by Richard W. Millar, Jr.
Collecting legal fees is one of the most sensitive aspects of practicing law. With some exceptions, many of which have been publicized, most lawyers find fee collection painful. It has been even more so in these recessionary times. There have been a number of articles claiming the existing billing model is dead and that more imaginative fee arrangements are the wave, indeed the necessity, of the future. Some lawyers have been more imaginative than others.
As always, a case in point. . .
One Murdock Hertzog, a Michigan lawyer, was recently suspended for six months for his fee collecting activities. What he purportedly did was not all that unusual, and I have previously written about variants of his approach. It was his vocabulary that caught my attention.
A woman named Cheryl had retained the lawyer in a parental rights matter and her husband had retained him in a criminal matter. Since she worked in the same building, she went to Mr. Hertzog's office “on almost a daily basis.” At the “conclusion of virtually every meeting,” he patted her on her posterior when she left the office. She was not offended, because she thought it was a “practice common to older people.” I never thought the aging process might have such advantages, but I digress.
One time when Cheryl was there in the late afternoon after Mr. Hertzog's secretary had left, he made “a suggestive statement,” closed the window blinds, pointed to his nether region and told Cheryl to look at what she was doing to his, and I am not making this up, “front porch.” I guess, to paraphrase a more current idiom, his porch light was on.
Cheryl became “nervous” and asked what she and her husband owed the lawyer. I am not sure how she segued from porch to pocketbook, but I will suspend disbelief and will assume it was a logical transition. In any event, the lawyer told her not to worry about the fees as she could pay them on, and again I am not making this up, his “couch of restitution.”
Another woman named Tina retained him in a divorce matter. She also was apparently told that payment of her fees could be made on the “couch of restitution.”
Another client, Sandra, testified that she retained him for an overdue loan and divorce matter. She told him she was concerned about being able to pay him. Well, he closed the blinds and the rest is, as they say, history. Apparently, in her case it was a couch of incomplete restitution, because he later sent her a bill. That was, at least in retrospect if not immediately apparent, not a good idea. She blew the whistle and called for an investigation which led to the charges which resulted in his suspension. There is an obvious lesson to be learned: It is the couch or the bill, but not both.
In his defense, Mr. Herzog claimed that all three women made up the allegations against him as they occurred in the aftermath of his request to be paid for his services. The Disciplinary Board viewed that testimony with a jaundiced eye, noting that the women, who I gather didn't know each other, had remarkably similar stories. You couldn't make up “couch of restitution” in a million years. Also, it didn't help that Mr. Hertzog had pled guilty to a misdemeanor charge of assault and battery in exchange for a dismissal of a charge of “fourth-degree criminal sexual conduct,” which the lawyer had failed to report to the Bar. After the disciplinary proceedings were commenced, he successfully applied to get his conviction set aside.
His second line of defense had more surface credibility–he was 83 years old and thus the claims were “absurd.”
The Disciplinary Board found, however, that “the protection of the public, the courts and the profession requires that [he] be suspended for a sufficient period of time to ensure that he is not permitted to resume his standing as a member of the profession unless he is able to establish his fitness by clear and convincing evidence.”
Well, I don't want this example to create the impression that it is wrong for a lawyer to ask that his or her fees be paid.
It is all in how you couch the request.
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Mr. Millar is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached via email at millar@mhblaw.net.