Wednesday, March 3, 2021

$100,000 Fee Not Excessive For Defense Of Imagined Crime

A justice of the Massachusetts Supreme Judicial Court imposed a public reprimand for an attorney's fee-sharing and failure to have a writing setting forth the rate and basis of a fee.

The court affirmed the Board of Bar Overseers rejection of other charges.

An incarcerated person disclosed to the attorney that he had committed a murder. The attorney agreed to represent the client for a $100,000 flat fee and gave $10,000 to a referring lawyer (Rull) without the client's consent. 

The client had serious mental health issues and had imagined the crime.

A.B. was civilly committed to BSH, and housed within a locked and secured unit. His civil commitment, which began in 2008, followed a twenty-five year prison sentence for indecent assault and battery on a child under the age of fourteen. During the time period relevant to this matter, A.B. "presented as overtly psychotic a large amount of the time." He displayed varying symptoms including talking to himself, most likely in response to auditory hallucinations, and harboring grandiose delusional beliefs. One of those beliefs was that he had murdered several children when he was a minor, and that he should be held in a house of correction awaiting trial for those crimes. During their initial conversation, [referring attorney] Rull informed the respondent that A.B. had the funds to retain private counsel.

As a disabled veteran, A.B. received monthly veteran's administration payments, and social security disability payments, which were deposited in A.B.'s BSH canteen account. By 2016, A.B.'s canteen account had a balance of approximately $300,000, which greatly exceeded the sums typically held in such accounts. A.B.'s wealth was common knowledge among patients and staff at BSH. The respondent, however, did not learn about the balance in A.B.'s until sometime after he first met A.B.

Following up on Rull's referral, the respondent met with A.B. on March 29, 2016 for thirty minutes. Due to the circumstances of A.B.'s confinement, the respondent knew that A.B. had been civilly committed, and, therefore, suffered from some form of mental illness. The respondent also suspected that A.B. had served a criminal sentence prior to his commitment, but did not ask A.B. about his criminal record. During this meeting, the respondent observed that A.B. was lucid, and able to respond to questioning. A.B. told the respondent that twenty to twenty-five years ago, he had raped and murdered a thirteen or fourteen year old girl, and had deposited her body near Hadley,. A.B. also said that he recently had been questioned about the crime by two State police troopers. 

The respondent found A.B.'s story plausible; he knew that investigators re-open cold cases based on newly-discovered deoxyribonucleic acid (DNA) testing and DNA database queries.

The justice affirmed the finding that the fee was not clearly excessive under the circumstances

The board rejected the hearing committee's determination that the respondent charged A.B. a clearly excessive fee. The board noted that there is no allegation that the amount of the fee was clearly excessive. Indeed, the respondent's expert witness testified, without contradiction or contrary evidence, that the fee was reasonable for the defense of a homicide case a fee involving issues of mental illness, and indeed was on the low side of the market rate for that type of case.

Bar counsel concedes that the fee was ethical and appropriate when it was set by the respondent on March 29, 2016. She argues, however, that the fee became clearly excessive a month or so later. After the initial meeting, bar counsel points out, A.B. would not sign release forms or the fee agreement, acted irrationally in subsequent interviews, and the respondent was unable independently to corroborate A.B.'s claims. Bar counsel maintains that these "changed circumstances" made the once-permissible fee impermissible.

According to bar counsel, the respondent was required to have requested a smaller initial fee, conducted a preliminary investigation into the validity of the charges, and then charged full amount if it was warranted after the respondent completed the follow-up investigation. 

After a falling out, the client discharged the lawyer. 

The fee was returned in full in four payments. The court affirmed a finding that there was no Rule 1.16(d) violation.

The justice  was also unpersuaded that the attorney should have known through an Internet search that it was a crime of the imagination

As a former homicide prosecutor, and a judge for twenty-five years, I have prosecuted or presided over many "low profile" murder cases, where the fate of marginalized victims (such as runaways) received nary a mention in the press. Perhaps the respondent's perfunctory internet research could have made him skeptical of A.B.'s claims, but the absence of any readily-identifiable and well-publicized cases from an era before wide-spread use of the Internet, certainly was not conclusive. Also, the fact that a body would not have been found in sparsely-populated, mountainous, and wooded regions is hardly inconceivable.

The holding that a fee's excessiveness is evaluated only when charged and not based on developments is an interesting one. 

Here, as noted, the attorney fully refunded the fee.

Would he have violated any additional ethics rule if he had insisted on keeping the full $100,000 "flat" fee? (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/03/the-massachusetts-imposed-a-public-reprimand-for-an-attorneys-fee-sharing-and-failure-to-have-a-writing-setting-forth-the-rat.html

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