Session November 7, 2018
from the Chancery Court for Shelby County No. CH-17-1691-III
William B. Acree, Jr., Senior Judge.
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.
Sup. Ct. R. 9, § 33.1(d); Judgment of the Chancery Court
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.
JEFFREY S. BIVINS, CHIEF JUSTICE.
and Procedural Background
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.
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.
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.
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
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
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.
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
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.
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.
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
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 . . . .
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
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
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