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188 (1938). An attorney's right to compensation pursuant to a
contingency fee agreement is a property right determined under
applicable State law. Barnhill v. Johnson, 503 U.S. 393 (1992);
Marre v. United States, 117 F.3d 297, 307 (5th Cir. 1997);
Augustson v. Linea Aerea Nacional-Chile S.A., 76 F.3d 658, 662
(5th Cir. 1996). Under Texas State law, a contingency fee
agreement is generally considered to be an executory contract.
In re Willis, supra at 431; Brenan v. LaMotte, 441 S.W.2d 626,
630 (Tex. Civ. App. 1969); White v. Brookline Trust Co., 371
S.W.2d 597, 600 (Tex. Civ. App. 1963). Therefore, as a general
rule, an attorney does not receive a legal or equitable interest
pursuant to a contingency fee contract until the contingency
actually occurs. In re Willis, 143 Bankr. at 431.
Although it is unclear what constitutes the defining moment
at which the contingency occurs, at minimum, the contingency
cannot occur before judgment is affirmed on appeal or when the
time for filing an appeal has lapsed. Marre v. United States,
supra at 308 (comparing Lee v. Cherry, 812 S.W.2d 361, 363 (Tex.
App. 1991) (explaining that an executory contract is one that is
still unperformed by both parties or one with respect to which
something still remains to be done on both sides); White v.
Brookline Trust Co., supra (contingency occurs after prosecuting
or defending to final judgment all suits); Carroll v. Hunt, 168
S.W.2d 238, 240, 242 (Tex. Commn. App. 1943) (contingency occurs
after successful termination of the litigation)). Once the
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