Summary
The Supreme Court of Kentucky reviewed disciplinary charges against attorney Zack N. Womack arising from his representation of clients in a foreclosure matter. The court found violations involving an unwritten contingency-fee agreement, failure to refund unearned fees, and false statements to bar counsel, imposing a 30-day suspension, restitution, remedial ethics education, and costs.
Topics
Practice areas
Questions Presented
- Whether Womack violated SCR 3.130-1.5(c) by charging a contingency fee without a prior written agreement.
- Whether Womack violated SCR 3.130-1.16(d) by failing to refund the unearned portion of the fee.
- Whether Womack violated SCR 3.130-8.1(a) by knowingly making false statements of material fact to Bar Counsel regarding the amount of work performed.
- Whether Womack violated SCR 3.130-1.5(a) by charging an unreasonable fee.
- What discipline and restitution were appropriate for the sustained violations.
Holdings
- Womack was guilty of violating SCR 3.130-1.5(c) because he charged a contingency fee without a written contingency-fee agreement.
- Womack was guilty of violating SCR 3.130-1.16(d) by refusing to refund the portion of the fee that had not been earned.
- Womack was guilty of violating SCR 3.130-8.1(a) by knowingly making false statements of material fact to Bar Counsel concerning the amount of work performed.
- Womack was not guilty of violating SCR 3.130-1.5(a) as charged in Count I.
Key quotations
“However, because he did not have a written agreement with the Parkses, as alleged in Count II, he was not entitled to charge a contingency fee and could charge only according to his hourly rate.” (at 413-414)
“A finding of guilt under Count I would essentially be a finding that he was guilty of an ethical violation on a non-existing contingency fee, the propriety of which has already been judged elsewhere in this Opinion.” (at 414)
Factual background
Zack N. Womack represented Bill and Brenda Parks in a foreclosure matter involving their jointly owned residence. Although Womack claimed the representation was undertaken on a contingency basis, there was no written contingency-fee agreement, and he ultimately withheld $6,789.35 from Brenda Parks's $33,946.77 share of the foreclosure surplus. The Parks claimed they had expected hourly billing, requested an accounting and refund, and were told that Womack had performed substantially more work than later billing records established. Womack also endorsed and deposited the check payable to Brenda Parks and made statements to Bar Counsel concerning the amount of work performed.
Procedural history
A trial commissioner found Womack guilty of all six charged violations and recommended a 61-day suspension, restitution, remedial ethics education, and costs. The Board of Governors declined to adopt the trial commissioner's report, considered the matter de novo, found Womack guilty of Counts II, III, and VI, not guilty of Counts IV and V, and could not reach the required vote on Count I. The Kentucky Bar Association sought review of Count I, while the Supreme Court adopted the Board's remaining findings and sanction.