A plaintiff who paid defendant lawyer a $45,000 flat fee to defend a juvenile on a rape charge through “final verdict” of the juvenile court, has standing to seek an accounting of that fee after the lawyer was discharged before representation was concluded under the contract, says a Richmond County Circuit Court.
The intent of the drafters of the Virginia Rules of Professional Conduct is clear; they did not intend for a violation of the Rules, standing alone, to give rise to a cause of action against an attorney. This cannot be construed as an attempt to extinguish those causes of action that arise from conduct, which would expose an attorney to discipline by the bar for violation of the Rules. If a plaintiff is alleged to be precluded from asserting a claim based on a violation of one of the Rules, which also constitutes a violation of a substantive legal duty, such a preclusion would be against common sense; while the claim cannot arise from the violation of the Rules alone, surely it can still arise from the violation of the substantive legal duty. The Rules largely mirror many substantive duties that an attorney owes to his client. Even if those duties are not expressed in the contract for legal services, they are nevertheless implied in any contract for legal services. The legal duty of an attorney to return any unearned portion of a fee paid in advance is one such implied duty. If an attorney is discharged prior to the conclusion of the legal representation and thereafter fails to make an accounting and return any unearned portion of the fee paid in advance, that alone is a breach of an implied covenant in a contract for legal services.
The court overrules defendant’s demurrer challenging plaintiffs’ standing. Plaintiff 1, who was the client seeking representation, has standing to bring an action for accounting. Plaintiff 2, who paid the $45,000 fee to defendant lawyer, is a beneficiary of the trust relationship and would be entitled to a return of any unearned portion of the fee. Because the complaint alleges defendant was discharged prior to conclusion of the legal representation as described in the contract, plaintiff 2 has an equitable ownership in any unearned portion of the fee.
Plaintiffs do not rely solely on the Rules to assert a claim for breach of contract. They also allege the following specific facts: the legal representation ended prior to completion; the fee was paid in advance; and defendant has neither made an accounting, nor returned any unearned portion of the fee.
As an attorney, defendant has an obligation to return the portion of any fee that has been paid in advance and not earned. The distinction of whether or not the payor of the fee is also the client is not a controlling issue. If an attorney is discharged prior to completion of the legal representation, regardless of the reason for the discharge, such an attorney has an implied obligation to return any unearned portion of the fee, which was paid in advance. This obligation is an implied covenant in any legal services contract that requires a fee be paid in advance; and the obligation is owed to both the client and the payor of the fee, regardless of whether they are one and the same. Therefore, as to both plaintiffs, count II has alleged sufficient facts to state a cause of actin and the demurrer as to count II for both plaintiffs is overruled.
Horton v. Monroe (Harris) No. CL 11-76, Oct. 3, 2012; Richmond County Cir.Ct.; Patrick C. Henry II for plaintiffs; Michael L. Donner Sr. for defendants. VLW 012-8-153, 6 pp.