Wisconsin’s highest court publicly reprimands an elder law attorney who charged for work without a written fee agreement and withdrew funds from a trust account without written notice or accounting. Matter of Disciplinary Proceedings Against Drach (Wis., No. 2018AP237-D, Dec. 23, 2020).
Attorney Jeffrey Drach entered into a flat fee arrangement with clients to conduct Medicaid planning. Mr. Drach also worked on asset preservation for the same clients at an hourly rate without a written fee agreement. In addition, Mr. Drach withdrew money from the trust account without providing a written notice or an accounting. Mr. Drach also did Medicaid planning for another client without a written fee agreement.
Wisconsin’s Office of Lawyer Regulation charged Mr. Drach with four counts of professional misconduct, including billing hourly when there was a flat fee arrangement, charging for work without a written fee agreement, and failing to provide information about withdrawal of funds from trust accounts. Mr. Drach stipulated to the misconduct. The referee recommended dismissal of the first count regarding collection of unreasonable fees, claiming that a lawyer can charge hourly rates in addition to a flat fee. Mr. Drach argued that he should be privately reprimanded.
The Wisconsin Supreme Court publicly reprimands Mr. Drach. The court agrees that the first count should be dismissed, but for different reasons than the referee declared. According to the court, ethics rules do not allow “a lawyer to unilaterally switch from a flat fee agreement to a flat-fee-plus-hourly-fee arrangement for work covered by the flat fee agreement.” However, the court rules that the unreasonable billing was a clerical error for which Mr. Drach made compensation. The court determines that suspension is inappropriate because while Mr. Drach “has engaged in unprofessional billing practices, there is no evidence of deceit or any course of conduct designed to collect fees for work not performed.”
For the full text of this decision, go to: https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=318638
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