Friday, April 30, 2010
The New York Appellate Division for the Second Judicial Department imposed a six-month suspension with reinstatement conditional on a further court order of an attorney who had charged excessive (but not illegal) fees to a elderly client who suffered from dementia. The facts:
On or about August 7, 2001, the respondent was retained to represent an approximately 89-year-old self-petitioner and alleged incapacitated person...and his wife, in a proceeding pursuant to Mental Hygiene Law article 81 for the appointment of a proposed guardian. The respondent represented [the client] from June 2001 through March 2002. [The client]'s wife died in August 2001, during the course of the representation.
In a retainer agreement dated August 7, 2001, executed by [the client], the respondent acknowledged that [the client] previously had paid an initial retainer fee in the sum of $7,500 and that he required an additional $7,500 at the time the agreement was signed. Pursuant to the retainer agreement, the respondent was to bill [the client] at the rate of $250 per hour for his services and $150 per hour for the services of paralegals and associates. The agreement further provided: "You will be responsible for all non-legal fees and expenses incurred, on your behalf, in representing you in the Article 81 proceeding, and these fees are in addition to any legal fees billed to you."
Between June 2001 and March 2002, the respondent presented bills totaling $88,968.45, and all charges were billed at the rate of $250 per hour, for services of both a legal and nonlegal nature. Between June 2001 and January 2002, Leslie Evans, an attorney and family friend of [the client], served as the proposed, and later as the appointed, temporary guardian for [the client]. Between November 2001 and February 2002, the respondent submitted his bills directly to, and was paid directly by, [the client]. On or about January 16, 2002, Evans and Cleveland Thornhill, a relative of Medford, were appointed coguardians by then Kings County Supreme Court Justice John M. Leventhal. Although the respondent adjusted two bills after the coguardians voiced an objection, and revised his hourly rate to $195 per hour for those two bills only, the entirety of the fees for services of both a legal and nonlegal nature between June 2001 and March 2002, totaled the sum of $85,045.95.
The bills covering this period, from June 2001 to March 2002, totaling six in number, contained charges whereby the respondent billed at a rate of $250 per hour for services of a nonlegal nature, or reflected an excessive number of hours spent on matters that were not necessary, and/or should not have reasonably taken the amount of time billed, and/or could have been performed by a nonlawyer. Such charges, too numerous to itemize individually, billed [the client], for instance, for the time the respondent spent: accompanying [the client] to the doctor for a medical visit, or to the bank to locate a safe deposit key; going to court to conform orders; accompanying [the client] to the New York City Central Passport Office to obtain an expedited passport; or arranging for a trip by [the client] to visit a relative in Barbados.
On an application by the respondent for payment of outstanding fees, Justice Leventhal found numerous instances of work of a nonlegal nature for which [the client] was charged rates for legal services, and instances of excessive number of hours spent on matters that were not necessary and/or should not have taken as long as billed. In a decision and order dated December 20, 2002, Justice Leventhal denied the application.
In an answer dated January 15, 2008, the respondent denied that the fees he charged [the client] were excessive, disputed that various services were of a nonlegal nature since they were incident to legal services provided, and claimed that if these services were regarded as of a nonlegal nature, his rate of $250 per hour was, in any event, reasonable for such services.
At the hearing, the parties stipulated that the fees at issue were not illegal.
Based on the evidence adduced at the hearing, which included admissions by the respondent that he billed inappropriately and was wrong for doing so, and the expert testimony of Henry Rakowski, Esq., who opined that many services were billed at a rate for legal services which should not have been so billed, we conclude that the Special Referee properly sustained both charges of professional misconduct.
If there is any recent trend in bar disciplinary cases, prosecutions against lawyers who engage in misconduct against the elderly and infirm seem to be on the rise. I applaud this trend. (Mike Frisch)