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110 1 Ridge Road, Suite 203 Rockwall, Texas 75087 Judge, 382nd Judicial District Court
Rockwall County Government Center
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Telephone: (972) 882-0270 Fax: (972) 882-0278
May 17,2006 Andy Sanc ez Court C ordinator 1641h istrict Court 20 aroline uston, TX 77002 Re: Cause No. 2004-67710; Commission for Lawyer Discipline vs. Paul C. Looney; In the 133'd Judicial District Court of Harris County, Texas
Dear Andy: As requested by the Petitioner, enclosed for filing in the above referenced case are Findings of Fact and Conclusions of Law. Please advise if I need to direct the filing to a different office. With best regards, I am
BH:lp Enc!. Jennifer . Hasley, Attorney at Law 600 Je erson, Suite 1000 Hou on, TX 77002 \ Michael A. Lamson, Attorney at Law "l 11767 Katy Freeway, Suite 740 Houston, TX 77079 Via Fax No.7 I 3-758-8292 and Regular Mail
Via Fax No. 281-597-8284 and Regular Mail
CAUSE NO. 2004-67710 COMMISSION FOR LAWYER DISCIPLINE, . Petitioner, vs. PAUL C. LOONEY, Respondent.
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IN THE DISTRICT COURT
HARRIS COUNTY, TEXAS
133'· JUDICIAL DISTRICT
FINDINGS OF FACT AND CONCLUSIONS OF LAW
After considering the pleadings, the evidence, the argument and briefs from counsel, the Court, in response to a request from the Petitioner, makes its findings offact and conclusions of law as follows:
Findings of Fact
I. Ir July 2003. Respondent wa, .. lIployed through an oral agreement to represent Jeffrey Blalock, hereinafter referred to as "Client", for the charge of DWI, as well as allegations of parole violation. Respondent undertook said employment for $12,000.00, which he testified was full payment for representation, regardless of how much or how little time would be involved, Respondent testified that the employment agreement called for a "flat fee" that was nonrefundable, Client was unable to testify about the specifics of the fee arrangement since he did not participate personally in the employment of Respondent. Sharon Allen, who personally secured the employment of Respondent on behalf of Client, was vague in her testimony about whether she understood the fee to be non-refundable, In securing the employment, Sharon Allen made misrepresentations to Respondent about the scope and nature of the representation. Both sides agreed that this was not a retainer case against which Respondent would bill hourly, although Respondent testified that had it been, at his hourly rate, the services he
FINDINGS OF FACT AND CONCLUSIONS OF LAW· PAGE I
perfonned prior to tennination would have exceeded $12,000.00. No evidence was offered to controvert this testimony. 8. Based on a preponderance of the evidence, the Court finds that it is more likely than not that the fee arrangement entered into on behalf of Client with Respondent was a "flat fee" which was non-refundable. Respondent's employment was tenninated in August of 2003 prior to the completion of all legal matters for which he was employed. Prior to the tennination, Respondent perfonned services including court appearances, research, discussions with the District Attorney and the parole authorities, as well as a review of the evidence. After the tennination, Client requested the return of a portion of the attorney fee, but no return was made by Respondent. Respondent's expert testified that "flat fee" contracts are common in criminal cases and are generally non-refundable. The testimony of Petitioner's expert was not allowed based on the failure of proper designation under the Texas Rules of Civil Procedure, and it therefore was not considered by the Court (although it was offered in a bill). Client secured new counsel who sent a Motion for Substitution to Respondent on September 10, 2003. Respondent signed and returned the Motion for Substitution on the same day it was received. Respondent made a court appearance on behalf of Client on September 9, 2003, in order to reset the case since he was still attorney ofrecord in the Court's file. Client's subsequent attorney testified that some courts in Galveston would not allow withdrawal in a criminal case until a new attorney was substituted. New counsel for Client charged a fee of $7,500.00 to represent him on the OWl only which concluded by plea bargain in November, 2003. Client filed a grievance against Respondent in November 2003 regarding the fee, to which a response was due on or about December 25,2003. Respondent filed a response on approximately January 7, 2004, which was past the due date under 8.04(a)(8) of the Rules of Professional Conduct.
FINDINGS OF FACT AND CONCLUSIONS OF LAW - PAGE l
Although Respondent's office received the grievance, Respondent did not become personally aware of it until early January 2004, as a result ofa change in personnel and tunnoil within Respondent's law office, including a tennination of the office manager based on allegations of theft. Upon personally discovering Ihe presence of the grievance, Respondent promptly filed a response (within three days) and advised Petitioner in the response of reasonable grounds for the late filing as stated above. The late filing was not intentional, or the result of conscious indifference on the part of Respondent.
Conclusions of Law
Petitioner failed to meet the burden of proof necessary to establish a violation of Section 1.15(a). In accordance with the requirements of Rule 1.15(d), upon notice of discharge, and prior to substitution of new counsel, Respondent's appearance in Court to reset the case on September 9,2003, was an effort to mitigate consequences of the discharge for Client and was not an unreasonable action. Further, Client suffered no hann or prejudice as a result thereof. Respondent established good cause for the late filing of his response to the grievance, and that it was not an intentional act or the result of conscious indifference. No hann or prejudice resulted from the late response. Petitioner failed to meet its burden of proofregarding a violation of Section 1.15(d) of the Rules of Professional Conduct as it relates to the fee. The language of Rule 1.15(d) fails to clearly state that its mandates apply to a nonrefundable flat fee contract in a criminal case, although in any event Petitioner failed to meet its burden of proof on this alleged violation based on the admitted testimony. The phrase "advance payments" contained within Rule 1.15(d) is not defined and the rule offers no method for detennining a calculation of any unearned portion of a fee (even if Rule 1.1S(d) is applied to non-refundable criminal flat fee cases.) Petitioner further failed to meet the burden of proof on the issue of what amount, if any in this case, was unearned or should be refunded or returned.
FINOINGS OF FACT AND CONCLUSIONS OF LAW - PAGE3
Upon filing of these Findings of Fact and Conclusions of Law, the Clerk of the Court shall send a copy to all parties. Signed this
day ofMa;, 2006.
FINDINGS OF FACT AND CONCLUSIONS OF LAW - PAGE 4