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Moore v. Board of Professional Responsibility of Supreme Court of Tennessee

Supreme Court of Tennessee, Jackson

May 13, 2019

CARLOS EUGENE MOORE
v.
BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

          Session November 7, 2018

          Appeal from the Chancery Court for Shelby County No. CH-17-1691-III William B. Acree, Jr., Senior Judge.

         Carlos Eugene Moore ("Attorney") entered into a written contingent fee agreement to represent a client in a personal injury matter. The agreement, which was signed by the client, provided that if the client refused to accept any settlement offer which Attorney advised her was reasonable and should be taken, the client was responsible for the contingency fee "on the basis of that offer" unless Attorney waived the provision. When Attorney received an offer to settle the matter, he advised the client to accept the offer. She refused. Attorney filed a motion to withdraw which was granted. Attorney also sought to place a lien against the client's eventual recovery for his fees and expenses "presently owe[d]." After the client filed a complaint with the Board of Professional Responsibility ("BPR"), the BPR filed a petition for discipline. A hearing panel was appointed and, after an evidentiary hearing, the panel concluded that (1) Attorney had "made an agreement for and has sought to collect an unreasonable fee," violating Rule of Professional Conduct ("RPC" or "Rule") 1.5(a) and 1.5(c); and (2) Attorney had "violated Rule 1.8(i) because [the client] became obligated when [Attorney] advised [her] that the settlement offer . . . was 'reasonable and should be taken.'" The hearing panel imposed a sanction of public censure. Attorney sought review in chancery court, and the chancery court affirmed the hearing panel's decision. Attorney then sought review in this Court, arguing that the hearing panel's findings that he had violated the Rules of Professional Conduct were arbitrary and capricious and not supported by substantial and material evidence. Attorney further contends that the sanction imposed was arbitrary and capricious and not supported by substantial and material evidence. We hold that the record supports both the findings of violations and the imposition of a public censure. Accordingly, we affirm the chancery court's ruling upholding the hearing panel's decision.

         Tenn. Sup. Ct. R. 9, § 33.1(d); Judgment of the Chancery Court Affirmed.

          Richard Glassman and Lauran G. Stimac, Memphis, Tennessee, for the appellant, Carlos Eugene Moore.

          William C. Moody, Brentwood, Tennessee, for the appellee, Board of Professional Responsibility.

          Jeffrey S. Bivins, C.J., delivered the opinion of the Court, in which Cornelia A. Clark, Sharon G. Lee, Holly Kirby, and Roger A. Page, JJ., joined.

          OPINION

          JEFFREY S. BIVINS, CHIEF JUSTICE.

         Factual and Procedural Background

         On August 7, 2015, the BPR received a written complaint about Attorney from Linda Day. On October 10, 2016, the BPR filed its Petition for Discipline. A hearing panel ("the Panel") was appointed and conducted a hearing. The Panel heard evidence regarding this matter on July 11, 2017, and the following proof was adduced.

         Attorney originally was admitted to the practice of law in Mississippi in 2002 and in Tennessee in 2010. In 2006, Attorney began his own law firm, "Moore Law Office, PLLC" ("the Law Firm"). As of July 2017, Attorney had not been disciplined by the BPR or by the Mississippi equivalent.

         On January 23, 2013, the Law Firm entered into a written fee agreement with Ms. Day ("the Fee Agreement"). Attorney signed the Fee Agreement on behalf of the Law Firm. The Fee Agreement pertained to the firm's representation of Ms. Day in a personal injury matter arising in Tennessee ("the Lawsuit"). Ms. Day had filed a pro se complaint prior to hiring the Law Firm.

         Relevant to the issues before us, the Fee Agreement provided that Ms. Day would pay her attorneys a forty percent contingency fee if recovery were made, plus expenses, or forty-five percent if recovery were made after appeal, plus expenses. The Fee Agreement also contained the following provision:

d. Should I [Ms. Day] refuse to make any settlement which my attorneys advise me is reasonable and should be taken, then I understand that I am responsible for their fee on the basis of that offer, unless they waive this provision.

("the Settlement Offer Provision"). The Fee Agreement contains no provision for a fee based on an hourly charge.

         In early February 2015, Attorney received an offer to settle the Lawsuit for the sum of $12, 500. Attorney testified that he determined Ms. Day should accept this offer after hearing her testify during her deposition, after reviewing her medical bills, after considering the facts surrounding her fall, and upon taking into consideration that the defendant was the Miriam Child Development Center, "a portion of the United Methodist Church." Attorney stated that, taking these factors into account, it was his professional judgment that a jury would not have "high sympathy" for Ms. Day and that "she was going to have some problems proving liability."

         Accordingly, Attorney advised Ms. Day to accept the $12, 500 offer. Attorney testified that he and the other lawyer that was assisting him on the case "tried and . . . tried" to explain to Ms. Day their reasons for advising her to accept the offer. Although Attorney described his client as both "very intelligent" and "very strong-willed," he stated that Ms. Day "would not listen to reason" regarding the worth of her claim. After their fruitless discussions, Attorney determined that they were at an impasse and that he should withdraw, allowing Ms. Day to seek new counsel.

         On March 13, 2015, Attorney filed a "Motion to Withdraw as Counsel and Assert Lien" ("the First Motion") which averred the following:

1. Plaintiff and her counsel of record have reached an impasse on how to proceed with her case and it would be in Plaintiff's best interest to retain new counsel.
2. Specifically, Plaintiff refuses to adhere to the advice of counsel, making it impossible to continue representation of counsel [sic].
3. Plaintiff has also expressed that she no longer desires to be represented by The Moore Law Group, P.C. [sic].
4.Plaintiff will suffer no prejudice if her current counsel is allowed to withdraw and assert a lien of $13, 605.00 for 45.35 hours of work at $300 an hour for attorney's fees, and $2, 428.52 for expenses. See attached Exhibit "A" (Time Slip).
WHEREFORE PREMISES CONSIDERED, Plaintiff's Counsel moves for an Order granting its withdrawal and noting its total lien of $16, 033.52.

         The trial court heard the First Motion on March 23, 2015, and Ms. Day was in attendance. According to Attorney, Ms. Day told the court that she "wanted [Attorney] to stay in the case." Attorney told the court that he "wanted to be out," and the trial court granted his motion to withdraw. The trial court did not rule on the lien request.

         Less than two weeks later, on April 2, 2015, Attorney filed a "Motion to Assert Lien" in the Lawsuit ("the Second Motion"). The Second Motion requested the trial court

to enter Notice into the record of this matter, and to all parties and their counsel, of [the Law Firm's] charging and retaining lien against and with respect to attorney's fees and expenses by Plaintiff, Linda Day, and any/all of its assigns or successors in interest, attorneys, or parties in privy in regard to the subject matter of this action, whether by settlement, judgment, order, decree, or otherwise . . . .

         The Second Motion asserted that Ms. Day "presently owes [the Law Firm] the sum of $18, 123.91 (51.65 hours of work at $300 an hour for attorneys' fees and $2, 628.91 for expenses) for the performance of legal services and expenditure of costs and expenses for the benefit of [Ms. Day] . . . ." The Second Motion also asserted that it was "filed without waiver or release of any right, privilege, or interest of the Firm with regard to the subject matter of fees and expenses owed it by [Ms. Day], or any other matter."

         Regarding the Second Motion, Attorney testified that he "never called the motion up to be heard." Attorney explained that his "intent was to wait to see when she settled and then call the motion up." He added, "I was not going to have it heard until I knew there was a recovery."

         On May 4, 2016, after the BPR had received Ms. Day's complaint against Attorney, Attorney filed a pleading in the Lawsuit styled "Amended Motion to Assert Lien" ("the Third Motion"). The Third Motion differed from the Second Motion insofar as it asserted that Ms. Day "presently owes [the Law Firm] the sum of $7, 428.91 ($4, 800 in attorneys' fees, which is 40% of the $12, 000 offer counsel suggested [Ms. Day] accept and $2, 628.91 for expenses) for the performance of legal services and expenditure of costs and expenses for the benefit of [Ms. Day] . . . ." Attorney testified that, at the time he filed the Third Motion, he was not aware that Ms. Day had ...


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