Hello everyone and welcome to this Ethics Alert which will discuss the recent Tennessee Supreme Court disciplinary opinion which suspended a lawyer for one year for, inter alia, billing clients for watching true-crime shows. The opinion isYarboro Sallee v. Tennessee Board of Professional Responsibility, No. E2014-01062-SC-R3-BP (July 23, 2015) and is online here: http://www.tsc.state.tn.us/sites/default/files/salleeyarboro.opn_.pdf
According to the opinion, the underlying matter involved an accident which occurred on October 15, 2009. The decedent, Lori Noll, fell down steps in her home and died five days later. Although a medical examiner found that the death was accidental, the Ms. Noll’s parents suspected that their daughter’s husband was motivated by a one-million dollar insurance policy on Ms. Noll’s life and was responsible for her death.
The lawyer was hired by the parents in September 2010 to file a wrongful death action. The lawyer estimated that the litigation would cost no more than $100,000.00. The parents agreed to pay the lawyer an hourly rate of $250.00 and paid her an initial retainer of $5,000.00. The parents paid the lawyer an additional $15,000.00 and, within a month after the initial engagement, the parents paid an additional $19,000.00 in three separate checks: (1) $10,000.00 as a further retainer (2) $4,000.00 flat fee for the juvenile court proceeding, and (3) $5,000.00 to retain a forensics expert.
Less than three months later, the lawyer claimed that she had incurred hourly fees totaling over $140,000.00. At that point, she had done “little more” than file the wrongful death complaint, file related pleadings in probate and juvenile court, and gather records. When the lawyer insisted that the clients agree to pay her a contingency fees plus the hourly fees, they terminated her.
After the clients terminated the lawyer, she refused to return to them important evidence and documents related to the wrongful death litigation, including brain tissue slides from their daughter’s autopsy. The clients sued the lawyer to force her to return the withheld items and the lawyer threatened to file criminal charges against them. The clients then filed a complaint against the lawyer with the Tennessee Board of Professional Responsibility.
The Professional Responsibility Board investigated the lawyer, who argued that her conduct had been reasonable and ethical. She provided the Board documentation of her hourly charges, which claimed that she had worked as many as 23 hours of billable time in a single day and included fees for tasks such as watching many hours of reality and fictional crime TV shows.
A hearing panel found that the lawyer had violated numerous the Bar by charging excessive fees, demanding that the clients agree to pay a contingency fee in addition to hourly fees, failing to communicate with the clients regarding the basis for the fees, improperly withholding items from the clients after they discharged her, and threatening to file criminal charges against the clients. The hearing panel found five aggravating factors: (1) a dishonest and selfish motive; (2) a pattern of misconduct; (3) multiple offenses; (4) refusal to acknowledge the wrongfulness of her conduct; and (5) indifference to making restitution and one mitigating factor: the absence of a prior disciplinary record and recommended a one year suspension.
The lawyer requested judicial review of the hearing panel’s recommendation, and the trial judge upheld the sanction. The lawyer then appealed to the Tennessee Supreme Court, claiming that there was no basis for finding ethical violations and that the one year suspension was too severe. The opinion upheld the hearing panel’s findings that the lawyer violated multiple ethical rules and the one year suspension. “At every turn in these proceedings, faced with findings at every level that her conduct breached numerous ethical rules, Attorney Sallee has been doggedly unrepentant. Indeed, her consistent response has bordered on righteous indignation.”
The opinion further stated: “Assuming arguendo that the hourly rate of $250 per hour is reasonable for Attorney Sallee’s experience and ability, it is important under the Rules that the lawyer ensure that the work for which he or she seeks to charge the client is ‘reasonable.’ For example, a lawyer who represents criminal clients may be interested in watching Perry Mason or Breaking Bad on television, and may even pick up a useful tidbit or two from doing so. The lawyer may not, however, equate that to research for which he or she may charge a client. In this case, the Panel did not err in considering the many hours Attorney Sallee sought to charge the Claimants for watching television shows such as 48 Hours.
“Attorney Sallee also objected to the trial court’s comment that she ‘watched TV and charged her client for it.’ She characterized this statement as ‘ridiculous,’ adding, ‘since when is television not a respectable avenue for research anyway.’ Attorney Sallee pointed to a particular time entry on her ‘billing statement’ as legitimate billable time because it was spent watching a five-hour documentary on the Peterson ‘Stair Case Murder’ in North Carolina. Her motion did not address a 12.5-hour time entry on September 25, 2010, for watching ‘48 Hours’ episodes on similar spousal homicides, a 4.0-hour time entry on October 19, 2010 for watching four ‘48 Hours’ episodes on asphyxia, or a 3.5-hour time entry on October 20, 2010 for watching these same ‘48 Hours’ episodes a second time. At Attorney Sallee’s regular hourly rate, this would amount to over $5,000 for watching episodes of ‘48 Hours.’”
Bottom line: This is an egregious example of a lawyer seriously abusing billable time and charging an excessive fee, including charging as many as 23 billable hours in one day and charging multiple billable hours watching crime TV shows. To compound her problems, the lawyer refused to turn over the clients’ evidence and information after they had terminated her and apparently completely failed to grasp that she had committed any misconduct.
Be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670