Herzog v. Irace

594 A.2d 1106 (1991)

Quick Summary

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In ‘Herzog v. Irace’, Dr. John P. Herzog (plaintiff) sought payment for medical services from a settlement assigned by his patient, Gary G. Jones, who was represented by attorneys Anthony Irace and Donald Lowry (defendants). Despite an agreement, Jones directed his attorneys not to pay Dr. Herzog.

The main issue was whether the assignment was valid and whether it conflicted with the attorneys’ ethical duties. The Supreme Judicial Court of Maine concluded that the assignment was enforceable and did not interfere with ethical obligations, affirming the decision in favor of Dr. Herzog.

Facts of the Case

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Dr. John P. Herzog (plaintiff) provided medical services to Gary G. Jones, who had been injured in a motorcycle accident. Unable to pay for the treatment, Jones signed a letter committing to pay Dr. Herzog from the settlement proceeds of his pending personal injury claim, which was being handled by his attorneys, Anthony Irace and Donald Lowry (defendants).

Despite receiving confirmation from the defendants’ office regarding the assignment of proceeds to Dr. Herzog, Jones later instructed his attorneys not to pay Dr. Herzog, promising to handle the payment himself.

After Jones received a settlement, he failed to pay Dr. Herzog, and the funds were disbursed to other creditors and Jones himself. Dr. Herzog subsequently filed a lawsuit against Irace and Lowry to enforce the assignment and secure payment for his medical services.

Procedural Posture and History

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  1. Dr. Herzog filed a complaint in District Court against Irace and Lowry for breach of an assignment.
  2. The District Court found in favor of Dr. Herzog.
  3. Irace and Lowry appealed to the Superior Court of Maine, which affirmed the decision.
  4. The defendants then appealed to the Supreme Judicial Court of Maine.

I.R.A.C. Format


Issue Icon

Whether the assignment of settlement proceeds from Jones to Dr. Herzog was valid and enforceable against his attorneys, Irace and Lowry, and whether enforcing the assignment would interfere with their ethical obligations toward their client.

Rule of Law

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An assignment is valid if the assignor manifests an intent to transfer the right to the assignee without retaining control or power of revocation. The obligor must honor the assignment upon notice, as the funds become a trust for the assignee.

Reasoning and Analysis

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The court found that the June 14 letter from Jones constituted a clear intent to assign his settlement proceeds to Dr. Herzog without retaining any control over them. Irace and Lowry were informed about this assignment and had sufficient funds from the settlement to pay all creditors, including Dr. Herzog.

Furthermore, the court ruled that there was no ethical conflict for the attorneys in honoring the assignment, as their duty was to disburse funds according to their client’s lawful instructions, which included respecting valid assignments.


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The Supreme Judicial Court of Maine affirmed the lower courts’ decisions, ruling that the assignment was valid and enforceable against Irace and Lowry.

Key Takeaways

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  1. An assignment of rights is enforceable if it clearly shows an intent to transfer without retention of control by the assignor.
  2. Attorneys must honor valid assignments made by their clients, even if later instructed otherwise by the client.
  3. The ethical obligations of attorneys do not prevent them from respecting their clients’ lawful financial assignments.

Relevant FAQs of this case

What determines the validity of an assignment of rights?

An assignment of rights is considered valid if there is a clear expression of intent by the assignor to transfer rights to the assignee, coupled with the assignee’s acceptance, effectively removing any revocation power from the assignor.

  • For example: In a scenario where an author assigns future royalties from a book to a charity, the validity hinges on the explicit agreement that the author will not retain control over these royalties once assigned.

How does ethical duty play into an attorney's obligation to follow a client's financial directives?

Attorneys must balance their ethical obligations with adherence to their client’s lawful financial directives, ensuring they do not engage in any action that may prejudice the client’s rights while also respecting legally binding commitments such as valid assignments.

  • For example: If a client directs their lawyer to donate a portion of their settlement to a third party and this direction is legally documented, the lawyer is ethically bound to carry out this directive unless it would result in an illegal or unethical act.

Under what circumstances can an obligor refuse to honor an assignment?

Obligors can refuse to honor an assignment if it’s deemed invalid due to lack of intent, consideration, or acceptance. Additionally, refusal is justified if fulfilling the assignment would violate legal restrictions or if the assignor revokes it before the obligor has given any consideration or acknowledgment.

  • For example: A tenant cannot assign their leasehold interest to another without the landlord’s consent if the lease explicitly requires such consent, making any assignment without approval non-binding on the landlord.


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