July 2021

Ethics Question of the Month - July 2021

Take the Money and Run

After trial lawyer Tracy obtains an unfavorable result at trial on behalf of client Chris, Tracy files post-judgment motions and a notice of appeal but advises Chris to retain an appellate lawyer because Tracy does not handle appellate matters.

Chris is indecisive about whether to appeal and has Tracy file two motions for extension of time. Eventually Chris calls an appellate lawyer, Jamie, two weeks before the first brief is due.  Jamie agrees to take the case but is concerned about the short fuse. Chris requests a meeting to discuss the case and the terms of engagement, but Jamie says there is no time for that because the briefing deadline necessitates that work on the brief begin immediately. Jamie says, “I’ll charge you my usual hourly rate and send you monthly invoices so the costs won’t get out of hand. Now I need to get busy.”

Jamie manages to get one more 30-day extension and files the brief approximately six weeks after being retained. Jamie spends 175 hours working on the brief. At $500 per hour, the fees amount to $87,500. After the adverse party files a response brief, Jamie spends another 110 hours analyzing and drafting a reply brief for a total of $142,500 in unpaid fees.

Jamie has been sending monthly invoices to an office address listed on the internet for Chris, but none have been paid. Becoming concerned about the unpaid bills and loss of leverage, Jamie calls Chris, points out the unpaid balance, and says, “I have prepared a reply brief, but will not file it until you pay the balance of your fees in full.”

Chris had had been working exclusively at home during COVID and had not seen any of the invoices. Moreover, Chris had mentally budgeted about $40,000 for the appeal and cannot possibly pay the $142,000 that Jamie is demanding. But Chris also has neither the money nor the time to hire a new lawyer who could get up to speed to file a reply brief that is due in one week.

If Jamie withdraws, which of the following is most accurate?

  1. Chris likely has a claim against Jamie for withdrawing the representation in violation of the Texas Disciplinary Rules of Professional Conduct (TDRPC)
  2. Chris likely has a claim against Jamie for withdrawing the representation in violation of the Texas Standards for Appellate Conduct
  3. Chris likely has a claim against Jamie for charging fees in violation of the TDRPC
  4. Chris likely has a claim against Jamie for charging fees in violation of the Texas Standards for Appellate Conduct
  5. A and B only
  6. A and C only
  7. A, B, and C only
  8. A, B, C and D. 

Rule 1.15 determines when a lawyer can ethically withdraw from representation. Under Rule 1.15(b)(5), a lawyer can withdraw if “the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services, including an obligation to pay the lawyer's fee as agreed, and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.”   However, Rule 1.15(b)(1) warns that “a lawyer shall not withdraw from representing a client unless withdrawal can be accomplished without material adverse effect on the interests of the client.”  If Jamie withdraws without filing the reply brief when the deadline is imminent, that would clearly have a materially adverse effect on Chris’s interests.

Moreover, there is a question regarding the “lawyer’s fee as agreed” in 1.15(b)(1).  Here, Jamie only indicated that Chris would be charged “my usual hourly rate,” apparently without even disclosing what that rate was.  So there appears to be no “agreed” rate in violation of Rule 1.04, which provides that new clients must be advised of the “basis or rate of the fee” within a “reasonable time after commencing the representation.” 

While the Standards of Appellate Conduct do not address withdrawal, they do state that “[c]ounsel will explain the fee agreement and cost expectation to their clients. Counsel will then endeavor to achieve the client's lawful appellate objectives as quickly, efficiently, and economically as possible.” Lawyers Duties to Clients at 2.   Although Jamie violated this provision by not explaining the fee arrangement or the cost expectation, the Standards do not provide any remedy.  The Preamble states that “[u]se of these standards for appellate conduct as a basis for motions for sanctions, civil liability or litigation would be contrary to their intended purpose and shall not be permitted.”  The correct answer is F. 

About Ethics Question of the Month

Ethics Question of the Month is a regular feature of the Texas Bar Journal created and sponsored by the Texas Center for Legal Ethics.

DISCLAIMER: The information contained in Ethics Question of the Month is intended to illustrate an ethics issue of general interest in the Texas legal community; it is not intended to provide ethics advice that applies regardless of particular facts.  For specific legal ethics advice, readers are urged to consult the Texas Disciplinary Rules of Professional Conduct (including their official comments) and other authorities and/or a qualified legal ethics advisor.

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