning, Kuzov entered the home with a Mend. Within seconds, Sepulveda attacked him with a six-and-a-quarter inch knife, stabbing him thirteen times. Minutes later, Kuzov died.

Sepulveda testified at trial that he did not remember the attack. While he admitted that he was angered when he read Kuzov’s statement about his brother, that it made him want to hurt Kuzov, he said that those feelings of anger went away because he realized he could not do anything about the situation.

Witnesses testified that the attack was hasty and immediate and no one suggested that Kuzov did anything to provoke it. Those who saw the attack agreed that Se-pulveda quickly approached Kuzov, that they were “in each other’s face,” and that Sepulve-da threw the first punch. Most believed the two were fist fighting, as no one clearly saw either wielding a weapon. Some witnesses believed they heard a male voice accusing Kuzov of being a “snitch” or telling him to leave. At least one person witnessed Kuzov deny that accusation, but no one heard Kuzov say anything to encourage the attack.

The theory of the defense was that Se-pulveda stabbed the victim during a fight in which he was trying to convince the victim to leave. The defense argued that the defendant “was slugging [the victim] with wild blows .... as if there is a non recognition that [he had] a knife in [his] hands while [ ] swinging to get Robert Kuzov out of the house.” However, Dr. Canfield, who performed the autopsy, testified that the victim had no torn fingernails, his knuckles were not bruised, his hands were not cut, and he did not have any broken bones in his hands. No one saw Kuzov wield any weapon nor was one found on his person later. Kuzov suffered thirteen stab wounds, three of which were potentially lethal, and a bruise on his lip. Sepulveda stabbed himself once in the arm.

In closing arguments, the defense argued that the attack was impulsive and hasty, and that Sepulveda was engaged in an unthinking flurry of activity. However, counsel advanced no theory that the attack was pro-, voked by any conduct of the victim, other than the victim’s decision to appear where he allegedly knew he was unwelcome.

The trial court instructed the jury: “You may consider evidence of the defendant’s self-induced intoxication when you consider whether the People have proved beyond a reasonable doubt that the defendant acted ‘with intent’.... [But] the defendant’s self-induced intoxication is not a defense to ‘after deliberation’-” The jury convicted Se-pulveda of first-degree murder.

The court of appeals properly held that the instruction had the effect of excluding consideration of intoxication as to the element of deliberation, which conflicts with section 18-1-804(1), 6 C.R.S. (2002) and with our holding in People v. Harían, 8 P.3d 448 (Colo.2000). The error had the effect of undermining the jury verdict on an essential element of the crime charged, and led to the reversal of the first-degree murder conviction. The question before us today is whether the jury’s verdict does support a conviction for second-degree murder and whether the People should be permitted to have the option of requesting entry of a conviction on the lesser offense rather than proceeding to a new trial on the greater offense.

II. The Elements

A jury convicted Sepulveda of first-degree murder. Necessarily, the jury found that Sepulveda acted with intent and after deliberation to cause the death of the victim. The faulty instruction voided only the jury’s conclusion regarding whether Sepulveda acted after deliberation. People v. Sepulveda, No. 00CA0762, slip op. at 4 (Colo.App. Nov. 8, 2001).

To establish second-degree murder, the People needed only to prove that Se-pulveda knowingly caused the death of the victim. § 18-3-103(1), 6 C.R.S. (2002). A person acts knowingly when he is aware that his conduct is practically certain to cause the result. § 18-1-501(6), 6 C.R.S. (2002). Because the jury found that Sepulveda acted intentionally, or with the conscious objective of causing death, the jury implicitly found that Sepulveda acted knowingly.

Second-degree murder is a class 2 felony for sentencing purposes unless the defendant performed the act causing the death upon a sudden heat of passion, in which case the crime is reduced to a class 3 felony. § 18-3-103(3). In this ease, the instructions offered to the jury did not include an instruction directing the jury to evaluate whether the defendant acted in the heat of passion. Sepulveda argues that he cannot be subject to a second-degree murder conviction without the opportunity to have a jury determine whether he acted in a heat of passion. He contends that the evidence in his case clearly supports the instruction.

Sepulveda did not request a heat of passion instruction at trial. Before submitting the instructions to the jury, the trial court reviewed them with both counsel. Neither counsel objected to the lack of an instruction on heat of passion. Absent an objection at trial to the instructions given, this court applies the plain error standard of review. People v. Ramirez, 56 P.3d 89, 93 (2002); People v. Garcia, 28 P.3d 340, 345 (Colo.2001); People v. Dunlap, 975 P.2d 723, 737 (Colo.1999) (“If the defendant lodges no objection to the evidence or procedure, then this court will consider the error only under the plain error standard even in a death penalty case.”); Walker v. People, 932 P.2d 303, 311 (Colo.1997); People v. Davis, 794 P.2d 159, 189 (Colo.1990); People v. Romero, 694 P.2d 1256, 1268 (Colo.1985); see Crim. P. 52(b). Reversal is required only when an error so undermined the fundamental fairness of the proceeding as to cast serious doubt on the reliability of the judgment. Walker, 932 P.2d at 311; People v. Kruse, 839 P.2d 1, 3 (Colo.1992). “An accused may not withhold his objections until completion of his trial and after conviction, and later complain of matters which, if he had made a timely objection, would have allowed the trial court to take corrective action.” People v. Rollins, 892 P.2d 866, 874 n. 13 (Colo.1995) (citing People v. Girtman, 695 P.2d 759, 761 (Colo.App.1984)). Consequently, if we were reviewing a second-degree murder conviction on appeal, we would review the record to see if the absence of the heat of passion instruction was plain error.

Here, because we are not examining the appeal of a second-degree murder conviction but are rather determining whether the People are entitled to the benefit of a verdict on the lesser included charge, we do not hold the defense to a strict plain error standard. Rather, we now look to the record to determine whether the evidence presented at trial sufficiently sustains all the elements of the lesser included offense, and whether undue prejudice will result to the defendant by the possible entry of a conviction of that lesser included offense. See Rutledge v. United States, 517 U.S. 292, 305-306, 305 n. 15, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) (approving the practice of substituting conviction for a lesser included offense when a conviction for a greater offense is reversed on grounds exclusively related to the greater offense and noting the standard adopted by the District of Columbia Circuit restricting such authority to cases in which no undue prejudice will result to the defendant). If the evidence supports the giving of an instruction on heat of passion, then clearly the defendant would suffer undue prejudice by the entry of a conviction on second-degree murder. However, the record must reflect some evidence that would support the instruction. See Co-ston v. People, 633 P.2d 470, 472 (Colo.1981).

Provocation is a statutory mitigating factor that will reduce a defendant’s sentence from a class 2 felony to a class 3 felony, but it is not an element of a separate offense. The jury is to consider whether the second-degree murder offense is mitigated by provocation only if it first concludes that the defendant is guilty of second-degree murder. If the evidence raises the issue of provocation, the prosecution must prove the lack of provocation beyond a reasonable doubt. People v. Garcia, 28 P.3d 340, 346 (Colo.2001).

In order to prevent heat of passion from being considered a mitigating factor, the People must present evidence sufficient to prove the death “was [not] performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person” and that “between the provocation and the killing there [was not] an interval sufficient for the voice of reason and humanity to be heard.” § 18 — 3—103(3)(b). Defendant’s conduct is measured against the standard of an objectively reasonable person, and not by whether a reasonable person possessing the “defendant’s subjective, personal traits and characteristics would have suffered an irresistible passion to kill as a result of the victim’s actions.” People v. Dooley, 944 P.2d 590, 593 (Colo.App.1997).

The defendant is not entitled to a heat of passion instruction unless the evidence shows that “an objectively reasonable person would have similarly suffered an irresistible passion to kill.” Id. at 594.

Sepulveda suggests that his animosity toward the victim built up over time because of prior events. However, cumulative provocation is an insufficient basis for a heat of passion instruction. Coston v. People, 633 P.2d 470, 473 (Colo.1981) (defendant’s jealousy caused by victim’s termination of their six-year affair and subsequent dating of another man insufficient to warrant instruction); People v. Lanari, 926 P.2d 116, 121 (Colo.App.1996) (“cumulative provocation is not a permitted a[sic] basis for heat of passion manslaughter”). Rather the evidence must show that the defendant suffered a sudden, unanticipated loss of self-control in response to the victim’s provocation. Coston, 633 P.2d at 473.

Sepulveda offered no evidence at trial that the victim performed any single highly provoking act whatsoever. The victim merely entered a home where a friend was co-hosting a party, after he had allegedly been warned his presence was not welcome. Moreover, his presence was unwelcome because he agreed to assist the state by acting as a witness in a case in which Sepulveda’s brother was accused of a crime. Far from serving to partially exculpate Sepulveda’s behavior, this retaliation violates public policy in numerous ways. In fact, had Sepulveda acted prior to his brother’s confession, and had his guilt for first-degree murder been properly established, the court could have considered this an aggravating factor. See § 16-ll-103(5)(k), 6 C.R.S. (2002) (intentionally killing a witness to a criminal offense constitutes an aggravating circumstance for class 1 felonies). We find as a matter of law that the victim’s conduct would not excite the passions of a reasonable person. Therefore, Sepulveda was not entitled to an instruction on heat of passion and the trial judge submitted proper instructions for the jury to review.

Accordingly, the evidence clearly sustains all of the elements of the crime of murder in the second degree: namely, that Sepulveda knowingly caused the death of another person. Diminished responsibility due to self-induced intoxication is not a defense to murder in the second degree and Sepulveda was not entitled to jury consideration of provocation. § 18-3-103(2).

III. Remedy

In Crespin v. People, 721 P.2d 688, 692 (Colo.1986), we determined that where all of the essential elements of a lesser-included offense are established by abundant evidence, it is proper to grant the prosecution discretion to retry the defendant, or alternatively, to request the court to resentence the defendant for the lesser offense. Thus, provided the prosecutor clearly established all of the elements of second-degree murder in this case, it is appropriate to grant the People the discretion to accept a conviction for this charge or to retry the defendant.

Sepulveda argues that the People should not be given the opportunity to choose whether to accept a conviction for second-degree murder or, alternatively, to prosecute him again for first-degree murder. He contends that this choice offers a windfall to the prosecution despite the fact that the error causing the first verdict to be voided occurred over the objection of the defense. We disagree.

The Colorado Constitution vests the power to prosecute criminal cases with the district attorney. Colo. Const, art VI, § 13; People v. Dist. Ct., 632 P.2d 1022, 1024 (Colo.1981). The district attorney has “the power to investigate and to determine who shall be prosecuted and what crimes shall be charged.” Id. Generally, this discretion may not be interfered with by the judiciary. Id. Just as the district attorney has the right to exercise prosecutorial discretion in the first instance, it is our view that he or she has the right here to determine whether to retry Sepulveda or accept a verdict on murder in the second degree.

The United States Supreme Court has recognized the significant social costs attributable to retrying defendants upon trial error. U.S. v. Mechanik, 475 U.S. 66, 72, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986). Resources of the district attorney are limited, witnesses’ memories fade, witnesses move away and victims hesitate to testify again. When an error does not affect the outcome of the trial, the Court has suggested that the social costs of reversal and retrial may be unacceptable. Id. The error in this trial does not affect the entry of a verdict on murder in the second degree.

Sepulveda’s argument fails to acknowledge that the district attorney has already met his burden of establishing beyond a reasonable doubt all of the elements of second-degree murder. We see no reason to require the People to conduct a new trial if they are willing to accept a conviction for the second-degree murder charge. Alternatively, since the facts of this case support a charge of first-degree murder, the People should not be prevented from retrying the defendant for that offense.

IV. Conclusion

Accordingly, we reverse the court of appeals in part and return this case to them for remand to the trial court where the People may choose to request a conviction for second-degree murder, or may elect to retry the defendant for the greater offense of first-degree murder.

      . The brother confessed guilt, entered into a plea agreement and obviated any need for the testimony.

      . The trial court instructed the jury in pertinent part as follows:

        The offense of Murder in the First Degree After Deliberation as charged in the information in this case necessarily includes the lesser offenses of Murder in the Second Degree or Manslaughter.
      The elements of the crime of Murder in the Second Degree are:
      1. That the defendant,
      2. in the State of Colorado, on or about February 6, 1999,
      3. knowingly,
      4.caused the death of Robert Anthony Kuzov.

      . Sepulveda argues that if he receives a new trial, he would request a heat of passion instruction. However, he is entitled to have a jury consider heat of passion only if the evidence supports such an instruction. People v. Ramirez, 56 P.3d 89, 93 (2002).

      . Testimony was offered that Sepulveda and the victim engaged in a verbal confrontation six months earlier.