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James M. Womack (WSBA No. 22161, admitted 1992), of Seattle, was ordered to receive a reprimand on March 22, 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. Womack and a lawyer in another firm represented a client in a federal criminal matter. The client entered into a fee agreement drafted by the other lawyer. Mr. Womack did not sign the agreement but he was aware of its terms. The agreement was entitled “flat fee agreement.” The agreement stated that the client agreed to hire Mr. Womack and co-counsel for a flat fee that was “earned upon receipt,” but it did not describe the fee as nonrefundable. The specified fee was an initial $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, due within a week of the client’s election to proceed to trial. The client paid the other lawyer $5,000, and the other lawyer gave Mr. Womack half of that sum.
In July 2003, the client rejected a plea offer presented by the prosecuting attorney and elected to proceed to trial. Mr. Womack 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.” Unlike the first fee agreement, which specified that the $15,000 was the fee for services at trial, under the terms of the second fee agreement the $15,000 also included pretrial work. The client received no additional consideration in the second fee agreement. A handwritten notation on the agreement indicated that it modified the earlier fee agreement. Although Mr. Womack’s representation of the client may have been materially limited by his own interests in having the first fee agreement modified by the second fee agreement, Mr. Womack 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 signed the second fee agreement and subsequently paid Mr. Womack and co-counsel an additional $15,000. In September 2003, the client fired Mr. Womack 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 and in accordance with the terms of the stipulation to discipline, Mr. Womack refunded his share of the fee to the client.
Mr. Womack’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. Womack. William S. Bailey was the hearing officer. |