Amicus Curiae Brief — Fordham v. Massachusetts Bar Counsel

Supreme Court, U.S.

ria. &@

No. 96-946 JAN 9 1997

i CLERK

In The

Supreme Court of the United States

+

October Term, 1996

LAURENCE S. FORDHAM,

Petitioner,

VS.

MASSACHUSETTS BAR COUNSEL,

Respondent.

On Petition for Writ of Certiorari to the Supreme Judicial

Court for the Commonwealth of Massachusetts

AMICI CURIAE BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

JOHN J. CURTIN, JR.

Counsel of Record

BINGHAM, DANA & GOULD

Attorneys for Amici Curiae

150 Federal Street

20th Floor

Boston, Massachusetts 02110

(617) 951-8000

utz

onan (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21 b

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TABLE OF CONTENTS

Page

PIED CA Cisecs a sie oknecer teks ice ]

AUN MO PP UII inc w cena susdevecedercsc.. ]

Reasons for Granting the Writ ..................... ]

REE, $2 alec eee he + Re Rae a ek 13

TABLE OF CITATIONS

Cases Cited:

Beatty v. NP Corp., 581 N.E. 2d 1311 (Mass. App. 1991) .

L$) CAVA WEEMS ESO e ed ke dues edd coe ekeae ce ]

Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.

ee UT ROPES Soe vunin ec ceere sions poade ees 5, 10

Goldfarb v. Virginia State Bar, 423 U.S. 773 ( 1975) .. 5

In re Ruffalo, 390 U.S. 544 (1968) .............. 5, 6, 7, 11

Other Authorities Cited:

American Bar Association Code of Professional

Responsibility Annotated, p. 101 (O. Maru ed. 1979)

ii

Contents

Page

Drinker, Legal Ethics, p. 174 (1953) ......ceseceess 10

Kaufman, Problems in Professional Responsibility, Note:

Disciplinary Rule — Problems of Generality, pp. 667-

GOP (0G C8. EGGS) no's ccnsncnevesuceeeneeanees 6,9

Restatement (Third) of the Law Governing Lawyers,

Reporter’s Note, section 46, Commentf ............ 2, 10

Sutton, The American Bar Association Code of

Professional Responsibility: An Introduction, 48 Texas

be AE. Bae a cacnneesn dunce bease se caeneeees ]

Wolfram, Modern Legal Ethics, § 9.3, p. 516 (1986)... 2, 10

|

INTEREST OF AMICI

The amici respectfully urge the Court to grant the Petition

because the Court’s guidance is necessary on an issue of

importance to the bar and to the administration of justice.

The amici primarily are active practicing trial lawyers

threatened by the decision of the state court imposing discipline

upon an experienced and respected trial lawyer “on what is

essentially a standardless ad hoc basis.” Sutton, The American

Bar Association Code of Professional Responsibility: An

Introduction, 48 Texas L. Rev. 225, 263. (The author was

Reporter in the adoption of the Code of Professional

Responsibility by the American Bar Association.) The remaining

amici are professors who are authorities in professional

responsibility.

CONSENT BY THE PARTIES

Written consent to file this amicus brief has been obtained

from all parties to the action. The written consents are lodged

herewith.

REASONS FOR GRANTING THE WRIT

The issue presented by this petition is this: Consistent with

the due process clause, may discipline be imposed on an attorney

based upon an ad hoc, after the fact, application of a vague

disciplinary rule (DR 2-106), by ill-defined, unprecedented

standard.

This is especially so when, the record shows that, there was

a strong consensus among responsible members of the bar that

the attorney’s conduct was proper.

ee

2

Discipline was imposed despite the heretofore well

established disciplinary standard of unconscionability, described

in Massachusetts in the adoption of the rule as “egregious

overreaching. .. .” Petition of Boston Bar Association to adopt

the Canons and Disciplinary Rules in the Code of Professional

Responsibility adopted by the American Bar Association,

Supreme Judicial Court for Suffolk County, No. 7631, Report

of Special Master (retired Justice of the Supreme Judicial Court

John K. Spaulding) dated April 13, 1972 pp. 25-26, reproduced

in pertinent part in the petition at Pet. 87a (80a - 87a).' There

was no forewarning by the state court that this standard would

not be applied.

The state court’s unprecedented application of the rule

means “(t]he standard ... is necessarily vague ... and thus

uncertain in its application.” Wolfram, Modern Legai Eiiics,

§ 9.3, p. 516 (1986).

The decision disregards a high body of heretofore consistent

precedent establishing a much more stringent standard as a basis

for discipline in case law and secondary authorities (Pet. 9).

The disregarded standard is recognized in the Final Draft

Restatement (Third) of the Law Governing Lawyers, Reporter’s

Note, section 46, Comment f, of “standards for lawyer

discipline,” and cases cited. The decision ignores the heretofore

well-established standard. The decision explicitly rejects the

established standard and declines to find even “overreaching”

(Pet. 21a - 22a), much less “egregious overreaching” as required

by the Report of Special Master in the judicial history of the

adoption of the code in Massachusetts. Nor does the decision

provide any elucidation for the guidance of lawyers in the future.

Prior precedent is excised. Nothing is provided in its place.

1. References to the Appendix to the Petition are to the pertinent pages

without repeated reference to the Appendix. Other references are to the

petition, by page number.

3

The underlying facts are few and uncontested. Laurence S.

Fordham, a respected senior member of the Massachusetts bar,

has been publicly censured by the state court for having charged

a “clearly excessive” fee where, by agreement with the client,

he charged at his usual hourly rates, there was no allegation

that he “padded” his time, and Bar counsel has stipulated that

he acted conscientiously, diligently and in good faith, in the

time spent in representing his client and in billing. (Pet. 7a.)

This censure is unprecedented. The client chose Mr.

Fordham, knowing the hourly basis of his fees and after

interviewing three other lawyers who specialized in driving

under the influence cases and who had quoted fixed fees. (Pet.

41a, 52a.) Mr. Fordham is an experienced trial lawyer who

disclosed to the client that he had no experience in driving under

the influence cases or other criminal matters. (Pet. 4a.)

The client was charged with two criminal offenses, driving

under the influence and driving with a license under suspension

for multiple speeding offenses, and two civil offenses, speeding

and driving an unregistered motor vehicle. (Pet. 43a - 45a.) He

was driving erratically at 55 m.p.h. in a 35 m.p.h. zone; had a

more than half empty bottle of vodka in his car; had alcohol on

his breath, slurred speech, and a flushed face; was unsteady on

his feet when he got out of the car; failed field sobriety tests,

including the alphabet test and the test of walking heel and toe;

had breath test readings of .10 and .12, both above the

presumptive level of intoxication; and later executed an affidavit

making false assertions about warnings to which he declined to

testify in court. (Pet. 40a; R. 74-77, Ex. 2; R. 87-88, 107-11; R.

1245.)

The results that petitioner obtained for his client were

exceptional in view of very strong evidence against the

defendant. The breath tests were suppressed by a “creative”

4

and “impressive” argument that the two tests were not “within

.02” as required by law. (Pet. 5a, 13a.) After trial, there was a

“not guilty” verdict for driving under the influence. (Pet. 5a.)

Petitioner obtained by motion the dismissal of the criminal

charge of driving with a suspended license for multiple prior

speeding offenses. (Pet. 44a.) The client paid a $50 fine with

no further suspension for speeding, and $50 costs for operating

an unregistered motor vehicle. (R. 1293.)

I.

Professor John Leubsdorf captured the essence of the

concern in a Memorandum in Support of Petition for Rehearing

in the court below, stating as follows:

A reasonable lawyer following

Massachusetts caselaw on fees as between

lawyer and client would have been amazed

at the thought that the fee here could be held

to be grounds for discipline. In the less

demanding area of fee disputes, courts have

upheld far more questionable arrangements

than those here. Cummings v. National

Shawmut Bank, 284 Mass. 563 (1933); First

National Bank vy. Brink, 372 Mass. 257

(1977); Mulhern v. Roach, 398 Mass. 18

(1986). In these cases, the client had never

agreed to the fee basis, yet a very large fee

was nevertheless upheld; in the second case,

fiduciary relationships in addition to the

lawyer-client relationship were also involved,

yet still the fee was upheld. The courts have

likewise declined to set aside large fees under

fee contracts. Rubin v. Taylor, 1 Mass. App.

208 (1973); Johnson v. Blacke, 32 Mass. App.

SPRUNG stnniactien ales osm

5

399 (1992); see Gagnon v. Shoblom, 409

Mass. 63 (1991).

This Court can reject the principles of

these cases, but it has not heretofore done

so. There was no fair notice here that the fee

in question was unenforceable, much less that

it was a disciplinary offense.

Id., pp. 3-4.

Professor Leubsdorf is the Associate Reporter of the

Restatement (Third) of the Law Governing Lawyers, responsible

for the portion relative to fees. He joined in this Memorandum

in the state court in his individual capacity. He now is one of

Petitioner’s attorneys in filing the petition.

The cited decisions of the court below are affirmatively

misleading in that they repeatedly allow civil recovery of charges

substantially in excess of hourly charges for good results. In

contrast, here the Court disallows hourly charges although the

services were performed diligently, conscientiously and in good

faith, and the results were exceptional. Such charges previously

have been upheld civilly where the results were unfavorable to

the client. (Pet. 16-17.)

Several decisions of this Court support granting the petition.

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

v. Virginia State Bar, 423 U.S. 773 (1975). See also In re Ruffalo,

390 U.S. 544, 555, 556 (1968) (concurring opinion of Mr. Justice

White) (discipline inappropriate on basis of after the fact

determination where “responsible attorneys would differ in

appraising the propriety of that conduct.”) Justice White’s

concurring opinion in /n re Ruffalo is renowned, and it has had

extraordinary influence in setting the standard, here ignored,

WNC ii hh PM BASRA GRRE DA At A a EE

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6

for attorney discipline. See references in Report of Special

Master (83a, 84a), and Kaufman, Problems in Professional

Responsibility 668-69 (3d ed. 1989).

The state court decision also is a serious and substantial

threat retrospectively and prospectively to the bar generally.

Where does this leave the determined, no-

stone-unturned criminal defenses celebrated

by the profession? Apparently a lawyer may

mount such a defense, but is forbidden to

charge for it, under a fee contract, with the

defendant’s approval of the specific actions

taken, at_the lawyer’s usual rates. That is

wrong.

Id., p.2. The threat of discipline in such circumstances is

particularly troubling given the state court’s inherently vague

standard of excessiveness that replaces the historic, well

understood standard of unconscionability. The latter standard

was described in the report underlying the adoption of the Code

in Massachusetts as “egregious overreaching by the lawyer or

the client.” Report of Special Master, April 13, 1972, supra, p.

2. The Special Master (Retired Justice John K. Spaulding)

specifically recognizes a due process violation where, as clearly

is the case here, an attorney is “judged by standards that are so

vague that men of common intelligence must necessarily guess

at meaning or differ as to application.” (Pet. 85a.)

Similarly, Justice White’s concurring opinion in Jn re

Ruffalo, 390 U.S. at 556, enunciated a principle, now well

established, that discipline is inappropriate based upon a

determination after the fact that conduct is improper where, as

clearly is the case here, responsible members of the bar differ

as to the propriety of the conduct. Conduct that is improper

7

and subject to discipline is conduct that “all responsible attorneys

would recognize is improper for a member of the profession.”

Id. at 555.

Compelling evidence in support of the fees and the basis

for fees in this case was given by many acknowledged leaders

of the Bar, including the following: Ms. Carol Ball and Ms.

Nancy Gertner, Messrs. Samuel Adams, Edward J. Barshak,

Jerry Cohen, John J. Curtin, Jr., Harold Hestnes, Richard

G.Huber, Robert W. Meserve, Robert J. Muldoon, Jr., Rudolph

F. Pierce, and James D. St. Clair. They include two former

presidents of the American Bar Association, former counsel to

the President, former president of the Boston Bar Association,

the Chairman and Secretary of the Massachusetts Board of Bar

Examiners, a former Chairman of the National Conference of

Bar Examiners, two former Justices of the Massachusetts

Superior Court, a lawyer who has become a Justice of the

Massachusetts Superior Court, a lawyer who has become a Judge

of the United States District Court for the District of

Massachusetts, a former dean of the Boston College Law School

and distinguished scholar in the field of professional

responsibility, and a subsequent member of the Board of Bar

Overseers and respected author and scholar in the field of

professional responsibility.

The testimony of Mr. Meserve is particularly significant

and instructive. Mr. Meserve was a former president of the

Boston and American Bar Associations, the American College

of Trial Lawyers and the American Bar Foundation (R. 11: 1479).

He was a member of the Clark Committee and chairman of the

Kutak Committee, both of the American Bar Association. The

former resulted in the formation of the Board of Bar Overseers

and the latter in the ABA’s promulgation of the Code of

Professional Responsibility. He was appointed by the state court

in 1984 as the first Chairman of the Board of Bar Overseers of

the state. Mr. Meserve testified as follows:

8

There is no question .. . but that setting

a fee based upon the application of a lawyer’s

established and reasonable hourly rate to the

time devoted to the matter is proper with

respect to any matter, including, but not

limited to, the defense of criminal charges

and regardless of whether any such work is

generally handled upon some other fee basis,

such as a flat fee, contingency fee or

transactional charge.

That being the case, it is and always has

been my understanding that where a lawyer

is employed on a time-charge basis a fee

which results from applying the lawyer’s

hourly rate to the actual time devoted to the

matter in good faith cannot as a matter of

law, be a “clearly excessive” fee. In such

cases, the client has agreed to pay

compensation in proportion to the time

devoted to the matter and, so long as the time

is devoted in good faith, the fee resulting

therefrom cannot be deemed excessive at all,

much less “clearly” so. I believe that my

understanding in this regard is the general,

if not universal, understanding of

experienced and responsible lawyers, not

merely civil litigators, but in every area of

practice.

R. 11: 1483-84.

9

Il.

As a result of the decision below, lawyers generally, and

trial lawyers specifically, are made subject to discipline without

warning by virtue of a newly fashioned standard that is so vague

that even the most prudent lawyers will necessarily be uncertain

as to its meaning and application. It is hard to conceive that

anyone familiar with previous law in Massachusetts or with the

law of professional responsibility generally could have foreseen

this decision or the court’s departure from the well established

disciplinary standard of unconscionability.

Nor does the decision below provide any meaningful

guidance for future conduct of lawyers. The decision that the

fee here is clearly excessive is standardless, ad hoc in the eye of

the beholder, and in disregard of contrary opinion by numerous

respected, distinguished, members of the Bar and authorities in

the law of professional responsibility.

The operative term “clearly excessive” means what the

Court says it means, neither more nor less, and the decision iS

meaningless as guidance to any responsible member of the bar

seeking safe billing practices consistent with responsibilities to

the client under Canons 6 and 7.

Indeed, if petitioner is subject to discipline here on a

standardless ad hoc basis, any lawyer, anytime, anywhere, is

equally vulnerable. Petitioner not only is a knowledgeable,

experienced, very respected member of the Bar who has

distinguished himself by service to clients and to the profession,

he is an authority on the law of professional responsibility,

having taught it, edited a portion of Professor Kaufman’s book,

(see Preface, Kaufman, supra) and served on the members’

Consultative Committee of the Restatement of the Law (Third)

of the Law Governing Lawyers.

10

In the particular case, petitioner also had no choice but to

provide the services for which he cannot be paid and is

disciplined. Contrary to petitioner’s advice, despite the strong

evidence against him, the client declined to plead guilty and

accept an alcohol education program. (Pet. 55a.) Petitioner “was

encouraged to press all reasonable avenues of defense and to

pursue the case to trial.” (Pet. 56a.)

It was stipulated that all billed work was actually done and

that Petitioner acted conscientiously, diligently and in good faith

in his representation and billing. (Pet. 7a.) The client knew

and approved of what Petitioner was doing, received monthly

bills, and did not place Petitioner on notice that he objected in

any real sense to Petitioner’s fees or billing procedures. (Pet.

53a - 54a.)

Gentile v. State Bar of Nevada, supra, holds in part that the

words “general” and “elaboration” are “classic terms of degree”

with no “settled usage or tradition of interpretation in the law.”

111 S. Ct. 2720, 2732 (1991). The same is true here. Wolfram,

Modern Legal Ethics, § 9.3, p. 516 (1986) notes that “[t]he single

standard of an excessive fee is necessarily vague because of the

greatly varied settings in which fees are charged, and thus

uncertain in its application.” By contrast, the discipline standard

of unconscionability and its equivalent, egregious overreaching,

have a long and well-established history and meaning in case

law and secondary authorities. The Final Draft Restatement

(Third) of the Law Governing Lawyers recognizes “ ... the

generally more stringent standard in discipline cases than in fee

disputes.” Jd., Reporter’s note, Sec. 46, Comment f, of

“Standards for lawyer discipline,” and cases cited. See also

Drinker, Legal Ethics, p. 174 (1953) (“flagrantly excessive”),

American Bar Association Code of Professional Responsibility

Annotated, p. 101 (O. Maru ed. 1979) (“ ‘unconscionable’ . . .”

so exorbitant and wholly disproportionate to the services

11

rendered as to shock the conscience.’ ”); Jn re Ruffalo, supra at

555, 556, ; Kaufman, Problems in Professional Responsibility,

Note: Disciplinary Rule—Problems of Generality, pp. 667-669

(3rd ed. 1989).

Although the decision is a threat to all practicing lawyers,

it is a particular threat to trial lawyers who charge at hourly

rates for their services in accordance with well established

practice in the profession. These lawyers in particular are

confounded by a decision which disregards well established

precedent in Massachusetts and elsewhere, and also disregards

the language of the rules and authorities requiring consideration

of all relevant factors of which those cited by the Court are non-

exclusive. Although all are to be considered and none are

dispositive pursuant to these precedents, the Court further

confounds the Bar by making one — the charges of others —

dispositive, mentioning one other, and ignoring all others,

including such important factors as the importance of the case

to the client, “the results obtained” and “the experience,

reputation, and ability of the lawyer or lawyers performing the

services.” (Pet. 2 - 3.)

Petitioner’s client, having interviewed three fixed fee

driving-under-the-influence specialists, chose a lawyer of

reputation, ability and experience as a general trial lawyer, rather

than one who handled only driving-under-the-influence cases.

By so choosing, the client obtained the benefit of general

litigating skills, and a fresh perspective on driving-under-the-

influence cases that redounded materially to the client’s

advantage. Of course, this also meant that Petitioner, like other

trial lawyers, had to educate himself about that kind of case.

The client also chose a lawyer who charged by the hour,

rather than demanding a flat fee paid in advance, as did other

lawyers he consulted (Pet. 41a) and as do most criminal defense

12

lawyers. By so doing, the client avoided having to pay a full

fee should the case terminate quickly, and avoided lawyers

having a financial incentive to encourage a guilty plea. The client

also placed on his lawyer the burdens of collecting the fee should

the client fail to pay — as in fact the client did.

Nevertheless, the court without notice punished Petitioner

for violating a wholly new standard based on the “customary

flat fee” of specialists handling operating-under-influence cases.

(Pet. i8a.) Far from intimating any such standard, previous

Massachusetts civil authority had indicated that the fee of a

lawyer charging by the hour by agreement with the client should

not be adjusted on the basis of other factors. Rubin v. Taylor,

294 N.E. 2d 544 (Mass. App. 1973); Beatty v. NP Corp., 581

N.E. 2d 1311 (Mass. App. 1991).

Nor had there been any previous hint that all trial lawyers

were to base their fees on those charged by specialists, here

lawyers limiting themselves to a driving-under-the-influence

subspecialty. On the contrary, the Massachusetts rule lists as a

relevant factor “[t]he experience, reputation, and ability of the

lawyer or lawyers performing the services” — not those of other

lawyers handling similar cases on a different basis. (Pet. p.3.)

The court did not mention this factor. If apples are to be

condemned for not meeting the standards applicable to oranges,

due process requires prior notice.

13

CONCLUSION

The Petition should be granted to provide guidance as to

the notice required as a predicate for discipline.

Respectfully submitted,

JOHN J. CURTIN, JR.

BINGHAM, DANA & GOULD

150 Federal Street - 20th Floor

Boston, MA 02110

(617) 951-8000

For:

SAMUEL ADAMS

WARNER & STACKPOLE

75 State Street

Boston, MA 02109

(617) 951-9000

EDWARD J. BARSHAK

SUGARMAN, ROGERS,

BARSHAK & COHEN, PC

101 Merrimac Street

Boston, MA 02114

(617) 227-3030

JEROME GOTKIN

MINTZ, LEVIN, COHN, FERRIS,

GLOVSKY AND POPEO, PC

One Financial Center

Boston, MA 02111

(617) 542-6000

14

JOHN M. HARRINGTON, JR.

ROPES & GRAY

One International Place

Boston, MA 02110

(617) 951-7612

HAROLD HESTNES

HALE & DORR

60 State Street

Boston, MA 02109

(617) 526-6616

ROBERT K. LAMERE

Central Artery Tunnel Project

Mail Stop 01-4C-07

One South Station

Boston, MA 02110

(617) 951-6184

WILLIAM F. LOONEY, JR.

LOONEY & GROSSMAN

101 Arch Street

Boston, MA 02110

(617) 951-2800

THOMAS F. MAFFEI

CHOATE, HALL & STEWART

53 State Street

Boston, MA 02109

(617) 248-5000

CORNELIUS J. MOYNIHAN, JR.

PEABODY & BROWN

101 Federal Street

Boston, MA 02110

(617) 345-1000

15

ROBERT J. MULDOON, JR.

SHERIN AND LODGEN LLP

100 Summer Street

Boston, MA 02110

(617) 426-5720

RUDOLPH F. PIERCE

GOULSTON & STORRS, PC

400 Atlantic Avenue

Boston, MA 02110

(617) 482-1776

R. ROBERT POPEO

MINTZ, LEVIN, COHN, FERRIS,

GLOVSKY AND POPEO, PC

One Financial Center

Boston, MA 02111

(617) 542-6000

GEORGE J. SKELLY

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM

One Beacon Street

Boston, MA 02108

(617) 573-4800

JOHN PAUL SULLIVAN

MINTZ, LEVIN, COHN, FERRIS,

GLOVSKY AND POPEO, PC

One Financial Center

Boston, MA 02111

(617) 542-6000

16

RICHARD G. HUBER?

New England School of Law

154-156 Stuart Street

Boston, MA 02116

MONROE H. FREEDMAN?

Hofstra University Law School

Hempstead, New York 11550

2. Not a member of the Massachusetts Bar.