Walter Garretson has moved for certification of a partial judgment in his favor of his fee application which debtor contests. In this case, debtor has confirmed a plan which had as its centerpiece funding from the recovery in a construction claim litigation in state court in which Garretson represented the debtor.

      On June 23, 1992, I entered oral findings that Garretson was entitled to collect a one-third contingent fee on his court approved contingent fee employment in the construction claim litigation. The fee is one-third of the recovery of $808,523.00 (composed of $689,000.00 cash and debt forgiveness by debtor's surety in favor debtor of $119,523.00), less certain uncontested costs totaling about $100,000 and certain costs which the debtor claims it should recover before Garretson gets his cut. The parties agreed to defer     2 ABR 472  a determination of whether debtor's cost claim was appropriate until a future hearing. They thought they might be able to resolve the issue without need for a hearing on the issue, but apparently have not done this yet.

      Still at issue with respect to the Garretson fee application are: (a) whether the debtor is entitled to itself recover its costs of about $71,000 out of the litigation proceeds; (b) whether Garretson is entitled to his own attorney fees and costs for defending his fee application (the court orally ordered on June 23, 1992 that both parties would bear their own costs and fees; Garretson filed a motion for costs and fees on July 6, 1992); and (c) the appropriate amount, if any, of prejudgment interest.

      Debtor has also filed an adversary proceeding against Garretson alleging legal malpractice. At the fee application hearings, the issue was narrowed to whether Garretson breached his professional responsibility in failing to properly represent and, in effect, forcing settlement for less than debtor wished to settle.

      Because of the amount involved and the strength of the parties conviction, it is likely that more than one aspect of my final judgment will be appealed. Also, the facts underlying the interim ruling on June 23, 1992 upholding the contingent fee are factually interwoven with matters involving the costs which debtor seeks to first deduct from the gross state court recovery before apply the one-third formula. In this case, a Rule 54(b) certification is not advisable. The Ninth Circuit recently discussed the matter in Texaco, Inc. v Ponsoldt, 939 F2d 794, 797-98 (9th Cir 1991):

    2 ABR 473  Rule 54(b) certification is proper if it will aid "expeditious decision" of the case. Sheehan, 812 F.2d at 468 [Sheehan v. Atlanta Int'l Ins. Co., 812 F.2d 465, 468 (9th Cir.1987)]. "The Rule 54(b) claims do not have to be separate from and independent of the remaining claims." Id. However, Rule 54(b) certification is scrutinized to "prevent piecemeal appeals in cases which should be reviewed only as single units." McIntyre v. United States, 789 F.2d 1408, 1410 (9th Cir.1986) (quoting Curtiss-Wright, 446 U.S. at 10, 100 S.Ct. at 1466). The present trend is toward greater deference to a district court's decision to certify under Rule 54(b). Morrison-Knudsen Co. v. Archer, 655 F.2d 962 (9th Cir.1981), which Texaco relies upon extensively, is an outdated and overly restrictive view of the appropriateness of Rule 54(b) certification.

      The conclusion of this case has been slightly delayed in deference to a previously scheduled vacation of Garretson's counsel. Debtor has agreed to the release of $50,000.00 to Garretson without prejudice to the possibility he might have to disgorge it later.

      Because there is likely to be an appeal on multiple issues, and since the matter will probably be fully adjudicated in August, a Rule 54(b) certification is not appropriate.