Tillman, Matter of
| Decision Date | 27 June 1995 |
| Docket Number | No. 24323,24323 |
| Citation | 319 S.C. 461,462 S.E.2d 283 |
| Court | South Carolina Supreme Court |
| Parties | In the Matter of Wheeler TILLMAN, Respondent. . Heard |
Attorney General Charles M. Condon and Assistant Attorney General James G. Bogle, Jr., Columbia, for complainant.
L. Mendel Rivers, Jr., North Charleston, for respondent.
Respondent violated Rule 1.16(a)(3) of Rule 407, SCACR, by continuing to represent a client who had discharged him and by improperly asserting a common law retaining lien on her file. We impose a public reprimand.
Client hired respondent in September 1991 following an automobile accident in June 1991. They executed a written contract: it provided for a contingent fee of 33 1/3% or 40% depending on whether there was trial preparation. Alternatively, it provided for an hourly fee of $105/hour if the attorney was discharged prior to settlement or verdict.
On June 18, 1993, client called respondent's secretary and told her she wished to discharge respondent and pick up her file. Respondent called client back, tried to talk her out of firing him, and told her she owed him $2400 1. Respondent's own time record shows, however, that through June 17, 1993, he had devoted only 5.6 2 of chargeable time to client's case. 3 Respondent's contemporaneous notes reflect his understanding that client wished to terminate him on June 18. None-the-less, his time record shows that he began working on client's file again after the termination call.
On June 21, 1993, client sent respondent a certified letter which, admittedly, he never picked up. In this letter, client explicitly fired respondent, contested the $2400 fee he had quoted, and suggested they go to the Resolution of Fee Disputes Board. Respondent received a copy of the certified letter on June 29 during a face-to-face meeting with client. The original certified letter was returned to client in mid-July after three unsuccessful attempts to deliver it.
Meanwhile, client contacted another attorney. This attorney testified he had a letter hand-delivered to respondent on June 24, 1993, informing him of his representation of client. Respondent testified, however, he received the letter through regular mail on Monday, June 28. Meanwhile respondent put together a brief demand letter to client's insurance company, including copies of medical reports and demanding $53,831.39. This letter was dated Sunday, June 27, well after respondent became aware client was seeking to discharge him. It was apparently mailed on June 28.
On June 29, respondent and the new attorney had a heated telephone conversation in which respondent accused the attorney of "stealing" client or "claim jumping." Later that day client went to respondent's office to fire him again and to attempt to collect her file. Respondent again refused to give her the file unless she paid him $2400. Over the Throughout these proceedings respondent has asserted two alleged liens: (1) a common law retaining lien on client's file for unpaid fees and (2) a "lien on representation." He derives these two liens from our decision in In re Anonymous, 287 S.C. 250, 335 S.E.2d 803 (1985) (Anonymous ).
next few months, respondent refused to notify the insurance companies he no longer represented client, refused to return her file, and refused to cooperate with the Charleston Bar's local grievance mediator. After the Board of Grievances became involved, respondent finally turned over his file (March 1994), but not before filing a grievance against client's second attorney for "claim jumping." 4
The Rules of Professional Conduct provide a lawyer shall cease representation if he is discharged. Rule 1.16(a)(3). The comment to this rule states, "A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer's services." The comment also states (emphasis added). See also Rule 1.8(j)(1) ofRule 407, SCACR (recognizing lien to secure fees or expenses).
The last sentence highlighted above is a reference to South Carolina's recognition of an attorney's common law retaining lien. In Anonymous this Court held that an attorney's assertion of such a lien was not a per se ethical violation. We cautioned, however, that the mere existence of this legal right must yield to ethical considerations, and warned that the attorney bears the burden of showing the circumstances justify assertion of a lien because "the client is financially able but deliberately refuses to pay a fee that he has clearly agreed upon and is due." Id. (emphasis added). Factors to be considered by an attorney contemplating assertion of a retaining lien on client property are:
(1) the client's financial situation;
(2) the client's sophistication;
(3) the reasonableness of the fee;
(4) the client's clear understanding and agreement to...
To continue reading
Request your trial
-
Attorney Grievance Comm'n of Md. v. Rand
...relationship to the services that he performed and was in compliance with the fee agreement with Ms. Klein.In Matter of Tillman, 319 S.C. 461, 462 S.E.2d 283 (1995), the client hired Tillman to represent her following an automobile accident. Id. at 284. They signed a retainer agreement prov......
-
Ex parte Strom
...in this opinion would prevent Strom from presenting his estoppel argument in a subsequent civil suit. 2. Strom cites In re Tillman, 319 S.C. 461, 462 S.E.2d 283 (1995), in support of his argument that a discharged attorney does not have an obligation to file a Rule 11(b) motion. Strom accur......
-
White, Matter of
...owing can be secured. Id. at 252, 335 S.E.2d at 805 (emphasis added) (internal citations omitted). See also In the Matter of Tillman, 319 S.C. 461, 462 S.E.2d 283 (1995) (attorney bears the burden of showing justification to assert lien because client is financially able but deliberately re......
-
Minding the Gap: a Peek at the Ethical Obligations That Arise During the In-between Times in Client Relations
...an individual is less settled. See generally Role and Duties, supra at 12. [24] See Rule 1.16, RPC, Rule 407, SCACR. [25] In re Tillman, 319 S.C. 461, 463, 462 S.E.2d 283, 285 (1995); see also Rule 1.16(a)(3), RPC, Rule 407, SCaCr; Restatement § 32 at 184 (Discharge by a Client and Withdraw......