You can wake most ethics lawyers up in the middle of the night to ask them whether a violation of the ethics rules provides a cause of action, and they’d be able to answer off the top of their head by either quoting from, or at least pointing you to, their jurisdiction’s version of the Scope section of the Rules of Professional Conduct.
If they are able to do the parlor trick of quoting it, you would hear them say: “Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.” Now, if instead of letting them go back to sleep, you offered them some coffee and asked for follow-up guidance, they would also likely explain to you that there are lots of situations in litigation where being able to show that a lawyer failed to comply with the requirements of an ethics rule will have a definite impact on the merits of a lawsuit.
An easy example would be the way that conflicts of interest in violation of RPC 1.7 or 1.9 can lead pretty directly to disqualification. Another example, but certainly one less frequently made the subject of court opinions, is when a lawyer’s fee agreement fails to comply with relevant ethics rules.
Earlier this month, the Tennessee Court of Appeals issued an opinion involving such a question in the context of evaluating whether fee agreements that involved the sharing of fees by lawyers in different firms complied with Tennessee’s RPC 1.5(e). In Clark v. Baker, the Court of Appeals concluded that only 1 of the 2 fee agreements being evaluated could withstand scrutiny under that ethics rule.
Clark, the client, originally entered into an agreement with Jones, an attorney, which provided for a 1/3 contingency fee. Jones then communicated with another attorney, Baker, about the handling of the matter and that got Baker involved. Clark then entered into a fee agreement with Baker that provided for a 45% contingency fee. The case in which Clark needed counsel settled at mediation and both Baker and Jones were present.
Clark then sued Baker alleging that his charged attorney fee was unreasonable. Jones joined as a plaintiff, claiming an interest in the fee Baker charged as well.
You can read the full opinion at the link above if you want all the details, but the Court, faced with the very narrow issue on interlocutory appeal after denial of Baker’s motion for summary judgment, found that Baker’s fee agreement complied with RPC 1.5(e). The key reason for that also highlights the importance of knowing the specific language of a state’s version of various ABA Model Rules. Unlike the ABA Model, Tennessee’s RPC 1.5(e) does not require the client to know the specific amounts of each lawyer’s share of an agreed fee as part of agreeing to the arrangement.
All in all though, it seems hard to see Baker’s victory on appeal on that narrow issue as being anything other than a pyrrhic one because RPC 1.5(e)(3) still requires the total fee to be reasonable and hat issue will, of course, be adjudicated upon remand. The underlying litigation involved a civil rights lawsuit against a city police department. Nevertheless, I have a hard time imagining any way that a 45% contingent fee would be deemed reasonable.
One reply on “A rarish reminder of the intersection of the ethics rules and causes of action”
This article effectively clarifies how ethics rules, like Tennessees RPC 1.5(e), can directly impact legal cases, even if violations dont create a presumption of breach. The Clark v. Baker example was particularly insightful for understanding fee-sharing nuances.