A v. Idaho State Bar

25 P.3d 846, 135 Idaho 823, 2001 Ida. LEXIS 60
CourtIdaho Supreme Court
DecidedMay 31, 2001
DocketNo. 26768
StatusPublished

This text of 25 P.3d 846 (A v. Idaho State Bar) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A v. Idaho State Bar, 25 P.3d 846, 135 Idaho 823, 2001 Ida. LEXIS 60 (Idaho 2001).

Opinion

KIDWELL, Justice.

This appeal arises from an attorney discipline matter before the Professional Conduct Board of the Idaho State Bar. The Board determined that Defendant A violated an Idaho Rule of Professional Responsibility by failing to promptly return funds owed to the ehent. Defendant A appeals the Board’s decision, claiming that the Board erred in de[824]*824termining that the funds were owed to the client. We affirm the Board’s decision.

I.

FACTS AND PROCEDURAL BACKGROUND

Stephanie Holman hired Defendant A to represent her during her divorce. The two signed a Retainer Agreement on September 28,1993. Under the terms of the agreement, Holman would pay Defendant A a $1,000.00 non-refundable retainer, and Defendant A would bill Holman $95.00 for his time and $35.00 for the time of his legal assistant.

After beginning representation, Defendant A informed Holman that his retainer would be increased to $10,000.00, which Holman paid. The parties disagree as to the purpose of this fee. Holman maintains that it was to be used only for expert witness fees, while Defendant A claims the fee was to be used for witness fees as well as his legal fees. Additionally, Defendant A increased the legal assistant fee from $35.00 per hour to $65.00 per hour. Holman claims that she never agreed to this increase.

Including the $10,000.00 retainer, Holman paid Defendant A $13,500.00 for his representation, which ended in a settlement on the day of the trial. The attorney of Holman’s husband charged Mr. Holman $5,375.00 for his representation.

Approximately four months after the end of Defendant A’s representation, Holman filed a petition for fee arbitration. Defendant A agreed to participate in the arbitration, but did not agree to be bound by the arbitrator’s decision. Defendant A did not participate in the arbitration; rather, he was represented by counsel at the hearing.

On February 26, 1996, the three-person arbitration panel released its decision of arbitration. The panel found that Defendant A and Holman had agreed that Holman would be billed at $35.00 per hour for the work of the legal assistant. The panel determined that in accordance with this agreement, Holman had been over-billed by $1,647.00. The panel then determined that the $10,000.00 paid by Holman was intended to be used only for expert witnesses and that after payment of the witnesses, Defendant A should return $9,010.00 of the unused retainer to Holman. Finally, the panel determined that because Defendant A had never presented the other side with a counter-proposal, that his fee for representing Holman should be reduced to $3,000.00 over the amount charged by Mr. Holman’s attorney, thus reducing Defendant A’s fee to $8,376.00.

By a letter dated July 24, 1996, Defendant A notified the Idaho State Bar that he did not intend to be bound by the arbitration panel’s decision, and that he would defend any court actions against him. Defendant A was later contacted by William A. Parsons, who had been appointed to represent Holman in litigation against Defendant A. Parsons and Defendant A corresponded in an attempt to reach a settlement, however no settlement was ever reached, nor was any additional court action taken against Defendant A.

The Idaho State Bar Association took up the matter in November of 1998. At that time, Bar Counsel contacted Defendant A and indicated that a disciplinary file had been opened against Defendant A regarding his dealings with Holman. After an investigation, Assistant Bar Counsel Jo-Ann Bowen issued her decision on September 17, 1999.

In her decision, Bowen determined that there was insufficient evidence to support a claim of professional misconduct relating to Defendant A’s application of the $10,000.00 legal fees as well as expert fees. Bowen also concluded that there was not clear and convincing evidence to support the arbitrator’s decision that Defendant A charged Holman an unreasonably high fee. Finally, Bowen determined that Defendant A had violated the Idaho Rules of Professional Conduct by failing to return a portion of Holman’s money for which Defendant A had overcharged Holman. In reaching this conclusion, Bowen found that the decision of the arbitrators, that Holman had not agreed to the increased rate for the legal assistant, put Defendant A on notice that he was wrongfully holding Holman’s money. Bowen then held that Defendant A should receive a private reprimand [825]*825and that he pay restitution in the amount of $1,647.00 to Holman.

Defendant A appealed the decision of the Assistant Bar Counsel, and on June 19, 2000, a telephone conference was held before the Appeal Hearing Committee of the Professional Conduct Board of the Idaho State Bar. On July 24, 2000, the Committee released its decision, affirming the decision of the Assistant Bar Counsel. Defendant A now seeks review by the Idaho Supreme Court.

II.

STANDARD OF REVIEW

This Court bears the ultimate responsibility for determining what sanctions should be imposed on an attorney. Idaho State Bar v. Williams, 126 Idaho 839, 843, 893 P.2d 202, 206 (1995). In reviewing a “hearing committee’s decision affirming bar counsel’s private reprimand, we look to see if the hearing committee’s decision was clearly eironeous or arbitrary and capricious.” Runsvold v. Idaho State Bar, 129 Idaho 419, 420, 925 P.2d 1118, 1119 (1996). While we independently review the record and assess the evidence, we nevertheless give the hearing committee’s findings of fact great weight. Id. The Idaho State Bar must prove the misconduct by clear and convincing evidence. Defendant A v. Idaho State Bar, 132 Idaho 662, 664, 978 P.2d 222, 224 (1999). However, the disciplined attorney bears the burden of proving that the evidence does not support the factual findings. Id.

III.

ANALYSIS

A. Defendant A Failed To Prove That The Assistant Bar Counsel And The Hearing Committee’s Determination Was Clearly Erroneous.

Defendant A’s first contention is with the Assistant Bar Counsel’s determination that it is “implausible” that Holman agreed to the increased fee for the legal assistant, absent any proof of a modification of the retainer agreement.

The basis of Defendant A’s argument is that there is no evidence to support the Assistant Bar Counsel’s conclusion. However, in her decision, the Assistant Bar Counsel set out the specifies of the agreement between Defendant A and Holman. She then explained that she found it difficult to believe that Defendant A, who took the time to execute a Retainer Agreement with Holman, would not have taken the time to provide a written modification of the contract. This finding of fact was based upon the investigation of the Assistant Bar Counsel in preparation of her decision.

Defendant A argues that this finding is clearly erroneous in light of the undisputed fact that he and Holman orally agreed to modify the same contract as it pertained to the amount of the retainer fee. He claims that this fact adds support to his claim that the two had also orally agreed to modify the contract as to the legal assistant’s fee.

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Related

a v. Idaho State Bar
978 P.2d 222 (Idaho Supreme Court, 1999)
Runsvold v. Idaho State Bar
925 P.2d 1118 (Idaho Supreme Court, 1996)
In Re May
538 P.2d 787 (Idaho Supreme Court, 1975)
Matter of Malmin
895 P.2d 1217 (Idaho Supreme Court, 1995)
In re Baum
186 P. 927 (Idaho Supreme Court, 1920)
Idaho State Bar v. Williams
893 P.2d 202 (Idaho Supreme Court, 1995)

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Bluebook (online)
25 P.3d 846, 135 Idaho 823, 2001 Ida. LEXIS 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-v-idaho-state-bar-idaho-2001.