Complete Guide to Legal Ethics

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1 Complete Guide to Legal Ethics

2 Complete Guide to Legal Ethics Prepared by: Kenneth S. Kagan Carney Badley Spellman, P.S. Brian H. Krikorian Jonathan A. Kroman Garvey Schubert Barer Christopher J. Soelling Christopher J. Soelling PLLC 2008 Lorman Education Services. All Rights Reserved. All Rights Reserved. Lorman seminars are copyrighted and may not be recorded or transcribed in whole or part without its express prior written permission. Your attendance at a Lorman seminar constitutes your agreement not to record or transcribe all or any part of it. This publication is designed to provide general information on the seminar topic presented. It is sold with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this manual is prepared by professionals, it should not be used as a substitute for professional services. If legal or other professional advice is required, the services of a professional should be sought. This disclosure may be required by the Circular 230 regulations of the United States Treasury and the Internal Revenue Service. We inform you that any federal tax advice contained in this written communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding federal tax penalties imposed by the federal government or (ii) promoting, marketing or recommending to another party any tax related matters addressed herein. These materials were prepared by the faculty members who are solely responsible for their correctness and appropriateness.

3 Table of Contents Legal Ethics P...5 Attorney- Client Business Transactions hat Is a Business Transaction and the Interplay With the Rules of Professional Conduct and the Consumer Protection Act All Attorney Fee Agreements Must Comply With the Rules of Professional Conduct...17 Transactions Between an Attorney and His Client Will Be Scrutinized...19 Ethical and Fiduciary Considerations Before Entering Into Any Fee Transaction With a Client Attorney C In re Disciplinary Proceeding Against Haley, 138 P.3d 1044, 1052, 157 Wash.2d 398, 414 (2006) In re Disciplinary Proceeding Against Miller, 149 Wash.2d 262, 66 P.3d 1069 (2003) In re Corporate Dissolution of Ocean Shores Park, Inc. v. Rawson Sweet, 132 Wash.App. 903, 134 P.3d 1188 (2006) Avoiding Mistakes If You Chose to Modify an Existing Fee Agreement Ordinary Fee Agreements Are They Business Transactions? Early Termination, Voided or Voidable Fee Contracts hat Are the Possible Remedies? Attorney Liability Under the Consumer Protection Act...39 The Ethics of Negotiation: I Cannot Tell a Lie; or Can I? The Ethics of Negotiating...45 The Rules...46 Other Considerations...50 Conclusion...53 i

4 Table of Contents Ethical Considerations in the Areas of Advertising and Solicitation; Step By Step Discussion of the Disciplinary Process Ethics and Professionalism Requirements...61 Disciplinary Proceedings...64 Ethics in Attorney Advertising...65 Legal Ethics Ethical Issues When Dealing With Pro Se Parties...73 ii

5 PITFALLS IN CLIENT IDENTIFICATION Jon Kroman Garvey Schubert Barer Garvey Schubert Barer

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7 Jonathan A. Kroman has been in practice with Garvey Schubert Barer since 1982 and has been an owner in the firm since Mr. Kroman focuses his practice on business organization and finance. He has counseled a broad spectrum of clients in a variety of industries. Along with his work as general corporate counsel to a number of companies and organizations, Mr. Kroman has represented clients in a wide variety of transactions, including mergers and acquisitions, private equity placements, tax-exempt and other debt financings, the licensing of intellectual property and joint ventures. He also serves as the loss prevention partner for his firm s Corporate and Business Practice. In that capacity, Mr. Kroman has primary responsibility for legal ethics issues arising in connection with the firm s work in those practice areas. He received his J.D. degree, cum laude, from the University of Michigan, where he served as a note editor of the Michigan Law Review. 3

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9 The context: representation of entity and/or Manager (or managing member) of an LLC General partner of general or limited partnership Controlling shareholder in corporation And/or can mean.. Lawyer for the Deal 5

10 The concern: lack of clarity may produce Unintended joint representation and conflicts exposure Insufficient attention to legal rights of minority owners (known or unknown) Basis for invalidity of entity actions Uncertainty concerning the handling of confidential information Exposure in insolvency Unanticipated basis for disqualification Need to consider: Identification of client Potential duties to non-clients 6

11 Establishing client status The relationship need not be formalized in a written contract, but rather may be implied from the parties conduct. Whether a fee is paid is not dispositive. The existence of the relationship turns largely on the client s subjective belief that it exists. The client s subjective belief, however, does not control the issue unless it is reasonably formed based on the attending circumstances, including the attorney s words or actions. Bohn v. Cody, 119 Wn.2d 357, 832 P.2d 71 (1992) (citations omitted). Restatement 14 A relationship of client and lawyer arises when: (1) a person manifests to a lawyer the person s intent that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services; or (2) a tribunal with power to do so appoints the lawyer to provide the services. 7

12 Duties to non-clients An attorney may be held liable to a nonclient under a multifactor balancing test : The extent to which the transaction was intended to benefit the plaintiff; the foreseeability of harm to the plaintiff; the degree of certainty that the plaintiff suffered injuries; the closeness of the connection between the defendant s conduct and the (cont.) (cont.) injuries; the policy of preventing future harm; and the extent to which the profession would be unduly burdened by a finding of liability. Trask v. Butler, 123 Wn. 2d 835, 872 P. 2d 1080 (1994) (similar cases in other jurisdictions) 8

13 Restatement 51: Duty to a non-client when: (a) the lawyer s client is a trustee, guardian, executor, or fiduciary acting primarily to perform similar functions for the nonclient; (b) the lawyer knows that appropriate action by the lawyer is necessary with respect to a matter within the scope of the representation to prevent or rectify the breach of a fiduciary duty owed by the client to the non-client, where (i) the breach is (cont.) (cont.) a crime or fraud, or (ii) the lawyer has assisted or is assisting the breach; (c) the non-client is not reasonably able to protect its rights; and (d) such a duty would not significantly impair the performance of the lawyer s obligations to the client. Comment: Not applicable to partners, officers, directors and controlling shareholders. 9

14 RPC (a) confirms entity counsel is only entity s counsel (and not for directors, officers, etc.) 1.13(f) affirmative duty to identify divergent interests 1.13(g) governs joint representation of entity and others Note also potential trap with new RPC 1.18 Summary Joint representation of entity and control person best avoided Since sometimes joint representation unavoidable Confirm expressly Disclose possibility of potentially adverse interests, concretely if known Comply with joint representation requirements Address confidentiality implications Potential withdrawal obligation Consider potential direct exposure to non-client owners 10

15 Specific situations Intake stage New entity client when existing relationship with founder Representation of individual when already represent the entity If joint representation proposed, analyze and disclose potential for divergent interests Suggested starting point for entity representation Identifying Our Client This will confirm that our client is, Inc. as a corporate entity. This means that we will not act as counsel to you personally. Of course, as the controlling shareholder, your interests and those of the corporation will often be aligned. However, there are situations in which a controlling shareholder s actions and decisions may be contrary to the interests of the corporation itself, including the related interests of minority shareholders. Were this situation to arise, our responsibility is to the corporation. 11

16 12 Authority over the corporation s material actions and decisions lies with its Board of Directors and the corporate officers who implement those actions and decisions. In exercising our responsibility as counsel to the corporation, we are ultimately accountable to the Board of Directors. The attorney-client privilege applies to our confidential communications with the Board of Directors (including individual directors) and the executive officers relating to corporate matters. However, communications with officers are not privileged from disclosure to the Board of Directors, meaning they can (and often are) shared with the directors.

17 ATTORNEY- CLIENT BUSINESS TRANSACTIONS What is a business transaction, and the interplay with the Rules of Professional Conduct and the Consumer Protection Act By Brian H. Krikorian th Avenue, Suite 4100 Seattle, WA

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19 Brian H. Krikorian is AV rated, and specializes in the areas of commercial and business litigation, employment litigation, defense and prosecution of professional negligence claims, legal ethics claims and insurance bad faith litigation. Before starting his firm in Seattle, Mr. Krikorian was a partner at the AV rated firm of Nemecek & Cole located in Los Angeles, California, where he represented lawyers and law firms in malpractice and ethics cases, as well as in attorney-client fee disputes. From 1997 to 1998, Mr. Krikorian was an arbitrator in the mandatory attorney-fee arbitration program of the Los Angeles County Bar Association. Mr. Krikorian received his B.A. degree in English from the University of California at Los Angeles, and received his J.D. degree from Southwestern University School of Law in Los Angeles, California. He is admitted to practice in California and Washington, and the United States Court of Appeals, Ninth Circuit, United States District Courts for the Central, Southern, Northern and Eastern Districts of California, and the Western District of Washington. 15

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21 I. All Attorney Fee Agreements Must Comply with the Rules of Professional Conduct Attorney fee agreements that violate of the RPC are against public policy and will not be enforced by the courts. Belli v. Shaw, 98 Wn.2d 569, 578 (1983); Simburg, Ketter, Sheppard & Purdy v. Olshan, 97 Wn.App. 901, 909 (1999); Barr v. Day, 124 Wn.2d 318, 331 (1994). Whether an attorney breached the RPC is a question of law. Eriks v. Denver, 118 Wn.2d 451, (1992); Cotton v. Kronenberg, 44 P.3d 878, 111 Wash.App. 258 (2002); Gustafson v. City of Seattle, 87 Wn.App. 298, 302 (1997). If it is determined that an attorney s conduct or an attorney fee agreement violates the RPC, the court has the discretion to deny or disgorge all fees paid by the client. Eriks, 118 Wn.2d at ; Cotton, supra; Gustafson, 87 Wn.App. at 304. Such disgorgement has been found appropriate irrespective of who terminated the attorney/client relationship. Gustafson, 87 Wn.App. at 304. The rule prohibiting enforcement of attorney fee agreements violative of public policy is so strongly favored that such agreements will not be enforced even if there is a technical compliance with the RPC. Marshall v. Higginson, 62 Wn.App. 212 (1991) (holding that an agreement limiting attorney s liability was technically in compliance with the RPC but nonetheless unenforceable as it violated public policy). In Belli, Attorney A sought to recover a fee from Attorney B after Attorney B obtained a considerable plaintiff s verdict and contingency fee. Attorney A s claim was based upon a forwarding fee agreement he had with Attorney B s deceased partner. Although the court found evidence of agreement, it nonetheless held the agreement unenforceable as it violated the former RPC which placed limitations on fee splitting agreements. Belli, 98 Wn.2d at In Simburg, the court held that a law firm could not enforce an attorney fee agreement 17

22 if, on remand, it was found that the firm failed to provide its client with a written explanation of the basis for its fee and of an increase in the hourly rates in response to the client s request therefor. The court explained that the failure to provide such information violated the RPC rendering the agreement unenforceable. Simburg, 97 Wn.App. at In Eriks, the attorney was hired by the promoters of a tax shelter scheme to provide a joint legal defense for all promoters and investors in audits before the IRS and in tax court actions. At the time the attorney was hired, he knew that the investor clients had potential claims against the promoter clients but failed to disclose such a conflict to the investors. The investor clients ultimately brought a class action suit against the attorney alleging that he was negligent, breached his fiduciary duties and violated the Consumer Protection Act in connection with his representation of the investor clients. The court granted the investors partial motion for summary judgment finding that the attorney s violation of the former RPC, prohibiting the representation of conflicting interests, constituted a violation of the attorney s fiduciary duties. The court ordered the attorney to disgorge all fees paid in connection with the representation plus prejudgment interest. The Washington Supreme Court affirmed. Eriks, 118 Wn.2d at 461. In support of its holding, the Supreme Court explained that the RPC is designed to protect the public and that the rules will be broadly construed to achieve that purpose. Eriks, 118 Wn.2d at 459. The court further held that the disgorgement of fees is a well recognized remedy for claims based upon a breach of an attorney s ethical duties and within the power of the trial court to so fashion judgments. Eriks, 118 Wn.2d at

23 II. Transactions Between an Attorney and His Client Will Be Scrutinized A. Ethical and Fiduciary Considerations before entering into any Fee transaction with a client 1. The existence of an attorney-client relationship If there is no attorney-client relationship, then the attorney generally is not going to be held to a higher fiduciary standard. Typically, the status must exist at the time of the alleged transaction or wrong. 2 Mallen & Smith, Legal Malpractice, 5th Ed. Ch. 14, 14.3; Chapter 15, Prior to the formation of the attorney-client relationship, the negotiation of a fee agreement, or compensation, may be done at arms length and without the need for independent consultation by the client. However, the agreement cannot be fraudulent or unconscionable. 2. Fiduciary concerns in the negotiation of a fee contract Fiduciary duty encompasses a duty of loyalty from the attorney to the client. The independence of a lawyer s judgment can be affected by his or her own business, financial, property or personal interest. 2 Mallen & Smith, Legal Malpractice, 2005 ed., Ch. 15, R. Mallen and J. Smith s Legal Malpractice is well-recognized as the leading treatise on the subject of legal malpractice liability and is cited by courts in virtually all jurisdictions, including Washington. See, Deatherage v. State, 134 Wn.2d 131 (1997); Trask v. Butler, 123 Wn.2d 835 (1994); Hizey v. Carpenter, 119 Wn.2d 251 (1992); Bohn v. Cody 119 Wn.2d 357 (1992); Simburg v. Olshan, 97 Wn.App. 901 (1999); McElliott v. Spokane Legal Services, 89 Wn.App.1020 (1998); Bush v. O Conner, 58 Wn.App. 138 (1990); and, Brust v. Newton, 70 Wn.App. 286 (1993). 19

24 a) Ethical and Fiduciary Considerations before entering into a business transaction with a client Business transactions challenged by clients are... almost invariably voided. The obvious conclusion to be derived from almost two centuries of American decisions is that an attorney rarely can prove there was compliance with the fiduciary obligations in business transactions with the client. 2 Mallen & Smith, Legal Malpractice, Rule 1.8 of the RPC provides, in part, that an attorney: (A) Shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client; (2) The client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and (3) The client consents thereto. (Emphasis added) The Attorney bears the burden of proof to justify any business transaction with the client. When an attorney/client transaction is called into question, the attorney, not the client, has the burden of showing that: (i) there was no undue influence; (ii) he gave the client exactly the same information or advice as would have been given by a disinterested attorney; and, (iii) the client would have received no greater benefit had he dealt with a stranger. In re McGlothlen, 99 Wn.2d 515, (1983); In re McMullen 127 Wn.2d 150, 164 (1995) (Disciplinary cases). The relation of attorney and client has always been regarded as one of special trust and confidence. The law therefore requires that all dealings between an attorney and his client shall be characterized by the utmost fairness and good faith, and it scrutinizes with great closeness all transactions had between them. Transcontinental Insurance Co. v. Faler, 9 Wn.App. 610,

25 (1973). Other jurisdictions have adopted this burden shifting rule, and at least one jurisdiction imposes on the attorney a higher burden of proof when establishing that the transaction was fair. In Miller v. Sears, 636 P.2d 1183 (Alaska 1981), an attorney sued his former client after a dispute arose regarding real property the attorney sold the client for $500,000. The client counterclaimed alleging that the attorney breached his fiduciary duty in entering into the transaction with the client and failed to fully disclose the details and consequences of the deal. The jury found in favor of the client and the court granted a rescission of the contract. On appeal, the attorney claimed that the trial court erred in instructing the jury that, if it finds by a preponderance of the evidence that the attorney owed the client a fiduciary duty, then it must find that the duty was breached by virtue of the transaction. The trial court further instructed that the presumption could be overcome only by clear and convincing evidence. Miller, 636 P.2d at In support of its order affirming the trial court and the burden shifting instruction, the court of appeal noted that other jurisdictions have found the heightened burden to be the appropriate standard. Miller, 636 P.2d at b) An attorney is required to provide the client with a reasonable opportunity to seek independent legal advise So strict is the rule on this subject that dealings between an attorney and his client are held, as against the attorney, to be prima facie fraudulent, and to sustain a transaction of advantage to himself with his client the attorney has the burden of showing not only that he used no undue influence but that he gave his client all the information and advice which it would have been his duty to give if he himself had not been interested, and that the transaction was as beneficial to the client as it would have been had the client dealt with a stranger. McGlothlen, 99 21

26 Wn.2d at , citing 7 C.J.S., Attorney and Client 127 (emphasis added). In Re Hartke, 529 N.W.2d 678, 681 (1995, S.CT Minn.) applied a similarly worded RPC 1.8 and found that a loan transaction between an attorney and his client, which was consummated in one day, did not allow the client an opportunity to consult independent counsel. See also Barry Althoff, Investing in Your Client s Business, Washington State Bar News (March 2000): The cautious lawyer will not be satisfied with the client merely having that opportunity, but will instead require the client to consult independent counsel. Although the client may be reluctant to incur the cost, without such independent consultation, the lawyer will have a far heavier burden of proving thereafter the lawyer didn t use undue influence. See 2 Mallen & Smith, 5th Ed.: The lesson is that, when the attorney and client become parties to a transaction, another, unrelated attorney should furnish the requisite independent advice. 15.5, p. 650 B. Attorney-Client Transactions May Have A Different Future Value, And Therefore Affect The Reasonable Value Of The Fee Attorney-client business transactions which are tied to the attorney s services are impacted by both the present value and the future value of the transaction. The value of the transaction can also be impacted by future events which render the fee value null. 1. Cotton v. Kronenberg In Cotton v. Kronenberg, supra, Cotton asked Kronenberg to defend him in a criminal action. Kronenberg previously represented Cotton in other matters. Cotton signed a fee agreement on March 6, That document, which Kronenberg prepared, stated that attorney fees shall be charged at the rate of $140 per hour. On that same date, Cotton also signed a 22

27 statutory warranty deed to his Desert Aire property in which Kronenberg was named as the grantee. Cotton also transferred to Kronenberg title to a mobile home located on the realty. On March 9, 1996, Cotton signed another agreement that Kronenberg prepared. That document set forth terms for a nonrefundable fee for defense against the charges. It also estimated that fees could be anywhere from $10,000 to $30,000. The agreement further provided for transfer of the Desert Aire property and the mobile home to Kronenberg in full satisfaction of all fees earned in the case. Within a week of this transfer Kronenberg recorded the deed, and within months sold the property for $42,000. Several months after signing the March 9 agreement, Kronenberg met several times with the complaining witness for the criminal charges. Kronenberg claimed he met the witness to negotiate a settlement of potential civil claims against Cotton that might have arisen from the alleged conduct underlying the charges (this included purchasing for the victim a one-way ticket to Oklahoma several weeks before the scheduled trial). The prosecutors moved to have Kronenberg removed from the criminal case to protect Cotton's Sixth Amendment and due process rights. The trial court granted the motion. Thereafter, new counsel for Cotton negotiated a plea and sentence recommendation with the prosecutor. New counsel also represented Cotton in further negotiations with the State to avoid potential additional charges of witness tampering and obstruction of justice based on Kronenberg's contact with the complaining witness. As a result of these negotiations, no criminal charges went to trial. After Kronenberg denied Cotton's request for a refund of the unearned balance of the fees generated by the sale of the realty and mobile home described in the March 9, 1996 fee 23

28 agreement, Cotton commenced a legal action for legal malpractice, breach of fiduciary duty, violation of the CPA. The court granted Cotton's motion for summary judgment. On appeal, the Court of appeals held that: (1) the fee agreement breached Kronenberg s fiduciary duty to Cotton relating to transactions in which an attorney acquires a pecuniary interest adverse to client. The Court found that Kronenberg accepted conveyance of Cotton's property in lieu of cash to take to trial the defense of the criminal charges. The parties characterized the payment as nonrefundable. Yet Kronenberg never fulfilled his obligation under the agreement because the criminal court disqualified him before trial for improper contacts with the complaining witness. Despite his failure to fulfill his obligation to Cotton, Kronenberg refused the demand to return the unearned portion of the fee and Cotton was forced to raise $13,000 to pay new counsel to complete his defense on the criminal charges and to avoid potential witness tampering charges relating to Kronenberg's conduct. For this reason alone, the court stated that the transaction was not fair and reasonable to the client within the meaning of Rule 1.8(a)(1). Second, the court found that the fee amount was unreasonable under the circumstances. Kronenberg's estimate for taking the matter through trial was $30,000. However, after entering into the agreement, Kronenberg sold the property for $42,000, 40 percent more than was reasonable under his own estimate. Particularly in view of the disqualification before trial, the court found that this transaction was not fair and reasonable within Rule 1.8(a)(1). Particularly, the court noted: There is nothing in RPC 1.8(a)(1) that restricts determination of whether a transaction is fair and reasonable to the client to the time when a fee agreement is signed. As Professor Hazard explains in his work on ethics, a fee agreement that may seem fair to a client at 24

29 the time that the agreement is signed must be reevaluated under the applicable rules when subsequent events alter the circumstances of the relationship. For example, if a client offers an attorney an interest in a fledgling company in exchange for legal representation, and the value of that share in the company unexpectedly increases greatly, the value of the fee may become unreasonably large in proportion to the work performed. This holding was the foundation for the court s subsequent ruling in Holmes v. Loveless, 122 Wash.App. 470, 94 P.3d 338 (2003). 2. Holmes v. Loveless Joseph D. Holmes, Jr. and John F. Kruger were retired attorneys and former partners in the Seattle law firm Karr Tuttle Campbell. In 1970, Holmes and his law firm began providing legal services to C.E. Loveless, a real estate developer. In 1972, Loveless and Barclay Tollefson, another real estate developer, started a joint venture called "Loveless/Tollefson Properties" to develop The Nugget Mall, a shopping center in Juneau, Alaska. In a fee agreement dated January 15, 1972, Holmes' law firm agreed to provide legal services to the Loveless/Tollefson joint venture at a discounted rate until June 30, The discounted rate was intended to cover the law firm's overhead expenses. Thereafter, legal fees would be charged at the full rate. In exchange, Karr Tuttle would receive 5 percent of any cash distributions produced by the joint venture. The agreement contained a conflict of interest provision advising Loveless and Tollefson that their individual interests could be different and that, due to the law firm's prior representation of Loveless, Tollefson should have the agreement reviewed by other counsel. Loveless had entered into several other similar agreements with Karr Tuttle, each pertaining to different joint ventures with different business partners. Loveless 25

30 initially proposed that Karr Tuttle obtain a 7 percent ownership interest in the joint venture, but Karr Tuttle declined this offer and countered with the 5 percent cash distribution idea. Tollefson had not been a party to such an agreement before the Loveless/Tollefson Properties joint venture was formed. The agreement contained no provision allowing the joint venture to unilaterally terminate the agreement. The joint venture began making distributions in the early 1980's. Gradually, the shopping center became more successful and it underwent several phases of expansion. In 1986, Loveless and Tollefson raised concerns about the effect of the expansions on the method of calculating cash distributions. When they raised their concerns, Holmes asked another Karr Tuttle partner to assist with the negotiations as a more neutral facilitator. The parties resolved the dispute by entering into a written addendum to the 1972 agreement in which the parties agreed that the joint venture would pay Loveless and Tollefson certain development fees and leasing commissions before the cash distributions were calculated. The law firm subsequently assigned its interest in the agreement to Holmes and Kruger. By 2001, the joint venture had distributed approximately $380,000 to the law firm and its assignees. At that time, the joint venture notified Holmes that the agreement was no longer enforceable and it terminated payments. Shortly thereafter, it made a large distribution to Loveless and Tollefson. Holmes and Kruger filed a lawsuit to enforce the agreement and recoup their share of the distribution. On cross-motions for summary judgment, the trial court ruled in Holmes' favor. On appeal, the joint venture's challenged the fee agreement premised upon two ethical rules: one governing attorney-client business transactions and another prohibiting excessive fees. 26

31 Relying on Cotton, the Holmes court stated that: To some degree, the excessive fee and business transaction provisions overlap when attorneys and clients use business transactions as compensation for legal services. When the fee generated by a business transaction is not fair and reasonable, the business transaction is not fair and reasonable. The Holmes court also noted that unlike Cotton which dealt with the return of the fees, in this case the clients were not seeking a refund, but arguing that the continued enforcement of the contract was not fair and reasonable, even after the contingent nature and successful completion of the work were considered. After analyzing the RPC 1.5(a) factors, the court in Holmes agreed with the joint venture's contention that the time has been reached when making additional distributions under the agreement would result in an excessive fee. To support its finding, the Court observed that while Holmes may have provided services valuable to the joint venture, he assumed very little risk in the agreement, including the preclusion of other employment, or a substantial discount of his firm s costs or time. The Court found that Holmes firm still covered its overhead expenses. The court found that while the 5 percent provision may have been reasonable at the outset given the small percentage it represented of the development's total revenue, thirty years later, the amount of fee reduction did not justify further enforcement of the agreement. 3. Valley/50th Avenue, L.L.C. v. Stewart, 159 Wash.2d 736, 153 P.3d 186 (2007) In Valley/50th Avenue, a law firm and a related LLC of its client entered into an agreement whereby the firm s antecedent debt for fees incurred on behalf of the client were to be secured by a deed of trust on property owned by the LLC. The law firm eventually sued to foreclose on the deed of trust, and the LLC argued that the law firm failed to comply with RPC 27

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