In Re O'Brien

2001 NMSC 025, 29 P.3d 1044, 130 N.M. 643
CourtNew Mexico Supreme Court
DecidedAugust 22, 2001
Docket26,508
StatusPublished
Cited by5 cases

This text of 2001 NMSC 025 (In Re O'Brien) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re O'Brien, 2001 NMSC 025, 29 P.3d 1044, 130 N.M. 643 (N.M. 2001).

Opinion

OPINION

PER CURIAM.

{1} This matter came before the Court upon the recommendation of the disciplinary board to accept a conditional agreement admitting the allegations and consent to discipline tendered by respondent, Rondolyn R. O’Brien, pursuant to Rule 17-211 NMRA 2001 of the Rules Governing Discipline. Under that agreement respondent admitted the allegations that she violated Rules 16-101, 16-103, 16-104(B), 16-105(A), 16-115(A), 16-302, 16-804(C) and 16-804(H) NMRA of the Rules of Professional Conduct. We adopt the recommendation and hereby indefinitely suspend respondent from the practice of law pursuant to Rule 17~206(A)(3) NMRA for a minimum period of at least two (2) years with specific conditions.

I. Fees

{2} Respondent’s case is an unfortunate example of delay, deceit, charging excessive fees, and mishandling funds, which might have been avoided had respondent been willing to seek assistance in addressing her physical and mental problems as they related to her law practice. By not seeking such aid, however, respondent not only prolonged her problems, but also caused her clients to suffer along with her.

{3} In October 1994, respondent prepared a will for a particular client. Upon the client’s death in 1998, her son hired respondent to handle the approximately $200,000.00 estate and paid respondent a $5,000.00 retainer. Decedent’s children agree that respondent told them the retainer was larger than normal due to the fact that there might be a will contest. Ultimately, respondent charged almost the entire $5,000.00 as her fee, without corresponding work product to justify the charge.

{4} New Mexico attorneys should be aware that merely noting that work was done and submitting a corresponding billing statement may not suffice to justify the fee charged. ‘While it is not within the jurisdiction of the disciplinary board or the office of disciplinary counsel to regulate fees charged by attorneys, it is within their jurisdiction to enforce the Rules of Professional Conduct.” In re Jones, 119 N.M. 229, 230, 889 P.2d 837, 838 (1995). As in Jones, respondent’s fee was grossly excessive. Client files must contain work to justify the fee. Whether the evidence of work is in notations of research, time sheets, copies of depositions, evidence of time spent in hearings or meetings; such evidence is essential. Respondent’s file contained scant documentation to justify her fee.

{5} From March 3, 1998, through March 10, 1998, respondent met with decedent’s son and others two times for approximately one hour and thirty minutes total; and prepared, filed, and mailed out the initial probate pleadings. Respondent alleged this work took a total of eleven hours and warranted $1,650.00 in fees. The initial probate pleadings included only seven documents that were based almost in total upon commonly used probate forms.

{6} On March 23, 1998, respondent charged one hour to review the affidavit of publication from Health City Sun and to “review file” for a fee of $150.00. The affidavit of publication is a one-page, standard document indicating that the notice to creditors has been published two consecutive times, and again there was no indication of any need to review the file. On May 5,1998, respondent charged .5 hours to ‘Teview file” for a fee of $75.00 with no corresponding work product in the file or any indication for a need to review the file.

{7} On September 29, 1998, respondent charged 1.3 hours ($195.00) to “review letter [from decedent’s son] and documents received from client; work on file.” The letter of September 26,1998, provided copies of two estate receipts, informed respondent that he was close to having all the medical bills paid, that he had received a refund from title insurance company, and that he had received funds from the estate liquidators for sale of personal property. Decedent’s son requested an accounting of expenses and wanted to know approximately how long it would take to close the estate. In what respondent alleged was “a copy of the ... file” she provided absolutely no work product or correspondence relating to the September 26, 1998, letter and/or the two receipts.

{8} From March 11, 1999, to April 5, 1999, respondent charged 9.6 hours to review a four-page handwritten accounting of the estate and to prepare the final documents to close out the estate. The “final documents” respondent provided were a verified statement, a final account, a schedule of distribution; and an inventory. Respondent provided no inventory of the list of the assets that existed at the time of the decedent’s death in the file. The family’s handwritten note was the entire basis for the final account. The verified statement was a commonly used estate form from the New Mexico Probate Manual. See William N. Henderson, New Mexico Probate Manual, Issue 4, p. 149 (2d ed.1997). Decedent’s son terminated respondent’s representation and retrieved his file in October 1999. New counsel’s review of the file revealed that none of the estate forms were completed and contained only minimal information.

{9} This Court has stated that “ ‘[a]ny fee is excessive when absolutely no services are provided.’ ” In re Dawson, 2000-NMSC-024, 129 N.M. 369, 372, 8 P.3d 856, 859 (quoting In re Jones, 119 N.M. 229, 230, 889 P.2d 837, 838 (1995)); see also In re Martinez, 108 N.M. 252, 255, 771 P.2d 185, 188 (1989) (“when an attorney takes even a minimal fee from a client and does little or no work on the client’s case, that fee is excessive”). It is equally true that exaggerating time spent on a task to increase a fee is dishonest and makes that fee excessive. See In re Archuleta, 1996-NMSC-039, 122 N.M. 52, 920 P.2d 517. An attorney’s charge for “billable time” is an amorphous concept for many clients, thus it is imperative that all fees can be justified by the attorney. The attorney, not the client nor the disciplinary board, has the burden of proving the value of services rendered to the client for which the attorney is claiming payment or credit. Van Orman v. Nelson, 78 N.M. 11, 427 P.2d 896 (1967), rev’d on other grounds, 80 N.M. 119, 452 P.2d 188 (1969). “[T]he pressures of the practice of law provide neither an excuse nor a mitigating factor for deceit. Dishonest conduct by lawyers will not be tolerated.” In re Hyde, 1997-NMSC-064, ¶ 19, 124 N.M. 363, 366, 950 P.2d 806, 809; see also In re Elmore, 1997-NMSC-020, 123 N.M. 79, 934 P.2d 273.

{10} Respondent’s deceit as to the time spent on the probate matter at issue resulted in violations of Rule 16-101, by failing to provide competent representation to her client; Rule 16-103, by fading to act with reasonable diligence when representing a client; Rule 16-105(A), by charging an unreasonable fee; Rule 16-804(C), by engaging in conduct involving dishonesty or misrepresentation; and Rule 16-804(33), by engaging in conduct that adversely reflects on her fitness to practice law.

II.

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2013 NMSC 027 (New Mexico Supreme Court, 2013)
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Cite This Page — Counsel Stack

Bluebook (online)
2001 NMSC 025, 29 P.3d 1044, 130 N.M. 643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-obrien-nm-2001.