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Monday, April 29, 2013

Ind. Decisions - Respondent wins disciplinary action re fee agreements

In re Canada is a 2-page "Published Judgment in Favor of Respondent," filed April 26th. Some quotes, although this should be read in full:

Upon review of the report of the hearing officer, the Honorable Barbara L. Brugnaux, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," and the briefs of the parties, the Court concludes that the Commission has not met its burden of proving by clear and convincing evidence that Respondent engaged in professional misconduct. Accordingly, the Court enters judgment for Respondent. * * *

Client made it clear to Respondent that he wished to resolve the case through a plea agreement. Client and his father signed a fee agreement entitled "Contract for Legal Services" to engage the services of Respondent. The fee agreement stated that Respondent would take the case to conclusion for a "flat fee" of $10,000, to be paid from a cash bond posted by the father. The agreement stated: "This fee is non-refundable because of the possibility of preclusion of other representation, and to guaranty priority of access. The fee is non-refundable unless there is a failure to perform the agreed legal services." * * *

We therefore find no infirmity with the fee agreement itself. * * *

The remaining issue is whether Respondent improperly collected and failed to refund an unearned part of the flat fee. Client was, of course, free to discharge Respondent at any time and retain a different attorney. Respondent was not permitted to keep any part of his fee that he did not earn. The only question is whether any part of Respondent's fee was unearned. According to the evidence, Client made it clear from the outset that he wished to resolve the case through a plea agreement. Respondent spent considerable time on the case and negotiated a plea agreement that Client initially viewed with favor. Client then changed his mind and hired replacement counsel to negotiate a somewhat different plea agreement. Under these circumstances, we conclude that the Commission has not proven by clear and convincing evidence that Respondent did not fully earn his flat fee. See Admis. Disc. R. 23(14)(i) (misconduct must be proven by clear and convincing evidence); cf. O'Farrell, 942 N.E.2d at 808 (record insufficient to prove that some amount of flat fee was unearned when the attorney-client relationship ended before work was completed).

Posted by Marcia Oddi on April 29, 2013 11:04 AM
Posted to Ind. Sup.Ct. Decisions