129 P.3d 966 (2006) 212 Ariz. 244 VALDER LAW OFFICES, an Arizona Professional Corporation, Plaintiff/Counter-Defendant/Appellant, v. KEENAN LAW FIRM, an Arizona Professional Corporation, Defendant/Counter-Plaintiff/Appellee. Nos. 1 CA-CV 05-0217, 1 CA-CV 05-0358. Court of Appeals of Arizona, Division 1, Department A. March 9, 2006. *967 Valder Law Offices Phoenix By Michael J. Valder and Lewis & Roca LLP By Lawrence A. Kasten, Kimberly A. Demarchi, Phoenix, Attorneys for Plaintiff/Counter-Defendant/Appellant. Haralson Miller Pitt Feldman & McAnally PLC By Stanley G. Feldman, Lindsay E. Brew, Rebecca A. Reed, Tucson, and Murphy Lutey Schmitt & Fuchs PLLC By Michael R. Murphy, Prescott, Attorneys for Defendant/Counter-Plaintiff/Appellee. *968 OPINION BARKER, Judge. ¶ 1 This case requires us to decide an issue of first impression in Arizona: whether the common fund doctrine may apply to the allocation of attorneys' fees in a wrongful death action. We reject the argument that because this action is one for wrongful death, rather than a class action, the common fund doctrine may not apply. However, we hold that on the facts of this particular wrongful death case the trial court correctly determined that the common fund doctrine does not apply. I. ¶ 2 This case has its origins in an action for the wrongful death of Denise Robinson, who died in September 1997 after surgery.[1] Denise Robinson was survived by her husband, James Robinson ("James"), her son, James Jr., and her mother, Dorothy Evans ("Dorothy"). In October 1997, James retained attorney James Hill ("Hill") to represent him in the prosecution of an action against Denise's health care providers. Dorothy also attempted to retain Hill, but Hill informed her that she needed separate counsel.[2] On July 6, 1999, Dorothy retained the Keenan Law Firm ("Keenan") to "investigate, prosecute or settle" her claim for damages for Denise's wrongful death. Keenan's agreed contingency fee was forty percent of any sums collected or recovered through a first trial; if post-trial motions or an appeal was taken, the percentage increased to fifty. ¶ 3 On July 28, 1999, James signed a fee agreement jointly retaining Hill and also Valder Law Offices ("Valder")[3] to prosecute any claims for damages arising from Denise's death. On or about September 14, 1999, Valder commenced a wrongful death action for James as statutory plaintiff on behalf of himself and the other statutory beneficiaries. The beneficiaries identified in the wrongful death action brought by James included himself, James, Jr. and Dorothy. Also named was Denver Evans as Denise Robinson's father, but Denver's claim was later dismissed when it was learned that he was not Denise Robinson's biological father and he had never adopted her. Shortly after the case was filed, Keenan entered his appearance in the action on behalf of Dorothy. ¶ 4 When the wrongful death action was filed, Valder wrote to Keenan to inform him of the filing and to assure him that James, as the surviving spouse and statutory plaintiff, would act as a fiduciary by bringing the case on behalf of himself and all other beneficiaries. Valder also …
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