Iowa Supreme Court Attorney Disciplinary Board v. David Ebong Akpan

• Court: Supreme Court of Iowa
• Decided: November 20, 2020
• Docket: 20-0187
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 20–0187

Submitted September 16, 2020—Filed November 20, 2020

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

DAVID EBONG AKPAN,

Respondent.

On review of the report of the Iowa Supreme Court Grievance

Commission.

Grievance commission recommends suspension for violations of

Texas ethical rules in the handling of an immigration matter. ATTORNEY

REPRIMANDED.

Mansfield, J., delivered the opinion of the court, in which

Christensen, C.J., and McDonald, Oxley, and McDermott, JJ., joined, and

in which Appel, J., joined in part. Appel, J., filed an opinion concurring

in part and dissenting in part. Waterman, J., took no part in the

consideration or decision of the case.

Tara van Brederode and Wendell J. Harms (argued), for

complainant.

David L. Brown (argued) and Tyler R. Smith of Hansen, McClintock & Riley, Des Moines, for respondent. 2

MANSFIELD, Justice.

This attorney disciplinary case with interstate dimensions involves

an Iowa-licensed attorney who practiced immigration law in Texas. The

attorney received payments totaling $4000 from a client on a flat-fee

representation. He put those payments directly in his operating account.

After the attorney had worked on the case for a while, the client changed

her mind and decided not to go forward with the representation. The

attorney refused to refund any of the payments or to provide an

accounting. The client filed a complaint with the Iowa Supreme Court Attorney Disciplinary Board. The Board charged various violations of the

Texas Attorney Disciplinary Rules of Professional Conduct. The matter

went to a hearing before a division of the Iowa Supreme Court Grievance

Commission. At the hearing, which occurred prior to the COVID-19

pandemic, the client was allowed to testify by video over the attorney’s

objection. The commission found a number of violations and

recommended a suspension.

On our review, we find that the attorney violated the Texas rules

when he failed to deposit client payments in his trust account, took those

payments as income before they were earned, and failed to provide

accountings to his client. We are not persuaded, however, that the

attorney violated Texas’s prohibition on “unconscionable” fees when he

collected $4000 for the work performed, which included many hours spent

trying to get information from his client. We also believe the Board failed

to show a sufficient basis for the admission of video testimony. As a

sanction, we impose a public reprimand.

I. Facts and Procedural History. Attorney David Akpan is originally from Nigeria. He came to the

United States in 1990 and became a United States citizen in 1994. In 3

1998, Akpan received a bachelor’s degree in political science from Weber

State University in Ogden, Utah. In 2003, Akpan graduated from

Thurgood Marshall School of Law at Texas Southern University, located in

Houston, Texas.

Akpan was admitted to the Iowa bar in 2010. Until 2017, Akpan

practiced immigration law exclusively in Texas. Currently, he is winding

down his immigration practice and does contract work in the Houston area

for the United States Small Business Administration. Akpan is also

admitted to the federal district courts in the Northern, Southern, and Eastern Districts of Texas.

In 2009, Akpan met Rosa Villatoro, who worked in the office of his

tax preparer. Seven years later, in 2016, Villatoro hired Akpan for an

immigration matter. Villatoro is a United States citizen; however, her

husband is not. A native of El Salvador, he was in the United States on

temporary protected status (TPS).

As Akpan later explained, “[TPS] is, while it’s temporary in

immigration law, it means it has an end eventually. Temporary in an

immigration sense means it’s not permanent residency, it’s not an

indefinite status.” When the United States Secretary of Homeland Security

determines that a country is no longer unsafe, a person on TPS from that

country can be required to return there. Villatoro wanted Akpan to change

her husband’s immigration status to lawful permanent resident (green

card). This involved preparing and filing a package of forms, including an

I-130 form and an I-485 form.

Akpan and Villatoro met several times before a written fee agreement

was signed. During one of these meetings, Akpan learned of an issue that could have posed an obstacle in the immigration matter. In 2015,

Villatoro’s husband had been arrested and charged with fraudulent 4

destruction of price tags, a misdemeanor under Texas law. The charge

was resolved with a deferred adjudication, and Villatoro’s husband was

placed on probation. However, the offense was considered a crime of moral

turpitude that could potentially prevent Villatoro’s husband from

obtaining permanent resident status. Akpan spent time reviewing

Villatoro’s husband’s criminal records to determine if the offense met the

petty offense exception under immigration law, in which event it would not

bar lawful permanent resident status. Eventually, Akpan decided that it

did meet the exception. On February 23, 2016, Akpan and Villatoro entered into a written

contract for legal services. The agreement provided that the necessary

immigration work would be performed for a flat fee of $4000. An initial

payment of $1500 was made at the signing of the contract. The remaining

balance was to be paid in monthly installments of $500, beginning April 1.

Akpan did not keep time records of the engagement.

Akpan deposited the $1500 into his business account, not into a

trust account.1 Akpan maintains that prior to the signing of the contract,

he had completed ten hours of legal work, having met with Villatoro at her

workplace four times. Thereafter, through September 2016, Akpan

received additional $500 checks approximately once a month. Typically,

Akpan would receive these payments from Villatoro when he was meeting

her at her office about the representation. Akpan deposited each of these

checks into his business account; he claims he had earned them at the

time of receipt.

1Akpan had a trust account but testified that he did not use it much. Past clients

rarely paid in advance. It was common practice for his clients only to pay after services were provided. Akpan testified that if he had received the full $4000 at the initial meeting, he would have put it in the trust account. 5

Akpan further testified that the market rate for the legal services he

was to provide usually ranged from $7000 to $9000. He charged Villatoro

less because of their personal relationship.2 The parties’ written

agreement allowed Akpan to bill for expenses such as long-distance

telephone calls, although he testified he never charged these types of

expenses to flat-fee clients.3

Akpan’s representation of Villatoro lasted over a year, through late

2017. Over the course of representation, Villatoro was unreliable in

providing the necessary documentation and completing forms to support the immigration application for her husband. Akpan emailed Villatoro a

list of needed documentation near the outset of the representation, but the

vast majority of these items were never provided. Akpan also asked

Villatoro to fill out certain forms in handwriting; she did so only in part.

Akpan started the process of generating typed versions of the forms, but

he could not finish the job.

In total, Akpan estimates that he spent over forty hours working on

Villatoro’s case. At least thirty-two of those forty hours involved driving

back and forth to Villatoro’s place of business. Villatoro’s office was about

an hour’s drive away by car.4

At some point during the representation, Villatoro discovered that

her husband was having an extramarital affair. Villatoro requested that

Akpan cease all work on the immigration application because she was no

longer willing to be her husband’s required sponsor.

2The figure “$7000” was preprinted on the agreement form but had been stricken out. 3Filingfees are the client’s responsibility. Akpan disclosed these in writing to the client at the outset of the representation. 4Akpan did not charge for mileage for the trips. Akpan explained that Villatoro was unwilling to travel to his office. The only purpose of these trips was to work on Villatoro’s immigration matter. 6

Villatoro attempted to retain Akpan to obtain a divorce from her

husband. Knowing that he had a conflict of interest and was not licensed

in Texas, Akpan referred Villatoro to other attorneys. When Villatoro

specifically asked Akpan to represent her in the divorce, Akpan declined.

At that point, in June 2017, Villatoro requested a full refund of the

$4000 she had paid Akpan under the flat-fee immigration services

agreement. Akpan refused. A series of communications between the

parties followed. At one point, Villatoro texted Akpan and suggested he

“[t]ake out the justif[ied] amount for [his] work and the rest refund it.” Akpan didn’t specifically respond to this request. Akpan told Villatoro

their agreement was a flat-fee agreement and he wasn’t required to keep

hours.

Villatoro eventually filed a complaint with the Texas attorney

disciplinary authority. She was told to refile in Iowa because Akpan was

licensed in Iowa rather than Texas. Villatoro did so. Villatoro also filed a

small claims lawsuit in Texas to recover the $4000. That lawsuit was still

pending at the time of the commission hearing in this matter.

During the course of representation, Akpan never provided Villatoro

or her husband with an itemization of legal services performed under the

flat-fee agreement. Akpan acknowledged that in the past, when a flat-fee

representation ended before he had performed all necessary work, he had

not kept the entire fee amount. Instead, Akpan and the client would work

together to determine the appropriate amount of money to be refunded.

This calculation would be based on the amount of work Akpan had

performed. Here, Akpan never refunded any of the $4000 to Villatoro.

Akpan provides immigration law services at no or reduced cost to members of the Nigerian immigrant community in the Houston area and

to other persons of limited means. Akpan has no prior disciplinary record. 7

The Board brought a complaint against Akpan alleging violations of

Texas Disciplinary Rules of Professional Conduct 1.04(a), (b), and (c);

1.14(a), (b), and (c); and 1.15(a) and (d). In October 2019, the case

proceeded to a two-day hearing in Des Moines. Akpan appeared in person

for the hearing. Villatoro did not. Akpan objected to the Board’s

presentation of Villatoro’s testimony by videoconference.

The Board’s first witness was Joann Barten, an immigration

attorney from Ames. She provided a thorough explanation of the

procedure she has used during her career as an immigration lawyer to prepare and submit an I-130 form and an I-485 form. Barten stated that

in her practice she uses both flat fees and hourly rates. During the time

Akpan was working for Villatoro and her husband, Barten’s hourly rate

was $195 per hour. (Akpan’s hourly rate at that time was $150.) On a

flat-fee basis, Barten would have charged $3500 for the specific project

that Akpan undertook for Villatoro and her husband. However, Barten

would have charged extra for the in-person marriage interview with

United States Citizenship and Immigration Services (USCIS) as well as for

filing fees and expenses. According to Barten, in the past, a client of hers

who received services similar to those sought by Villatoro had to pay

$15,000.

When asked if she has ever refunded money from a flat-fee

arrangement, Barten provided the following example,

[If w]e’re at [$]2,800 in time, or [$]2,500 in time[,] I do not refund the leftover if [the application] is filed.

....

. . . Because that’s part of the case[,] I’m agreeing to cap it. However, if [the client] cancel[s] the case or I have to remove myself because of a conflict of interest, then they have to pay up to that point my hourly rate, and then I refund. 8

Barten also stated that Akpan had completed only ten to fifteen percent of

the work at the time Villatoro asked him to stop.

Villatoro, as noted, testified at the hearing by videoconference over

Akpan’s objection. In that testimony, Villatoro conceded she had not

provided to Akpan all the documentation he wanted. Villatoro also

testified that she filed for a divorce from her husband in 2017, but she put

the divorce on hold to help her husband obtain permanent resident status.

Villatoro’s husband received a green card in July 2019 using a different

attorney than Akpan. Villatoro conceded that, during the interview with USCIS, she did not disclose to the immigration authorities that she was

going through a divorce.

Akpan also testified at the hearing in his own defense.

Following the hearing, the commission found that Akpan had

committed most of the alleged rule violations. With respect to Texas

rule 1.04(a), it concluded that it was “unconscionable” for Akpan to charge

$4000 in light of the “minimal” work completed. Thus, Akpan had violated

Texas rule 1.04(a) by charging an unconscionable fee.

The commission also found that Akpan had violated Texas

rule 1.14(a) by taking client funds into income before they had been

earned. With respect to the initial $1500, the commission relied on the

wording of the flat-fee agreement. As the commission explained, “[T]he

parties’ expectation as objectively set forth in the Agreement was that none

of the services that may have been provided by Akpan prior to signing the

Agreement were covered under the Agreement.” Therefore, although the

commission did not dispute Akpan had already performed ten hours of

legal work when he received the $1500, in the commission’s view, the contract precluded Akpan from having earned those funds when he

deposited them in his business account. 9

Turning to the subsequent $500 checks, the commission found that

Akpan had not earned most of these amounts when he deposited them in

his business account. In this regard, the commission took the position

that Akpan could not charge for travel time. After deducting for travel

time, the commission found that Akpan had not performed more than five

hours of actual legal work following the execution of the February 2016

contract. This meant that many of the remaining $500 installments had

not been earned when they went into Akpan’s business account.

The commission also found that Akpan had violated Texas rule 1.14(c) by not segregating funds pending resolution of the parties’

dispute and rule 1.15(d) by not refunding a portion of the $4000. The

commission rejected the other charges against Akpan.

The commission recommended that Akpan be suspended not less

than sixty-one days and that he complete at least 4.75 hours of continuing

legal education (in certain designated areas) before being allowed to

reinstate his license.

Akpan appealed. He challenges the admission of Villatoro’s

testimony by videoconference, the commission’s recommendations as to

rule violations, and the recommended sanction.

II. Standard of Review.

“We review attorney disciplinary proceedings de novo.” Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Turner, 918 N.W.2d 130, 144

(Iowa 2018) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Silich, 872

N.W.2d 181, 188 (Iowa 2015)). “The Board has the burden of proving the

attorney’s misconduct by a convincing preponderance of the evidence.”

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lubinus, 869 N.W.2d 546, 549 (Iowa 2015). This standard “places a burden on the Board that is higher

than the burden in civil cases but lower than the burden in criminal 10

matters.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Eslick,

859 N.W.2d 198, 201 (Iowa 2015) (quoting Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Barnhill, 847 N.W.2d 466, 470 (Iowa 2014)).

“We may impose a greater or lesser sanction than what the

commission has recommended upon proof of an ethical violation.” Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Mathahs, 918 N.W.2d 487, 489

(Iowa 2018). “The commission’s findings and recommendations do not

bind us, although we respectfully consider them.” Id.

III. Testimony of the Complaining Witness by Videoconference. Our court has not previously had to decide whether a witness may

testify by videoconference or telephone in an attorney disciplinary

proceeding over the responding attorney’s objection. In Iowa Supreme

Court Attorney Disciplinary Board v. Muhammad, a case that resulted in a

license revocation, a former client living in Washington testified

telephonically. 935 N.W.2d 24, 25–26, 28 (Iowa 2019). However, no

objection was raised by the attorney to this procedure. Id. at 28.

In State v. Rogerson, our court stated that in criminal cases, only

face-to-face testimony “fully protects a defendant’s Sixth Amendment

rights.” 855 N.W.2d 495, 504 (Iowa 2014). “[B]efore permitting a witness

to testify via two-way videoconference, the court must make a case-specific

determination that the denial of the defendant’s confrontation right is

necessary to further an important public interest.” Id. at 505. We added

in Rogerson that “social pressure to tell the truth can be diminished when

the witness is far away rather than physically present with the defendant

in the courtroom.” Id. at 504.

In an equitable civil proceeding, we held that a trial court abused its discretion in allowing a witness to testify by telephone over objection. See

In re Estate of Rutter, 633 N.W.2d 740, 746 (Iowa 2001). We noted the 11

legislature has authorized telephonic testimony in certain specific

circumstances. Id. “There is no rule or statutory provision, however, that

would allow witnesses to testify telephonically in equitable proceedings in

general.” Id. For this reason, in Rutter, we disregarded the testimony of

the challenged witness. Id.

Concerning grievance commission procedure, Iowa Court

Rule 36.17(6) states, “The presentation of evidence must conform to the

Iowa Rules of Civil Procedure and the Iowa Rules of Evidence.”

Rule 36.17(2) further provides that witnesses other than character witnesses for the respondent “must testify at the hearing after

administration of an oath or affirmation by a grievance commission

member or other person authorized by law to administer oaths, and their

testimony must be officially reported by a duly qualified court reporter.”

Id. r. 36.17(2).

Perhaps most importantly, rule 36.17(5) provides that the

respondent attorney has the right “to be confronted by witnesses.”

Id. r. 36.17(5). This language echoes the phrasing of the Confrontation

Clause of the Sixth Amendment and article I, section 10 of the Iowa

Constitution. As a matter of English and as a matter of Latin, the word

“confrontation” refers to a face-to-face meeting. See Coy v. Iowa,

487 U.S. 1012, 1016, 108 S. Ct. 2798, 2800–01 (1988).

We have found instances where other jurisdictions have allowed

testimony by videoconference or telephone over objection in attorney

disciplinary proceedings. In In re Disciplinary Proceedings Against

Nunnery, an attorney had his legal license revoked for seventeen counts of

professional misconduct. 798 N.W.2d 239, 242 (Wis. 2011) (per curiam). In his appeal before the Wisconsin Supreme Court, the lawyer asserted

that the disciplinary proceeding referee erred in allowing the telephonic 12

testimony of two clients, thereby compromising his constitutional rights.

Id. at 243. The court disagreed, ruling that “[a] referee’s decision to permit

telephonic testimony is a discretionary determination that will be

overturned only if the referee erroneously exercised his discretion.”

Id. at 244–45. The court relied on a general Wisconsin statute allowing

video and telephonic testimony in civil proceedings under certain

circumstances. Id. at 245. Under that statute, a series of factors can be

considered. Id. The court noted that the client-witnesses resided in Texas

and Louisiana. Id. The court further noted that the Wisconsin Office of Lawyer Regulation had provided an affidavit outlining in great detail the

travel costs the office would incur to bring the witnesses to Wisconsin and

that the attorney had not responded to the affidavit. Id. Considering all

the circumstances, the Wisconsin Supreme Court found no abuse of

discretion in allowing the telephonic testimony. Id.

In Attorney Grievance Commission of Maryland v. Agbaje, the

Maryland Court of Appeals allowed video testimony by a client-witness in

a disciplinary proceeding. 93 A.3d 262, 269 (Md. 2014). That case also

involved an attorney assisting a client in securing a green card. Id. at 270.

The attorney had been actively pursuing lawful permanent resident status

for the client at the same time that he entered into discussions with the

client about investing in the attorney’s real estate business. Id. at 270–72.

Because of his actions, the bar counsel recommended disbarment, and the

Maryland court concluded disbarment was the appropriate sanction.

Id. at 284, 286.

One of the lawyer’s primary arguments on appeal was that the client

should have been required to appear in person for the disciplinary hearing. Id. at 275. By then, the client had relocated back to the United Kingdom.

Id. at 269. The attorney pointed out that residents of the United Kingdom 13

are allowed to travel freely to the United States without a visa. Id. at 275.

Still, considering all the facts, the court concluded that real-time

videoconference testimony constituted a reasonable alternative to

in-person testimony. Id. at 275–76.

These cases illustrate that some other jurisdictions have allowed

testimony by videoconference. However, in Iowa, the grievance

commission rules do not permit live testimony by videoconference under

normal circumstances. Iowa’s grievance commission rules specifically give

the responding attorney a right to “confront” witnesses testifying against the attorney. Iowa Ct. R. 36.17(5).

Villatoro could not have been subpoenaed from Texas to Iowa for the

hearing. The record does not indicate whether the Board tried to get her

to appear voluntarily by paying her travel expenses. At the hearing,

Villatoro testified that she could not leave home because she had a five-

year-old child to tend to.

Prior to the hearing, the Board sought permission to present

Villatoro’s live testimony by telephone. Akpan objected. The commission

chair thereupon took a reasoned approach and allowed Villatoro to appear

at the hearing by videoconference. The commission chair acknowledged

that the Board could have been directed to depose Villatoro in Texas and

present her deposition testimony at the hearing. That would have afforded

Akpan a right of personal confrontation. However, as the chair

emphasized, that practice would not have allowed commission members

to ask questions of Villatoro.

We share the commission’s view that it can be valuable for

commission members to ask questions of witnesses. However, chapter 36 of the Iowa Court Rules does not mention such questioning. At the same

time, rule 36.17(5) specifically gives the responding attorney a right of 14

confrontation. Iowa Ct. R. 36.17(5). Therefore, we conclude the express

right of confrontation under rule 36.17(5) must prevail over the

commission’s ability to question a witness at hearing.5

The Board argues there was “good cause” for Villatoro’s testimony

by videoconference because the arrangement allowed the commission

members to question her directly. But that is not really a good-cause

exception; it would swallow the rule providing for a right of confrontation.

Notably, the hearing in this case took place in early October 2019,

well before the COVID-19 pandemic. We are not deciding what effect rule 36.17(5) would have under COVID-19 pandemic conditions.6

In light of our determination that the commission abused its

discretion in admitting videoconference testimony from the complaining

witness over the responding attorney’s objection, we need to decide on the

appropriate remedy. The commission contends it relied “almost

exclusively upon the testimony of [Akpan] and the documentary evidence

in reaching its decision” and that we should consider any admission of

Villatoro’s testimony to be “harmless error” if an error occurred. The Board

asks us to strike Villatoro’s testimony and decide the case on our de novo

review of the rest of the evidence if we conclude receipt of her video

testimony was in error. Akpan does not object to this procedure, and we

will follow it here.

5Our conclusion is bolstered by rules 36.17(2) and (6). Rule 36.17(2) makes clear that witnesses generally must testify “at the hearing.” Iowa Ct. R. 36.17(2) (emphasis added). Additionally, according to rule 36.17(6), the presentation of evidence must conform to the rules of civil procedure and evidence. Id. 36.17(6). 6We are not holding there is a constitutional right to confront witnesses in an attorney disciplinary proceeding. Today’s decision is based on application of the rules in Iowa Court Rules chapter 36. 15

IV. Violations.

We now turn to disciplinary rule violations alleged by the Board.

Some preliminary discussion on conflict of laws is appropriate. As an Iowa

licensee who practices federal law in Texas, Akpan is subject not only to

our disciplinary authority but also to the Texas disciplinary rules.

See Iowa Ct. R. Prof’l Conduct 32:8.5(a) (“A lawyer admitted to practice in

Iowa is subject to the disciplinary authority of Iowa, regardless of where

the lawyer’s conduct occurs.”); id. 32:8.5(b)(2) (“[T]he rules of the

jurisdiction in which the lawyer’s conduct occurred . . . shall be applied to the conduct.”). Texas, like Iowa, uses the Model Rules of Professional

Conduct as a platform. Thus, Texas’s rules are similar, but not identical,

to ours. We follow Texas’s interpretations of its own rules in determining

whether a violation occurred.

A. Unconscionable Fee. Texas Disciplinary Rule of Professional

Conduct 1.04(a) states, “A lawyer shall not enter into an arrangement for,

charge, or collect an illegal fee or unconscionable fee. A fee is

unconscionable if a competent lawyer could not form a reasonable belief

that the fee is reasonable.”

Iowa, notably, prohibits “unreasonable fee[s].” See Iowa R. Prof’l

Conduct 32:1.5(a). Texas, however, sets the bar for an ethical violation

higher. Comment 1 to Texas Disciplinary Rule of Professional Conduct

1.04(a) explains,

The determination of the reasonableness of a fee, or of the range of reasonableness, can be a difficult question, and a standard of “reasonableness” is too vague and uncertain to be an appropriate standard in a disciplinary action. For this reason, paragraph (a) adopts, for disciplinary purposes only, a clearer standard: the lawyer is subject to discipline for an illegal fee or an unconscionable fee. Paragraph (a) defines an unconscionable fee in terms of the reasonableness of the fee but in a way to eliminate factual disputes as to the fees reasonableness. 16

In the words of one Texas court: “[T]he drafters of the rules note in the

comments to the rule that the standard for compliance is a higher

standard than reasonableness.” Gipson-Jelks v. Gipson, 468 S.W.3d 600,

605 n.3 (Tex. App. 2015).

The commission did not find that Akpan charged an unconscionable

fee. We agree with the commission here. Akpan’s $4000 flat fee for the

anticipated work was not excessive.7

However, the commission found that Akpan collected an

unconscionable fee because he retained the full $4000 despite having made little progress toward the final preparation of the I-130 form and the

I-485 form when he was discharged by Villatoro. As noted by the

commission, most of the time that Akpan devoted to the matter was travel

time. Also, Akpan’s meetings with Villatoro involved repeating “the same

discussion regarding obtaining the necessary documents.”

We disagree, though, that these facts make it unconscionable for

Akpan to receive $4000. It appears Texas would allow an attorney to

collect a quantum meruit payment when discharged by the client before

completing the work set forth in a flat-fee agreement. See

Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 561–62 (Tex. 2006)

(applying this principle to contingent fee agreements).

A recent relevant precedent (although not from Texas) is In re Gilbert,

346 P.3d 1018 (Colo. 2015) (en banc). Gilbert was also an immigration

case. Id. at 1019. There, the clients paid $2950 toward an attorney’s

$3550 flat fee and then discharged her. Id. at 1020. The attorney kept

7See Wilson v. Henderson, No. 05-18-00714-CV, 2019 WL 4635171, at *6 (Tex. Ct. App. Sept. 24, 2019) (upholding $10,000 flat fee); Pro. Ethics Comm. for the State Bar of Tex., Opinion No. 611, September 2011, 74 Tex. B.J. 944, 944 (2011) (“It is important to note that the Texas Disciplinary Rules of Professional Conduct do not prohibit a lawyer from entering into an agreement with a client that requires the payment of a fixed fee at the beginning of the representation.”). 17

$1114.14, asserting that she was entitled to recover 4.41 hours at her

regular hourly rate of $250 for “the court appearance, travel time,

research, correspondence, and the motion to withdraw.” Id. Bar counsel

challenged this, but the Colorado Supreme Court agreed there was no

ethical violation. Id. at 1023–25. The court explained why quantum

meruit is allowed in the client–attorney context:

In the legal services context, courts applying the doctrine of quantum meruit have recognized that when a client discharges his or her attorney, the client remains obligated to pay the reasonable value of the services rendered, barring conduct by the attorney that would forfeit the attorney’s right to receive a fee. At the same time, we have recognized that the trust and confidence that underlies the attorney–client relationship distinguishes this relationship from other business relationships. By allowing an attorney to recover the reasonable value of services provided, the doctrine of quantum meruit operates to preserve the client’s right to discharge an attorney while preventing clients from unfairly benefiting at their attorney’s expense where the parties have no express contract or have abrogated it.

Id. at 1023. The court said that in applying this doctrine:

We have carried principles of quantum meruit recovery into our attorney discipline cases. Relevant here, our prior rulings indicate that, where the parties have a flat fee agreement, a discharged attorney does not violate the ethical obligation to refund unearned fees where the attorney is entitled to a portion of the fee in quantum meruit for the reasonable value of services rendered before being discharged.

Id. at 1024–25.8

There is no dispute that Akpan had devoted at least forty hours to

the case when Villatoro fired him. This included time spent gathering

information on Villatoro’s husband’s criminal matter and analyzing its

8Notably,Colorado, like Iowa and unlike Texas, prohibits fees that are merely “unreasonable,” even if they are not “unconscionable.” See Colo. R. Prof’l Conduct 1.5(a)(1). 18

impact.9 It also included time spent attempting to get information and

forms from Villatoro and traveling to and from her office. While the

progress was slow, that was because Villatoro and her husband were not

assembling the needed information. Also, it was Villatoro’s choice to have

Akpan travel to her office; Akpan would have preferred that Villatoro come

to his office, but she declined to do so. Travel time is recoverable as a form

of attorney fees in Texas. “Courts have considerable discretion in

evaluating travel time, and may, in their discretion reduce working and

non-working travel time.” Tex. Mut. Ins. v. DeJaynes, 590 S.W.3d 654, 670 n.11 (Tex. App. 2019) (upholding a court’s award of travel time); see also

Wilkerson v. Atascosa Wildlife Supply, 307 S.W.3d 357, 359–60

(Tex. App. 2009) (same). We find the Board failed to prove a violation of

Texas rule 1.04(a) by a convincing preponderance of the evidence.10

B. Failing to Communicate the Basis for the Fee Within a

Reasonable Time After Commencing the Representation. Texas

Disciplinary Rule of Professional Conduct 1.04(c) states, “When the lawyer

has not regularly represented the client, the basis or rate of the fee shall

9The Board contends that time spent investigating the criminal matter was written off by agreement of the parties because it was incurred before the parties signed the flat- fee agreement on February 23, 2016. The Board notes that paragraph 10 provides under “commencement of representation” that “legal services will not be rendered and client’s file will be placed on hold until clients make payment as described in item 7 above.” The Board reads this language as a disclaimer that Akpan had provided any compensable services before February 23. However, we do not believe the quoted language is so unambiguous. Paragraph 10 can also be read as procedural: it advises the client that the attorney will not do anything else on the engagement until payment is received. Given the lofty standard for proving an unconscionable fee in Texas, we do not think the Board has made its case for exclusion of pre-February 23 time that related to completion of the matters covered by the agreement, i.e., preparation and submission of the I-130 form and the I-485 form. 10The Board also charged a violation of Texas Disciplinary Rule of Professional

Conduct 1.04(c). We agree with the commission that this rule would not provide the basis for a separate violation. It simply sets forth factors “that may be considered in determining the reasonableness of a fee.” Tex. Disciplinary R. Prof’l Conduct 1.04(c). 19

be communicated to the client, preferably in writing, before or within a

reasonable time after commencing the representation.” We agree with the

commission that Akpan and Villatoro entered into the February 23, 2016

written agreement within a reasonable time after the representation had

commenced, and therefore, this rule was not violated. As Akpan

explained, before he charged Villatoro $4000 and delved more deeply into

the representation, he wanted to do the necessary research to make sure

her husband’s criminal record would not prevent his getting a green card.

Had he determined that Villatoro’s husband was not eligible, Villatoro would not have been charged anything and the representation would not

have been formalized with an agreement. A delay of this nature was

reasonable. Cf. McCleery v. Comm’n for Law. Discipline, 227 S.W.3d 99,

105–06 (Tex. App. 2006) (finding an attorney violated Texas rule 1.04(c) by

switching an indigent client from a pro bono representation to a forty

percent contingency two years into the representation and on the eve of

trial). There was therefore no violation of Texas rule 1.04(c).

C. Safekeeping Client Property. Texas Disciplinary Rule of

Professional Conduct 1.14(a) requires an attorney to keep funds belonging

to a client “that are in a lawyer’s possession in connection with a

representation separate from the lawyer’s own property.” Advancing the

same theme, Texas rule 1.14(c) provides,

When in the course of representation a lawyer is in possession of funds or other property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interest. All funds in a trust or escrow account shall be disbursed only to those persons entitled to receive them by virtue of the representation or by law. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separated by the lawyer until the dispute is resolved, and the undisputed portion shall be distributed appropriately. 20

Tex. Disciplinary R. Prof’l Conduct 1.14(c).

Akpan does not dispute that he did not deposit any of the funds he

received from Villatoro in a trust account. Nor did he provide any

accounting to Villatoro when he put those funds in his business account.

He claims that he had already earned each installment when he received

it. This includes the initial $1500.

We agree with the commission’s finding that Akpan violated Texas

rule 1.14(a). The flat-fee agreement provided that Akpan was to receive

$4000 for filing the completed I-130 form and I-485 form (along with necessary supporting documentation). It was not an hourly agreement

and did not even mention a possible hourly rate. It did not have

contractual milestones. It did not indicate that any of the payments were

nonrefundable in return for Akpan giving up other employment.

Texas allows for nonrefundable retainers, but only if the retainer is

paid to secure the attorney’s availability and to compensate the attorney

for lost opportunities. See Cluck v. Comm’n for Law. Discipline,

214 S.W.3d 736, 739–40 (Tex. App. 2007) (explaining that a retainer is a

prepayment for services and not a “true retainer” unless it is paid to secure

the lawyer’s availability and to compensate the lawyer for lost

opportunities). Otherwise, the money is considered a prepayment and

must be held in a trust account until the services are rendered. See id. at

740–41 (finding that an attorney violated Texas rule 1.14(a) by not

depositing a retainer in his trust account).

Accordingly, under the agreement, Akpan did not earn the fees until

he filed the I-130 form and the I-485 form. While Akpan would have a

claim for quantum meruit if the client discharged him (as in fact happened), Akpan had no contractual right to the funds until he completed

the work. If Akpan wanted to collect some portion of his fee as he went 21

along, this should have been spelled out in the February 2016 agreement

or worked out with Villatoro.

Comment 2 to Texas rule 1.14 confirms that under these

circumstances the funds should have gone into a trust account:

When a lawyer receives from a client monies that constitute a prepayment of a fee and that belongs to the client until the services are rendered, the lawyer should handle the fund in accordance with paragraph (c). After advising the client that the service has been rendered and the fee earned, and in the absence of a dispute, the lawyer may withdraw the fund from the separate account.

Tex. Disciplinary R. Prof’l Conduct 1.14 cmt. 2.

Based on the foregoing, we think Texas would likely follow

something akin to the principles set forth in Iowa Supreme Court Attorney

Disciplinary Board v. Said, 869 N.W.2d 185 (Iowa 2015). In that case, an

immigration attorney and his client agreed upon a $5200 flat fee to be paid

$2600 up front and the remainder in monthly installments. Id. at 188.

We found the attorney committed ethical violations in withdrawing

portions of this flat fee from his trust account before the work was

completed, stating,

We recognize withdrawal of portions of a flat fee paid in advance can present difficult questions for lawyers. Yet, these questions can be minimized by agreements that designate the times withdrawals will be made and transparent recordkeeping that justifies the withdrawal of fees.

Id. at 192.11 Furthermore, the court continued,

The facts revealed Said periodically withdrew fees with no clear connection to any milestone in the case, any specific

11It should be noted, however, that Texas apparently has no counterpart to chapter 45 of the Iowa Court Rules. The chapter 45 rules contain specific directives concerning trust accounts. Rule 45.10, in particular, governs flat fees. See Iowa Ct. R. 45.10. It requires advance payments of flat fees to be deposited into a trust account and allows withdrawal by the attorney only by agreement. Id. r. 45.10(2)–(3). Those trust account rules played a significant part in our Said decision. See 869 N.W.2d at 192–93. 22 work performed, or any relationship to the services remaining to be performed. Instead, the withdrawals were more consistent with the odd and frequent withdrawals we have disapproved of in the past. Said violated Iowa Rule of Professional Conduct 32:1.15(c) in making withdrawals from the advance payment of the flat fee deposited in a trust account before he earned the portion withdrawn.

Id. at 193 (citation omitted). Here, Akpan never deposited the flat-fee

installments into a trust account or advised Villatoro they were being

deposited into his business account. Therefore, he violated Texas

rules 1.14(a) and (c).12

D. Properly Terminating Representation. Two rules are at issue

here. Texas Disciplinary Rule of Professional Conduct 1.15(a) requires an

attorney to withdraw when discharged by a client. It is unclear why the

Board alleged a violation of this rule. It did not explain in its briefing

below. We agree with the commission that this rule was not violated.

The other rule is Texas rule 1.15(d). It requires the attorney who is

discharged to refund “any advance payments of a fee that has not been

earned.” Tex. Disciplinary R. Prof’l Conduct 1.15(d). The commission

found a violation of this rule.

12The commission also found that Akpan violated the last sentence of Texas rule 1.14(c) by not placing $4000 into a separate escrow once the dispute with Villatoro arose. In a sense, that horse had already left the barn because Akpan had previously taken those funds into income upon receipt, thereby violating both rule 1.14(a) and the first sentence of rule 1.14(c). Since we have already found these other violations of rule 1.14, we do not decide whether the last sentence of rule 1.14(c) imposes a further obligation on an attorney to restore funds that had been taken into income before the dispute arose. We take the same approach regarding Texas rule 1.14(b). That rule requires “a lawyer [to] promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive.” Tex. Disciplinary R. Prof’l Conduct 1.14(b). The commission found no violation here because, in its view, the rule applies only to funds received from someone other than the client. We do not address that alleged violation in light of our other determinations on rule 1.14. Cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weiland, 885 N.W.2d 198, 207 (Iowa 2016) (finding that a failure to refund a retainer can give rise to a violation of Iowa’s counterpart to Texas rule 1.14(b)). 23

As we have already discussed in division IV.C of this opinion, Akpan

should have deposited the monies he received from Villatoro in a trust

account. Under the flat-fee agreement, Akpan lacked grounds to take any

of those funds into income until the representation was completed, unless

he had worked out another arrangement with Villatoro. In those respects,

as already noted, Akpan violated Texas rules 1.14(a) and (c).

However, as discussed in division IV.A, once Villatoro discharged

Akpan, he could pursue a quantum meruit recovery for work performed.

In Bennett v. Commission for Lawyer Discipline, the Texas Court of Appeals held that no violation of Texas rule 1.15(d) occurred when an attorney

refused to refund any portion of a $70,000 retainer to a client while the

two were in an unresolved dispute over whether a refund was owed. 489

S.W.3d 58, 66–67 (Tex. App. 2016). The client discharged the attorney on

August 3, 2011, but a fee arbitration did not result in a confirmed award

to the client until July 23, 2012. Id. at 67. As the court explained,

Because the question whether the fee had been earned was not settled until July 2012 at the earliest, there is no evidence that on August 3, 2011, Bennett failed to return an advance payment of fee that had not been earned.

Id. The same reasoning would apply here. There is a pending small claims action in Texas between Villatoro and Akpan. No judgment has been

entered in that action. We therefore find no violation of Texas rule 1.15(d).

V. Sanction.

Because Akpan is subject to our disciplinary authority, we believe

that discipline is a matter for us to decide under our precedents. See

Iowa Ct. R. Prof’l Conduct 32:8:5. Again, Texas law determines whether

there were ethical transgressions; if there were, we calibrate the sanction. Id. (explaining that conduct that occurs in another jurisdiction is subject 24

to “the rules of [that] jurisdiction” but the Iowa-licensed attorney who

commits such conduct is subject to our “disciplinary authority”).

“There is no standard sanction warranted by any particular type of

misconduct. Though prior cases can be instructive, the sanction

warranted in a particular case must be based on the circumstances of that

case.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hier, 937 N.W.2d 309,

317 (Iowa 2020) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Cannon, 821 N.W.2d 873, 880 (Iowa 2012)). “Our primary purpose for

imposing sanctions [is] not to punish the lawyer but to protect the public.” Id. at 317 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelson, 838

N.W.2d 528, 542 (Iowa 2013)).

The core of Akpan’s misconduct is that he received funds from a

client under a flat-fee agreement, didn’t put them in a trust account, and

took them into income before they had been earned under that agreement.

We have encountered similar situations before.

In Iowa Supreme Court Attorney Disciplinary Board v. Nelissen, we

suspended an attorney for thirty days who received retainer funds from a

client, didn’t deposit all those funds in her trust account, and withdrew

other funds from the trust account before they were earned and without

notifying the client. 871 N.W.2d 694, 669–700 (Iowa 2015). She also

misrepresented on her client security report that she was performing

monthly reconciliations and ignored requests of the Board for information.

Id. at 700. She had a past reprimand for trust account violations and also

had been reminded during an audit that she needed to perform monthly

reconciliations. Id. at 701. “For these reasons,” we explained, “another

reprimand would not serve the goals of the attorney discipline process.” Id. 25

In Iowa Supreme Court Attorney Disciplinary Board v. Lubinus, we

suspended an attorney for thirty days for “failing to deposit an advance fee

into his trust account, transferring unearned fees out of his trust account,

and failing to furnish contemporaneous accountings to his clients upon

making trust account withdrawals.” 869 N.W.2d 546, 547 (Iowa 2015).

Notably, the attorney “knowingly removed unearned funds from his trust

account prematurely because he was in financial difficulty.” Id. at 553.

We also commented, “When an attorney’s minor trust account violations

are the result of sloppiness or lack of oversight, we have levied a public reprimand rather than a suspension.” Id. at 550. We added, “On the other

hand, when an attorney has committed multiple or more systematic trust

account violations, we have imposed suspensions, often of thirty days.”

Id. at 551.

In Said, 869 N.W.2d at 195, we likewise suspended an attorney for

thirty days. There, an immigration attorney received a flat fee, put it in

his trust account, but made periodic withdrawals without notice to the

client and without connection to any work he was actually doing. Id. at

193. The attorney also missed an appeal deadline, failed to communicate

with the client about the significance of the missed deadline, and made a

false statement to the immigration tribunal about what he was doing to fix

the missed deadline. Id. at 190–92. The attorney also had four prior

admonitions, one of which involved “conduct similar to one of the

violations in this case.” Id. at 194.

In Iowa Supreme Court Attorney Disciplinary Board v. Eslick, an

attorney admitted to

failing to deposit all unearned fees and prepaid expenses into her trust account, commingling personal funds with those of her clients, failing to maintain a receipt and disbursement journal and check ledger for the trust account, failing to 26 perform trust account reconciliations, withdrawing fees from the account without notifying clients, failing to maintain copies of accountings to clients, and operating with a deficiency of nearly $8000 in her trust account.”

859 N.W.2d at 200. We concluded a suspension of thirty days was

appropriate for this “pattern of rule violations.” Id. at 203.

In Iowa Supreme Court Attorney Disciplinary Board v. Mendez, we

imposed the equivalent of a sixty-day suspension on an immigration

attorney who repeatedly failed to deposit both initial and subsequent

installments of flat fees into his trust account. 855 N.W.2d 156, 167, 175

(Iowa 2014). The trust account violations involved multiple clients and

there were other types of rule violations as well, such as unreasonable

fees, failure to communicate with clients, and neglect. Id. at 168–72. A

significant violation of our conflict-of-interest rules occurred when the

attorney failed to inform a client of the need to retain new counsel after

the attorney missed a deadline. Id. at 174. Overall, the attorney “flouted

our trust account rules.” Id. at 175.

In Iowa Supreme Court Attorney Disciplinary Board v. Kersenbrock,

we suspended an attorney for thirty days who had systematically violated

trust account rules. 821 N.W.2d 415, 422 (Iowa 2012). The attorney failed to deposit unearned retainers into a trust account, took a premature

probate fee, regularly failed to perform trust account reconciliations, and

falsely certified the status of her trust accounting procedures on annual

client security reports. Id. at 419–21.

In Iowa Supreme Court Attorney Disciplinary Board v. Denton, we

publicly reprimanded an immigration attorney who failed to deposit the

payments on a flat-fee agreement in his trust account, withdrew fees

before they were earned, and failed to notify his client of the withdrawals. 814 N.W.2d 548, 551 (Iowa 2012). We characterized the situation as “an 27

isolated violation of our ethical rules” and noted that the attorney had no

history of prior ethical lapses and, additionally, had “established a trust

account to avoid future infractions in the representation of Iowa clients in

immigration matters.” Id.

In Iowa Supreme Court Attorney Disciplinary Board v. Vilmont, we

suspended for thirty days the license of an attorney who entered into an

illegal fee agreement that had both an hourly rate and a minimum fee, who

collected an unreasonable fee, and who took funds out of his trust account

without a contemporaneous notice. 812 N.W.2d 677, 679–80 (Iowa 2012). In Iowa Supreme Court Attorney Disciplinary Board v. Boles, we

suspended an attorney for thirty days who repeatedly withdrew unearned

fees from his trust account and failed to provide accountings to his clients.

808 N.W.2d 431, 438, 443 (Iowa 2012). The attorney also neglected one

matter, failed to return unearned fees in one instance, and failed to keep

disputed fees separate. Id. at 439–40. A number of mitigating factors were

present. Id. at 442.

In Iowa Supreme Court Attorney Disciplinary Board v. Parrish, we

suspended for sixty days the license of an attorney who withdrew all the

fee payments made by two clients before earning many of those fees and

without providing an accounting. 801 N.W.2d 580, 586–87, 590 (Iowa

2011). He also failed to refund the unearned portion of the fees even when

ordered to do so by an arbitration panel. Id. at 587. The attorney had six

prior private admonitions, some involving quite similar conduct. Id. at

589. There were also significant mitigating circumstances. Id.

In Iowa Supreme Court Attorney Disciplinary Board v. Piazza, we

publicly reprimanded an attorney who did not deposit the flat-fee payments on a matter in his trust account, wrongly taking the position

they were earned when he received them. 756 N.W.2d 690, 697–98, 700 28

(Iowa 2008) (per curiam). The attorney had “no history of ethical

violations” and promised to comply with our rules regarding flat-fee

payments in the future. Id. at 700.

After reviewing all these precedents, we conclude as follows. The

circumstances here are clearly not as egregious as those that led to the

sixty-day suspensions in Mendez and Parrish. Also, at least on this record,

we do not have the systemic violations that were present in Eslick,

Kersenbrock, and Boles—all thirty-day suspension cases. This case

likewise does not involve a prior disciplinary record or other facts pointing toward greater culpability as in Nelissen, Lubinus, Said, and Vilmont,

which were also thirty-day suspension cases. All in all, we think the

present case is most similar to Denton and Piazza, although one could find

ways to characterize the conduct in those two cases as less blameworthy.

Two mitigating factors are also present here. Akpan provides low- and

no-cost services to an underserved community, and he has no prior history

of discipline. Considering Akpan’s mitigating factors, and everything else

we are required to take into account before imposing discipline, we have

decided to impose a public reprimand. We remind Akpan that should he

resume practicing immigration law, he will need to deposit retainers in his

trust account, take them as income only when earned under the terms of

the parties’ agreement, and provide accountings to the client. Future

ethical violations involving similar misconduct will not be treated as

leniently.

VI. Conclusion.

We publicly reprimand Akpan. We tax the costs of this action to

Akpan pursuant to Iowa Court Rule 36.24(1). ATTORNEY REPRIMANDED. 29

All justices concur except Appel, J., who concurs in part and

dissents in part, and Waterman, J., who takes no part. 30

#20–0187, Iowa Supreme Ct. Att’y Disciplinary Bd. v. Akpan

APPEL, Justice (concurring in part and dissenting in part).

I respectfully concur in part and dissent in part. I concur with the

majority on the question of use of videoconferencing in disciplinary

proceedings. I dissent on the issue of sanction and on whether at least

part of the fee collected by Akpan was unconscionable. From my review of

the record, I conclude a suspension is in order. The majority opinion suggests that the $1500 paid on February 23, 2016, when Akpan and Villatoro signed the fee agreement, was earned prior to the execution of the document. As explained by the majority, most of the precontract attorney hours were travel time. The theory of the majority opinion seems to be that by signing the February 23 contract, the ten hours—mostly travel time fees—prior to the execution of the fee agreement were earned, or at least not unconscionable. When I look at the underlying contract, I come to a different conclusion. When the full terms of the February 23 fee agreement are considered, I conclude that Akpan was not entitled to deposit the check in his business account when he received it because he was not entitled to the fees under the plain language of the fee agreement. Paragraph 1 entitled “Date of Contract” provides the date of February 23, 2016. Paragraph 5 entitled “Legal Services Involved” simply has the entry “I-485, I-130,” a reference to the applicable immigration forms. So we know that the contract commences on February 23, and the services to be rendered related to the listed immigration forms. Paragraph 6 is entitled “Agreed Legal Fees.” Here, the number $4000 is entered, followed by more contract language. The contract language states,

Pursuant to our oral discussion and based upon the information you provided to our Law Firm. You, Rosa L 31 Villatoro, agree to hire The Law Offices . . . to represent you as your attorney in the matter described in item 5 above.

So, on February 23, Villataro signed the contract for representation by

Akpan containing the language “agree to hire.” This is a present tense

provision. There is no suggestion that Akpan was hired or entitled to any

fees prior to February 23.

Paragraph 7 is entitled “Fees.” It states,

Our legal fees for the representation will be $7,000 [“7,000” scratched out and accompanied by Akpan’s initials, dated February 23, 2016] excluding the filing and expenses explained in item 10 below. The fees will cover consultations with you and your authorized representatives, the opposing party and any other party that we deem necessary for effective disposition of your matter. The fees will also cover research into your legal matter. Procurements of information from government agencies and courts of law.

Note the use of future tense: fees “will cover” and “will also cover.” No past

tense language regarding past fees here. And there is nothing about fees

covering travel time. There is, further, no “including but not limited to”

language here suggesting that fees could be earned. In short, Akpan wrote

a fee contract that did not include any provision for payment of fees prior

to February 23 and did not expressly provide for fees related to travel time.

Paragraph 10 is entitled “Commencement of Representation.” Note

the use of the term “Commencement” in the title. Commencement means beginning. The title is in all bold language for emphasis. The language

that follows the boldfaced title is “Client is hereby notified that legal

services will not be rendered and client’s file will be placed on hold until

clients make payment as described in item 7 above.” Plainly, when the

$1500 payment is made under paragraph 7, then and only then does the

representation commence. Not one day before. Paragraph 15 is entitled “Entire Agreement.” It is an integration

clause. It states, “This Agreement contains the entire agreement of the 32

parties. No other agreement, statement, or promise made on or before the

effective date of this Agreement will be binding on the parties.”

When the terms of the contract are considered in their entirety, it is

clear that the agreement is an integrated contract, that it occupies the field

in regard to the terms of representation on immigration matters, that

under the contract representation commenced upon payment of the

$1500, and that there is no provision for payment of already earned fees,

eighty percent of which were for travel time. If Villatoro had brought a

breach of contract claim on the day after Akpan deposited the $1500 in his trust account, she would have been entitled to summary judgment as

a matter of law.

Further, Texas law would not countenance a quantum meruit theory

to justify the depositing of fees outside the fee contract. The majority is

correct that when a flat-fee contract is terminated and there are no clear

benchmarks, the lawyer may be entitled to quantum meruit recovery of

attorney fees for representation pursuant to the fee agreement. This written

contract covers the subject matter of representation of Villatoro on the

immigration matters and is the parties’ entire agreement.

In short, Akpan deposited the $1500 into his business account upon

receipt. At that time, he had earned nothing under the contract. The

contract represented the parties’ entire agreement. Is it not

unconscionable to take a $1500 fee paid under a contract when, according

to the terms of the same contract, nothing has been earned? Indeed,

although not charged, he arguably deposited the check in his business

(personal) account without color of right, a revocable offense. And he

certainly violated trust account rules when he failed to deposit the $1500 into a trust account to secure payment for future fees as authorized by the

fee contract. 33

At signing, there is no evidence that Akpan told Villatoro that the

$1500 was going to disappear into thin air the minute the ink was dry.

And, of course, Akpan did not give Villatoro any contemporaneous notice

that he was claiming the money as earned. So, in addition to taking fees

not authorized by the contract, Akpan violated communication rules

expressly designed to avoid sticker shock arising from travel costs and

what seem to the client as spinning of wheels.

With respect to the later periodic $500 payments, post-February 23

services could be earned under the agreement. If I read the majority opinion correctly, some eight hours of actual legal work was done on the

file, with the balance consisting of travel time. But while the contract had

a laundry list of activities for which fees would be charged, travel time was

not among them.

Do we think the drawing down of fee payments largely by travel time

not explicitly authorized by the contract and where there was never a

contemporaneous itemization alerting the client to the charge is okay? The

client basically paid for windshield time that yielded her nothing. You can

work on the plane but not in the car. Would she have taken a different

approach to the representation had she known that eighty percent of her

fees were going to travel? But even so, perhaps a $400 per hour rate for

actual legal fees (assuming total payment of $2500 and six hours of

nontravel attorney work postcontract) might not be “unconscionable”

under the Texas standard under all the facts and circumstances. Tex.

Disciplinary R. Prof’l Conduct 1.04(a).

Nonetheless, to me, this file has a stronger aroma than that which

emanates from the majority opinion. The low social status of immigration clients does not allow lawyers to charge fees mostly for driving around

town when the fee contract certainly is an integrated contract stating that 34

attorney representation and fee entitlements arise on February 23, 2016.

And even if travel time could properly be charged at an hourly rate after

February 23, the client was entitled to know this through

contemporaneous statements from the lawyer.

So, I see the violations as more serious than the majority and more

in line with the views of the commission. The taking of the $1500 pursuant

to the fee agreement for fees allegedly earned prior to that time of execution

is unconscionable by any standard. There was no entitlement to the fees

under the contract, and, as the entire agreement, one cannot gin up some post hoc justification for the depositing of the fees as claimed by Akpan.

With respect to the postsigning fee payments, the failure to follow

applicable ethical rules to communicate with the client about the nature

of the draw down of fees in a flat-fee matter made it impossible for the

client to understand what was being done with her money. So the taking

of the $1500 was unearned, and the lawyer kept secret the manner in

which he claimed he had earned the fees. At the end of the day, Villatoro

paid $4000, spending a lot of money on windshield time, but with little to

show for it. She had no idea that most of her payments were chewed up

in travel time. Whether sharp or sloppy, such practices should not be

permitted in the practice of law.

I would suspend Akpan’s license for thirty days based on the above

considerations.