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An Indianapolis attorney has been suspended from the practice of law for 60 days by the Indiana Supreme Court after it found that he charged and collected an unreasonable fee while representing a client for “low bono” legal services.
Attorney Zachary Kester’s suspension begins on Oct. 1. He did not immediately respond to a request for comment.
At the time of the alleged misconduct, Kester served as the managing attorney for Indianapolis-based Charitable Allies Inc., which was marketed as a “nonprofit for nonprofits” that provides “low bono” legal services.
Kester’s LinkedIn profile shows he no longer works for the organization. Charitable Allies did not immediately respond to a request for comment.
In October 2019, the Down Syndrome Association of Northwest Indiana, Inc. retained Kester and Charitable Allies after discovering that the association’s former executive director had misappropriated funds from the nonprofit, according to court records.
The association informed Charitable Allies that its ability to pay legal fees would be limited because of its small operating budget and cash reserves.
The retainer agreement established hourly rates and included a fee-shifting provision that allowed Charitable Allies to pursue an attorney fee award “against the government” upon successful completion of the case.
Through 2020 and 2021, Charitable Allies/Kester represented the association in legal actions against its former executive director. During the summer of 2021, Charitable Allies sent monthly invoices to the association, with its association’s interim director repeatedly raising concerns about the high bills, which were more than the monthly amount the association indicated it could afford.
Included in the communication between the association and Charitable Allies was a litigation report that estimated the association would eventually need to pay $60,000 and $47,500 respectively to see both state and federal cases through to completion.
The association fired Charitable Allies in October 2021 and retained different counsel, court records show. The association eventually paid all fees due to Charitable Allies except for about $1,200.
The following January, Kester filed a notice of attorney fee lien in the state action claiming an equitable lien “up to and including” over $50,000 without notifying the association. The lien allegedly represented the difference between what Charitable Allies had already billed the association and the fair market value of Charitable Allies’ fees that it would’ve pursued had the state action for the association been successful.
While the notice of lien relied on the fee-shifting provision of the aforementioned retainer agreement, it didn’t accurately paraphrase the provision and didn’t mention that the provision only applied to claims “against the government,” the state’s high court found.
The association’s new counsel moved to remove the lien, which a trial court granted.
Kester filed an appeal stating that the notice of lien was proper and the trial court lacked person and subject matter jurisdiction to remove it. The Indiana Court of Appeals found that Kester’s arguments lacked cogent reasoning, and remanded with instructions for the trial court to award the association a reasonable amount for appellate attorney fees.
Charitable Allies separately sued the association for allegedly interfering with the association’s obligation to pursue fair-market-value fees on Charitable Allies’ behalf.
In April 2023, the association sued Kester/Charitable Allies and that suit was settled for $75,000.
As a result of Kester’s actions, the state’s high court ruled Friday that he violated the following Indiana Professional Conduct Rules:
- 1.5(a): Charging and collecting an unreasonable fee.
- 3.1: Asserting a position for which there is no non-frivolous basis in law or fact.
- 8.4(a): Attempting to charge or collect an unreasonable fee.
- 8.4(d): Engaging in conduct prejudicial to the administration of justice.
The case is In the Matter of: Zachary S. Kester, 24S-DI-153.
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