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10/02/2009 "See News Release 060 for any Concurrences and/or Dissents." SUPREME COURT OF LOUISIANA NO. 09-B-1288 IN RE: RICHARD COLLINS DALTON

ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM*
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Richard Collins Dalton, an attorney licensed to practice law in Louisiana. Respondent appeals a ruling of the disciplinary board ordering that he be publicly reprimanded.

UNDERLYING FACTS In November 2005, Tyrone Barrow, Sr. hired respondent to represent him in a redhibition claim against Ford Motor Company ("Ford"). Mr. Barrow signed respondent's fee agreement, which set forth the following terms: 1. Attorney's fees are calculated at $250 per hour, and paralegal fees are calculated at $75 per hour. The attorney will maintain time and billing records for the legal work he performs, and his time will be maintained in fifteen-minute increments; 2. The attorney's fees are classified as an additional element of the damages to be paid by the defendant and will be in addition to any damages or award received in settlement or judgment;

Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tempore, participating in the decision.

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3.

The attorney's employment is on a contingency fee basis, and if no recovery is made, the client will not pay any attorney's fees or expenses; and

4.

If recovery is made, the attorney may deduct all costs and expenses.

In December 2005, respondent filed a petition for redhibition and damages on Mr. Barrow's behalf. On October 25, 2006, Mr. Barrow signed an authorization to settle his claim against Ford for $5,400, plus attorney's fees of $4,000 and court costs of $600, for a total settlement of $10,000. By signing the authorization to settle, Mr. Barrow also authorized respondent to execute the release and settlement documents on his behalf and to endorse the settlement check on his behalf. As such, on Mr. Barrow's behalf, respondent executed the receipt and release, reflecting that Mr. Barrow received a settlement of $10,000. Respondent then disbursed $5,400 to Mr. Barrow as his portion of the settlement, and the lawsuit was dismissed. In December 2006, Mr. Barrow filed a complaint against respondent with the ODC. In his complaint, Mr. Barrow alleged that he should have received the entire $10,000, instead of only $5,400. He also alleged that respondent misled him by failing to inform him that Ford offered to settle with him for $10,000 and not $5,400. In response to the complaint, respondent advised the ODC that it is customary for redhibition defendants to send one settlement check in an amount that includes the attorney's fees and costs. Respondent subsequently provided the ODC with an accounting of his time and expenses, indicating that he worked 30.75 hours on Mr. Barrow's case, which amounted to $6,900 in attorney's fees, and incurred expenses totaling $670.1

Respondent did not provide Mr. Barrow with this accounting or verbally inform him of these amounts before Mr. Barrow signed the authorization to settle. 2

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DISCIPLINARY PROCEEDINGS In February 2008, the ODC filed one count of formal charges against respondent, alleging that his conduct as set forth above violated Rules 1.2(a) (scope of the representation), 1.4 (failure to communicate with a client), 1.5 (fee arrangements), 1.5(b) (the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client), 1.5(c) (contingency fee agreements), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct. Respondent answered the formal charges, denying any misconduct. Accordingly, the matter proceeded to a formal hearing on the merits.

Hearing Committee Report After considering the testimony and evidence presented at the hearing, the hearing committee made the following factual findings: Respondent's fee agreement with Mr. Barrow specified the scope of the representation in connection with Mr. Barrow's redhibition claim. The fee agreement specifically and clearly stated that attorney's fees would be charged only upon recovery and then at $250 per hour for attorney time and $75 per hour for paralegal time. The fee agreement also clearly noted that the litigation and other expenses would be deducted from the recovery. Respondent provided the fee agreement, which was specified as a contingency fee agreement, to Mr. Barrow in writing and before he filed the redhibition claim.

Mr. Barrow testified that he received the fee agreement in the mail, read and understood it, and signed it. He understood that, if his claim was unsuccessful, then
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he would not have to pay any money to respondent. He also testified that, if his claim was successful, then Ford would be responsible for paying his attorney's fees. Mr. Barrow further understood that respondent would deduct all costs and expenses from the recovery if his claim was successful. He obtained this information from the fee agreement provided by respondent. Regarding the settlement, Mr. Barrow consented in writing to settle his claim with Ford for $5,400, with $4,000 for attorney's fees and $600 in court costs, by signing the authorization to settle. Subsequently, Mr. Barrow received $5,400 as promised. He also signed the receipt and release. Based on these facts, the committee determined that the ODC failed to prove by clear and convincing evidence any violations of the Rules of Professional Conduct. Accordingly, the committee recommended that all charges against respondent be dismissed. The ODC filed an objection to the hearing committee's recommendation.

Ruling of the Disciplinary Board Based on its review of the record, the disciplinary board agreed with the hearing committee that respondent's fee agreement itself did not violate the Rules of Professional Conduct.2 The board, however, disagreed with the committee that respondent did not engage in ethical misconduct. The board found that respondent kept no contemporaneous time records while he was working.3 Therefore, at no time
Citing 1 Hazard & Hodes, THE LAW OF LAWYERING,

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