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Dean D. Nguyen (WSBA No. 30148, admitted 2000), of Seattle, was ordered to receive a reprimand on February 17, 2005, following a stipulation approved by a hearing officer. This discipline was based on his conduct in 2003 involving the charging of an unreasonable fee and a conflict of interest.
Commencing in June 2003, Mr. Nguyen and a lawyer in another firm represented a client in a federal criminal matter. Mr. Nguyen and the client entered into a fee agreement drafted by Mr. Nguyen and characterized as a “flat fee agreement.” The agreement stated that the client agreed to hire Mr. Nguyen and co-counsel for a flat fee that was “earned upon receipt.” The specified fee was $5,000 for services up to trial, and an additional $10,000 for services for a bench trial and sentencing, or an additional $15,000 for services for a jury trial and sentencing. The client paid Mr. Nguyen $5,000.
In July 2003, the client rejected a plea offer negotiated with the prosecutor. Subsequently, Mr. Nguyen and co-counsel presented the client with a second fee agreement, which required a $15,000 “nonrefundable” fee and stated that the fee was nonrefundable “in the event the matter is resolved prior to, on the date of, or during trial.” A handwritten notation on the agreement indicated that it modified the earlier fee agreement. Mr. Nguyen did not consult with the client regarding a potential conflict of interest, did not obtain the client’s consent in writing to a potential conflict of interest, did not fully disclose in writing all the terms of the transaction (including the fact that he was already contractually obligated to provide all pretrial services for $5,000), and did not provide the client with a reasonable opportunity to seek the advice of independent counsel prior to signing the second fee agreement. The client received no additional consideration in the second fee agreement, and the terms of the second fee agreement were not fair or reasonable to the client in light of Mr. Nguyen’s obligations under the first agreement.
The client signed the second fee agreement and subsequently paid Mr. Nguyen and co-counsel an additional $15,000. In September 2003, the client fired Mr. Nguyen and co-counsel and hired another lawyer, who assisted the client in resolving the case by plea agreement. After the filing of a formal disciplinary complaint against him, Mr. Nguyen refunded his proportionate share of the excessive fee as restitution.
Mr. Nguyen’s conduct violated RPC 1.5(a), requiring that a lawyer’s fee be reasonable; RPC 1.7(b), prohibiting a lawyer from representing a client if the representation of that client may be materially limited by the lawyer’s own interests, unless the lawyer reasonably believes the representation will not be adversely affected and the client consents in writing after a full disclosure; and RPC 1.8(a), prohibiting a lawyer from entering into a business transaction with a client or knowingly acquiring an ownership, possessory, security, or other pecuniary interest adverse to a client unless the transaction and its terms are fair and reasonable and fully disclosed and transmitted in writing to the client, the client is given opportunity to seek the advice of independent counsel, and the client consents.
Anne I. Seidel represented the Bar Association. Leland G. Ripley represented Mr. Nguyen. Susan H. Amini was the hearing officer. |