# Amicus Curiae Brief — Fordham v. Massachusetts Bar Counsel

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1954%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 519 U.S. 1149

## Text

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

i

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
ee Se eT

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1954%3A3. Public record. Not legal advice.