Facts
- Ted Bushman, a California lawyer admitted in 1962, represented a 16-year-old wife (Barbara Cox) and related parties in a divorce and custody dispute; the family had limited means and no community property was involved.
- Bushman required the clients to sign (1) a $5,000 promissory note (with $300 down and $50 monthly payments) and (2) an hourly retainer agreement of not less than $60 per hour.
- Bushman justified the large retainer by asserting that opposing counsel in custody matters would generate excessive paperwork, requiring a minimum retainer regardless of time spent.
- The matter remained relatively routine: it involved limited court activity, no related juvenile or criminal proceedings, and custody was resolved by stipulation after a standard investigation.
- The divorce court ordered the husband to pay $360 as reasonable attorney’s fees and costs for Barbara’s representation.
- When seeking that court-ordered fee award, Bushman did not disclose the existence of the $5,000 note, the $300 down payment, or the continuing installment payments.
- Bushman billed his clients more than $2,800, claiming over 100 hours of work, despite limited objective indicia of comparable effort.
- Separately, Bushman disseminated news releases about his practice that the State Bar found were intended to solicit professional employment.
- The State Bar Disciplinary Board found Bushman (1) charged and attempted to collect an exorbitant and unconscionable fee and (2) improperly solicited clients through news releases, recommending a one-year suspension.
Issues
- Whether Bushman’s fee arrangement and attempted collection in the divorce/custody representation constituted an exorbitant and unconscionable fee warranting discipline.
- Whether distributing news releases to obtain clients constituted impermissible solicitation and professional misconduct under the applicable professional-conduct rules.
- Whether a one-year suspension was an appropriate sanction.
Decision
- The California Supreme Court sustained the disciplinary findings that Bushman charged and attempted to collect an unconscionable fee.
- The court sustained the finding that Bushman’s dissemination of news releases constituted improper solicitation.
- The court ordered Bushman suspended from the practice of law for one year, adopting the State Bar’s recommended discipline.
Legal Principles
- Excessiveness of attorney fees is determined on a case-by-case basis, considering the circumstances of the representation.
- A fee may warrant discipline when it is so exorbitant and wholly disproportionate to the services rendered that it shocks the conscience, even if the client agreed by contract.
- In assessing unconscionability, relevant factors include the client’s financial condition, the complexity of the matter, the amount involved, and the results obtained.
- Seeking a court award of “reasonable attorney’s fees” without disclosing a substantial private fee arrangement can mislead the tribunal and aggravate the impropriety of the total fee.
- Disseminating news releases for the purpose of soliciting professional employment violates professional rules restricting solicitation and may justify discipline.
Conclusion
The court imposed a one-year suspension because the attorney sought a grossly disproportionate fee from financially vulnerable clients in a straightforward domestic matter, compounded by nondisclosure to the trial court when requesting a fee award, and because he used news releases as client solicitation in violation of professional-conduct rules.