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Criminal defense attorney receives public reprimand for fee agreement changes

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The Indiana Supreme Court has publicly reprimanded an Indianapolis criminal defense attorney, finding that he modified an agreement and charged an unreasonable fee without first obtaining written consent and giving his client a chance to get another lawyer’s opinion.

In an order issued this week, the court handed down a sanction in the disciplinary action In the Matter of Robert W. Hammerle,  No. 49S00-0811-DI-609. The Marion County attorney received the public reprimand for violating two professional conduct rules when he was representing a client in 2005.

In May 2005, Hammerle began representing Edward Blinn Jr. on federal money laundering charges. The two entered an agreement for a “retainer/flat fee” of $35,000, plus an hourly fee of $250 if the trial lasted more than five days. Prior to that, Blinn had told Hammerle that he had no interest in a plea agreement and they planned for a multi-week jury trial.

After nearly seven months of work on the case, Hammerle wanted to revise the fee agreement because the case was more demanding than expected. The two eventually reached a modified agreement requiring Blinn to pay an additional flat fee of $20,000, and, in exchange, Hammerle would drop billing by the hour for all work done after five days of trial.

“Respondent believed the ultimate fee under this modification would be more beneficial to the client given everyone’s anticipation of a lengthy trial, but Respondent now recognizes he should have considered the possibility that the fee modification would be more beneficial to Respondent if the case could be resolved before trial,” the Supreme Court order states. “Respondent did not advise the client to consult with another attorney about… the advisability of amending the fee agreement, and he did not obtain the client's written consent to modify the original agreement.”

Not long after the fee agreement was modified, the government offered a plea agreement and the client accepted it on Hammerle’s advice, the order states.

Those circumstances led to two conduct rule violations: Rule 1.5(a) for charging an unreasonable fee, and Rule 1.8(a) for entering into a fee agreement modification with a client without giving that client a reasonable opportunity to see independent counsel and obtaining the client’s written consent to the transaction.

The court wrote, “Respondent's violation of Rule 1.5(a) is based solely on Respondent's charging of a fee in excess of the original fee agreement. The Commission does not contend that the total fee the client paid to Respondent would have been unreasonable if Respondent had complied with Rule 1.8(a) in modifying the fee agreement.”

Finding no aggravating factors, the court looked to four mitigating factors: Hammerle has no disciplinary history in his 37 years of practice, he’s devoted substantial time to the representation of and service of indigent criminal defendants, he is remorseful and accepts full responsibility for his actions, and he has repaid $20,000 to the client.

The public reprimand disposes of this disciplinary action, and the client’s case against Hammerle ended following the Indiana Court of Appeals’ affirmation in the spring of the trial judge’s decision granting summary judgment for Hammerle. A not-for-publication ruling in April spells out the circumstances after the client sued Hammerle for legal malpractice and unjust enrichment. Judge Melissa May dissented in that appeal because she felt a material issue of fact existed about whether the lawyer was unjustly enriched by accepting that $20,000 despite there not being any trial. That appeal was Edwin Blinn, Jr. v. Robert Hammerle and Hammerle & Cleary (NFP), No. 49A02-1006-CT-634.

 

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