State ex rel. Oklahoma Bar Ass'n v. Flaniken

¶ 1 I concur in the court's pronouncement but write separately to emphasize a line of demarcation between those lawyer-fee disputes that may constitute a breach of professional discipline and those that present no more than a civil contest. Although the Oklahoma Rules of Professional Conduct1 *Page 828 are designed to generate fairness in lawyer/client relations, a fee dispute is not a ground for imposition of professional discipline absent some proof of at least one element of culpability associated with the fee's exaction. Recognized elements of disciplinary taint include: a facially egregious or unreasonable amount, the fee's extortionate origin, deceit, illegality, concealment, unconscionability and fraud.2 The provisions of Rule 1.5(a)(1-8), Rules of Professional Conduct,3 create an elastic standard (with a non-exhaustive list of factors) for assessing the reasonableness of a fee amount.4

¶ 2 The contingency fee agreement here in contest, which was entered into upon Mrs. Hepler's informed acquiescence, does not without more present a ground for the Bar's assertion of disciplinary cognizance. At the moment of its formation the agreement was neither invalid nor facially tainted by some element of ethical infirmity.5 Moreover, the Bar's evidence is utterly devoid of proof showing illegality, deceit, concealment, extortion or fraud practiced to induce the client's entry into an unconscionable obligation. In short, the client's sole avenue of legal relief is afforded her by the civil litigation process.

1 Rules of Prof'l Conduct, Rule 1 et seq., 5 O.S. 2001, Ch. 1, App. 3-A.
2 The Florida Bar v. Moriber, 314 So.2d 145, 148 (Fla. 1975); In matter of Greer, 380 P.2d 482, 486 (Wash. 1963); Seealso Restatement (Third) of the Law Governing Lawyers § 34 cmt. f, p. 252 (2000) (the principle is often phrased as "overreach[ing] by deceiving the client").
3 5 O.S. 2001, Ch. 1, App. 3-A.
4 Restatement (Third) of the Law Governing Lawyers § 34 cmt. c, p. 249 (2000) (other factors include the client's sophistication, the disclosures made to the client, the client's ability to pay etc.); See also Gabriel J. Chin Scott C. Wells, Can a Reasonable Doubt Have an Unreasonable Price?Limitations on Attorneys' Fees in Criminal Cases, 41 B.C.L.Rev. 1, 4-5 (1999).
5 A contingency fee agreement for services in a probate case is facially valid. See Southard v. MacDonald, 360 P.2d 940, 944 (Okla. 1961).