April 29, 2011
Question Of The Day
A question posed by the Colorado Hearing Board
Attorneys must adhere to certain standards of conduct that define the duties they owe as professionals, including the obligation to charge reasonable fees according to reasonable terms. In this matter, Respondent drafted a hybrid fee agreement allowing him to retain hourly fees upon his withdrawal from the case, rather than seek fees before a court under quantum meruit. Respondent also pressed his client for trial retainers not contemplated in the fee agreement, and he charged her for fees and expenses associated with his travel back to Colorado after he moved his practice to Massachusetts. What, if any, is the appropriate sanction?
Answer: public censure.
The hearing board found the hybrid agreement not per se improper and not unreasonable in the circumstances. Nor were violations found in the attorney's allegedly bullying behavior over expenses.
The travel billing, however, ran afoul of ethics rules
Guided by fundamental notions of fairness, we are persuaded that Respondent violated Colo. RPC 1.5(a) by billing [the client] for his travel time: Respondent intended as early as 2005 to eventually move thousands of miles away, yet he never alerted [her] to these plans prior to entering into their attorney-client relationship. Indeed, he notified [her] of his change of residence only a little more than a month before he moved, at which point she faced the unenviable choice of seeking another attorney to take her case or complying with Respondent’s demands. Had Respondent been more candid, [the client] could have chosen other counsel in Colorado even before signing the fee agreement or, at a minimum, before paying Respondent substantial sums for handling her case. Because these fees appear excessive and unfair in this context, we find Respondent violated Colo. RPC 1.5(a).
We likewise conclude Respondent violated Colo. RPC 8.4(h) by charging [the client] for his travel-related expenses. Not only does Respondent’s conduct strike us as fundamentally unfair, but it contravenes the plain language of the fee agreement he drafted, which mandates he seek [her] written approval of expenses exceeding $3,000.000. Because he did not do so, and because his failure to consult with [her] forced her to expend unnecessarily thousands of dollars, we find Respondent’s behavior does not withstand scrutiny when measured against the language of Colo. RPC 8.4(h), which proscribes conduct adversely reflecting on a lawyer’s fitness to practice law.
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