## Facts

- Everett E. Powell, II was admitted to the Indiana bar in 2004.
- T.G. received a settlement from a personal-injury case.
- Because T.G. had a history of substance abuse, received public assistance, and was in an abusive relationship, her attorney, Mark E. Ross, placed about $42,000 of the settlement into a special-needs trust to preserve benefits eligibility and to prevent rapid depletion of the funds. Ross served as trustee.
- After the trust was created, T.G. repeatedly demanded money from the trust. Ross reminded her why the trust existed and stated he would resign if T.G. located a qualified replacement trustee.
- T.G. consulted Powell about removing Ross as trustee and getting money from the trust.
- Powell agreed to represent T.G. on a contingent fee. He drafted a fee agreement under which he would seek Ross’s removal as trustee in exchange for one-third of the money in the trust.
- The next day, Powell contacted Ross and they agreed Powell would take over as trustee. Powell, Ross, and T.G. signed an agreement naming Powell as trustee.
- Powell then prepared documents terminating the trust and withdrew the trust funds from the trust account in his claimed capacity as trustee.
- Powell retained almost $15,000 from the trust as his fee and distributed the remainder to T.G.
- The Indiana Supreme Court Disciplinary Commission investigated and filed disciplinary charges alleging that Powell collected an unreasonable fee.
- The hearing officer found Powell was unremorseful, failed to cooperate with the investigation, and made misrepresentations during the disciplinary matter.

## Issues

1. Whether Powell violated Indiana Professional Conduct Rule 1.5(a) by charging and collecting a clearly unreasonable fee—approximately one-third of a special-needs trust corpus—for minimal work from a vulnerable client seeking access to protected settlement funds.
2. What discipline was appropriate given the client’s vulnerability and aggravating circumstances found by the hearing officer, including lack of cooperation and misrepresentations during the disciplinary process.

## Decision

- The Indiana Supreme Court found Powell committed attorney misconduct by collecting a clearly unreasonable and exploitative fee from a vulnerable client, in violation of Indiana Professional Conduct Rule 1.5(a).
- The Court suspended Powell from the practice of law for at least 120 days, without automatic reinstatement.
- The suspension was effective November 11, 2011, and Powell could not return to practice unless and until reinstated through a separate proceeding.

## Legal Principles

- A lawyer may not make an agreement for, charge, or collect an unreasonable fee. Ind. Prof. Cond. R. 1.5(a).
- In assessing whether a fee is unreasonable, the court considers the Rule 1.5(a) factors, including the time and labor required, the novelty and difficulty of the work, customary fees in the locality, the amount involved and results obtained, and whether the fee is fixed or contingent.
- A contingent fee may be unreasonable when the percentage bears little relationship to the legal work performed and produces a grossly disproportionate payment.
- Client circumstances matter: charging a substantial fee to a client known to be vulnerable can render a fee not only unreasonable, but exploitative, particularly where the arrangement defeats the purpose of protections put in place for the client’s welfare.
- In determining sanction, the court weighs the nature of the misconduct, harm or risk of harm to the client, the lawyer’s attitude, and aggravating or mitigating circumstances; suspension without automatic reinstatement may be imposed to require a showing of fitness before returning to practice.

## Conclusion

In re Everett E. Powell, II held that Powell violated Rule 1.5(a) by taking nearly $15,000—about one-third of a vulnerable client’s $42,000 special-needs trust—for minimal work after becoming trustee, terminating the trust, and disbursing the funds, and the Indiana Supreme Court suspended him for at least 120 days without automatic reinstatement, effective November 11, 2011.


In re Everett E. Powell, II, 953 N.E.2d 1060 (2011)