September 15, 2011
Fee Not Simple
The Indiana Supreme Court has ordered a public reprimand of an attorney who had charged an unreasonable fee to a client in a criminal matter and entered into a prohibited business transaction by seeking to revise the initial agreement. The attorney had no prior discipline in 37 years of practice.
In May 2005, Respondent was retained by a client charged with federal offenses. Respondent and the client entered into an agreement under which Respondent would represent the client for a "retainer/flat fee" of $35,000, plus an hourly fee of $250 if the trial lasted more than five days. Prior to this, the client had told Respondent he had no interest in a plea agreement, and the parties prepared for a multi-week jury trial.
After nearly seven months of work on the case, Respondent initiated discussions to revise the fee agreement. Respondent had concluded that the client was certain to be convicted after a lengthy trial and anticipated difficulty collecting the balance of his fee from an incarcerated client. The parties amended their fee agreement and agreed that the client would pay Respondent an additional flat fee of $20,000 and, in exchange, Respondent would drop billing by the hour for all work done after five days of trial. Respondent believed the ultimate fee under this modification would be more beneficial to the client given everyone's anticipation of a lengthy trial, but Respondent now recognizes he should have considered the possibility that the fee modification would be more beneficial to Respondent if the case could be resolved before trial. Respondent did not advise the client to consult with another attorney about of the advisability of amending the fee agreement, and he did not obtain the client's written consent to modify the original agreement. Not long after the fee agreement was modified, the government offered a plea agreement, which the client accepted on Respondent's advice.
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