www.vtbar.org
ject to this proviso, consider using catchall
language in a hybrid fee agreement, e.g.,
“Anything else in this Retainer Agreement
notwithstanding, attorney shall not be en-
titled to agree, charge or collect, nor shall
client be obligated to pay, nor shall this fee
agreement be interpreted to require such
payment by client, of an unreasonable fee
as set forth in and prohibited by Rule 1.5(a)
of the Rules of Professional Conduct.”
In conclusion, this author believes that
much more attention and education are
needed to familiarize practitioners with
the implications of Rule 1.5 (a). The author
would welcome continuing CLE courses
on the application of Rule 1.5 (a), especial-
ly courses taught by attorneys with experi-
ence in disciplinary matters relating to the
Rule. In an increasingly complex business
world, more information and perhaps more
explicit guidance is needed.
____________________
Stuart Revo is admitted to practice in
Vermont and New York. He has over for-
ty years’ experience in business transac-
tions, contracts and corporate matters of
all types, including international transac-
tions in the Middle East, People’s Repub-
lic of China, Africa and Europe. He was re-
cently named to the China Advisory Board
of Ascension Capital Group, Ltd. to assist
a large American manufacturer with market
development in PRC, and currently advises
fintech and other start-ups in the New York
City area. He resides in Manchester, Ver-
mont.
____________________
In re Sinnott, 2004 VT 16, 845 A 2d 373 (2004).
In re Sinnott 2004 VT 16, 845 A 2d 373 (2004)
and See PRB 2005-4 at https://www.vtbar.org/
UserFiles/files/Webpages/Attorney%20Resourc-
1
2
THE VERMONT BAR JOURNAL • SUMMER 2017
es/aeopinions/Advisory%20Ethics%20Opinions/
Client%20Property/05-04.pdf
3
An interesting aspect of Sinnott is that al-
though Rule 1.5 enumerates eight factors to be
considered in determining the reasonableness of
a fee, the Court saw no applicability of these fac-
tors where the fee was unrelated to the actual
work performed, and was instead assessed using
a boilerplate agreement given to all clients. For
the reader’s information, Rule 1.5 (a) continues:
“The factors to be considered in determining the
reasonableness of a fee include the following:
(1) the time and labor required, the novelty
and difficulty of the questions involved,
and the skill requisite to perform the legal
service properly;
(2) the likelihood, if apparent to the client,
that the acceptance of the particular em-
ployment will preclude other employment
by the lawyer;
(3) the fee customarily charged in the locality
for similar legal services;
(4) the amount involved and the results ob-
tained;
(5) the time limitations imposed by the client
or by the circumstances;
(6) the nature and length of the professional
relationship with the client;
(7) the experience, reputation and ability of
the lawyer or lawyers performing the ser-
vices; and
(8) whether the fee is fixed or contingent.
4
It should be noted that this decision was
based on just one complaint, as the tip of the
iceberg. Sinnot was later disbarred after enter-
ing into a plea agreement for felony counts aris-
ing from the misappropriation of over $500,000
in client funds. See In re Sinnot, 05-337 Vt Sup.
Ct, August 25, 2005; http://caselaw.findlaw.com/
vt-supreme-court/1302776.html.
5
PRB 2005-4 at https://www.vtbar.org/User-
Files/files/Webpages/Attorney%20Resources/
aeopinions/Advisory%20Ethics%20Opinions/Cli-
ent%20Property/05-04.pdf
6
It is possible this author was unable to fair-
ly assess the real-life impact of Rule 1.5 (a) on
well- intentioned practitioners, without access to
the record of Disciplinary Complaints which were
dismissed or otherwise resulted in no published
record. It figures that the published cases such
as Sinnott and Fink (see infra) involve the most
egregious of fact patterns under the Rule. Sin-
nott involved a debt reduction mill where clients
were charged the same amount regardless of
work performed or outcome, and Fink involved
a particularly vulnerable client with a serious dis-
ability.
7
In Re Fink, 2011 VT 42 (PRB No. 2010-164).
8
In Fink Respondent was also charged with vio-
lating Rule 1.5 (c) for failing to reduce his contin-
gency fee agreement to writing. The author does
not address this issue in this article.
9
In Re Fink, supra at P43-44.
10
N.Y. State Op. 697 (1997).
11
The Committee noted also that in New York
any hybrid fee agreements must also comply
with limits established by particular Court Rule,
e.g., maximum fee schedules.
12
Arnall v. Superior Ct. (Liker), 2010 190 Cal.
APP. 4th 360.
13
Several of the cases cited above, like Sinnott,
involve advance fee payments implicating the
Rules relating to when fees must be placed in
trust, and when they must not be. The author has
not addressed this issue for purposes of this ar-
ticle, as it does not deal with the reasonableness
of the fee but rather where an advance fee is de-
posited. There appears to be lack of unanimity
among the jurisdictions on this point.
Suggestion 1. Unless the client is very so-
phisticated, then the fee agreement should
be simple, straightforward and uncreative.
Using a hybrid fee agreement and getting
creative with the contingencies, success
fees, bonuses or otherwise would appear
to be imprudent in such circumstances, and
may ultimately raise a Rule 1.5 (a) concern.
Suggestion 2. Upon the completion of
an engagement (or the termination by a
client), make it standard, best practice to
review the fee paid or remaining due, the
work performed, and the va lue provided to
the client. Consider the eight factors cited
in Footnote 1, and any others not specifi-
cally enumerated. Make a memo to the file
of your conclusions and reasoning. Regard-
less of the fee agreement, if the fee is or
would be unreasonable, reduce or refund
(part of) it.
Suggestion 3. Except in the traditional
practice areas of real estate, certain fami-
ly matters, and the exceptions widely rec-
ognized by the courts, avoid the fixed,
advance fee payment, characterized as
“earned upon receipt” and non-refund-
able. 13 While the Vermont Supreme Court
has suggested that in some circumstances
such fees and agreements are permitted,
absent a tradition in the practice area, the
cases are clear that fees rendered unrea-
sonable when weighed against the services
and value provided, will open the door to a
Rule 1.5 (a) violation.
Suggestion 4. Speaking anecdotally and
without authority, readers are advised do
their own research, and would be well ad-
vised not to merely rely upon this sugges-
tion, but to seek the confidential advice of
Disciplinary Counsel or other counsel. Sub-
41