## Facts

- A client hired attorney Tracy Dee Cluck for a divorce and signed a fee contract requiring a $15,000 “non-refundable retainer,” billed hourly against that amount.
- The contract stated that no part of the legal fee would be refunded if the case was discontinued or otherwise ended early.
- After the client paused the divorce, the matter later faced dismissal; the client then asked Cluck to resume work.
- Cluck required a contract amendment: an additional $5,000 “non-refundable” fee and an increased hourly rate.
- The client terminated Cluck for lack of progress and responsiveness, retrieved her file, and requested a refund of unearned fees.
- Cluck refused to refund any portion of the $20,000 total paid, relying on the “non-refundable” language, despite time records showing only part of the fee had been earned.
- The Commission for Lawyer Discipline initiated formal disciplinary proceedings alleging violations of the Texas Disciplinary Rules of Professional Conduct, including charging or collecting an unconscionable fee and improper treatment of unearned funds.

## Issues

1. Whether the summary-judgment record established, as a matter of law, that Cluck charged or collected an unconscionable fee by retaining the full amount paid despite earning only a fraction through hourly work.
2. Whether “non-refundable” language in the fee agreement and the client’s consent could defeat disciplinary-rule requirements governing unearned fees and fee reasonableness.
3. Whether the trial court properly granted summary judgment for the Commission and denied Cluck’s cross-motion.

## Decision

- The court of appeals affirmed the trial court’s summary judgment for the Commission.
- The court held that the fee arrangement functioned as advance payment for hourly services, not a true engagement fee earned upon receipt.
- The court concluded that unearned portions of the payments remained client funds, regardless of being labeled “non-refundable.”
- The court held that retaining the full $20,000 when the services performed were substantially less supported a finding of an unconscionable fee as a matter of law.
- The court rejected the argument that contractual language or client agreement insulated Cluck from discipline.
- The disciplinary sanctions imposed by the trial court, including suspension and restitution, remained in effect.

## Legal Principles

- Disciplinary rules governing attorney fees and client funds apply independently of private contract terms between lawyer and client.
- A “non-refundable” label does not, by itself, convert an advance payment for future hourly services into a fee earned upon receipt.
- Unearned portions of advance fee payments must be treated as client funds; an attorney may not retain them solely based on contractual nonrefundability language.
- A fee may be unconscionable when the amount collected and kept bears no reasonable relationship to services actually rendered and the benefit conferred.
- On cross-motions for summary judgment, an appellate court reviews de novo and affirms when the movant conclusively proves entitlement to judgment as a matter of law and the opponent raises no genuine issue of material fact.

## Conclusion

The court affirmed professional discipline because the fee agreements operated as advance payments for hourly work, making unearned portions refundable client funds; contractual “non-refundable” language and client consent could not justify retaining a grossly disproportionate amount as an attorney fee under the disciplinary rules.


Cluck v. Comm’n for Lawyer Discipline, 214 S.W.3d 736 (Tex. App.—Austin 2007)