Recently, I wrote a little about the problems that can be presented in re-negotiating the terms of a fee agreement with an existing client in light of the requirements of RPC 1.8(a) governing business transactions with clients. Yesterday’s big legal news in Tennessee involves something that could be flippantly described as an RPC 1.8(a) problem on steroids.
In reality, the convictions of two middle-Tennessee attorneys (one of whom has been handling two high-profile matters and the other of whom happens to be married to a sitting trial court judge) for extortion touches on several ethical infractions much more severe than a violation of RPC 1.8(a). The jury verdict comes in response to accusations that they had repeatedly threatened their client with arrest and eventually swore out an arrest warrant as part of attempting to get the client to pay them $50,000 that prosecutors said the lawyers needed as part of coming up with a larger sum to buy some property. Having now been convicted, these lawyers can expect to be charged with violations of RPC 8.4(b) for their criminal acts, but even had their conduct not been found to be extortion there were serious RPC 4.4(a)(2) problems with threatening to pursue a criminal action against their own client to try to get paid. I can pretty confidently say that the intent behind RPC 4.4(a)(2) is more trying to deal with problems associated with lawyers directing such threats at adversary parties and other counsel (in part, because it is difficult to fathom that any lawyer would so threaten their own client) but not a real stretch to consider such conduct to violate that rule.
Nevertheless, the factual narrative of the whole sad case does interestingly start from an effort by the lawyers to move from one set of contract terms — $800 to accompany a client to the reading of a will — to a much more lucrative arrangement for the lawyers — a $50,000 flat fee for a much larger contemplated engagement. Ironically (at least in the Alanis Morrisette meaning of the term), if these lawyers had gone to the trouble of complying with all of the aspects of RPC 1.8(a) – including giving the client an opportunity to consult with an independent lawyer about the proposal — perhaps the lawyers and the client would have reached agreement on the terms of an arrangement (likely not a $50,000 flat fee though) that the client would have paid willingly and the rest of the violations might never have come to pass.