ILNews

Attorney reprimanded for charging unreasonable fees

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Supreme Court has publicly reprimanded a Hamilton County attorney for violating Indiana Professional Conduct Rule 1.5(a) by making agreements for and charging unreasonable fees.

The justices released a per curiam opinion Feb. 11, In the Matter of Heather McClure O'Farrell, No. 29S00-0902-DI-76, in which the majority chose the discipline based on Heather McClure O'Farrell’s lack of prior disciplinary history and her cooperation with the Disciplinary Commission. Chief Justice Randall T. Shepard and Justice Robert Rucker joined in a dissent to the sanction. Because O'Farrell’s lawyer indicated that she is unrepentant, the dissenting justices believe a period of suspension without automatic reinstatement should have been instituted to protect clients.

McClure & O’Farrell, where O'Farrell practices, uses an “Hourly Fee Contract” or a “Flat Fee Contract” most of the time when it represents a party in a family law matter. Both contracts contain a provision for a nonrefundable “engagement fee.” The Disciplinary Commission alleged that O'Farrell improperly charged two clients these nonrefundable engagement fees and didn’t refund unearned fees after the representations ended.

The justices examined the various types of fee arrangements and the nonrefundability of fees. O'Farrell argued that the nonrefundable fees she charged the two clients were justified because by representing these clients, the law firm couldn’t represent opposing parties and it required time that the firm could have otherwise devoted to other representations. But this would be true anytime an attorney is engaged by a client, the opinion said.

They determined that the fees at issue are flat fees for work to be performed. O'Farrell failed to tell her clients that the flat fee could be refundable upon the failure to perform the agreed legal services; instead, she told her clients the fee was nonrefundable even if the client-attorney relationship ended before the completion of the attorney’s representation.

“The presence of this contract provision, even if unenforceable, could chill the right of a client to terminate Respondent's services, believing the Law Firm would be entitled to keep the entire flat fee regardless of how much or how little work was done and the client would have to pay another attorney to finish the task. We conclude that Respondent violated Rule 1.5(a) by including an improper nonrefundability provision in her flat fee agreements,” said the opinion.

They also found she violated the rule by charging and collecting flat fees that were nonrefundable, regardless of the circumstances.

“The Court is mindful of the legitimate concern of attorneys that they will go through the initial steps of opening a case and beginning work for a new client, only to have that client discharge them and demand a refund of the entire initial payment as unearned. The solution, however, is not allowing attorneys to charge flat or advance fees upfront that are wholly nonrefundable regardless of the amount of services rendered,” wrote the justices.

They decided based on the record they weren’t able to hold that some amount of the flat fee must be returned in all cases in which the attorney-client relationship ends before the work contracted for is completed. They also were unable to determine how much, if anything, O'Farrell should have refunded to the two clients, so they found the Disciplinary Commission didn’t meets its burden of proof that she violated Rule 1.16(d).

ADVERTISEMENT

  • Consistent
    If I recall, Tony Zirkle did not cooperate in the disciplinary process.
  • consistent or not?
    is this consistent with the punishment laid on Tony Zirkle or was he punished more severely? And why?

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

ADVERTISEMENT