Opposition Brief — Fordham v. Massachusetts Bar Counsel

ofa

QUESTION PRESENTED

Does the petition for writ of certiorari, which seeks review of a

state court decision publicly censuring a lawyer for violating the state

court’s ethical code provisions prohibiting the charging of a clearly

excessive fee, raise an issue of violation of due process rights requiring

this Court’s review?

-ii-

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

TITLE PAGE

STATEMENT OF THE CASE

The Facts

The Decision by the Massachusetts Supreme Judicial Court

REASONS FOR DENYING THE WRIT

I. THE COURT HAS NO JURISDICTION TO CONSIDER

MOST OF THE PETITIONER’S ARGUMENTS

Il. THE STATE COURT DECISION DOES NOT VIOLATE

PETITIONER’S RIGHT TO DUE PROCESS

CONCLUSION

Appendix A

14

“lii-

TABLE OF AUTHORITIES

C Decisi

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 9

In The Matter of Laurence S. Fordham ie

423 Mass. 481 (1996)

In Re Ruffalo, 390 U.S. 544 (1968) 9

Matter of Anderson, 416 Mass. 521 (1993) 2

Matter of Disciplinary of An Attorney, 2 Mass.

Att’y Disc. R. 115 (1980) 12

Matter of Orfanello, 411 Mass. 551 (1992) 2

Private Reprimand PR-87-14, 5 Mass. Att’y

Disc. R. 501 (1987) 12

Yee v. City of Escondido, 503 U.S. 519 (1992) 8

Court Rules

Massachusetts Supreme Judicial Court Rule 3:07

Canon 2, DR 2-106 5,6,7,10,11,13

Massachusetts Supreme Judicial Court Rule 4:01

Section . 8(3) (1974) 2,9

Statutes

28 United States Code, Section 1257 7

Miscellaneous

ABA Mode Code of Professional Responsibility (1969) 13

ABA Model Rules of Professional Conduct (1983) 13 13

l

No. 96-946

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

LAURENCE S. FORDHAM,

Petitioner

V.

MASSACHUSETTS BAR COUNSEL,

Respondent.

On Petition for Writ of Certiorari to

the Massachusetts Supreme Judicial Court

RESPONDENT’S BRIEF IN OPPOSITION

Respondent requests that the Court deny the petition for writ

of certiorari seeking review of an opinion of the Massachusetts

Supreme Judicial Court. The decision below is IN THE MATTER

OF LAURENCE S. FORDHAM, 423 Mass. 481 (1996). The copy of

this decision is reproduced in this brief in opposition, Appendix A.

2

STATEMENT OF THE CASE

The petitioner’s summary of the facts of the case does not

correspond to the facts found by the Massachusetts Supreme Judicial

Court, but is based instead on evidence in the record not adopted by

the Board of Bar Overseers and the Supreme Judicial Court. The

decision of the Massachusetts Supreme Judicial Court IN THE

MATTER OF LAURENCE S. FORDHAM, 423 Mass. 481 (1996),

anuhie to this brief in opposition, sets forth the facts found in this

matter’. The facts found by the Board of Bar Overseers and the

conclusions of the Supreme Judicial Court are the determining facts in

a bar discipline matter. Massachusetts Sypreme Judicial Court Rule

4:01 Sec. 8(3), 365 Mass. 696 (1974), as amended; Matter of

Anderson, 416 Mass. 521, 525 (1993); Matter of Orfanello, 411

Mass. 551, 556 (1992).

' The facts found by the Massachusetts Supreme Jydicial Court are summarized by

the Court in its opinion at 423 Mass. 481, 482-484 (1996).

The Facts:

Timothy Clark (Tim) was arrested for driving under the

influence on March 4, 1989. He and his father, Laurence Clark

(Clark), consulted with three lawyers who offered to represent Tim for

between $3000 and $10,000.

Before Clark had hired anyone to represent Tim, he was

servicing an alarm system at the petitioner’s home. While there, Clark

spoke with the petitioner’s wife about the case and a meeting

subsequently was held among Clark, Tim, and the petitioner, at which

the petitioner learned the basic facts of Tim’s arrest.

The petitioner informed Tim and Clark that he had never

handled a driving under the influence case, a criminal case, or a case in

the state district court system. He told them he was, however, an

experienced litigator and he thought he could represent Tim

competently. He also described himself as “efficient and economic in

the use of his time”. Further, he stated that if Clark decided to hire

him, he would charge an hourly id for Tim’s representation. Clark

hired the petitioner.

The petitioner filed four pretrial motions on behalf of his client.

The hearing committee characterized one of them as “creative”. He

tried the case before a district court judge and the defendant was found

not guilty.

The petitioner sent Clark six bills during the representation.

The bills totaled $50,022.25, reflecting 227 hours of billed time,

including 153 hours of the petitioner’s time. Clark did not pay the first

two bills, which totaled over $13,000, and expressed concern about

their amount. However, after the petitioner informed Clark most of

the work was done other than taking the case to trial (the trial was

scheduled for that week), Clark paid the petitioner $10,000. He made

no other payments. It was stipulated that the work by the petitioner

was actually done and that the petitioner acted conscientiously,

diligently, and in good faith in representing Tim.

The Decision by the nddidhaiian

Supreme Judicial Court:

In reaching its decision, the Supreme Judicial Court held that

the fee was clearly excessive because the number of hours spent by the

petitioner on the case was unreasonable given the nature of the case

and the skill requisite to perform the legal service properly. Pursuant

to Massachusetts Supreme Judicial Court Rule 3:07, Canon 2, DR 2-

106 (B)(1), these are factors to be considered in assessing the

reasonableness of a fee. In addition, four experts, two called by the

Bar Counsel and two called by the petitioner, testified that the number

of hours devoted to the case was several times greater than they had

spent on, or heard of, for a driving under the influence case.” The

state court concluded that the number of hours devoted to the case

was substantially in excess of the hours that a prudent experienced

lawyer would have spent [DR 2-106 (B)] and was substantially in

2 423 Mass. at 491.

6

excess of the amount customarily charged in the jurisdiction [DR 2-

106 (B) (3)].*

The Court also found that Clark did not acquiesce in the fee,

but that even if he had, there is nothing jn the disciplinary rule or in

the Massachusetts case law that makes acquiescence by a client a

defense to charging a clearly excessive fee.* The Court held that since

Disciplinary Rule 2-106 establishes an objective standard for judging

whether a fee is clearly excessive, and on its face does not require

dishonesty, bad faith, or overreaching, then the good faith,

conscientiousness, and diligence of the attorney are not determinative.°

Finally, the Court rejected the petitioner’s argument that the

imposition of discipline offended his right to due process because he

did not have fair notice that discipline could be imposed for billing

excessive hours that were nonetheless spent diligently and in good

> 423 Mass. at 490.

_* 423 Mass. at 493.

* 423 Mass. at 493.

7

faith. There was abundant civil case law employing virtually the

identical factors as contained within DR 2-106. Further, DR 2-106

defined “clearly excessive” fees and listed eight specific factors, to be

evaluated by the standard of ordinary lawyer prudence, thereby

providing fair warning to a lawyer.°

REASONS FOR DENYING THE WRIT

1.

THIS COURT HAS NO JURISDICTION TO CONSIDER

MOST OF THE PETITIONER’S ARGUMENTS.

The petitioner makes several arguments in his attempt to claim

that this Court has jurisdiction pursuant to 28 U.S.C. Sec. 1257. With

the exception of his arguments that he did not have adequate notice

that his actions would violate Supreme Judicial Court Rule 3:07,

Canon 2, Disciplinary Rule 2-106, the petitioner did not raise these

§ 423 Mass. at 493-494.

8

issues before the Massachusetts Supreme Judicial Court. This Court

does not review federal questions which haye not been both raised and

decided in the state court below. Yee v. City of Escondido, 503 U.S.

| 319, 523-33 (1992).

Il.

THE STATE COURT DECISION DOES NOT VIOLATE THE

PETITIONER’S

RIGHT TO DUE PROCESS.

The petition for certiorari is based upon two dependent

premises, neither of which is a valid basis for this Court to grant

certiorari. First, the respondent wants this Court to make new findings

| of fact and conclusions of law for a state bar disciplinary proceeding.

Second, based upon these substituted findings, the petitioner asks this

Court to re-interpret the state disciplinary rule and hold that it did not

provide adequate notice to him that his conduct would be in violation

of that rule.

9

The finding of facts in a state bar disciplinary proceeding is the

proper function of the state bar administrative board.” The petitioner

has not provided any argument to support revising the facts as found

by the state board and the state court.

It is the primary function of the state court issuing the rules

governing the professional conduct of its attorneys to interpret their

scope. It only is when the state court’s interpretation of its own rules

violates a federal constitutional right that this Court would have any

interest in, or justification for, examining the state court findings and

conclusions. Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991),

(interpretation of state disciplinary rule governing pre-trial publicity

violated First Amendment right to free speech).

The petitioner invokes the principle established in In re

Ruffalo, 390 U.S. 544 (1968), that a lawyer has a right to notice of all

7 Massachusetts Supreme Judicial Court Rule 4:01 § . 8(3), as amended, 415

Mass. 1304 (1993).

10

charges pending against him, to contend that he, and the bar, had no

notice, either in the rule or through prior court decisions interpreting

the rule, that DR 2-106 would apply to a fee which was not the

product of bad faith or lack of diligence in order to support his claim

that he was denied due process by the state court decision.

The state court’s interpretation of DR 2-106 and its application

to the petitioner was not without proper notice’ and did not otherwise

violate the petitioner’s due process rights. Contrary to the petitioner's

assertion, DR 2-106 is not a genera] rule subject to broad

interpretation. It is very specific in setting out eight factors’ for

_* The petitioner cannot sensibly argue that he did pot have notice of the charges

_ against him. He was served properly with the petition for discipline which, along

| with the stipulations entered into by the parties, made clear that he was being

| charged with charging a clearly excessive fee becayse he spent an unreasonable

| number of hours on the case and charged well in excess of the fees generally

charged for such a case.

| * The factors are:

| (1) The time and labor required, the novelty and difficulty of the

questions involved, and the skill requisite to perform the legal

services properly.

(2) The likelihood, if apparent to the client, that the acceptance of the

particular employment will preclude ather employment by the lawyer.

(3) The fee customarily charged in the locality for similar legal services.

ll

judging whether a fee is clearly excessive. Included within these

factors are the “time and labor required, the novelty and difficulty of

the questions involved, and the skill requisite to perform the legal

services properly” and “the fee customarily charged in the locality for

similar legal services.” These factors are to be applied by an objective

standard, by a lawyer of ordinary prudence, experienced in the area of

law involved- according to the rule.'° There is no language in the rule

requiring an inquiry as to whether the fee charged was under

fraudulent circumstances and, in its decision, the state court holds that

it “shall not write such a meaning into the disciplinary rule.” 423 el

at 493.

(4) The amount involved and the results obtained.

(5) The time limitations imposed by the client or by the circumstances.

(6) The nature and length of the professional relationship with the client.

(7) The experience, reputation, and ability of the lawyer or lawyers

performing the services.

(8) Whether the fee is fixed or contingent.

'© Supreme Judicial Court Rule 3:07, Canon 2, DR 2-106 (B) states, in part, as

follows:

“A fee is clearly excessive when, after a review of the facts, a lawyer of

ordinary prudence, experienced in the area of the law involved, would be left with

12

The same standards have been employed in numerous civil

cases in Massachusetts.'’ In addition there are at least two bar

disciplinary cases which imposed sanctions for excessive fees which

did not involve bad faith or overreaching. Private Reprimand PR-87-

14, 5 Mass. Atty. Disc. R. 501, 502 (1987); Matter of Discipline of

an Attorney, 2 Mass. Att’y. Disc. R. 115, 117 (1980).

The petitioner attempts to escape the objective standard of the

state court decision by arguing that lawyers of ordinary prudence

disagree on whether his fee was clearly excegsive and in support of

that argument he offers the testimony of a group of lawyers who have

joined him in this appeal.'* They contend that the standard should be

in accordance with their opinion, not the determination, based upon

the evidence, of the highest court in Massachusetts. Their argument,

‘definite and firm conviction that the fee is substantially in excess of a reasonable

ie.

., The cases cited by the state court are listed at 423 Mass. 494.

* See Amici Curiae Brief in Support of Petition for Writ of Certiorari, No. 96-

13

however, would substitute a subjective standard of consensus among

lawyers of large firms for an objective standard firmly rooted in the

American Bar Association Code of Professional Responsibility and the

American Bar Association Model Rules of Professional Conduct."®

The state court’s enforcement of its rule against excessive fees cannot

be dependent on the opinions of a lawyer's colleagues and supporters.

The petitioner, an experienced lawyer,“ could not have been

truly surprised by the finding of the state court when the number of

hours he spent and the size of the fee he charged was more than three

times in excess of the time and fee typically charged for such services,

especially where none of the experts testified that the facts were

unusual for a driving under the influence case.'* There must be some

13 Massachusetts Supreme Judicial Court Rule 3:07, Canon Two, DR 2-106, was

adopted in 1972 and is taken primarily from the American Bar Association Code

of Professional Responsibility. 359 Mass. 796 (1972). The American Bar

Association Model Rules of Professional Conduct have a similar rule, MR 1.5

14 See Petition for Writ of Certiorari, p. 4, where the petitioner's background is

described.

15 423 Mass. at 488-489.

14

proportion between the claim defended and the fee charged. This is a

matter of basic professional responsibility.

The petitioner’s failure to comply with the disciplinary rules is

not a result of lack of notice. His public eensure by the state court

does not offend due process as interpreted by this Court’s decisions.

The petition for certiorari should be denied.

CONCLUSION

For the above-stated reasons, the Coyrt should deny the

petition for certiorari.

Arnold R. Carlee 4

Bar Counsel

OFFICE OF BAR COUNSEL

75 Federal Street

Boston, MA 02110

(617) 728-8750

January 24, 1997

423 Mass. 481 481

In the Matter of Fordham.

IN THE MATTER oF LAURENCE S. FORDHAM.

Suffolk. April 2, 1996. - August 9. 1996.

Present: Liacos, CJ. O'Conmon, Gasawny, & Fam, JJ. .

Board of Bar Overseers. Supreme Judicial Court, Practice of law. Attorney

at Law, Disciplinary proceeding, Compensation, Public censure, Canons

of ethics.

Where the Supreme Judicial Court has responsibility to review attorney

discipline matters, bar counsel necessarily has a right to appeal to the

court from the Board of Bar Overseer’s dismissal of a petition for disci-

pline and the court has jurisdiction to decide the matter. [484-485]

The Board of Bar Overseers erred in dismissing bar counsel's petition for

discipline against an attorney for charging a clearly excessive fee in

violation of $.J.C. Rule 3:07, DR 2-106, where the evidence before the

hearing committee demonstrated that the attorney and his associates

devoted substantially more hours than a prudent experienced lawyer

would have to the defense of a charge of operating a motor vehicle

while under the influence of intoxicating liquor and related charges and

that the fee charged, $50,000, was much higher than the fee customarily

charged for such a bench trial. [487, 489-491]

The Board of Bar Overseers erred in concluding that an attorney's fee was

not clearly excessive because the client entered into the fee agreement

“with open eyes” where the hearing committee had found that the client

did not appear to have understood the implications of entering the

agreement; the board also erred in adopting the’ hearing committee's

finding that the client acquiesced in the fee where the standard under

$.J.C. Rule 3:07, DR 2-106 (A), is whether the fee “charged” is exces-

sive. [491-493]

That the Supreme Judicial Court has not previously disciplined an attorney

for chafging a clearly excessive fee in violation of S.J.C. Rule 3:07, DR

2-106, did not warrant a conclusion that due process would be offended

in the first instance of such discipline. [493-494]

The appropriate sanction for any attorney's charging a clearly excessive fee

in violation of $.J.C. Rule 3:07, DR 2-106, is a public censure. [494-495]

INFORMATION filed in the Supreme Judicial Court for the

county of Suffolk on April 7, 1995.

A motion to dismiss was heard by Lynch, J., and the case

was reported by him.

Va? IVES. TOA

In the Matter of Fordham. ing

Arnold R. Rosenfeld, Bar Counsel.

Laurence M. Johnson for the respondent.

O'Connor, J. This is an appeal from the Board of Bar

Overseers’ (board's) dismissal of a petition for discipline filed san

by bar counsel against attorney Laurenee S. Fordham. On

March 11, 1992, bar counsel served Fordham with a petition

for discipline alleging that Fordham had charged a clearly

excessive fee in violation of $.J.C. Rule 3:07, DR 2-106, as

appearing in 382 Mass. 772 (1981), for defending Timothy

Clark (Timothy) in the District Court against a charge that

he operated a motor vehicle while under the influence of

intoxicating liquor (OUI) and against other related charges.

Fordham moved that the board dismiss the petition and the

board chair recommended that that be done. Bar counsel ap-

pealed from the chair’s decision to the full board, and the

board referred the matter to a hearing committee.

After five days of hearings, and with “serious reservations,”

the hearing committee concluded that Fordham’s fee was not

substantially in excess of a reasonable fee and that, therefore,

the committee recommended against bar discipline. Bar

counsel appealed from that determination to the board. By a

vote of six to five, with one abstention, the board accepted the

recommendation of the hearing committee and dismissed the

petition for discipline. Bar counsel then filed in the Supreme

Judicial Court for Suffolk County (county court) a claim of

appeal from the board's action.

Fordham moved in the county court for a dismissal of bar

counsel's appeal. A single justice denied Fordham's motion

and reported the case to the full court. We conolude phat the

single justice correctly denied Fordham'g motion to dismiss

bar counsel's appeal. We conclude, also, that the board erred

in dismissing bar counsel’s petition for discipline. We direct a

judgment ordering public censure be entered in the county

court.

We summarize the hearing committee’s findings. On March

4, 1989, the Acton police department arrested Timothy, then

twenty-one years old, and charged him with OUI, operating a

motor vehicle after suspension, speeding, and Operating an

unregistered motor vehicle. At the time of the arrest, the po-

lice discovered a partially full quart of vodka in the vehicle.

After failing a field sobriety test,-Timothy was taken to the

Acton police station where he submitted to two breathalyzer

tests which registered .10 and .12 respectively.

Cad IVAGDO- “TUS --

In the Matter of Fordham.

Subsequent to Timothy's arraignment, he and his father,

Laurence Clark (Clark) consulted with three lawyers, who of-

fered to represent Timothy for fees between $3,000 and

$10,000. Shortly after the arrest, Clark went to Fordham’s

home to service an alarm system which he had installed sev-

eral years before. While there, Clark discussed Timothy's ar-

rest with Fordham’s wife who invited Clark to discuss the

case with Fordham. Fordham then met with Clark and

Timothy.

At this meeting, Timothy described the incidents leading to

his arrest and the charges against him. Fordham, whom the

hearing committee described as a “very experienced senior

trial attorney with impressive credentials,” told Clark and

Timothy that he had never represented a client in a driving

while under the influence case or in any criminal matter, and

he had never tried a case in the District Court. The hearing

committee found that “Fordham explained that although he

lacked experience in this area, he was a knowledgeable and

hard-working attorney and that he believed he could

competently represent. Timothy. Fordham described himself

as ‘efficient and economic in the use of [his] time.’. . .

“Towards the end of the meeting, Fordham told the Clarks

that he worked on [a] time charge basis and that he billed

monthly. . . . In other words, Fordham would calculate the

amount of hours he and others in the firm worked on a mat-

ter each month and multiply it by the respective hourly rates.

He also told the Clarks that he would engage others in his

firm to prepare the case. Clark had indicated-that he would

pay Timothy’s legal fees.” After the meeting, ‘Clark hired

Fordham to represent Timothy.

According to the hearing committee's findings, Fordham

filed four pretrial motions on Timothy's behalf, two of which

were allowed. One motion, entitled “Motion in Limine to

Suppress Results of Breathalyzer Tests,” was based on the

theory that, although two breathalyzer tests were exactly .02

apart, they were not “within” .02 of one another as the regula-

tions require. See 501 Code Mass. Regs. § 2.56 (2) (1994).

The hearing committee characterized the motion and its ra-

tionale as “‘a creative, if not novel, approach to suppression of

breathalyzer results.” Although the original trial date was

June 20, 1989, the trial, which was before a judge without

jury, was held on October 10 and October 19, 1989. The

Ta) IViGSD. TOs

In the Mater of Fordham, _

ee

judge found Timothy not guilty of driving while under the

influence.

Fordham sent the following bills to Clark:

"he April 19, 1989, $3,250 for services rendered in

March, 1989,

ae 2 May 15, 1989, $9,850 for services rendered in April,

1989,

ee June 19, 1989, $3,950 for services rendered in May,

1989.

“4, July 13, 1989, $13,300 for services rendered in June,

1989.

* October 13, 1989, $35,022.25 revised bill for ser-

vices rendered from March 19 to June 30, 1989.

“6. November 7, 1989, $15,000 for services rendered

from July 1, 1989 to October 19, 1989.”

The bills totaled $50,022.25, reflecting 227 hours of billed

time, 153 hours of which were expended by Fordham and

seventy-four of which were his associates’ time. Clark did not

pay the first two bills when they became due and expressed to

Fordham his concern about their amount. Clark paid

Fordham $10,000 on June 20, 1989. At that time, Fordham

assured Clark that most of the work had been completed

“other than taking [the case] to trial.” Clark did not make

any subsequent payments. Fordham requested Clark to sign a

promissory note evidencing his debt ta Fordham and, on

October 7, 1989, Clark did so. In the Octobet 13, 4989, bill,

Fordham added a charge of $5,000 as a “retroactive increase”

in fees. On November 7, 1989, after the case was completed,

Fordham sent Clark a bill for $15,000.

Bar counsél and Fordham have stipulated that all the work

billed by Fordham was actually done and that Fordham and

his associates spent the time they claim to haye spent. They

also have stipulated that Fordham acted conscientiously,

diligently, and in good faith in representing Timothy and in

his billing in this case.

We consider first Fordham’s contentions that bar counsel

has no right to appeal from the board’s decision to dismiss a

petition for bar discipline and that the coyrt lacked jurisdic-

tion to entertain the appeal. Supreme Judicial Court Rule

423 Mass. 481 485

4:01, § 1 (1), as amended, 368 Mass. 900 (1976), provides:

“Any attorney admitted to, OF engaging in, the practice of

law in this Commonwealth shall be subject to {the Supreme

Judicial Court's} exclusive disciplinary jurisdiction and the

provisions of these rules. - - * This court's right of exclusive

jurisdiction over attorney disciplinary matters necessarily

includes jurisdiction to review decisions of the board not to

recommend discipline. If, as in the present case, there is an

assertion that the board, in deciding to dismiss a petition for

discipline, has misinterpreted or misapplied the disciplinary

rules, which were promulgated by the court, there can be no

legitimate doubt that the court has jurisdiction to review the

board’s interpretation and application of those rules.

Furthermore, nothing in our rules or in reason suggests that

the exercise of our disciplinary powers may not be invoked by

bar counsel by appealing from a decision of the board to

dismiss a petition for discipline. Indeed, who, other than bar

counsel, who is independent of the board and is a party to all

disciplinary proceedings, S.J.C. Rule 4.01, § 7 (3), 365 Mass.

696 (1974) and § 8 (3), as amended, 415 Mass. 1304 (1993),

would be entitled to challenge the board’s dismissal of a peti-

tion for discipline? A complainant does not have standing to

do so. Callahan Vv. Board of Bar Overseers, 417 Mass. 516,

518 (1994). We conclude that, because this court has

nsibility to review matters involving attorney discipline,

bar counsel necessarily has a right to appeal to the court from

the board’s dismissal of petitions therefor and the court has

jurisdiction to decide the matter. hee

The board dismissed bar counsel's petition for discipline

against Fordham because it determined, relying in large part

on the findings and recommendations of the hearing commit-

tee, that Fordham’s fee was not clearly excessive. Pursuant to

s.J.C. Rule 3:07, DR 2-106 (B). “a fee is clearly excessive

when, after .@ review of the facts, a lawyer of ordinary

prudence, experienced in the area of the law involved, would

be left with a definite and firm conviction that the fee is

to list eight factors to be considered in ascertaining the reason-

ableness of the fee:

“(1) The time and labor required, the novelty and dif-

ficulty of the questions involved, and the skill requisite

to perform the legal service properly.

423 Mass. 481

In the Matter of Fordham.

(2) The likelihood, if apparent ta the client, that the ac-

ceptance of the particular employment will preclude

other employment by the lawyer,

**(3) The fee customarily charged jn the locality for sim-

ilar legal services.

(4) The amount involved and the results obtained.

“(5) The time limitations imposed by the client or by the

circumstances.

(6) The nature and length of the professional relation-

ship with the client.

(7) The experience, reputation, and ability of the lawyer

or lawyers performing the services,

(8) Whether the fee is fixed or contingent.”

In concluding that Fordham did not charge a clearly exces-

sive fee, the board adopted, with limited exception, the hear-

ing committee’s report. The board’s and the hearing commit-

tee’s reasons for dismissing the petition are as follows: Bar

counsel and Fordham stipulated that Fordham acted

conscientiously, diligently, and in good faith in his represen-

tation of the client and his billing on the case. Although

Fordham lacked experience in criminal Jaw, he is a “seasoned

and well-respected civil lawyer.” The more than 200 hours

spent preparing the OUI case were necessary, “‘in part to ed-

ucate [Fordham] in the relevant substantive law and court

procedures,” because he had never tried an OUI case or ap-

peared in the District Court. The board noted that “‘[a]l-

though none of the experts who testified at the disciplinary

hearing had ever heard of a fee in excess of $15,000 for a

first-offense OUI case, the hearing committee found that

[Clark] had entered into the transaction with open eyes after

interviewing other lawyers with more experience in such mat-

ters.” The board also thought significant that Clark “later

acquiesced, despite mild expressions of concern, in

{Fordham’s] billing practices.” Moreover, the Clarks specifi-

cally instructed Fordham that they would not consider a

guilty plea by Timothy. Rather they were interested only in

423 Mass. 481 487

in the Matter of Fordham.

pursuing the case to trial. Finally, Timothy obtained the

result he sought: an acquittal.

Bar counsel contends that the board's decision to dismiss

the petition for discipline is erroneous on three grounds: First,

“(t]he hearing committee and the Board committed error by

analyzing only three of the factors set out in DR 2-106 (B)

(1) - (8), and their findings with regard to these criteria do

not support their conclusion that the fee in this case was not

clearly excessive’; second, the board “misinterpreted [DR

2-106’s] prohibition against charging a clearly excessive fee by

reading into the rule a ‘safe harbor’ provision”; and third,

“by allowing client acquiescence as a complete defense.”

In reviewing the hearing committee’s and the board's anal-

ysis of the various factors, as appearing in DR 2-106 (B),

which are to be considered for a determination as to whether

a fee is clearly excessive, we are mindful that, although not

binding on this court, the findings and recommendations of

the board are entitled to great weight. Matter of Hiss. 368

Mass. 447, 461 (1975). We are empowered, however, to review

the board’s findings and reach our own conclusion. Matter of

Anderson, 416 Mass. 521, 525 (1993). In the instant case we

are persuaded that the hearing committee’s and the board's

determinations that a clearly excessive fee was not charged

are not warranted.

The first factor listed in DR 2-106 (B) requires examining

“(t]he time and labor required, the novelty and difficulty of

the questions involved, and the skill requisite.to perform the

legal service properly.’ Although the hearing committee

determined that Fordham “spent a large number of hours on

[the] matter, in essence learning from scratch what others. . .

already know,” it “{did] not credit Bar Counsel’s argument

that Fordham violated DR 2-106 by spending too many

hours.” The hearing committee reasoned that even if the

number of hours Fordham “spent [were] wholly out of

proportion” to the number of hours that a lawyer with expe-

rience in the trying of OUI cases would require, the commit-

tee was not required to conclude that the fee based on time

spent was “‘clearly excessive.” It was enough, the hearing

committee concluded, that Clark instructed Fordham to

pursue the case to trial, Fordham did so zealously and, as

stipulated, Fordham spent the hours he billed in good faith

and diligence. We disagree.

IBEST AVI

’ 488 423 Mass. 481

In the Matter of Fordham.

Four witnesses testified before the hearing committee as

experts on OUI cases. One of the experts, testifying on behalf

of bar counsel, opined that “the amount of time spent in this

case is clearly excessive.” He testified that there were no

unusual circumstances in the OUI charge against Timothy

and that it was a “standard operating under the influence

case." The witness did agree that Fordham's argument for

suppression of the breathalyzer test results, which was suc-

cessful, was novel and would have justified additional time

and labor. He also acknowledged that the acquittal was a

good result; even with the suppression of the breathalyzer

tests, he testified, the chances of an acquittal would have been

“(not likely at a bench trial.” The witness estimated that it

would have been necessary, for thorough preparation of the

case including the nove! breathalyzer suppression argument,

to have billed twenty to thirty hours for preparation, not

including trial time.

A second expert, testifying on behalf of bar counsel,

expressed his belief that the issues presented in this case were

not particularly difficult, nor novel, and that “[t]he degree of

Skill required to defend a case such as thig. . . was not that

high.”” He did recognize, however, that the theory that

Fordham utilized to Suppress the breathalyzer tests was

impressive and one of which he had previously never heard.

Nonetheless, the witness concluded that “¢learly there is no

way that [he] could justify these kind of hours to do this kind

of work.” He estimated that an OUI case involving these

types of issues would require sixteen hours of trial prepara-

tion and approximately fifteen hours of trial] time. He testified

that he had once spent ninety hours in cennection with an

OUI charge against a client that had resulted in a plea. The

witness explained, however, that that case had involved a

second offense OUI and that it was a case of first impression,

in 1987, concerning new breathalyzer equipment and

comparative breathalyzer tests.

An expert called by Fordham testified that the facts of

Timothy’s case presented a challenge and that without the

Suppression of the breathalyzer test results jt would have been

“an almost impossible situation in terms of prevailing on the

trier of fact.” He further stated that, based on the particulars

in Timothy’s case, he believed that Fordham’s hours were not

excessive and, in fact, he, the witness, would have spent a

ILABLE COPY}

423 Mass. 481 489

in the Matter of Fordham.

comparable amount of time. The witness later admitted,

however, that within the past five years, the OUI cases which

he had brought to trial required no more than a total of forty

billed hours, which encompassed all preparation and court

appearances. He explained that, although he had not charged

more than forty hours to prepare an OUI case, in comparison

to Fordham’s more than 200 expended hours, Fordham none-

theless had spent a reasonabie number of hours on the case in

light of the continuance and the subsequent need to repre-

pare, as well as the “very ingenious” breathalyzer suppression

argument, and the Clarks’ insistence on trial. In addition, the

witness testified that, although the field sobriety test, breatha-

lyzer tests, and the presence of a half-empty liquor bottle in

the car placed Fordham at a serious disadvantage in being

able to prevail on the OUI charge, those circumstances were

not unusual and in fact agreed that they were “[nJormal cir-

cumstances.”

The fourth expert witness, called by Fordham, testified that

she believed the case was “‘extremely tough” and that the

breathalyzer suppression theory was novel. She testified that,

although the time and labor consumed on the case was more

than usual in defending an OUI charge, the hours were not

excessive. They were not excessive, she explained, because the

case was particularly difficult due to the “stakes [and] the ev-

idence.” She conceded, however, that legal issues in defending

OUI charges are “pretty standard” and that the issues pre-

sented in this case were not unusual. Furthérmore, the wit-

ness testified that challenging the breathalyzer test due to the

.02 discrepancy was not unusual, but the theory on which

Fordham proceeded was novel. Finally, she stated that she

_thougtit she may have known of one person who might have

spent close to one hundred hours on a difficult OUI case; she

was not sure; but she had never heard of a fee in excess of

$10,000 for a bench trial.

In considering whether a fee is “clearly excessive” within

the meaning of S.J.C. Rule 3:07, DR 2-106 (B), the first fac-

tor to be considered pursuant to that rule is “the novelty and

difficulty of the questions involved, and the skill requisite to

perform the legal service properly.” DR 2-106 (B) (1). That

standard is similar to the familiar standard of reasonableness

traditionally applied in civil fee disputes. See Society of Jesus

of New England v. Boston Landmarks Comm'n, 411 Mass.

490 3 423 Mass. 481

In the Matter of Fordham.

754, 759 n.10 (1992) (reasonable hours, when calculating fees

pursuant to 42 U.S.C. § 1988 [1994], requires consideration

as to “whether that time was reasonable jn light of the dif-

ficulty of the case and the results achieved”), See also Re-

Statement (Third) of the Law Governing Lawyers § 46 com-

ment f (Proposed Final Draft 1996) (‘The standards that

apply when fees are challenged as unreasonable in fee disputes

are also relevant in the discipline of lawyers for charging

unreasonably high fees”). Based on the testimony of the four

experts, the number of hours devoted to Timothy’s OUI case

by Fordham and his associates was substantially in excess of

the hours that a prudent experienced lawyer would have

spent. According to the evidence, the number of hours spent

was several times the amount of time any of the witnesses

had ever spent on a similar case. We are not unmindful of the

novel and successful motion to suppress the breathalyzer test

results, but that effort cannot justify a $50,000 fee in a type of

case in which the usual fee is less than one-third of that

amount.

The board determined that “[b]ecause [Fordham] had never

tried an OUI case or appeared in the district court, [Fordham]

spent over 200 hours preparing the case, in part to educate

himself in the relevant substantive law and court procedures.”

Fordham’s inexperience in criminal defense work and OUI

cases in particular cannot justify the extraordinarily high fee.

It cannot be that an inexperienced lawyer js entitled to charge

three or four times as much as an experienced.lawyer for the

same service. A client “should not be expected to pay for the

education of a lawyer when he spends excessive amounts of

time on tasks which, with reasonable experience, become

matters of routine.” Matter of the Estate of Larson, 103 Wash.

2d 517, 531 (1985). “While the licensing of a lawyer is evi-

dence that he has met the standards then prevailing for admis-

sion to the bar, a lawyer generally should not accept employ-

ment in any area of the law in which he is not qualified.

However, he may accept such employment if in good faith he

expects to become qualified through study and investigation,

as long as such preparation would not result in unreasonable

delay or expense to his client."” Model Code of Professional

Responsibility EC 6-3 (1982). Although the ethical consider-

ations set forth in the ABA Code of Professional Responsibil-

ity and Canons of Judicial Ethics are not binding, they none-

423 Mass. 481 491

in the Matter of Fordham.

theless serve as a guiding principle. See $.J.C. Rule 3:07, as

appearing in 382 Mass. 768 (1981) (Eihical Considerations

“are not adopted as a rule of this court, but those Ethical

Considerations form a body of principles upon which the

Canons of Ethics and Disciplinary Rules, as herein adopted,

are to be interpreted”).

DR 2-106 (B) provides that the third factor to be considered

in ascertaining the reasonableness of a fee is its comparability

to “(t]he fee customarily charged in the locality for similar

legal services.” The hearing committee made no finding as to

the comparability of Fordham’s fee with the fees customarily

charged in the locality for similar services. However, one of

bar counsel's expert witnesses testified that he had never heard

of a fee in excess of $15,000 to defend a first OUI charge, and

the customary flat fee in an OUI case, including trial, “runs

from $1,000 to $7,500.” Bar counsel’s other expert testified

that he had never heard of a fee in excess of $10,000 for a

bench trial. In his view, the customary charge for a case sim-

ilar to Timothy's would vary between $1,500 and $5,000. One

of Fordham’s experts testified that she considered a $40,000

or $50,000 fee for defending an OUI charge ‘“‘unusual and

certainly higher by far than any I’ve ever seen before.” The

witness had never charged a fee of more than $3,500 for

representing a client at a bench trial to defend a first offense

OUI charge. She further testified that she believed an “aver-

age OUI in the bench session is two thousand [dollars] and

sometimes less.” Finally, that witness testified that she had

“heard a rumor” that one attorney charged $10,000 for a

bench trial involving an OUI charge; this fee fepresented the

highest fee of which she was aware. The other expert witness

called by Fordham testified that he had heard of a $35,000

fee for defending OUI charges, but he had never charged

more than $12,000 (less than twenty-five per cent of

Fordham’s fee).

Although finding that Fordham’s fee was ‘‘much higher

than the fee charged by many attorneys with more experience

litigating driving under the influence cases,” the hearing com-

mittee nevertheless determined that the fee charged by

Fordham was not clearly excessive because Clark “‘went into

the relationship with Fordham with open eyes,” Fordham’s

fee fell within a “safe harbor,” and Clark acquiesced in

Fordham’s fee by not strenuously objecting to his bills. The

|

os

492 423 Mass. 481

Sinai

in the Matter of Fordham.

board accepted the hearing committee's analysis apart from

the committee’s reliance on the “‘safe harbor” rule.

The finding that Clark had entered into the fee agreement

“with open eyes” was based on the finding that Clark hired

Fordham after being fully apprised that he lacked any type of

experience in defending an OUI charge and gfter interviewing

other lawyers who were experts in defending QUI charges.

Furthermore, the hearing committee and the board relied on

testimony which revealed that the fee arrangement had been

fully disclosed to Clark including the fact that Fordham

““would have to become familiar with the law in that area.” It

is also significant, however, that the hearing committee found

that “[djespite Fordham’s disclaimers concerning his experi-

ence, Clark did not appear to have understood in any real

sense the implications of choosing Fordhgm to represent

Timothy. Fordham did not give Clark any estimate of the

total expected fee or the number of $200 hours that would be

required.” The express finding of the hearing committee that

Clark “did not appear to have understood in any real sense

the implications of choosing Fordham to represent Timothy”

directly militates against the finding that Clark entered into

the agreement “with open eyes.”

That brings us to the hearing committeg’s finding that

Fordham’s fee fell within a “safe harbor.” The hearing com-

mittee reasoned that as long as an agreement existed between

a client and an attorney to bill a reasonable rate multiplied by

the number of hours actually worked, the attorney's fee was

within a “safe harbor” and thus protected from a challenge

that the fee was clearly excessive. The board, however, in

reviewing the hearing committee's decision, carrectly rejected

the notion “that a lawyer may aiways escape discipline with

billings based on accurate time charges for work honestly

performed.”

The “safe harbor” formula would not be an appropriate ra-

tionale in this case because the amount of time Fordham

spent to educate himself and represent Timothy was clearly

excessive despite his good faith and diligence; Disciplinary

Rule 2-106 (B)’s mandate that “‘[a] fee is clearly excessive

when, after a review of the facts, a lawyer of ordinary

prudence, experienced in the area of the law involved, would

be left with a definite and firm conviction that the fee is

substantially in excess of a reasonable fee,” creates explicitly

ee eeSsSFS3S; C

423 Mass. 481 493

In the Matter of Fordham.

an objective standard by which attorneys’ fees are to be

judged. We are not persuaded by Fordham’s argument that

“unless it can be shown that the ‘excessive’ work for which

the attorney has charged goes beyond mere matters of profes-

sional judgment and can be proven, either directly or by rea-

sonable inference, to have involved dishonesty, bad faith or

overreaching of the client, no case for discipline has been

established.” Disciplinary Rule 2-106 plainly does not require

an inquiry into whether the clearly excessive fee was charged

to the client under fraudulent circumstances, and we shall not

write such a meaning into the disciplinary rule. See Private

Reprimand PR-87-14, 5 Mass. Att’y Discipline Rep. 501, 502

(1987) (violation of DR 2-106 [A] and [B], as appearing in

382 Mass. 772 [1981] found even where “no evidence of bad

faith on the part of respondent”); Matter of the Discipline of

an Attorney, 2 Mass. Att’y Discipline Rep. 115, 117 (1980)

(violation of DR 2-106 [A] and [C], as appearing in 382 Mass.

772 [1981] even though no “overreaching or improper motiva-

tion’’).

Finally, bar counsel challenges the hearing committee’s

finding that “if Clark objected to the numbers of hours being

spent by Fordham, he could have spoken up with some force

when he began receiving bills.” Bar counsel notes, and we

agree, that “[t}he test as stated in the DR 2-106 (A) is whether

the fee ‘charged’ is clearly excessive, not whether the fee is

accepted as valid or acquiesced in by the client.” Therefore,

we conclude that the hearing committee and the board erred

in not concluding that Fordham’s fee was clearly excessive.

Fordham argues that our imposition of discipliné would of-

fend his right to due process. A disciplinary sanction consti-

tutes “ta punishment or penalty” levied against the respon-

dent, and therefore the respondent is entitled to procedural

due process. In re Ruffalo, 390 U.S. 544, 550 (1968). Matter

of Kenney, 399 Mass. 431, 436 (1987) (“attorney has a

substantial property right in his license to practice law’’).

Fordham contends that the bar and, therefore, he, have not

been given fair notice through prior decisions of this court or

the express language of DR 2-106 that discipline may be

imposed for billing excessive hours that were nonetheless

spent diligently and in good faith. Commonwealth v. Sefranka,

382 Mass. 108, 110 (1980), quoting Connally v. General Con-

str. Co., 269 U.S. 385, 391 (1926) (“An essential principle of

Ee

494 423 Mass. 481 __

—_

In the Matter of Fordham.

due process is that a statute may not prescribe conduct ‘in

terms SO vague that men of common intelligence must neces-

sarily guess at its meaning”’). It is true, as Fordham asserts,

that there is a dearth of case law in the Commonwealth met-

ing out discipline for an attorney's billing of a clearly exces-

sive fee. There is, however, as we have noted above, case law

which specifically addresses what constitutes an unreasonable

attorney's fee employing virtually the identical factors

contained within DR 2-106. See Mulhern y, Roach, 398 Mass.

18, 25-30 (1986); McLaughlin v. Old Colony Trust Co., 313

Mass. 329, 335 (1943); Cummings v. National Shawmut Bank,

284 Mass. 563, 569 (1933). See also Beatty v. NP Corp., 31

Mass. App. Ct. 606, 611 (1991) (factors. , . ta be considered

in determining whether a lawyer’s fee is fair and reasonable

have been amply discussed in the cases”). More importantly,

the general prohibition in DR 2-106 (A) that “*[a] lawyer

shall not enter into an agreement for, charge, or collect an il-

legal or clearly excessive fee,” is followed by eight specific,

and clearly expressed, factors, to be evaluated by the standard

of “a lawyer of Ordinary prudence,” in determining the

propriety of the fee. Contrast Gentile v. State Bar of Nev., 501

U.S. 1030, 1049 (1991), quoting Grayned v. Rockford, 408

U.S. 104, 112 (1972) (grammatical structure of attorney

disciplinary rule and lack of clarifying interpretation by State

court forced attorney to “guess at [the rule’s] contours” thus

failing to “provide ‘fair notice to those to whom [it] is

directed’ ’’). In addition, nothing contained within the

disciplinary rule nor within any pertinent case law-indicates

in any manner that a clearly excessive fee does not warrant

discipline whenever the time spent during the representation

was spent in good faith. The fact that this court has not

previously had occasion to discipline an attorney in the cir-

cumstances of this case does not suggest that the imposition

of discipline in this case offends due process. See Com-

monwealth v. Twitchell, 416 Mass. 114, 123, 125 n.13 (1993)

(defendants not deprived of “fair warning” that particular

conduct was proscribed by penal statute where criminal li-

ability depended on “degree” of conduct); Matter of Saab,

406 Mass. 315, 324 n.13 (1989) (absence of codified standards

to govern attorney discipline proceedings does not offend due

process). We reject Fordham’s due process argument.

In charging a clearly excessive fee, Fordham departed

423 Mass. 481 495

in the Matter of Fordham.

substantially from the obligation of professional responsibility

that he owed to his client. The ABA Model Standards for

Imposing Lawyer Sanctions § 7.3 (1992) endorses a public

reprimand as the appropriate sanction for charging a clearly

excessive fee. We deem such a sanction appropriate in this

case. Accordingly, a judgment is to be entered in the county

court imposing a public censure. The record in this case is to

-be unimpounded.

So ordered.