In re Fink

• Decision Date: 15 April 2011
• Docket Number: No. 10–164.,10–164.
• Citation: 22 A.3d 461,2011 VT 42
• Parties: In re Melvin FINK, Esq.
• Court: Vermont Supreme Court

22 A.3d 461

2011 VT 42

In re Melvin FINK, Esq.

No. 10–164.

Supreme Court of Vermont.

April 15, 2011.

Beth DeBernardi, Deputy Disciplinary Counsel, Burlington, for Petitioner–Appellant/Cross–Appellee.Melvin Fink, Pro Se, Ludlow, Respondent–Appellee/Cross–Appellant.Present: DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ., and GREARSON, Supr. J., Specially Assigned.

JOHNSON, J.

¶ 1. A panel of the Professional Responsibility Board concluded that respondent violated Vermont Rules of Professional Conduct 1.5(c) and 8.4(a) for failing to put a contingent fee agreement in writing and for attempting to charge an unreasonable fee. The panel recommended that respondent be publicly reprimanded and placed on probation. We elected to review that determination on our own motion. In this Court, disciplinary counsel argues that respondent's actions warrant a suspension of his license. Respondent claims that he did not violate the Rules of Professional Conduct, and, alternatively, any violation warrants only a private admonition. We conclude that respondent violated both rules and agree with the panel's recommendation of a public reprimand and probation.

¶ 2. The panel found the following facts. This case stems from a complaint brought by one of respondent's former clients, who engaged respondent in 2006 to represent him in two family court matters—a relief-from-abuse proceeding instigated by his wife and a divorce action. Complainant suffered a serious and permanent injury in a trampoline accident in 2004, rendering him a quadriplegic. Soon thereafter, complainant and his wife retained an attorney from Burlington to represent them in a personal injury action, and signed a written contingent fee agreement that permitted the Burlington attorney to retain one-third of any recovery. The agreement was signed by complainant's wife on his behalf because his injury made it impossible for him to sign for himself.

¶ 3. The personal injury action was complex, involving several defendants, and the risk of no recovery was high. To assist in the litigation, the Burlington attorney solicited the help of an experienced, out-of-state lawyer with a specialty in trampoline cases. They entered into a written fee-sharing arrangement, agreeing that the consultant would receive one-third of the Burlington attorney's fee.

¶ 4. After complainant's relationship with his wife deteriorated and she filed for divorce, complainant sought respondent's help. Respondent was admitted to the Vermont Bar in 1969, and works as a sole practitioner. He handles a variety of matters, including divorce and personal injury cases. Respondent explained to complainant his regular billing practice in divorce matters, which is to charge an hourly fee and collect a retainer up front. He agreed, however, to handle complainant's case without an initial retainer based on complainant's representation that he had no money but expected a recovery in his personal injury action. Respondent reviewed his general fee agreement with complainant even though complainant was not able to sign it. Respondent was attentive to the family court matters, but has not billed complainant for his services.

¶ 5. During consultations with respondent about the divorce proceeding, complainant also discussed his personal injury case. Between June 2006 and February 2007, respondent had several conversations with complainant about the personal injury suit. Respondent facilitated communication between complainant and his Burlington attorney because respondent was much closer geographically to complainant and telephone communication was difficult for complainant. For example, as part of a settlement against one of the defendants in the personal injury action, respondent obtained complainant's signature on a “Covenant Not to Sue” by signing on complainant's behalf. Respondent was not compensated for this work.

¶ 6. Because of complainant's ongoing domestic issues, he became unhappy with the Burlington attorney representing both him and his wife in the personal injury suit and also enlisted respondent's help in asking the Burlington attorney to withdraw as his wife's attorney. In February 2007, complainant, respondent, and the Burlington attorney agreed to meet and discuss the issue. Respondent arrived at the meeting before the Burlington attorney and notified complainant that he was no longer willing to assist in the personal injury matter without compensation. The two discussed a fee and agreed that respondent would continue to assist in the personal injury matter in exchange for twelve percent of complainant's gross recovery. The parties intended this fee to cover respondent's services in the personal injury matter only; respondent would bill separately on an hourly basis for his services in the domestic matter. At that time, the personal injury claim had a potential recovery of more than two million dollars. The case, however, also involved substantial risk of no recovery.

¶ 7. The panel found that respondent believed that this percentage was warranted given the high risk of no recovery, the challenges complainant posed as a client, and the fee respondent received in a previous contingent fee case that he had worked on with the same Burlington attorney. This prior collaboration was a slip-and-fall case in which respondent had solicited the Burlington attorney's assistance. Under their agreement, respondent gave the Burlington attorney two-thirds of his already negotiated one-third contingency fee. In exchange, the Burlington attorney acted as lead counsel. Respondent assisted on the case and was involved with preparation of witnesses for trial. Based on this experience, respondent testified that he thought his role would be not only to facilitate communication with complainant, but also to assist in preparation for trial. Respondent did not, however, discuss this expanded role with the Burlington attorney.

¶ 8. Once the Burlington attorney arrived, he was informed of the parties' agreement. The Burlington attorney did not offer respondent a substantive role in the personal injury litigation. He had no intention of involving respondent in the litigation in any manner other than to facilitate communication with complainant. His corresponding case note, which was dictated following the meeting, conveys this understanding of respondent's role in the personal injury action. It states, in relevant part,

I met with [complainant] today, along with his divorce lawyer, [respondent] ....

....

We agreed that I would communicate with [complainant] through [respondent]. The reason is because it is difficult to communicate with him by phone where he is. I was not comfortable in writing to him and have [sic] the letters floating around there. [Complainant] liked the idea of my communicating with him through [respondent].

Respondent asked the Burlington attorney to draft a letter outlining the twelve percent contingent fee agreement, but he refused. The Burlington attorney did not want to be involved because the amount made him “very uncomfortable.” He did not, however, communicate his discomfort to respondent or complainant.

¶ 9. Following the Burlington attorney's refusal, respondent did not take any further action to put the agreement in writing. Respondent did not provide complainant with a written contingent fee agreement, although he had a preprinted contingent fee form he usually used for personal injury cases. Respondent testified that he did not prepare a written agreement because complainant was not able to sign documents and respondent was not aware of anyone who could sign on complainant's behalf. Respondent explained that he felt that a written document would be unenforceable, and thus useless, without the client's signature.

¶ 10. Between February and July 2007, respondent facilitated communication between complainant and the Burlington attorney. The Burlington attorney would send respondent copies of documents related to the case, and respondent would in turn review them with complainant. Respondent did not, however, enter an appearance in the personal injury matter. Respondent was unable to estimate the time he spent on the personal injury case between February and July 2007.

¶ 11. Complainant became dissatisfied with respondent's services in the divorce case and terminated his representation in July 2007. Thereafter, respondent filed a motion to withdraw in the family court case; no withdrawal was filed in the personal injury action because respondent had not entered an appearance in that matter. No one was hired to take on his communication role in the personal injury action. Respondent did not indicate whether he would seek a fee after he was fired. Fearing that respondent would do so, complainant filed a complaint against respondent.

¶ 12. Complainant's case settled for a total of $682,500. Had respondent collected his twelve percent contingent fee, he would have been paid $81,900 for facilitating communication between complainant and the Burlington attorney.

¶ 13. Respondent's case was heard before a panel of the Professional Responsibility Board on July 21, 2009. The panel chair explained that the hearing was to determine the merits of the charges and that sanctions would be dealt with in a separate proceeding, if necessary. See A.O. 9, Rule 11(D)(5)(b) (authorizing panel to bifurcate disciplinary hearing and “consider evidence relevant to the charged violations separately from evidence relevant to sanctions”). At the hearing, disciplinary counsel presented testimony from respondent, complainant, and the Burlington attorney. Respondent also testified on his own behalf and, over the objection of disciplinary counsel, presented the testimony of seven former and current clients. These clients had no knowledge of respondent's agreement with complainant, but instead stated their belief that respondent's fees were fair, well-explained, in writing, and that respondent represented them...