FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
DISCIPLINARY COMMISSION
Ron Elberger, Judy L. Woods
Bose McKinney and Evans Donald R. Lundberg, Executive
Secretary
Indianapolis, Indiana 46204 115 West Washington Street
Indianapolis, Indiana 46204
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 49S00-0009-DI-560
RICHIE DOUGLAS HAILEY )
DISCIPLINARY ACTION
August 8, 2003
Per Curiam
In collecting a contingent attorney fee from a client’s settlement,
attorney Richie Douglas Hailey retained a fee in excess of the amount
justified by the percentage provided in his written agreement with his
clients. We find today, therefore, that his fee was unreasonable. We also
find that the respondent failed timely to provide the client with a written
settlement disbursement summary, delayed payment to medical and other third-
party creditors, and shared a portion of his fee with another lawyer who
was not a member the respondent’s law firm in a manner not permitted by the
Rules of Professional Conduct. Because this is the first instance of
discipline for a violation of this type and because the respondent’s
services in achieving a settlement for his client were effective despite
his failure to be diligent in wrapping the matter up, we impose only a
public reprimand. Future violations of this nature may result in more
severe sanctions.
This matter comes before us upon the hearing officer’s tendered
report, generated after a full evidentiary hearing. The hearing officer
concluded that the respondent violated the Rules of Professional Conduct as
charged. The respondent has petitioned this Court for review of those
findings and conclusions, pursuant to Ind.Admission and Discipline Rule
23(15), urging us not to adopt the hearing officer’s findings of
misconduct. Where the hearing officer's report is challenged, we review
the record presented de novo. Final determination as to misconduct and
sanction rests with this Court. Matter of Lamb, 686 N.E.2d 113 (Ind.
1997); Matter of Gerde, 634 N.E.2d 494 (Ind. 1994).
I. The Facts
The respondent was admitted to the practice of law on October 9, 1974,
and practices law in Indianapolis. In 1992, a 13 year-old boy was
seriously injured in Indiana while riding as a passenger in an automobile.
He incurred several hundred thousand dollars in medical expenses and is
confined permanently to a wheelchair. Shortly after the accident, the
boy’s mother spoke with relatives, who suggested she contact the boy’s
uncle, who was a lawyer in Alabama, but did not handle personal injury
matters. The uncle obtained the respondent’s name from a friend and fellow
Alabama attorney, and gave it to the mother.
The boy’s father was generally aware that the uncle had consulted with
another Alabama attorney before the uncle recommended the respondent. The
mother and boy were not aware of the consultation. The Alabama attorney
and the parents each independently contacted the respondent, but had no
direct contact with each other. In January 1993, the respondent agreed to
represent the parents and the boy (collectively the “clients”) on a
contingent fee basis and the respondent drafted a written contingent fee
agreement which was executed by the clients on January 14, 1993. The
agreement provided, in relevant part, “[I]f the matter is settled or tried
after One Hundred Eighty (180) days after suit, the client will pay at a
rate of Forty percent (40%) of the gross amount recovered.” Expenses of
pursuing the claim were to be paid by the clients. The respondent did not
include in the contingent fee agreement any provision that specifically
addressed how his attorney fee would be calculated in the event of a
“structured settlement” that included future periodic payments. The
respondent's written fee agreement also did not disclose the division of
attorney fees with the Alabama lawyer specifically, nor did it address
generally the subject of division of fees with a lawyer not associated with
the respondent's law firm. The respondent did not provide the clients with
a copy of the agreement.
In November 1993, the respondent filed suit in an Indiana court on
behalf of the clients against the driver of the vehicle in which the boy
was riding at the time of the accident, the owner of the vehicle, the
automobile manufacturer, and others. Throughout the litigation, the
clients were in frequent contact with the respondent. The father also
spoke to the uncle about the case from time-to-time, and raised questions
about certain aspects of the case. The uncle in turn talked to the Alabama
attorney before responding, but the father never spoke to the Alabama
attorney about the case and the mother and boy remained unaware that the
Alabama attorney had any role in the matter.
In November 1997, the clients, the respondent, representatives of
various defense insurers, and counsel for the defendants in the case met in
two mediation sessions. At least by that time, the respondent was aware
that a structured settlement was a likely option. As the discussion focused
on a proposal to settle for a lump sum plus an annuity, the clients were
concerned whether the lump sum would be sufficient to pay the boy’s medical
expenses, attorney fees, and litigation expenses. They thought it would be
best to leave the annuity unencumbered for the boy’s future expenses. To
evaluate a structured settlement proposal they needed to know the dollar
amount required for both the boy’s medical providers and for attorney fees.
In particular, the clients did not know what several medical providers
would be willing to accept in satisfaction of their claims or how the
respondent's attorney fee was to be calculated in the event of a structured
settlement.
The defendants were accompanied at the second session by a broker
experienced in purchasing annuities to fund structured settlements. For
the first time the clients and the respondent discussed various methods by
which the respondent's attorney fee might be calculated under a structured
settlement. A copy of the written fee agreement was not available and the
respondent did not give the clients a definitive answer to the calculation
of his fee. Among the methods discussed during the second mediation
session was a proposal whereby the respondent would retain 40% of the lump
sum cash payment and 40% of the gross amount of future guaranteed payments
to be made to the boy, undiscounted to present value. The father concluded
that, under this method, the respondent's fee and the medical expense
payments would consume the lump sum payment and leave the boy owing
additional attorney fees. By this time medical expenses were estimated at
less than $400,000. [JACK] The respondent ultimately agreed in writing with
the clients prior to settlement that his maximum fee would be $1.6 million.
The clients and respondent both intended that $1.6 million was a maximum,
not the agreed amount of the fee.[1] With the respondent's attorney fee
capped at $1.6 million, and the knowledge that the total amount of medical
and related expenses was less than $400,000, the clients negotiated for an
annuity without concern that the cash portion of the settlement would be
inadequate to cover the medical and legal expenses.
The second mediation session resulted in a settlement. Its terms
called for an initial lump sum payment of $2 million cash, plus periodic
future payments of $80,000 per year compounding annually at 1.5%, beginning
December 29, 1998 and lasting for the longer of the balance of the boy’s
life or 40 years. Pursuant to the settlement agreement, on December 3,
1997, the defendants purchased an annuity for the boy’s benefit for a
single premium of $1,465,698. That price, which was $28,818 less than the
quote provided on November 29, 2003, was not reported to the respondent or
the clients and they made no inquiry.
Under the 40-year guarantee, the boy will receive a minimum gross
total payout of $4,341,431.29. The annuity was issued by a life insurance
company and backed by the irrevocable guaranty of a second life insurance
company. If the boy lives beyond the fortieth annual payment, he will
continue to receive payments as scheduled until he dies.
In mid January 1998, the respondent received the initial cash payment
of $2 million from the defendants and deposited it into his trust account.
Fairly early in the case the respondent and the Alabama attorney had agreed
that the Alabama attorney would receive one-third of the respondent’s fee.
On January 21, 1998, the respondent issued checks from his trust account in
the amount of $1,066,666.66 to his law firm and $533,333.33 to the Alabama
lawyer for a total of $1.6 million attorney fees. The respondent did not
notify the clients that he was paying the fees or that one-third of the fee
was being paid to the Alabama attorney. The father was aware before the
mediation sessions that a referral fee would likely be paid to the uncle,
but he had no indication as to the amount. Neither the mother nor the boy
knew that a referral fee would be paid. On November 3, 1995, the
respondent wrote a letter to the Alabama attorney in which, for the first
time, he placed in writing his understanding that he would share the fees
with the Alabama attorney.[2] The respondent did not provide a copy of
this letter to the clients.
In mid-February 1998, the respondent withdrew from his trust account
an additional $24,837.63 to reimburse his law office for various expenses
of the litigation. The respondent did not notify the clients of the
withdrawal and did not provide them with an accounting showing the items
that were being reimbursed. There is no claim that the amounts were
improper. The respondent retained the balance of the settlement funds in
his trust account to pay the medical creditors and health insurers who held
subrogation interests in the settlement.
At the mediation, the clients had directed the respondent to negotiate
with medical providers to attempt to reduce their claims. Between February
16 and October 28, 1998, the respondent made several partial distributions
to the clients, totaling $80,000. Throughout 1998, the mother became
increasingly concerned that her health insurers and various medical
providers had not been paid. In some instances, the creditors contacted
her directly. She made several unsuccessful efforts to contact the
respondent's office about payment of these bills.
On October 7, 1998, almost nine months after settlement was closed,
the mother sent a note to the respondent asking him to complete the
distribution of the settlement funds within the next two weeks because she
had been deferring a necessary surgical procedure until the distributions
were complete. The clients sent a similar letter on October 23, 1998. In
late October 1998, the clients finally hired an attorney to assist them in
getting the respondent's cooperation in distributing the settlement
proceeds. On November 4, 1998, the clients’ attorney wrote to the
respondent noting his representation of the clients and asking for a copy
of the written contingent fee agreement, an accounting of the settlement
funds, and a status report of any outstanding medical or subrogation
claims. The respondent did not reply, and on December 3, 1998, the clients’
attorney renewed his request. Following the second request, the respondent
began paying the medical claims. Between December 8, 1998 and January 23,
1999, the respondent paid a total of $282,189.87 from his trust account to
four medical creditors and subrogated insurers. The only medical bill the
respondent paid before December 1998 was a subrogation claim of one of the
mother’s insurers. This was paid on August 18, 1998 only after respondent
was threatened with legal action by an attorney representing the collection
agency for the insurer’s subrogation interest. Payment of the medical
claims was complicated by several factors. The applicable medical
insurance changed over time, and different insurers covered different items
and had different co-pays and deductibles. Bills submitted by medical
creditors included duplications, billing errors, and unauthorized charges.
Some were subject to Indiana's hospital lien statute (I.C. 32-8-26-4
(a)(6)); some were subject to the subrogation statute (I.C. 34-53-1-2), and
others were subject to neither. The respondent ultimately negotiated
discounts and reductions of approximately $115,793.01 from the original
medical expense claims. Despite those difficulties, the delay was for the
most part due to respondent’s failure to resolve those claims.
On December 11, 1998, approximately eleven months after he received
the settlement proceeds, the respondent first reported to the clients and
their attorney the distributions he had made from the settlement proceeds.
He did not report that he had distributed in excess of $1,624,000 for
expenses of litigation and attorney fees. The clients’ new attorney wrote
to the respondent on January 25, 1999. In addition to pointing out several
claims for medical services that appeared to remain unpaid, he renewed the
mother’s request for a copy of the contingent fee agreement and a full
accounting for the funds received in settlement. On April 30, 1999, the
clients’ attorney again asked for documentation that all of the medical
creditors had been paid and reminded the respondent of his earlier
unsatisfied request for a copy of the fee agreement and an accounting of
distributions. The clients’ attorney again renewed that request on June 3,
1999. On June 10, 1999, five months after he had paid the last medical
creditor, the respondent provided the client’s attorney with a settlement
statement disclosing the total settlement, listing the payments made from
the settlement proceeds (including distributions to medical creditors,
payment of litigation expenses, and distributions to the clients) and the
balance remaining in trust. For the first time, the statement disclosed
that the total amount of funds distributed from the settlement for attorney
fees was $1.6 million, but still did not disclose that $533,333.33 of that
was paid to the Alabama attorney. The respondent did not furnish a copy of
his fee agreement.
The Alabama attorney’s participation in the case was minimal. The
clients never hired him to be their attorney, and their contract with the
respondent did not mention a role for any other attorney not associated
with the respondent's law firm. As the case progressed, and unbeknownst to
the clients, the respondent and the Alabama attorney discussed the case by
telephone from time to time, but the Alabama attorney’s role was not
significant. He discussed some ideas about insurance coverage with the
respondent, but he was not involved with research, drafting of pleadings or
other papers, investigation, discovery, court appearances, negotiations, or
client communications. The clients first became aware of the payment to the
Alabama attorney in March 2001 when the clients were notified by the IRS
that the boy owed taxes on the interest earned by a certificate of deposit
held by the uncle for the benefit of the boy. As it turned out, the
Alabama attorney had in turn paid the uncle $177,600 of the $533,333.33 he
received from the respondent. That amount was placed in trust for the boy
by the uncle without the clients’ or the boy’s knowledge.
By June or July 1999, the respondent was ready to close the case and
distribute the $112,972 in settlement funds remaining in his trust account.
The respondent paid that amount to the clients on November 22, 1999. On
December 6, 1999, the client’s attorney once again asked the respondent for
a copy of the written contingent fee agreement and also asked for an
explanation of how the respondent's attorney fees were calculated. The
respondent never replied.
II. The Charged Violations
The hearing officer found that the respondent charged an
unreasonable fee in violation of Ind.Professional Conduct Rule 1.5(a)[3]
“because the contingent fee agreement did not clearly state the method by
which the fee was determined.” Findings of Fact at 34. He also concluded
that the respondent violated Prof.Cond.R. 1.5(c)[4] by failing timely to
provide a written settlement disbursement summary to his clients,
Prof.Cond.R. 1.3 and 1.15(b)[5] by delaying payment of the medical
creditors and lien holders, and Prof.Cond.R. 1.5(e) [6] by dividing his
attorney fees with the Alabama attorney without the client’s knowledge.
A. Unreasonable fee
The Disciplinary Commission alleged that the respondent charged an
unreasonable fee by “recovering a contingency fee on settlement funds that
were not to be received until the future without discounting the future
settlement payments to present value.” Verified Complaint at 4.
Respondent contends that there is no requirement that a structured
settlement be discounted to present value when calculating a contingent
attorney fee on the settlement.
We agree with the hearing officer’s conclusion that the respondent’s
fee agreement with the client failed to state clearly the method by which
the fee was determined. That in and of itself does not constitute a
violation of the prohibition in Prof.Cond.R. 1.5(a) against unreasonable
fees.[7] However, we find that the respondent’s fee was unreasonable
nonetheless, because the fee agreement, in calling for 40% of settlement,
must be based on the value to the client, unless some other method is
clearly spelled out. If an attorney wishes to calculate such a fee based
on anything else, the fee agreement must make those calculations clear to
the client. Here, by calling for 40% of the settlement, the agreement
limited respondent’s fee to 40% of the value and no more.
Use of the term “gross proceeds” does not salvage this agreement. A
lay person might well understand that to mean only that expenses will not
be deducted, and may have no understanding of what a structured settlement
is or that it is a possibility. Where a contingency fee on a structured
settlement will not be collected as settlement funds are actually received,
a lawyer cannot ignore the time value of money or let any material risk of
nonrecovery fall disproportionately on the client. In Matter of Myers, 663
N.E.2d 771 (Ind. 1996), a client hired attorney Myers to recover investment
funds. Myers and the client later entered into a written contingency fee
agreement, which provided that Myers would retain as his fee “10% of the
gross recovery of money and/or property prior to the filing of a claim.”
Myers thereafter negotiated a settlement on behalf of the client, which
terms provided for payments totaling $550,000: $50,000 due upon execution
of the settlement agreement, $50,000 due shortly thereafter, and $15,000
per month for 30 months. Myers deducted $35,000 for his fee from the first
payment and deducted $15,000 from the second payment. He then relinquished
any claim to the remaining $5,000 in fees and notified the defendant that
the remaining periodic payments of $15,000 should be made directly to the
clients. The defendant defaulted after paying a total of only $160,000 of
the $550,000 promised. We concluded that the lawyer’s retention of the
bulk (91%) of his anticipated $55,000 fee from the initial two payments of
the structured settlement was unreasonable because, although the fee
agreement called for a fee of ten percent, his fee in fact approached
thirty percent of the total actual recovery. Myers at 774.
Myers turned principally on the collection risk in deferred payments,
but the time value of money is subject to the same principle. Other
jurisdictions, in valuing structured settlements have expressly held that
contingency fees on structured settlements must account for the time value
of money and therefore be based upon either the settlement’s cost (i.e. the
price of annuity or its present value).[8] Deferred payments always
include a time value factor, and can also include risk of collection
factors. Shifting either without full disclosure and consent of the client
is simply a breach of the fee agreement. A lay person may not readily
grasp the economic significance of deferred payments. But we think it
should be obvious to any attorney who competently represents a party in
negotiating a transaction involving deferred payments.
Here the amount the respondent retained for himself was substantially
in excess of 40% of the value of the settlement at the time he took his
fee. This is true whether value is calculated on the cost of the annuity,
which is one reasonable approach, or by discounted cash flow. As such it
is unreasonable when the fee agreement simply called for a 40% fee.
The respondent contends that at the time he took the $1.6 million fee,
the figure functioned as a "cap" because he otherwise would have been
permitted to calculate his fee by taking 40% of the $2 million cash plus
40% of the gross amount of the clients’ guaranteed future payments
($4,341,431.29), without discounting to present value. The respondent's
fee, using this method, would have been $2,536,572.40. The annuity was
purchased for $1,465,698. Forty percent of the lump sum plus the purchase
price of the annuity (its “cost”) is $1,386,792. According to the
respondent’s expert, the present value[9] of the cash stream payable under
the annuity was slightly less ($1,368,509) than the cost of the
annuity.[10] Thus, whether valued using the cost of the annuity or the
discounted cash flow from the annuity, the fee the respondent actually
retained was over $200,000 in excess of 40% of the total present value of
the settlement. An attorney’s retention of a fee greater than that
specified in the fee agreement with the client, without the renegotiated
agreement of the client is strongly indicative of an unreasonable fee.
Matter of Lehman, 690 N.E.2d 696, 702 (Ind. 1997).
The respondent collected his entire fee, $1.6 million, from the
initial payment of $2 million. At the moment he collected his fee, it
amounted to 80% of the “gross amount recovered,” at that time. We have
held that taking an entire contingent fee from the first payments of a
structured settlement, absent explicit authorization in the fee agreement,
amounts to an unreasonable fee. Myers, infra (holding that “gross amounts
recovered” in contingent fee agreement meant “actual receipt” of funds);
Matter of Benjamin, 718 N.E.2d 1111 (Ind. 1999) (lawyer took entire
contingent fee from first settlement payments). Absent a contrary written
agreement, contingent fee recoveries should be taken only as the funds are
actually received. Restatement (Third) of the Law Governing Lawyers,
Section 35(2) (“Unless the contract construed in the circumstances
indicates otherwise, when a lawyer has contracted for a contingent fee, the
lawyer is entitled to receive the specified fee only when and to the extent
the client receives payment.”). The hearing officer found that the clients
expressed a desire to have the respondent’s fee deducted from the lump sum
payment so that the annuity payments would be preserved for the benefit of
the boy. This does not justify increasing the amount of the fee, which is
the effect of accelerating its payment ahead of the client’s recovery
without discounting for the time-value of money. If an attorney wishes to
calculate a fee based on this consideration, it needs to be spelled out for
the client in the written agreement, and the economic cost and risk of
noncollection to the client needs to be made clear. Here there appears to
be no risk of collection as there was in Myers, but that factor is also a
necessary disclosure if the attorney wishes to shift it to the client.
We recognize the value in the availability and use of structured
settlements. They often provide a severely injured plaintiff with a
regular, permanent income stream for future medical expenses and support
and may result in tax savings. If the parties agree to it, there is
nothing inherently wrong with a lawyer’s receiving the full amount of his
fee in current dollars and the client’s receiving payment in future dollars
so long as the relationship between the present value of the two is in
proportion to the percentage of the lawyer’s fee agreed to in the fee
agreement. But that condition was not met here.
We conclude that the respondent’s fee was unreasonable in violation
of Prof.Cond.R. 1.5(a), because it ignored the time-value of money and
thereby exceeded the fee agreed to in the initial written fee agreement
with the clients by over $200,000. The respondent’s proposed method of
calculating the present value of the structured settlement, by factoring in
the hypothetical tax savings inuring to the client, is not spelled out in
the fee agreement and is contrary to a lay person’s understanding of the
written agreement the respondent created. It appears to be a justification
after the fact, not a condition in setting the fee, and one not explained
to the client. The requirement of a written fee agreement includes
spelling out any unusual calculations and is designed to avoid exactly the
kind of dispute that arose here.
B. Fee sharing
Indiana Professional Conduct Rule 1.5(e) provides:
A division of fee between lawyers who are not in the same firm may be
made only if:
(1) the division is in proportion to the services performed by each
lawyer or, by written agreement with the client, each lawyer assumes
joint responsibility for the representation;
(2) the client is advised of and does not object to the participation
of all the lawyers involved; and
(3) the total fee is reasonable.
All three requirements are lacking in this case. The Alabama
attorney’s involvement in the case was minimal. It consisted of only a few
telephone conversations with the respondent about insurance coverage issues
relative to the case. Clearly, the division of fees between the respondent
and the Alabama attorney was not in proportion to the services provided by
the two. Nor were the clients aware of the Alabama attorney’s
participation. Absent proportionality, the fee division would nevertheless
have been permissible if: (1) the client was advised of, and had no
objection to, the fee sharing, (2) the respondent and the Alabama attorney,
by written agreement with the client, each assumed joint responsibility for
the representation, and (3) the total fee was reasonable. There is no
evidence of a joint responsibility agreement in this case (the respondent’s
letter to the Alabama attorney states that the respondent’s office takes
“primary responsibility” for the case). We conclude that the fee sharing
between the respondent and the Alabama attorney in this case violated
Prof.Cond.R. 1.5(e).
C. Delays in wrapping up the transaction
The respondent received the lump-sum settlement proceeds in mid-January
1998. At that time, several third parties had interests in the settlement
proceeds. Some of the creditors--the subrogated insurers--were statutorily
obligated to reduce their claims to share pro rata in the costs of the
recovery. The application of this statutory obligation is not complex and
there is no evidence in the record establishing any resistance by the
subrogated insurers to do so upon being informed of the requirements of the
statute. Furthermore, the respondent had collected information about the
boy’s special medical damages during the lawsuit. Upon settlement of the
suit, therefore, the respondent was well aware of the identity of the
subrogation and medical provider claimants. The respondent did have to
scrutinize the third-party medical bills to check for duplications, billing
errors, and unauthorized charges. His efforts in regard to these concerns
resulted in the respondent negotiating discounts and reductions of
approximately $115,793.01 from the original claims. However, the
respondent had paid only one of the medical bills by the end of 1998, some
10 months after he received the settlement proceeds, and he was aware of at
least most of the claimants’ interests before the lawsuit settled. He did
not pay the first medical creditor until eight months after receiving the
settlement proceeds, and then only after that creditor threatened the
respondent with a lawsuit. The respondent began paying the rest of the
third-party claims only after the client’s hired a new attorney. That the
respondent, following the client’s new attorney’s second contact, soon
thereafter paid some $282,189.87 in claims strongly indicates that there
was nothing slowing the claims payment process save the respondent’s
inattention. Professional Conduct Rule 1.3 requires lawyers to act with
reasonable diligence and promptness in representing clients. Professional
Conduct Rule 1.15(b) provides, in relevant part, that a lawyer shall
promptly deliver to third persons any funds the third person is entitled to
receive. The respondent’s delay in paying third party creditors following
his receipt of the settlement proceeds violated these rules and ultimately
required the clients to go to the expense of hiring another attorney to
prod the respondent to finish a project for which respondent had already
collected over $1 million in fees.
D. Written settlement statement
Professional Conduct Rule 1.5(c) requires that, upon conclusion of a
contingent fee matter, the lawyer is to provide the client with a written
statement stating the outcome of the matter, and, if there is a recovery,
showing the remittance to the client and the method of its determination.
At the time of settlement in late November 1997, the respondent did not
provide to the clients a written statement showing the total settlement,
the anticipated deductions, a specification of costs of litigation that
were advanced by the respondent, and the net recovery to the clients. The
respondent did not provide a written settlement statement to the clients in
advance of removing the attorney fees or expenses from trust. On December
11, 1998, the respondent reported to the clients the distributions he had
made from the settlement proceeds, 11 months after receiving the settlement
proceeds. At that time, he did not disclose the $24,000 he had withdrawn
to cover his expenses, the $1,066,666.66 he withdrew as his own attorney
fees, or the $533,333.33 he withdrew to provide to the Alabama attorney.
On June 10, 1999, after several unanswered requests from the clients’ new
attorney for a full accounting, the respondent provided to them a
settlement statement disclosing the total settlement, the distributions
made to medical creditors and others, and the balance remaining in trust.
That statement again omitted mention of the fee paid to the Alabama
attorney. In December 1999, while the final distributions were being made
from the settlement proceeds, the clients’ attorney asked the respondent
for an explanation of how his fee was calculated. The respondent never
replied.
We find that the respondent violated Prof.Cond.R. 1.5(c) by failing to
provide an adequate settlement statement upon conclusion of the
representation. Because the respondent failed to state the method of
calculating his fee, his statements did not adequately specify the method
of determining the remittance to the client. Additionally, the
respondent’s settlement statements failed to disclose the portion of the
fee paid to the Alabama attorney.
III. Sanction
Determination of an appropriate sanction for the respondent’s
misconduct requires consideration of several factors, including the
respondent’s state of mind, the duty violated, actual or potential injury
to the client, the duty of this Court to preserve the integrity of the
profession, the risk to the public in allowing the respondent to continue
in practice, and mitigating and aggravating circumstances. Matter of Cox,
662 N.E.2d 635 (Ind. 1996).
The hearing officer found that the respondent's delay in resolving
claims of third parties resulted in direct and significant harm to the
clients. For example, the respondent’s delay in paying one medical
provider resulted in that provider’s freezing its account with the clients,
and requiring the clients on one occasion to pay cash for necessary medical
supplies.
In mitigation, the hearing officer found that the clients agreed
that the respondent did an exemplary job prosecuting the case and obtained
an excellent result. We are strongly influenced by the testimony of the
clients wherein they expressed their deep gratitude to the respondent for
the settlement he obtained for them and his expertise in recovering on
their behalf. Their dissatisfaction arose only in relation to the amount
of attorney fees and his handling of pending medical claims. The hearing
officer also found that the respondent has no prior disciplinary actions
and has had an exemplary career, performing substantial service to the bar
and the justice system. Further, we note that the respondent placed
$215,000.00[11] in an interest bearing escrow account shortly after the
disciplinary proceeding was commenced. We direct the respondent to refund
to the clients $252,596.40,[12] plus interest computed at 8% annually and
to reimburse the clients for the attorney fees they incurred to prod him to
complete the project.
Absent substantial aggravating or concurrent misconduct, this Court
has generally imposed either public or private reprimands or at most short
suspensions on attorneys who exact unreasonable fees. See, e.g., Matter of
Myers, infra (public reprimand); Matter of Benjamin, 718 N.E.2d 1111 (Ind.
1999) (public reprimand for lawyer who kept fee in excess of that permitted
by statutes governing recoveries from Indiana Patient Compensation Fund,
and was taken from first installment of periodically-paid settlement,
contrary to client wishes); Matter of Lehman, 690 N.E.2d 696 (Ind. 1997)
(violation of rules governing contingent fee agreements, and
misrepresentation, by attorney who failed to disclose to personal injury
client that attorney would retain pro rata share of costs of recovery,
which insurers holding subrogation claims against client were required by
statute to pay, warranted reprimand). We view this case primarily as an
unreasonable fee case, although by that characterization we do not wish to
diminish the gravity of the respondent’s other transgressions.
The Clerk of this Court is directed to provide notice of this order in
accordance with Admis.Disc.R. 23(3)(d), to the hearing officer, and to the
clerk of the United States Court of Appeals for the Seventh Circuit, the
clerk of each of the United States District Courts in this state, and the
clerks of the United States Bankruptcy Courts in this state.
Costs of this proceeding are assessed against the respondent.
DICKSON, BOEHM, and RUCKER, JJ., concur.
SULLIVAN, J., concurs and dissents with separate opinion.
SHEPARD, C.J., not participating.
SULLIVAN, Justice, concurring and dissenting.
I concur in the Court's opinion except as to sanction. I agree that
respondent's career and contributions to the profession are weighty
mitigating circumstances. I nevertheless believe a period of suspension is
warranted. While I would find a public reprimand sufficient sanction for
any of the violations standing alone, I believe it is insufficient for the
combination of violations committed here. I do concur with the Court's
directing the respondent to refund the excess of the fee with interest and
to reimburse the clients for the attorneys fees they incurred to pride him
to complete the project.
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[1] The clients testified that they did not know the basis for the fee of
$1.6 million, but that they remembered the agreement with the respondent to
cap his fee at $1.6 million. The respondent testified that the $1.6 cap
was agreed to at a point during the settlement negotiations, but before the
final settlement amount was known.
[2] That letter stated in pertinent part:
"Please accept my apologies for not sending you a written confirmation as
to our fee arrangement prior to this date. . . . I took a look through all
correspondence, and did not find where I ever sent you a letter confirming
our agreement. However, I did find a note indicating what our agreement
was. Customarily, our office agrees to take primary responsibility for the
processing of the litigation against all named defendants, and settlement
and resolution of all subrogation claims. We also agree to be responsible
for 100% of all litigation expenses, subject only to reimbursement, in the
event the litigation is successful. Obviously, this litigation expense
reimbursement will come from the client's share. Further, we agree that any
attorneys' fees realized will be split on the basis of 2/3rds to our
office, and 1/3rd to yours. The 1/3rd that is paid to your office is
characterized as co-counsel fees to you."
[3] Professional Conduct Rule 1.5(a) provides:
A lawyer's fee shall be reasonable. The factors to be considered in
determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal service
properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services;
and (8) whether the fee is fixed or contingent.
[4] Professional Conduct Rule 1.5(c) provides:
A fee may be contingent on the outcome of the matter for which the service
is rendered, except in a matter in which a contingent fee is prohibited by
paragraph (d) or other law. A contingent fee agreement shall bed in writing
and shall state the method by which the fee is to be determined, including
the percentage or percentages that shall accrue to the lawyer in the event
of settlement, trial or appeal, litigation and other expenses to be
deducted from the recovery, and whether such expenses are to be deducted
before or after the contingent fee is calculated. Upon conclusion of a
contingent fee matter, the lawyer shall provide the client with a written
statement stating the outcome of the matter and, if there is a recovery,
showing the remittance to the client and the method of its determination.
[5] Professional Conduct Rule 1.3 provides:
A lawyer shall act with reasonable diligence and promptness in representing
a client.
Professional Conduct Rule 1.15(b) provides:
Upon receiving funds or other property in which the client or third person
has an interest, a lawyer shall promptly notify the client or third person.
Except as stated in this rule or otherwise permitted by law or by agreement
with the client, a lawyer shall promptly deliver to the client or third
person any funds or other property that the client or third person is
entitled to receive and, upon request by the client or third person, shall
promptly render a full accounting regarding such property.
[6] Professional Conduct Rule 1.5(e) provides:
A division of fee between lawyers who are not in the same firm may be made
only if:
(1) the division is in proportion to the services performed by each lawyer
or, by written agreement with the client, each lawyer assumes joint
responsibility for the representation;
(2) the client is advised of and does not object to the participation of
all the lawyers involved;
and
(3) the total fee is reasonable.
[7] If the agreement permitted the fee the respondent sought, it appears
to violate Prof.Cond.R. 1.5(c), which requires contingency fee agreements
to be in writing and to state the method by which the fee is to be
determined. However, the Commission charged a Prof.Cond.R. 1.5(c)
violation only with respect to the respondent's failure to provide the
clients with an adequate settlement statement.
[8] As pointed out by the parties in this case, many jurisdictions,
including courts in Florida, California, New Jersey, South Carolina,
Washington, Michigan, and New York, use “cost approach” method in valuing
annuity payments made pursuant to structured settlements. See e.g.,
Fla.Prof.Cond.R. 4-2.5(f); Schneider v. Kaiser Foundation Hospitals, 215
Cal.App. 3d 1311, 264 Cal.Rptr. 227, 231 (1989); Merendino v. FMC Corp.,
181 N.J. Super. 503, 438 A.2d 365, 368 (1981); Johnson v. Sears, Roebuck &
Co., 291 Pa.Super. 625, 436 A.2d 675 (1981); Matter of Williams, Jr., 336
S.C. 578, 521 S.E.2d 497 (1999); Wash.Prof.Cond.R. 1.5(c)(2); Re Estate of
Muccini, 118 Misc.2d 38, 460 NYS2d 680 (1983). Other states, including
Michigan, Alabama, have used the “present value” approach. See, e.g.,
Mich.Prof.Cond.R. 8.121 (2002); Ex parte St. Regis Corp., 535 So. 2d 160
(Ala. 1988). The Association of Trial Lawyers of America’s position on
the topic is set forth in a Board of Governor’s resolution stating,
“contingent fees on structured settlements should always be calculated on
the cost or present value of the annuity, whichever is lower, unless the
fee is paid in periodic payments.” Commission’s Exhibit A, ATLA Board of
Governors Resolution on Contingent Fees, July 18, 1986. Under either
approach, it is recognized that the true immediate value of the structured
settlement is that which takes into account the time-value of money.
[9] “Present value” may be defined as the total sum of future payments
based upon the plaintiff’s projected life expectancy discounted to reduce
the sum to its value in today’s dollars. See Nguyen v. Los Angeles County
Harbor/UCLA Medical Center, 40 Cal.App.4th 1453, 348 Cal.Rpt. at 309-310
(1995). The precise discount rate used by the expert is not clear from the
record.
[10] This calculated present value of the annuity is without regard to
income tax considerations. Under the annuity the client obtained in the
settlement, payments may receive more favorable tax treatment than if the
client received a lump sum and purchased an annuity. See Stipulated Ex.
217 at 36-38, Ex. A. The respondent’s expert testified that the client’s
hypothetical tax advantages should be considered when arriving at a present
value. However, as noted by the Commission, the client’s lump-sum
settlement, as compensatory damages, would not have been taxable. Interest
earned after the settlement was invested would have been taxable income. A
qualified structured settlement, like the one in this case, may result in
all future payments from the annuity being treated as non-taxable income.
The respondent’s expert testified that the present value of the client’s
future stream of income should be determined by asking what amount of money
the client would need to start out with in order to invest in such a way
that, after taxes on the earned interest, would pay the same stream of
income as the annuity. It is upon this rubric that the respondent’s expert
calculated what was, in his opinion, the true “present value” of the
settlement. We agree with the Commission that the client’s tax savings
inherent to the structure of the settlement and income tax law are not part
of the “gross amount recovered” for purposes of calculating contingent
attorneys fees. If an attorney wishes to have that considered that a part
of the fee, the written agreement must spell it out. Of course, the fee
must also be reasonable.
[11] Using the discount rate supplied by the respondent’s expert witness,
the present value of the annuity and contingent benefits was $1,368,509.
Accordingly, the total settlement value for purposes of calculating the
respondent’s contingent fee is $3,368,509 with the respondent’s agreed fee
being $1,347,403.60, or $252,596.40 less than he retained. Using the cost
approach, the total settlement value was $3,465,698, with the respondent’s
fee being $1,386,279.20, or $213,720.80 less than he retained. Because the
purchase of an annuity should preclude risk of collection issues that might
apply to long term structured settlements, this alternative is more costly
to the client. We consider it nevertheless a reasonable approach.
[12] This figure is calculated using the present value the respondent’s
expert attached to the annuity in the computation of the total value of the
settlement, as described in footnote 11, supra. Pursuant to ATLA’s
resolution, the contingent attorney fee is to be calculated on the cost or
present value of the annuity, whichever is lower. See footnote 8, supra.