Tuesday, November 29, 2011

Proper sanction for refusing to reimburse unearned fee?

The Legal Profession blog is reporting today on a case with an interesting set of facts:  An attorney was retained and paid a $10,000 non-refundable retainer for a criminal case. A few days later, the client committed suicide. At the time, the attorney had done no more than five hours of work on the case. The client's widow sought a refund. The attorney refused, "asserting that he had earned the entire amount." The attorney refunded the fee during the ensuing disciplinary proceeding.

Based on these facts, the Indiana Supreme Court ordered a suspension of 30 days for charging an excessive fee and failure to return an unearned fee. The court found that restitution after a grievance is filed "does not qualify as a mitigating circumstance."  The court's order is available here.

I have no problem with the court's decision.  The conduct was unethical and the refund was provided too late.  My question is whether the sanction was adequate.  I have often posted comments about this.  What makes the conduct worth a one month suspension, as opposed to a two month suspension, for example?

I think a one month suspension is too lenient in this case, but I am not sure what would be appropriate.  What do you think?  I guess the way to find an answer is to research the law of the state to see if there are other similar cases.

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