The Indiana Supreme Court has suspended an Indianapolis attorney after finding he engaged in attorney misconduct by collecting a “clearly unreasonable and exploitive fee” from a vulnerable client.
Everett E. Powell II had only been admitted to the bar for a few months in 2004 when T.G. and her boyfriend J.S. consulted him about getting access to funds in a trust. T.G. had been represented by Mark E. Ross in a settlement of a personal injury action. The trust was created to hold the $42,500 from the settlement in order to preserve T.G.’s eligibility for public assistance and prevent depletion of funds by T.G. or those who may not be acting in her best interest, like J.S. T.G. had a history of drug and alcohol abuse and said she was in an abusive and controlling relationship with J.S.
Ross declined to give T.G. access to the trust account, so T.G. went to Powell. Because she didn’t have money to pay a fee upfront, she agreed to a contingent fee of one-third of whatever was in the trust. Powell misrepresented to Ross that he was going to take over as trustee when in fact he intended to dissolve the trust. As soon as he became successor trustee, he deposited a check that was intended to pay for medical bills into the trust, and Powell paid himself $14,815.55 as his fee, and gave T.G. nearly $30,000. The remaining funds remained in the account until bank fees depleted them.
In In the Matter of Everett E. Powell, II, No. 49S00-0910-DI-426, the high court found Powell violated Indiana Professional Conduct Rule 1.5(a) by collecting the unreasonable fee. While he may have reasonably believed in the beginning that removing Ross as trustee could be contested or how much money was in the account, the case quickly proved to be relatively conflict-free as Ross agreed to resign and he then knew how much money was in the account.
Powell claimed that his fee could be justified by “red flags” raised by a client complaining about a former attorney because that client could then treat him the same way and he could have faced a legal action for breach of trust.
“Even if ‘red flags’ that a client may be difficult to deal with could justify a higher fee than would be reasonable otherwise, we reject any suggestion that an attorney's concern that he may be committing legal malpractice in representing a client justifies charging the client a higher fee,” states the per curiam opinion. “We do not suggest that a contingent fee must be reduced every time a case turns out to be easier or more lucrative than contemplated by the parties at the outset. But collection of a fee under the original agreement is unreasonable when it gives the attorney an unconscionable windfall under the totality of the circumstances.”
The justices found Powell wasn’t remorseful, made contradictory and evasive assertions during the proceedings, didn’t fully cooperate with the Disciplinary Commission’s investigation, knew his client was vulnerable, made misrepresentations to Ross, and never made restitution. Powell has no disciplinary history and he was a newly admitted attorney at the time of the misconduct.
After looking at previous disciplinary actions involving fee violations, the justices imposed a 120-day suspension without automatic reinstatement, beginning Nov. 11.