In re Melvin Fink
22 A.3d 461
Vt.2011Background
- Respondent Melvin Fink, a long-practicing Vermont attorney, failed to put a contingent fee agreement in writing with a client in a high-stakes personal injury/divorce matter.
- The client, a quadriplegic, had funds from a personal injury recovery and was represented by a Burlington attorney; a written contingency arrangement existed between the client and the Burlington attorney and a separate fee-sharing agreement with a consultant was contemplated.
- Respondent agreed to handle the personal injury matter for 12% of the gross recovery as a communication facilitator, not as lead attorney, and did not enter an appearance in the personal injury suit.
- Respondent did not provide a written contingent fee agreement; he relied on the client’s inability to sign and believed the agreement would be unenforceable without signatures.
- The panel found respondent’s actions violated Rule 1.5(c) and 8.4(a) and recommended public reprimand with probation; this Court reviewed de novo with respect to sanctions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Fink violate 1.5(c) by not writing the contingent fee? | Disciplinary panel found a violation; fee terms were unclear. | Fink argued no writing required due to client’s inability to sign. | Yes, violated 1.5(c) (written contingent fee required). |
| Was the 12% fee for facilitating communication unreasonable under 1.5(a) and 8.4(a)? | Fee was excessive given respondent’s limited role. | Respondent believed role could expand and cited prior similar work. | Yes, violated 1.5(a) and 8.4(a) by attempting an excessive fee. |
| What sanctions are appropriate on review for these violations? | Public suspension warranted due to knowing/intentional conduct. | Private admonition could suffice; no harm shown. | Public reprimand with probation appropriate. |
Key Cases Cited
- Sinnott v. Vermont Bar, 176 Vt. 596 (2004 VT) (recognizes that fees must be reasonable; deference to panel on fact questions)
- Farrar v. Farrar, 183 Vt. 592 (2008 VT) (considering public harm and professional standards in sanctioning)
- In re Balsamo, 780 A.2d 255 (D.C. 2001) (due process and sanctions related to professional misconduct evidence)
- In re Gerard, 548 N.E.2d 1051 (Ill. 1989) (fee excess analyzed with non-litigation tasks)