Iowa Supreme Court Attorney Disciplinary Board v. David Ebong Akpan ( 2020 )

IN THE SUPREME COURT OF IOWA
No. 20–0187
Submitted September 16, 2020—Filed November 20, 2020
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
DAVID EBONG AKPAN,
Respondent.
On review of the report of the Iowa Supreme Court Grievance
Commission.
Grievance commission recommends suspension for violations of
Texas ethical rules in the handling of an immigration matter. ATTORNEY
REPRIMANDED.
Mansfield, J., delivered the opinion of the court, in which
Christensen, C.J., and McDonald, Oxley, and McDermott, JJ., joined, and
in which Appel, J., joined in part. Appel, J., filed an opinion concurring
in part and dissenting in part. Waterman, J., took no part in the
consideration or decision of the case.
Tara van Brederode and Wendell J. Harms (argued), for
complainant.
David L. Brown (argued) and Tyler R. Smith of Hansen, McClintock
& Riley, Des Moines, for respondent.
2
MANSFIELD, Justice.
This attorney disciplinary case with interstate dimensions involves
an Iowa-licensed attorney who practiced immigration law in Texas. The
attorney received payments totaling $4000 from a client on a flat-fee
representation. He put those payments directly in his operating account.
After the attorney had worked on the case for a while, the client changed
her mind and decided not to go forward with the representation. The
attorney refused to refund any of the payments or to provide an
accounting. The client filed a complaint with the Iowa Supreme Court
Attorney Disciplinary Board. The Board charged various violations of the
Texas Attorney Disciplinary Rules of Professional Conduct. The matter
went to a hearing before a division of the Iowa Supreme Court Grievance
Commission. At the hearing, which occurred prior to the COVID-19
pandemic, the client was allowed to testify by video over the attorney’s
objection. The commission found a number of violations and
recommended a suspension.
On our review, we find that the attorney violated the Texas rules
when he failed to deposit client payments in his trust account, took those
payments as income before they were earned, and failed to provide
accountings to his client. We are not persuaded, however, that the
attorney violated Texas’s prohibition on “unconscionable” fees when he
collected $4000 for the work performed, which included many hours spent
trying to get information from his client. We also believe the Board failed
to show a sufficient basis for the admission of video testimony. As a
sanction, we impose a public reprimand.
I. Facts and Procedural History.
Attorney David Akpan is originally from Nigeria. He came to the
United States in 1990 and became a United States citizen in 1994. In
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1998, Akpan received a bachelor’s degree in political science from Weber
State University in Ogden, Utah. In 2003, Akpan graduated from
Thurgood Marshall School of Law at Texas Southern University, located in
Houston, Texas.
Akpan was admitted to the Iowa bar in 2010. Until 2017, Akpan
practiced immigration law exclusively in Texas. Currently, he is winding
down his immigration practice and does contract work in the Houston area
for the United States Small Business Administration. Akpan is also
admitted to the federal district courts in the Northern, Southern, and
Eastern Districts of Texas.
In 2009, Akpan met Rosa Villatoro, who worked in the office of his
tax preparer. Seven years later, in 2016, Villatoro hired Akpan for an
immigration matter. Villatoro is a United States citizen; however, her
husband is not. A native of El Salvador, he was in the United States on
temporary protected status (TPS).
As Akpan later explained, “[TPS] is, while it’s temporary in
immigration law, it means it has an end eventually. Temporary in an
immigration sense means it’s not permanent residency, it’s not an
indefinite status.” When the United States Secretary of Homeland Security
determines that a country is no longer unsafe, a person on TPS from that
country can be required to return there. Villatoro wanted Akpan to change
her husband’s immigration status to lawful permanent resident (green
card). This involved preparing and filing a package of forms, including an
I-130 form and an I-485 form.
Akpan and Villatoro met several times before a written fee agreement
was signed. During one of these meetings, Akpan learned of an issue that
could have posed an obstacle in the immigration matter. In 2015,
Villatoro’s husband had been arrested and charged with fraudulent
4
destruction of price tags, a misdemeanor under Texas law. The charge
was resolved with a deferred adjudication, and Villatoro’s husband was
placed on probation. However, the offense was considered a crime of moral
turpitude that could potentially prevent Villatoro’s husband from
obtaining permanent resident status. Akpan spent time reviewing
Villatoro’s husband’s criminal records to determine if the offense met the
petty offense exception under immigration law, in which event it would not
bar lawful permanent resident status. Eventually, Akpan decided that it
did meet the exception.
On February 23, 2016, Akpan and Villatoro entered into a written
contract for legal services. The agreement provided that the necessary
immigration work would be performed for a flat fee of $4000. An initial
payment of $1500 was made at the signing of the contract. The remaining
balance was to be paid in monthly installments of $500, beginning April 1.
Akpan did not keep time records of the engagement.
Akpan deposited the $1500 into his business account, not into a
trust account.1 Akpan maintains that prior to the signing of the contract,
he had completed ten hours of legal work, having met with Villatoro at her
workplace four times. Thereafter, through September 2016, Akpan
received additional $500 checks approximately once a month. Typically,
Akpan would receive these payments from Villatoro when he was meeting
her at her office about the representation. Akpan deposited each of these
checks into his business account; he claims he had earned them at the
time of receipt.
1Akpan had a trust account but testified that he did not use it much. Past clients
rarely paid in advance. It was common practice for his clients only to pay after services
were provided. Akpan testified that if he had received the full $4000 at the initial meeting,
he would have put it in the trust account.
5
Akpan further testified that the market rate for the legal services he
was to provide usually ranged from $7000 to $9000. He charged Villatoro
less because of their personal relationship.2 The parties’ written
agreement allowed Akpan to bill for expenses such as long-distance
telephone calls, although he testified he never charged these types of
expenses to flat-fee clients.3
Akpan’s representation of Villatoro lasted over a year, through late
2017. Over the course of representation, Villatoro was unreliable in
providing the necessary documentation and completing forms to support
the immigration application for her husband. Akpan emailed Villatoro a
list of needed documentation near the outset of the representation, but the
vast majority of these items were never provided. Akpan also asked
Villatoro to fill out certain forms in handwriting; she did so only in part.
Akpan started the process of generating typed versions of the forms, but
he could not finish the job.
In total, Akpan estimates that he spent over forty hours working on
Villatoro’s case. At least thirty-two of those forty hours involved driving
back and forth to Villatoro’s place of business. Villatoro’s office was about
an hour’s drive away by car.4
At some point during the representation, Villatoro discovered that
her husband was having an extramarital affair. Villatoro requested that
Akpan cease all work on the immigration application because she was no
longer willing to be her husband’s required sponsor.
2The figure “$7000” was preprinted on the agreement form but had been stricken
out.
3Filingfees are the client’s responsibility. Akpan disclosed these in writing to the
client at the outset of the representation.
4Akpan did not charge for mileage for the trips. Akpan explained that Villatoro
was unwilling to travel to his office. The only purpose of these trips was to work on
Villatoro’s immigration matter.
6
Villatoro attempted to retain Akpan to obtain a divorce from her
husband. Knowing that he had a conflict of interest and was not licensed
in Texas, Akpan referred Villatoro to other attorneys. When Villatoro
specifically asked Akpan to represent her in the divorce, Akpan declined.
At that point, in June 2017, Villatoro requested a full refund of the
$4000 she had paid Akpan under the flat-fee immigration services
agreement. Akpan refused. A series of communications between the
parties followed. At one point, Villatoro texted Akpan and suggested he
“[t]ake out the justif[ied] amount for [his] work and the rest refund it.”
Akpan didn’t specifically respond to this request. Akpan told Villatoro
their agreement was a flat-fee agreement and he wasn’t required to keep
hours.
Villatoro eventually filed a complaint with the Texas attorney
disciplinary authority. She was told to refile in Iowa because Akpan was
licensed in Iowa rather than Texas. Villatoro did so. Villatoro also filed a
small claims lawsuit in Texas to recover the $4000. That lawsuit was still
pending at the time of the commission hearing in this matter.
During the course of representation, Akpan never provided Villatoro
or her husband with an itemization of legal services performed under the
flat-fee agreement. Akpan acknowledged that in the past, when a flat-fee
representation ended before he had performed all necessary work, he had
not kept the entire fee amount. Instead, Akpan and the client would work
together to determine the appropriate amount of money to be refunded.
This calculation would be based on the amount of work Akpan had
performed. Here, Akpan never refunded any of the $4000 to Villatoro.
Akpan provides immigration law services at no or reduced cost to
members of the Nigerian immigrant community in the Houston area and
to other persons of limited means. Akpan has no prior disciplinary record.
7
The Board brought a complaint against Akpan alleging violations of
Texas Disciplinary Rules of Professional Conduct 1.04(a), (b), and (c);
1.14(a), (b), and (c); and 1.15(a) and (d). In October 2019, the case
proceeded to a two-day hearing in Des Moines. Akpan appeared in person
for the hearing. Villatoro did not. Akpan objected to the Board’s
presentation of Villatoro’s testimony by videoconference.
The Board’s first witness was Joann Barten, an immigration
attorney from Ames. She provided a thorough explanation of the
procedure she has used during her career as an immigration lawyer to
prepare and submit an I-130 form and an I-485 form. Barten stated that
in her practice she uses both flat fees and hourly rates. During the time
Akpan was working for Villatoro and her husband, Barten’s hourly rate
was $195 per hour. (Akpan’s hourly rate at that time was $150.) On a
flat-fee basis, Barten would have charged $3500 for the specific project
that Akpan undertook for Villatoro and her husband. However, Barten
would have charged extra for the in-person marriage interview with
United States Citizenship and Immigration Services (USCIS) as well as for
filing fees and expenses. According to Barten, in the past, a client of hers
who received services similar to those sought by Villatoro had to pay
$15,000.
When asked if she has ever refunded money from a flat-fee
arrangement, Barten provided the following example,
[If w]e’re at [$]2,800 in time, or [$]2,500 in time[,] I do not
refund the leftover if [the application] is filed.
....
. . . Because that’s part of the case[,] I’m agreeing to cap it.
However, if [the client] cancel[s] the case or I have to remove
myself because of a conflict of interest, then they have to pay
up to that point my hourly rate, and then I refund.
8
Barten also stated that Akpan had completed only ten to fifteen percent of
the work at the time Villatoro asked him to stop.
Villatoro, as noted, testified at the hearing by videoconference over
Akpan’s objection. In that testimony, Villatoro conceded she had not
provided to Akpan all the documentation he wanted. Villatoro also
testified that she filed for a divorce from her husband in 2017, but she put
the divorce on hold to help her husband obtain permanent resident status.
Villatoro’s husband received a green card in July 2019 using a different
attorney than Akpan. Villatoro conceded that, during the interview with
USCIS, she did not disclose to the immigration authorities that she was
going through a divorce.
Akpan also testified at the hearing in his own defense.
Following the hearing, the commission found that Akpan had
committed most of the alleged rule violations. With respect to Texas
rule 1.04(a), it concluded that it was “unconscionable” for Akpan to charge
$4000 in light of the “minimal” work completed. Thus, Akpan had violated
Texas rule 1.04(a) by charging an unconscionable fee.
The commission also found that Akpan had violated Texas
rule 1.14(a) by taking client funds into income before they had been
earned. With respect to the initial $1500, the commission relied on the
wording of the flat-fee agreement. As the commission explained, “[T]he
parties’ expectation as objectively set forth in the Agreement was that none
of the services that may have been provided by Akpan prior to signing the
Agreement were covered under the Agreement.” Therefore, although the
commission did not dispute Akpan had already performed ten hours of
legal work when he received the $1500, in the commission’s view, the
contract precluded Akpan from having earned those funds when he
deposited them in his business account.
9
Turning to the subsequent $500 checks, the commission found that
Akpan had not earned most of these amounts when he deposited them in
his business account. In this regard, the commission took the position
that Akpan could not charge for travel time. After deducting for travel
time, the commission found that Akpan had not performed more than five
hours of actual legal work following the execution of the February 2016
contract. This meant that many of the remaining $500 installments had
not been earned when they went into Akpan’s business account.
The commission also found that Akpan had violated Texas
rule 1.14(c) by not segregating funds pending resolution of the parties’
dispute and rule 1.15(d) by not refunding a portion of the $4000. The
commission rejected the other charges against Akpan.
The commission recommended that Akpan be suspended not less
than sixty-one days and that he complete at least 4.75 hours of continuing
legal education (in certain designated areas) before being allowed to
reinstate his license.
Akpan appealed. He challenges the admission of Villatoro’s
testimony by videoconference, the commission’s recommendations as to
rule violations, and the recommended sanction.
II. Standard of Review.
“We review attorney disciplinary proceedings de novo.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Turner, 918 N.W.2d 130, 144
(Iowa 2018) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Silich, 872
N.W.2d 181, 188 (Iowa 2015)). “The Board has the burden of proving the
attorney’s misconduct by a convincing preponderance of the evidence.”
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lubinus, 869 N.W.2d 546, 549
(Iowa 2015). This standard “places a burden on the Board that is higher
than the burden in civil cases but lower than the burden in criminal
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matters.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Eslick,
859 N.W.2d 198, 201 (Iowa 2015) (quoting Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Barnhill, 847 N.W.2d 466, 470 (Iowa 2014)).
“We may impose a greater or lesser sanction than what the
commission has recommended upon proof of an ethical violation.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Mathahs, 918 N.W.2d 487, 489
(Iowa 2018). “The commission’s findings and recommendations do not
bind us, although we respectfully consider them.” Id.III. Testimony of the Complaining Witness by Videoconference.
Our court has not previously had to decide whether a witness may
testify by videoconference or telephone in an attorney disciplinary
proceeding over the responding attorney’s objection. In Iowa Supreme
Court Attorney Disciplinary Board v. Muhammad, a case that resulted in a
license revocation, a former client living in Washington testified
telephonically. 935 N.W.2d 24, 25–26, 28 (Iowa 2019). However, no
objection was raised by the attorney to this procedure. Id. at 28.
In State v. Rogerson, our court stated that in criminal cases, only
face-to-face testimony “fully protects a defendant’s Sixth Amendment
rights.” 855 N.W.2d 495, 504 (Iowa 2014). “[B]efore permitting a witness
to testify via two-way videoconference, the court must make a case-specific
determination that the denial of the defendant’s confrontation right is
necessary to further an important public interest.” Id. at 505. We added
in Rogerson that “social pressure to tell the truth can be diminished when
the witness is far away rather than physically present with the defendant
in the courtroom.” Id. at 504.
In an equitable civil proceeding, we held that a trial court abused its
discretion in allowing a witness to testify by telephone over objection. See
In re Estate of Rutter, 633 N.W.2d 740, 746 (Iowa 2001). We noted the
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legislature has authorized telephonic testimony in certain specific
circumstances. Id. “There is no rule or statutory provision, however, that
would allow witnesses to testify telephonically in equitable proceedings in
general.” Id. For this reason, in Rutter, we disregarded the testimony of
the challenged witness. Id.Concerning grievance commission procedure, Iowa Court
Rule 36.17(6) states, “The presentation of evidence must conform to the
Iowa Rules of Civil Procedure and the Iowa Rules of Evidence.”
Rule 36.17(2) further provides that witnesses other than character
witnesses for the respondent “must testify at the hearing after
administration of an oath or affirmation by a grievance commission
member or other person authorized by law to administer oaths, and their
testimony must be officially reported by a duly qualified court reporter.”
Id. r. 36.17(2).
Perhaps most importantly, rule 36.17(5) provides that the
respondent attorney has the right “to be confronted by witnesses.”
Id. r. 36.17(5). This language echoes the phrasing of the Confrontation
Clause of the Sixth Amendment and article I, section 10 of the Iowa
Constitution. As a matter of English and as a matter of Latin, the word
“confrontation” refers to a face-to-face meeting. See Coy v. Iowa,
487 U.S. 1012, 1016, 108 S. Ct. 2798, 2800–01 (1988).
We have found instances where other jurisdictions have allowed
testimony by videoconference or telephone over objection in attorney
disciplinary proceedings. In In re Disciplinary Proceedings Against
Nunnery, an attorney had his legal license revoked for seventeen counts of
professional misconduct. 798 N.W.2d 239, 242 (Wis. 2011) (per curiam).
In his appeal before the Wisconsin Supreme Court, the lawyer asserted
that the disciplinary proceeding referee erred in allowing the telephonic
12
testimony of two clients, thereby compromising his constitutional rights.
Id. at 243. The court disagreed, ruling that “[a] referee’s decision to permit
telephonic testimony is a discretionary determination that will be
overturned only if the referee erroneously exercised his discretion.”
Id. at 244–45. The court relied on a general Wisconsin statute allowing
video and telephonic testimony in civil proceedings under certain
circumstances. Id. at 245. Under that statute, a series of factors can be
considered. Id. The court noted that the client-witnesses resided in Texas
and Louisiana. Id. The court further noted that the Wisconsin Office of
Lawyer Regulation had provided an affidavit outlining in great detail the
travel costs the office would incur to bring the witnesses to Wisconsin and
that the attorney had not responded to the affidavit. Id. Considering all
the circumstances, the Wisconsin Supreme Court found no abuse of
discretion in allowing the telephonic testimony. Id.In Attorney Grievance Commission of Maryland v. Agbaje, the
Maryland Court of Appeals allowed video testimony by a client-witness in
a disciplinary proceeding. 93 A.3d 262, 269 (Md. 2014). That case also
involved an attorney assisting a client in securing a green card. Id. at 270.
The attorney had been actively pursuing lawful permanent resident status
for the client at the same time that he entered into discussions with the
client about investing in the attorney’s real estate business. Id. at 270–72.
Because of his actions, the bar counsel recommended disbarment, and the
Maryland court concluded disbarment was the appropriate sanction.
Id. at 284, 286.
One of the lawyer’s primary arguments on appeal was that the client
should have been required to appear in person for the disciplinary hearing.
Id. at 275. By then, the client had relocated back to the United Kingdom.
Id. at 269. The attorney pointed out that residents of the United Kingdom
13
are allowed to travel freely to the United States without a visa. Id. at 275.
Still, considering all the facts, the court concluded that real-time
videoconference testimony constituted a reasonable alternative to
in-person testimony. Id. at 275–76.
These cases illustrate that some other jurisdictions have allowed
testimony by videoconference. However, in Iowa, the grievance
commission rules do not permit live testimony by videoconference under
normal circumstances. Iowa’s grievance commission rules specifically give
the responding attorney a right to “confront” witnesses testifying against
the attorney. Iowa Ct. R. 36.17(5).
Villatoro could not have been subpoenaed from Texas to Iowa for the
hearing. The record does not indicate whether the Board tried to get her
to appear voluntarily by paying her travel expenses. At the hearing,
Villatoro testified that she could not leave home because she had a five-
year-old child to tend to.
Prior to the hearing, the Board sought permission to present
Villatoro’s live testimony by telephone. Akpan objected. The commission
chair thereupon took a reasoned approach and allowed Villatoro to appear
at the hearing by videoconference. The commission chair acknowledged
that the Board could have been directed to depose Villatoro in Texas and
present her deposition testimony at the hearing. That would have afforded
Akpan a right of personal confrontation. However, as the chair
emphasized, that practice would not have allowed commission members
to ask questions of Villatoro.
We share the commission’s view that it can be valuable for
commission members to ask questions of witnesses. However, chapter 36
of the Iowa Court Rules does not mention such questioning. At the same
time, rule 36.17(5) specifically gives the responding attorney a right of
14
confrontation. Iowa Ct. R. 36.17(5). Therefore, we conclude the express
right of confrontation under rule 36.17(5) must prevail over the
commission’s ability to question a witness at hearing.5
The Board argues there was “good cause” for Villatoro’s testimony
by videoconference because the arrangement allowed the commission
members to question her directly. But that is not really a good-cause
exception; it would swallow the rule providing for a right of confrontation.
Notably, the hearing in this case took place in early October 2019,
well before the COVID-19 pandemic. We are not deciding what effect
rule 36.17(5) would have under COVID-19 pandemic conditions.6
In light of our determination that the commission abused its
discretion in admitting videoconference testimony from the complaining
witness over the responding attorney’s objection, we need to decide on the
appropriate remedy. The commission contends it relied “almost
exclusively upon the testimony of [Akpan] and the documentary evidence
in reaching its decision” and that we should consider any admission of
Villatoro’s testimony to be “harmless error” if an error occurred. The Board
asks us to strike Villatoro’s testimony and decide the case on our de novo
review of the rest of the evidence if we conclude receipt of her video
testimony was in error. Akpan does not object to this procedure, and we
will follow it here.
5Our conclusion is bolstered by rules 36.17(2) and (6). Rule 36.17(2) makes clear
that witnesses generally must testify “at the hearing.” Iowa Ct. R. 36.17(2) (emphasis
added). Additionally, according to rule 36.17(6), the presentation of evidence must
conform to the rules of civil procedure and evidence. Id. 36.17(6).
6We are not holding there is a constitutional right to confront witnesses in an
attorney disciplinary proceeding. Today’s decision is based on application of the rules in
Iowa Court Rules chapter 36.
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IV. Violations.
We now turn to disciplinary rule violations alleged by the Board.
Some preliminary discussion on conflict of laws is appropriate. As an Iowa
licensee who practices federal law in Texas, Akpan is subject not only to
our disciplinary authority but also to the Texas disciplinary rules.
See Iowa Ct. R. Prof’l Conduct 32:8.5(a) (“A lawyer admitted to practice in
Iowa is subject to the disciplinary authority of Iowa, regardless of where
the lawyer’s conduct occurs.”); id. 32:8.5(b)(2) (“[T]he rules of the
jurisdiction in which the lawyer’s conduct occurred . . . shall be applied to
the conduct.”). Texas, like Iowa, uses the Model Rules of Professional
Conduct as a platform. Thus, Texas’s rules are similar, but not identical,
to ours. We follow Texas’s interpretations of its own rules in determining
whether a violation occurred.
A. Unconscionable Fee. Texas Disciplinary Rule of Professional
Conduct 1.04(a) states, “A lawyer shall not enter into an arrangement for,
charge, or collect an illegal fee or unconscionable fee. A fee is
unconscionable if a competent lawyer could not form a reasonable belief
that the fee is reasonable.”
Iowa, notably, prohibits “unreasonable fee[s].” See Iowa R. Prof’l
Conduct 32:1.5(a). Texas, however, sets the bar for an ethical violation
higher. Comment 1 to Texas Disciplinary Rule of Professional Conduct
1.04(a) explains,
The determination of the reasonableness of a fee, or of the
range of reasonableness, can be a difficult question, and a
standard of “reasonableness” is too vague and uncertain to be
an appropriate standard in a disciplinary action. For this
reason, paragraph (a) adopts, for disciplinary purposes only,
a clearer standard: the lawyer is subject to discipline for an
illegal fee or an unconscionable fee. Paragraph (a) defines an
unconscionable fee in terms of the reasonableness of the fee
but in a way to eliminate factual disputes as to the fees
reasonableness.
16
In the words of one Texas court: “[T]he drafters of the rules note in the
comments to the rule that the standard for compliance is a higher
standard than reasonableness.” Gipson-Jelks v. Gipson, 468 S.W.3d 600,
605 n.3 (Tex. App. 2015).
The commission did not find that Akpan charged an unconscionable
fee. We agree with the commission here. Akpan’s $4000 flat fee for the
anticipated work was not excessive.7
However, the commission found that Akpan collected an
unconscionable fee because he retained the full $4000 despite having
made little progress toward the final preparation of the I-130 form and the
I-485 form when he was discharged by Villatoro. As noted by the
commission, most of the time that Akpan devoted to the matter was travel
time. Also, Akpan’s meetings with Villatoro involved repeating “the same
discussion regarding obtaining the necessary documents.”
We disagree, though, that these facts make it unconscionable for
Akpan to receive $4000. It appears Texas would allow an attorney to
collect a quantum meruit payment when discharged by the client before
completing the work set forth in a flat-fee agreement. See
Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 561–62 (Tex. 2006)
(applying this principle to contingent fee agreements).
A recent relevant precedent (although not from Texas) is In re Gilbert,
346 P.3d 1018 (Colo. 2015) (en banc). Gilbert was also an immigration
case. Id. at 1019. There, the clients paid $2950 toward an attorney’s
$3550 flat fee and then discharged her. Id. at 1020. The attorney kept
7See Wilson v. Henderson, No. 05-18-00714-CV, 2019 WL 4635171, at *6 (Tex. Ct.
App. Sept. 24, 2019) (upholding $10,000 flat fee); Pro. Ethics Comm. for the State Bar of
Tex., Opinion No. 611, September 2011, 74 Tex. B.J. 944, 944 (2011) (“It is important to
note that the Texas Disciplinary Rules of Professional Conduct do not prohibit a lawyer
from entering into an agreement with a client that requires the payment of a fixed fee at
the beginning of the representation.”).
17
$1114.14, asserting that she was entitled to recover 4.41 hours at her
regular hourly rate of $250 for “the court appearance, travel time,
research, correspondence, and the motion to withdraw.” Id. Bar counsel
challenged this, but the Colorado Supreme Court agreed there was no
ethical violation. Id. at 1023–25. The court explained why quantum
meruit is allowed in the client–attorney context:
In the legal services context, courts applying the
doctrine of quantum meruit have recognized that when a
client discharges his or her attorney, the client remains
obligated to pay the reasonable value of the services rendered,
barring conduct by the attorney that would forfeit the
attorney’s right to receive a fee. At the same time, we have
recognized that the trust and confidence that underlies the
attorney–client relationship distinguishes this relationship
from other business relationships. By allowing an attorney to
recover the reasonable value of services provided, the doctrine
of quantum meruit operates to preserve the client’s right to
discharge an attorney while preventing clients from unfairly
benefiting at their attorney’s expense where the parties have
no express contract or have abrogated it.
Id. at 1023. The court said that in applying this doctrine:
We have carried principles of quantum meruit recovery
into our attorney discipline cases. Relevant here, our prior
rulings indicate that, where the parties have a flat fee
agreement, a discharged attorney does not violate the ethical
obligation to refund unearned fees where the attorney is
entitled to a portion of the fee in quantum meruit for the
reasonable value of services rendered before being discharged.
Id. at 1024–25.8
There is no dispute that Akpan had devoted at least forty hours to
the case when Villatoro fired him. This included time spent gathering
information on Villatoro’s husband’s criminal matter and analyzing its
8Notably,Colorado, like Iowa and unlike Texas, prohibits fees that are merely
“unreasonable,” even if they are not “unconscionable.” See Colo. R. Prof’l Conduct
1.5(a)(1).
18
impact.9 It also included time spent attempting to get information and
forms from Villatoro and traveling to and from her office. While the
progress was slow, that was because Villatoro and her husband were not
assembling the needed information. Also, it was Villatoro’s choice to have
Akpan travel to her office; Akpan would have preferred that Villatoro come
to his office, but she declined to do so. Travel time is recoverable as a form
of attorney fees in Texas. “Courts have considerable discretion in
evaluating travel time, and may, in their discretion reduce working and
non-working travel time.” Tex. Mut. Ins. v. DeJaynes, 590 S.W.3d 654, 670
n.11 (Tex. App. 2019) (upholding a court’s award of travel time); see also
Wilkerson v. Atascosa Wildlife Supply, 307 S.W.3d 357, 359–60
(Tex. App. 2009) (same). We find the Board failed to prove a violation of
Texas rule 1.04(a) by a convincing preponderance of the evidence.10
B. Failing to Communicate the Basis for the Fee Within a
Reasonable Time After Commencing the Representation. Texas
Disciplinary Rule of Professional Conduct 1.04(c) states, “When the lawyer
has not regularly represented the client, the basis or rate of the fee shall
9The Board contends that time spent investigating the criminal matter was written
off by agreement of the parties because it was incurred before the parties signed the flat-
fee agreement on February 23, 2016. The Board notes that paragraph 10 provides under
“commencement of representation” that “legal services will not be rendered and client’s
file will be placed on hold until clients make payment as described in item 7 above.” The
Board reads this language as a disclaimer that Akpan had provided any compensable
services before February 23. However, we do not believe the quoted language is so
unambiguous. Paragraph 10 can also be read as procedural: it advises the client that
the attorney will not do anything else on the engagement until payment is received. Given
the lofty standard for proving an unconscionable fee in Texas, we do not think the Board
has made its case for exclusion of pre-February 23 time that related to completion of the
matters covered by the agreement, i.e., preparation and submission of the I-130 form and
the I-485 form.
10The Board also charged a violation of Texas Disciplinary Rule of Professional
Conduct 1.04(c). We agree with the commission that this rule would not provide the basis
for a separate violation. It simply sets forth factors “that may be considered in
determining the reasonableness of a fee.” Tex. Disciplinary R. Prof’l Conduct 1.04(c).
19
be communicated to the client, preferably in writing, before or within a
reasonable time after commencing the representation.” We agree with the
commission that Akpan and Villatoro entered into the February 23, 2016
written agreement within a reasonable time after the representation had
commenced, and therefore, this rule was not violated. As Akpan
explained, before he charged Villatoro $4000 and delved more deeply into
the representation, he wanted to do the necessary research to make sure
her husband’s criminal record would not prevent his getting a green card.
Had he determined that Villatoro’s husband was not eligible, Villatoro
would not have been charged anything and the representation would not
have been formalized with an agreement. A delay of this nature was
reasonable. Cf. McCleery v. Comm’n for Law. Discipline, 227 S.W.3d 99,
105–06 (Tex. App. 2006) (finding an attorney violated Texas rule 1.04(c) by
switching an indigent client from a pro bono representation to a forty
percent contingency two years into the representation and on the eve of
trial). There was therefore no violation of Texas rule 1.04(c).
C. Safekeeping Client Property. Texas Disciplinary Rule of
Professional Conduct 1.14(a) requires an attorney to keep funds belonging
to a client “that are in a lawyer’s possession in connection with a
representation separate from the lawyer’s own property.” Advancing the
same theme, Texas rule 1.14(c) provides,
When in the course of representation a lawyer is in possession
of funds or other property in which both the lawyer and
another person claim interests, the property shall be kept
separate by the lawyer until there is an accounting and
severance of their interest. All funds in a trust or escrow
account shall be disbursed only to those persons entitled to
receive them by virtue of the representation or by law. If a
dispute arises concerning their respective interests, the
portion in dispute shall be kept separated by the lawyer until
the dispute is resolved, and the undisputed portion shall be
distributed appropriately.
20
Tex. Disciplinary R. Prof’l Conduct 1.14(c).
Akpan does not dispute that he did not deposit any of the funds he
received from Villatoro in a trust account. Nor did he provide any
accounting to Villatoro when he put those funds in his business account.
He claims that he had already earned each installment when he received
it. This includes the initial $1500.
We agree with the commission’s finding that Akpan violated Texas
rule 1.14(a). The flat-fee agreement provided that Akpan was to receive
$4000 for filing the completed I-130 form and I-485 form (along with
necessary supporting documentation). It was not an hourly agreement
and did not even mention a possible hourly rate. It did not have
contractual milestones. It did not indicate that any of the payments were
nonrefundable in return for Akpan giving up other employment.
Texas allows for nonrefundable retainers, but only if the retainer is
paid to secure the attorney’s availability and to compensate the attorney
for lost opportunities. See Cluck v. Comm’n for Law. Discipline,
214 S.W.3d 736, 739–40 (Tex. App. 2007) (explaining that a retainer is a
prepayment for services and not a “true retainer” unless it is paid to secure
the lawyer’s availability and to compensate the lawyer for lost
opportunities). Otherwise, the money is considered a prepayment and
must be held in a trust account until the services are rendered. See id. at
740–41 (finding that an attorney violated Texas rule 1.14(a) by not
depositing a retainer in his trust account).
Accordingly, under the agreement, Akpan did not earn the fees until
he filed the I-130 form and the I-485 form. While Akpan would have a
claim for quantum meruit if the client discharged him (as in fact
happened), Akpan had no contractual right to the funds until he completed
the work. If Akpan wanted to collect some portion of his fee as he went
21
along, this should have been spelled out in the February 2016 agreement
or worked out with Villatoro.
Comment 2 to Texas rule 1.14 confirms that under these
circumstances the funds should have gone into a trust account:
When a lawyer receives from a client monies that constitute a
prepayment of a fee and that belongs to the client until the
services are rendered, the lawyer should handle the fund in
accordance with paragraph (c). After advising the client that
the service has been rendered and the fee earned, and in the
absence of a dispute, the lawyer may withdraw the fund from
the separate account.
Tex. Disciplinary R. Prof’l Conduct 1.14 cmt. 2.
Based on the foregoing, we think Texas would likely follow
something akin to the principles set forth in Iowa Supreme Court Attorney
Disciplinary Board v. Said, 869 N.W.2d 185 (Iowa 2015). In that case, an
immigration attorney and his client agreed upon a $5200 flat fee to be paid
$2600 up front and the remainder in monthly installments. Id. at 188.
We found the attorney committed ethical violations in withdrawing
portions of this flat fee from his trust account before the work was
completed, stating,
We recognize withdrawal of portions of a flat fee paid in
advance can present difficult questions for lawyers. Yet, these
questions can be minimized by agreements that designate the
times withdrawals will be made and transparent
recordkeeping that justifies the withdrawal of fees.
Id. at 192.11 Furthermore, the court continued,
The facts revealed Said periodically withdrew fees with
no clear connection to any milestone in the case, any specific
11It should be noted, however, that Texas apparently has no counterpart to
chapter 45 of the Iowa Court Rules. The chapter 45 rules contain specific directives
concerning trust accounts. Rule 45.10, in particular, governs flat fees. See Iowa Ct. R.
45.10. It requires advance payments of flat fees to be deposited into a trust account and
allows withdrawal by the attorney only by agreement. Id. r. 45.10(2)–(3). Those trust
account rules played a significant part in our Said decision. See 869 N.W.2d at 192–93.
22
work performed, or any relationship to the services remaining
to be performed. Instead, the withdrawals were more
consistent with the odd and frequent withdrawals we have
disapproved of in the past. Said violated Iowa Rule of
Professional Conduct 32:1.15(c) in making withdrawals from
the advance payment of the flat fee deposited in a trust
account before he earned the portion withdrawn.
Id. at 193 (citation omitted). Here, Akpan never deposited the flat-fee
installments into a trust account or advised Villatoro they were being
deposited into his business account. Therefore, he violated Texas
rules 1.14(a) and (c).12
D. Properly Terminating Representation. Two rules are at issue
here. Texas Disciplinary Rule of Professional Conduct 1.15(a) requires an
attorney to withdraw when discharged by a client. It is unclear why the
Board alleged a violation of this rule. It did not explain in its briefing
below. We agree with the commission that this rule was not violated.
The other rule is Texas rule 1.15(d). It requires the attorney who is
discharged to refund “any advance payments of a fee that has not been
earned.” Tex. Disciplinary R. Prof’l Conduct 1.15(d). The commission
found a violation of this rule.
12The commission also found that Akpan violated the last sentence of Texas rule
1.14(c) by not placing $4000 into a separate escrow once the dispute with Villatoro arose.
In a sense, that horse had already left the barn because Akpan had previously taken
those funds into income upon receipt, thereby violating both rule 1.14(a) and the first
sentence of rule 1.14(c). Since we have already found these other violations of rule 1.14,
we do not decide whether the last sentence of rule 1.14(c) imposes a further obligation on
an attorney to restore funds that had been taken into income before the dispute arose.
We take the same approach regarding Texas rule 1.14(b). That rule requires “a
lawyer [to] promptly deliver to the client or third person any funds or other property that
the client or third person is entitled to receive.” Tex. Disciplinary R. Prof’l Conduct
1.14(b). The commission found no violation here because, in its view, the rule applies
only to funds received from someone other than the client. We do not address that alleged
violation in light of our other determinations on rule 1.14. Cf. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Weiland, 885 N.W.2d 198, 207 (Iowa 2016) (finding that a failure to
refund a retainer can give rise to a violation of Iowa’s counterpart to Texas rule 1.14(b)).
23
As we have already discussed in division IV.C of this opinion, Akpan
should have deposited the monies he received from Villatoro in a trust
account. Under the flat-fee agreement, Akpan lacked grounds to take any
of those funds into income until the representation was completed, unless
he had worked out another arrangement with Villatoro. In those respects,
as already noted, Akpan violated Texas rules 1.14(a) and (c).
However, as discussed in division IV.A, once Villatoro discharged
Akpan, he could pursue a quantum meruit recovery for work performed.
In Bennett v. Commission for Lawyer Discipline, the Texas Court of Appeals
held that no violation of Texas rule 1.15(d) occurred when an attorney
refused to refund any portion of a $70,000 retainer to a client while the
two were in an unresolved dispute over whether a refund was owed. 489
S.W.3d 58, 66–67 (Tex. App. 2016). The client discharged the attorney on
August 3, 2011, but a fee arbitration did not result in a confirmed award
to the client until July 23, 2012. Id. at 67. As the court explained,
Because the question whether the fee had been earned was
not settled until July 2012 at the earliest, there is no evidence
that on August 3, 2011, Bennett failed to return an advance
payment of fee that had not been earned.
Id. The same reasoning would apply here. There is a pending small claims
action in Texas between Villatoro and Akpan. No judgment has been
entered in that action. We therefore find no violation of Texas rule 1.15(d).
V. Sanction.
Because Akpan is subject to our disciplinary authority, we believe
that discipline is a matter for us to decide under our precedents. See
Iowa Ct. R. Prof’l Conduct 32:8:5. Again, Texas law determines whether
there were ethical transgressions; if there were, we calibrate the sanction.
Id. (explaining that conduct that occurs in another jurisdiction is subject
24
to “the rules of [that] jurisdiction” but the Iowa-licensed attorney who
commits such conduct is subject to our “disciplinary authority”).
“There is no standard sanction warranted by any particular type of
misconduct. Though prior cases can be instructive, the sanction
warranted in a particular case must be based on the circumstances of that
case.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hier, 937 N.W.2d 309,
317 (Iowa 2020) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Cannon, 821 N.W.2d 873, 880 (Iowa 2012)). “Our primary purpose for
imposing sanctions [is] not to punish the lawyer but to protect the public.”
Id. at 317 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelson, 838
N.W.2d 528, 542 (Iowa 2013)).
The core of Akpan’s misconduct is that he received funds from a
client under a flat-fee agreement, didn’t put them in a trust account, and
took them into income before they had been earned under that agreement.
We have encountered similar situations before.
In Iowa Supreme Court Attorney Disciplinary Board v. Nelissen, we
suspended an attorney for thirty days who received retainer funds from a
client, didn’t deposit all those funds in her trust account, and withdrew
other funds from the trust account before they were earned and without
notifying the client. 871 N.W.2d 694, 669–700 (Iowa 2015). She also
misrepresented on her client security report that she was performing
monthly reconciliations and ignored requests of the Board for information.
Id. at 700. She had a past reprimand for trust account violations and also
had been reminded during an audit that she needed to perform monthly
reconciliations. Id. at 701. “For these reasons,” we explained, “another
reprimand would not serve the goals of the attorney discipline process.”
Id.
25
In Iowa Supreme Court Attorney Disciplinary Board v. Lubinus, we
suspended an attorney for thirty days for “failing to deposit an advance fee
into his trust account, transferring unearned fees out of his trust account,
and failing to furnish contemporaneous accountings to his clients upon
making trust account withdrawals.” 869 N.W.2d 546, 547 (Iowa 2015).
Notably, the attorney “knowingly removed unearned funds from his trust
account prematurely because he was in financial difficulty.” Id. at 553.
We also commented, “When an attorney’s minor trust account violations
are the result of sloppiness or lack of oversight, we have levied a public
reprimand rather than a suspension.” Id. at 550. We added, “On the other
hand, when an attorney has committed multiple or more systematic trust
account violations, we have imposed suspensions, often of thirty days.”
Id. at 551.
In Said, 869 N.W.2d at 195, we likewise suspended an attorney for
thirty days. There, an immigration attorney received a flat fee, put it in
his trust account, but made periodic withdrawals without notice to the
client and without connection to any work he was actually doing. Id. at
193. The attorney also missed an appeal deadline, failed to communicate
with the client about the significance of the missed deadline, and made a
false statement to the immigration tribunal about what he was doing to fix
the missed deadline. Id. at 190–92. The attorney also had four prior
admonitions, one of which involved “conduct similar to one of the
violations in this case.” Id. at 194.
In Iowa Supreme Court Attorney Disciplinary Board v. Eslick, an
attorney admitted to
failing to deposit all unearned fees and prepaid expenses into
her trust account, commingling personal funds with those of
her clients, failing to maintain a receipt and disbursement
journal and check ledger for the trust account, failing to
26
perform trust account reconciliations, withdrawing fees from
the account without notifying clients, failing to maintain
copies of accountings to clients, and operating with a
deficiency of nearly $8000 in her trust account.”
859 N.W.2d at 200. We concluded a suspension of thirty days was
appropriate for this “pattern of rule violations.” Id. at 203.
In Iowa Supreme Court Attorney Disciplinary Board v. Mendez, we
imposed the equivalent of a sixty-day suspension on an immigration
attorney who repeatedly failed to deposit both initial and subsequent
installments of flat fees into his trust account. 855 N.W.2d 156, 167, 175
(Iowa 2014). The trust account violations involved multiple clients and
there were other types of rule violations as well, such as unreasonable
fees, failure to communicate with clients, and neglect. Id. at 168–72. A
significant violation of our conflict-of-interest rules occurred when the
attorney failed to inform a client of the need to retain new counsel after
the attorney missed a deadline. Id. at 174. Overall, the attorney “flouted
our trust account rules.” Id. at 175.
In Iowa Supreme Court Attorney Disciplinary Board v. Kersenbrock,
we suspended an attorney for thirty days who had systematically violated
trust account rules. 821 N.W.2d 415, 422 (Iowa 2012). The attorney failed
to deposit unearned retainers into a trust account, took a premature
probate fee, regularly failed to perform trust account reconciliations, and
falsely certified the status of her trust accounting procedures on annual
client security reports. Id. at 419–21.
In Iowa Supreme Court Attorney Disciplinary Board v. Denton, we
publicly reprimanded an immigration attorney who failed to deposit the
payments on a flat-fee agreement in his trust account, withdrew fees
before they were earned, and failed to notify his client of the withdrawals.
814 N.W.2d 548, 551 (Iowa 2012). We characterized the situation as “an
27
isolated violation of our ethical rules” and noted that the attorney had no
history of prior ethical lapses and, additionally, had “established a trust
account to avoid future infractions in the representation of Iowa clients in
immigration matters.” Id.In Iowa Supreme Court Attorney Disciplinary Board v. Vilmont, we
suspended for thirty days the license of an attorney who entered into an
illegal fee agreement that had both an hourly rate and a minimum fee, who
collected an unreasonable fee, and who took funds out of his trust account
without a contemporaneous notice. 812 N.W.2d 677, 679–80 (Iowa 2012).
In Iowa Supreme Court Attorney Disciplinary Board v. Boles, we
suspended an attorney for thirty days who repeatedly withdrew unearned
fees from his trust account and failed to provide accountings to his clients.
808 N.W.2d 431, 438, 443 (Iowa 2012). The attorney also neglected one
matter, failed to return unearned fees in one instance, and failed to keep
disputed fees separate. Id. at 439–40. A number of mitigating factors were
present. Id. at 442.
In Iowa Supreme Court Attorney Disciplinary Board v. Parrish, we
suspended for sixty days the license of an attorney who withdrew all the
fee payments made by two clients before earning many of those fees and
without providing an accounting. 801 N.W.2d 580, 586–87, 590 (Iowa
2011). He also failed to refund the unearned portion of the fees even when
ordered to do so by an arbitration panel. Id. at 587. The attorney had six
prior private admonitions, some involving quite similar conduct. Id. at
589. There were also significant mitigating circumstances. Id.
In Iowa Supreme Court Attorney Disciplinary Board v. Piazza, we
publicly reprimanded an attorney who did not deposit the flat-fee
payments on a matter in his trust account, wrongly taking the position
they were earned when he received them. 756 N.W.2d 690, 697–98, 700
28
(Iowa 2008) (per curiam). The attorney had “no history of ethical
violations” and promised to comply with our rules regarding flat-fee
payments in the future. Id. at 700.
After reviewing all these precedents, we conclude as follows. The
circumstances here are clearly not as egregious as those that led to the
sixty-day suspensions in Mendez and Parrish. Also, at least on this record,
we do not have the systemic violations that were present in Eslick,
Kersenbrock, and Boles—all thirty-day suspension cases. This case
likewise does not involve a prior disciplinary record or other facts pointing
toward greater culpability as in Nelissen, Lubinus, Said, and Vilmont,
which were also thirty-day suspension cases. All in all, we think the
present case is most similar to Denton and Piazza, although one could find
ways to characterize the conduct in those two cases as less blameworthy.
Two mitigating factors are also present here. Akpan provides low- and
no-cost services to an underserved community, and he has no prior history
of discipline. Considering Akpan’s mitigating factors, and everything else
we are required to take into account before imposing discipline, we have
decided to impose a public reprimand. We remind Akpan that should he
resume practicing immigration law, he will need to deposit retainers in his
trust account, take them as income only when earned under the terms of
the parties’ agreement, and provide accountings to the client. Future
ethical violations involving similar misconduct will not be treated as
leniently.
VI. Conclusion.
We publicly reprimand Akpan. We tax the costs of this action to
Akpan pursuant to Iowa Court Rule 36.24(1).
ATTORNEY REPRIMANDED.
29
All justices concur except Appel, J., who concurs in part and
dissents in part, and Waterman, J., who takes no part.
30
#20–0187, Iowa Supreme Ct. Att’y Disciplinary Bd. v. Akpan
APPEL, Justice (concurring in part and dissenting in part).
I respectfully concur in part and dissent in part. I concur with the
majority on the question of use of videoconferencing in disciplinary
proceedings. I dissent on the issue of sanction and on whether at least
part of the fee collected by Akpan was unconscionable. From my review of
the record, I conclude a suspension is in order.
The majority opinion suggests that the $1500 paid on February 23,
2016, when Akpan and Villatoro signed the fee agreement, was earned
prior to the execution of the document. As explained by the majority, most
of the precontract attorney hours were travel time. The theory of the
majority opinion seems to be that by signing the February 23 contract, the
ten hours—mostly travel time fees—prior to the execution of the fee
agreement were earned, or at least not unconscionable.
When I look at the underlying contract, I come to a different
conclusion. When the full terms of the February 23 fee agreement are
considered, I conclude that Akpan was not entitled to deposit the check in
his business account when he received it because he was not entitled to
the fees under the plain language of the fee agreement.
Paragraph 1 entitled “Date of Contract” provides the date of
February 23, 2016. Paragraph 5 entitled “Legal Services Involved” simply
has the entry “I-485, I-130,” a reference to the applicable immigration
forms. So we know that the contract commences on February 23, and the
services to be rendered related to the listed immigration forms.
Paragraph 6 is entitled “Agreed Legal Fees.” Here, the number
$4000 is entered, followed by more contract language. The contract
language states,
Pursuant to our oral discussion and based upon the
information you provided to our Law Firm. You, Rosa L
31
Villatoro, agree to hire The Law Offices . . . to represent you
as your attorney in the matter described in item 5 above.
So, on February 23, Villataro signed the contract for representation by
Akpan containing the language “agree to hire.” This is a present tense
provision. There is no suggestion that Akpan was hired or entitled to any
fees prior to February 23.
Paragraph 7 is entitled “Fees.” It states,
Our legal fees for the representation will be $7,000 [“7,000”
scratched out and accompanied by Akpan’s initials, dated
February 23, 2016] excluding the filing and expenses
explained in item 10 below. The fees will cover consultations
with you and your authorized representatives, the opposing
party and any other party that we deem necessary for effective
disposition of your matter. The fees will also cover research
into your legal matter. Procurements of information from
government agencies and courts of law.
Note the use of future tense: fees “will cover” and “will also cover.” No past
tense language regarding past fees here. And there is nothing about fees
covering travel time. There is, further, no “including but not limited to”
language here suggesting that fees could be earned. In short, Akpan wrote
a fee contract that did not include any provision for payment of fees prior
to February 23 and did not expressly provide for fees related to travel time.
Paragraph 10 is entitled “Commencement of Representation.” Note
the use of the term “Commencement” in the title. Commencement means
beginning. The title is in all bold language for emphasis. The language
that follows the boldfaced title is “Client is hereby notified that legal
services will not be rendered and client’s file will be placed on hold until
clients make payment as described in item 7 above.” Plainly, when the
$1500 payment is made under paragraph 7, then and only then does the
representation commence. Not one day before.
Paragraph 15 is entitled “Entire Agreement.” It is an integration
clause. It states, “This Agreement contains the entire agreement of the
32
parties. No other agreement, statement, or promise made on or before the
effective date of this Agreement will be binding on the parties.”
When the terms of the contract are considered in their entirety, it is
clear that the agreement is an integrated contract, that it occupies the field
in regard to the terms of representation on immigration matters, that
under the contract representation commenced upon payment of the
$1500, and that there is no provision for payment of already earned fees,
eighty percent of which were for travel time. If Villatoro had brought a
breach of contract claim on the day after Akpan deposited the $1500 in
his trust account, she would have been entitled to summary judgment as
a matter of law.
Further, Texas law would not countenance a quantum meruit theory
to justify the depositing of fees outside the fee contract. The majority is
correct that when a flat-fee contract is terminated and there are no clear
benchmarks, the lawyer may be entitled to quantum meruit recovery of
attorney fees for representation pursuant to the fee agreement. This written
contract covers the subject matter of representation of Villatoro on the
immigration matters and is the parties’ entire agreement.
In short, Akpan deposited the $1500 into his business account upon
receipt. At that time, he had earned nothing under the contract. The
contract represented the parties’ entire agreement. Is it not
unconscionable to take a $1500 fee paid under a contract when, according
to the terms of the same contract, nothing has been earned? Indeed,
although not charged, he arguably deposited the check in his business
(personal) account without color of right, a revocable offense. And he
certainly violated trust account rules when he failed to deposit the $1500
into a trust account to secure payment for future fees as authorized by the
fee contract.
33
At signing, there is no evidence that Akpan told Villatoro that the
$1500 was going to disappear into thin air the minute the ink was dry.
And, of course, Akpan did not give Villatoro any contemporaneous notice
that he was claiming the money as earned. So, in addition to taking fees
not authorized by the contract, Akpan violated communication rules
expressly designed to avoid sticker shock arising from travel costs and
what seem to the client as spinning of wheels.
With respect to the later periodic $500 payments, post-February 23
services could be earned under the agreement. If I read the majority
opinion correctly, some eight hours of actual legal work was done on the
file, with the balance consisting of travel time. But while the contract had
a laundry list of activities for which fees would be charged, travel time was
not among them.
Do we think the drawing down of fee payments largely by travel time
not explicitly authorized by the contract and where there was never a
contemporaneous itemization alerting the client to the charge is okay? The
client basically paid for windshield time that yielded her nothing. You can
work on the plane but not in the car. Would she have taken a different
approach to the representation had she known that eighty percent of her
fees were going to travel? But even so, perhaps a $400 per hour rate for
actual legal fees (assuming total payment of $2500 and six hours of
nontravel attorney work postcontract) might not be “unconscionable”
under the Texas standard under all the facts and circumstances. Tex.
Disciplinary R. Prof’l Conduct 1.04(a).
Nonetheless, to me, this file has a stronger aroma than that which
emanates from the majority opinion. The low social status of immigration
clients does not allow lawyers to charge fees mostly for driving around
town when the fee contract certainly is an integrated contract stating that
34
attorney representation and fee entitlements arise on February 23, 2016.
And even if travel time could properly be charged at an hourly rate after
February 23, the client was entitled to know this through
contemporaneous statements from the lawyer.
So, I see the violations as more serious than the majority and more
in line with the views of the commission. The taking of the $1500 pursuant
to the fee agreement for fees allegedly earned prior to that time of execution
is unconscionable by any standard. There was no entitlement to the fees
under the contract, and, as the entire agreement, one cannot gin up some
post hoc justification for the depositing of the fees as claimed by Akpan.
With respect to the postsigning fee payments, the failure to follow
applicable ethical rules to communicate with the client about the nature
of the draw down of fees in a flat-fee matter made it impossible for the
client to understand what was being done with her money. So the taking
of the $1500 was unearned, and the lawyer kept secret the manner in
which he claimed he had earned the fees. At the end of the day, Villatoro
paid $4000, spending a lot of money on windshield time, but with little to
show for it. She had no idea that most of her payments were chewed up
in travel time. Whether sharp or sloppy, such practices should not be
permitted in the practice of law.
I would suspend Akpan’s license for thirty days based on the above
considerations.