Findings and Conclusions OCR

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1101 Ridge Road, Suite 203

Rockwall, Texas 75087

Andy Sanc ez

Court C ordinator

1641h istrict Court

20 aroline

uston, TX 77002

•,1 : ,.

"BRETIHALL

Judge, 382nd Judicial District Court

,Rockwall County Government Center

May 17,2006

Telephone: (972) 882-0270

Fax: (972) 882-0278

Re: Cause No. 2004-67710; Commission for Lawyer Discipline vs. Paul C. Looney;

In the 133'd Judicial District Court ofHarris County, Texas

Dear Andy:

As requested by the Petitioner, enclosed for filing in the above referenced case are

Findings of Fact and Conclusions of Law. Please advise if I need to direct the filing to a different

office.

With best regards, I am

BH:lp

Enc!.

Jennifer . Hasley, Attorney at Law600 Je erson, Suite 1000

Hou on, TX 77002

\ Michael A. Lamson, Attorney at Law

" l 11767 Katy Freeway, Suite 740

Houston, TX 77079

Via Fax No.7 I3-758-8292and Regular Mail

Via Fax No. 281-597-8284

and Regular Mail



CAUSE NO. 2004-67710

COMMISSION FOR LAWYER * IN THE DISTRICT COURT

DISCIPLINE, *

*. Petitioner, *

*vs. * HARRIS COUNTY, TEXAS

*PAUL C. LOONEY, *

*Respondent. * 133'· JUDICIAL DISTRICT

FINDINGS OF FACT AND CONCLUSIONS OF LAW

After considering the pleadings, the evidence, the argument and briefs from counsel, the

Court, in response to a request from the Petitioner, makes its findings offact and conclusions of

law as follows:

Findings of Fact

I. Ir July 2003. Respondent wa, .. lIployed through an oral agreement to represent Jeffrey

Blalock, hereinafter referred to as "Client", for the charge ofDWI, as well as allegations

of parole violation.

2. Respondent undertook said employment for $12,000.00, which he testified was full

payment for representation, regardless of how much or how little time would be involved,

3, Respondent testified that the employment agreement called for a "flat fee" that was non

refundable,

4, Client was unable to testify about the specifics of the fee arrangement since he did not

participate personally in the employment of Respondent.

5, Sharon Allen, who personally secured the employment of Respondent on behalf of Client,

was vague in her testimony about whether she understood the fee to be non-refundable,

6, In securing the employment, Sharon Allen made misrepresentations to Respondent about

the scope and nature of the representation.

7. Both sides agreed that this was not a retainer case against which Respondent would bill

hourly, although Respondent testified that had it been, at his hourly rate, the services he

FINDINGS OF FACT AND CONCLUSIONS OF LAW· PAGE I



perfonned prior to tennination would have exceeded $12,000.00. No evidence was

offered to controvert this testimony.

8. Based on a preponderance of the evidence, the Court finds that it is more likely than not

that the fee arrangement entered into on behalfofClient with Respondent was a "flat fee"

which was non-refundable.

9. Respondent's employment was tenninated in August of 2003 prior to the completion of

all legal matters for which he was employed.

10. Prior to the tennination, Respondent perfonned services including court appearances,

research, discussions with the District Attorney and the parole authorities, as well as a

review of the evidence.

II. After the tennination, Client requested the return of a portion of the attorney fee, but no

return was made by Respondent.

12. Respondent's expert testified that "flat fee" contracts are common in criminal cases and

are generally non-refundable.

13. The testimony of Petitioner's expert was not allowed based on the failure ofproper

designation under the Texas Rules ofCivil Procedure, and it therefore was not considered

by the Court (although it was offered in a bill).

14. Client secured new counsel who sent a Motion for Substitution to Respondent on

September 10, 2003.

IS. Respondent signed and returned the Motion for Substitution on the same day it wasreceived.

16. Respondent made a court appearance on behalfofClient on September 9, 2003, in order

to reset the case since he was still attorney ofrecord in the Court's file.

17. Client's subsequent attorney testified that some courts in Galveston would not allow

withdrawal in a criminal case until a new attorney was substituted.

18. New counsel for Client charged a fee of $7,500.00 to represent him on the OWl only

which concluded by plea bargain in November, 2003.

19. Client filed a grievance against Respondent in November 2003 regarding the fee, to

which a response was due on or about December 25,2003.

20. Respondent filed a response on approximately January 7, 2004, which was past the due

date under 8.04(a)(8) of the Rules of Professional Conduct.

FINDINGS OF FACT AND CONCLUSIONSOF LAW - PAGE l



21. Although Respondent's office received the grievance, Respondent did not become

personally aware of it until early January 2004, as a result ofa change in personnel and

tunnoil within Respondent's law office, including a tennination of the office manager

based on allegations of theft.

22. Upon personally discovering Ihe presence of the grievance, Respondent promptly filed a

response (within three days) and advised Petitioner in the response of reasonable grounds

for the late filing as stated above.

23. The late filing was not intentional, or the result of conscious indifference on the part of

Respondent.

Conclusions of Law

I. Petitioner failed to meet the burden of proof necessary to establish a violation of Section

1.15(a).

2. In accordance with the requirements ofRule 1.15(d), upon notice of discharge, and prior

to substitution of new counsel, Respondent's appearance in Court to reset the case on

September 9,2003, was an effort to mitigate consequences of the discharge for Client and

was not an unreasonable action. Further, Client suffered no hann or prejudice as a result

thereof.

3. Respondent established good cause for the late filing of his response to the grievance, and

that it was not an intentional act or the result of conscious indifference.

4. No hann or prejudice resulted from the late response.

5. Petitioner failed to meet its burden of proofregarding a violation of Section 1.15(d) of the

Rules ofProfessional Conduct as it relates to the fee.

6. The language ofRule 1.15(d) fails to clearly state that its mandates apply to a non

refundable flat fee contract in a criminal case, although in any event Petitioner failed to

meet its burden of proofon this alleged violation based on the admitted testimony.

7. The phrase "advance payments" contained within Rule 1.15(d) is not defined and the rule

offers no method for detennining a calculation of any unearned portion of a fee (even if

Rule 1.1S(d) is applied to non-refundable criminal flat fee cases.)

8. Petitioner further failed to meet the burden of proof on the issue of what amount, if any in

this case, was unearned or should be refunded or returned.

FINOINGS OF FACT AND CONCLUSIONS OF LAW - PAGE3



Upon filing of these Findings of Fact and Conclusions of Law, the Clerk of the Court

shall send a copy to all parties.

Signed thisn day ofMa;, 2006.

Judge

FINDINGS OF FACTAND CONCLUSIONS OF LAW - PAGE 4

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