In Re Newman
2011 Ind. LEXIS 1094
| Ind. | 2011Background
- Respondent Lawrence T. Newman engaged in attorney misconduct in a fee dispute with client M.L.
- M.L. retained Newman in Sept. 2006 for estate-related disputes, agreeing to a $195 hourly rate plus 25% of distribution.
- Newman’s discharge occurred Oct. 2006; successor counsel requested file, hours, and withdrawal of appearance.
- Newman filed a Notice of Intent to Hold Attorney's Lien and delayed withdrawal after discharge; he later provided time sheets years later.
- Probate court determined Newman’s fee at $8,428.26; Newman retained M.L.’s file until payment was secured, then released it after payment.
- The Hearing Officer found violations of Rules 1.4(a)(4), 1.5(a), 1.16(a)(3), and 1.16(d), and the Indiana Supreme Court suspended Newman for at least 18 months.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Newman violated Rule 1.4(a)(4) by failing to provide an accounting | Commission argues hours were relevant and requested; requests reasonable | Newman contends hours irrelevant post-discharge; contingent fee governs | Yes; hours accounting was reasonable and timely disclosure required |
| Whether Newman violated Rule 1.5(a) by charging an unreasonable fee | Commission contends contingency fee unreasonable given no total non-recovery risk | Newman argues fee reasonable under circumstances; no per se rule | Yes; fee deemed unreasonable under totality of circumstances |
| Whether Newman violated Rule 1.16(a)(3) by delaying withdrawal after discharge | Commission argues delay harmed client and successor counsel | Newman claims delay was prudent and not immediate | Yes; timely withdrawal not demonstrated; violation |
| Whether Newman violated Rule 1.16(d) by withholding M.L.'s file after discharge | Commission argues lien-secured payment was sufficient; retention unnecessary | Newman argues retaining lien justified to secure fees | Yes; retention of file unnecessary and used for leverage; violated |
Key Cases Cited
- Galanis v. Lyons & Truitt, 715 N.E.2d 858 (Ind. 1999) (time charges as presumptive measure of contribution in quantum meruit)
- Powell, 953 N.E.2d 1060 (Ind. 2011) (fee issues may become unreasonable when circumstances change)
- Gerard, 634 N.E.2d 51 (Ind. 1994) (unreasonable fees may be recovered by quantum meruit)
- Marshall, 902 N.E.2d 249 (Ind. 2009) (attorney may be required to turn over excess funds; retain only necessary security for fees)
- Lansky, 678 N.E.2d 1114 (Ind. 1997) (fiduciary duties; mitigate consequences after discharge)
- McCarthy, 668 N.E.2d 256 (Ind. 1996) (sanctions considering misconduct, remorse, and rehabilitation)
- Winkler, 834 N.E.2d 85 (Ind. 2005) (seriousness and lack of insight support serious sanction)