Once Is Not Enough

The Maryland Supreme Court has ordered a 60-day suspension of an attorney for misconduct in connection with an attorney’s retention and subsequent discharge in a kidnapping and related offenses case.

One set of misconduct findings involved failure to communicate with the client.

Throughout the representation, Mr. Wescott visited Mr. Johnson in the detention center only once, for approximately 15 to 20 minutes. During that meeting, Mr. Wescott briefly discussed the charges with Mr. Johnson but did not discuss other aspects of the case. Apart from that visit, Mr. Wescott spoke to Mr. Johnson only one other time, while on a three-way call with Ms. Johnson. Mr. Wescott failed to answer or return subsequent calls.

On or about October 20, a dissatisfied Mr. Johnson terminated Mr. Wescott’s representation. Mr. Wescott promptly filed a motion to strike his appearance, which the court granted following a hearing.

Fee issues

The problems with the fees charged by Mr. Wescott stem largely from the structure of the fee arrangement. As noted, the retainer agreement Ms. Johnson signed called for a flat fee of $15,000, paid in installments, that, without regard to the amount of work he performed, would: (1) be earned in full at the moment he entered his appearance, which he did the day he was retained; (2) be nonrefundable; and (3) not need to be placed in an attorney trust account. Pursuant to that arrangement, Mr. Westcott collected $7,000 before his representation was terminated and did not deposit any of it in his attorney trust account. The hearing judge found that Mr. Westcott performed very little work and, nonetheless, did not refund any of the money.

…Here, the hearing judge concluded that Mr. Wescott’s $15,000 flat fee was not unreasonable for the services expected to be performed, but that the scant services he actually performed rendered unreasonable both the agreed fee and the $7,000 he was actually paid. We agree.

Waiver of trust account deposit

Here, although Mr. Wescott’s retainer agreement stated that the fees he charged would not be “subject to attorney client-trust accounts and can be collected by the attorney immediately,” the hearing judge found that Mr. Wescott did not explain that provision or the risks associated with it to Ms. or Mr. Johnson. As a result, Ms. Johnson could not provide informed consent and Mr. Wescott’s failure to deposit the funds he received from her into his trust account violated MARPC 1.15(a) and (c). We have also previously held that the failure to maintain unearned funds in a separate trust account, at least when it can be attributed to a lack of competence rather than intentional misconduct, is a violation of MARPC 1.1.

Sanction

…Mr. Wescott’s misconduct occurred in only one case, his conduct was not demonstrated to have prejudiced his client’s case, and he timely withdrew from representation upon the client’s request. Accordingly, we agree with the Commission that the appropriate sanction is a definite suspension for 60 days.

(Mike Frisch)