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Christopher S. Carson is a Wisconsin-
licensed attorney, admitted to practice on
May 18, 1992. Carson’s State Bar
identification number is 1018184. Carson’s
address of record is 15350 W. National
Avenue, Suite 101, New Berlin, Wisconsin
53151.
On or about March 5, 2019, a woman hired
Carson to represent her in an anticipated
divorce. The representation was governed by
a written fee agreement calling for
placement of an advanced fee into Carson’s
business account, as permitted under the
terms of SCR 20:1.5(g). The fee agreement
contained the notices required to be
provided at the outset of the representation
under SCR 20:1.5(g)(1) when an advanced fee
will be placed into a business account. The
fee agreement provided for an hourly rate of
$250.00.
At the outset of the representation,
the client delivered $2200.00 to Carson, in
payment of a $2,000 advanced fee and $200 as
an advance toward anticipated costs. Carson
deposited the entire $2200.00 into his
business account. While SCR 20:1.5(g)
provides an alternative allowing for
placement of an advanced fee into a business
account, there is no provision under the
Rules of Professional Conduct allowing for
placement of a cost advance into a business
account. SCR 20:1.5(f) provides in relevant
part, without exception, “Funds advanced by
a client or 3rd party for payment of costs
shall be held in trust until the costs are
incurred.”
The fee agreement governing Carson’s
representation of the client established a
property interest in favor of Carson, and
adverse to the client. The fee agreement
addressed the potential for fees billed in
excess of the advanced fee, and stated in
part, “I accept that Attorney Carson has a
continuing lien on all of my property, real
and personal until the balance of his fee is
paid.”
An attorney may in certain
circumstances acquire a lien to secure the
attorney’s fee or expenses. SCR 20:1.8(i)(1)
provides, “A lawyer shall not acquire a
proprietary interest in the cause of action
or subject matter of litigation the lawyer
is conducting for a client, except that the
lawyer may. . . acquire a lien authorized by
law to secure the lawyer’s fee or expenses.”
The ABA comment to SCR 20:1.8(i) states in
part, “The law of each jurisdiction
determines which liens are authorized by
law. . . When a lawyer acquires by contract
a security interest in property other than
that recovered through the lawyer’s efforts
in the litigation, such an acquisition is a
business or financing transaction with a
client and is governed by the rules of
paragraph (a). . .”
With respect to his lien interest in
all of the client’s property established by
the fee agreement, Carson did not advise the
client of the desirability of seeking
independent counsel, nor did the client
provide informed written consent, separate
from the fee agreement, to Carson obtaining
an adverse property interest. Under SCR
20:1.0(f), “Informed consent” denotes the
agreement by a person to a proposed course
of conduct after the lawyer has communicated
adequate information and explanation about
the material risks of and reasonably
available alternatives to the proposed
course of conduct.”
On March 21, 2019, the client
requested by telephone that Carson stop all
divorce proceedings until further notice.
Carson emailed the client on March 22, 2019,
stating his views regarding the client’s
decision to seek a change in direction in
the anticipated divorce.
On April 8, 2019, the client emailed
Carson, stating in part:
. . . I am releasing you of your
duties as my lawyer. Based on our contract,
I understand any fees incurred up to March
21 will be deducted from the retainer and
filing fee I prepaid. Please provide me with
a detailed summary of all charges. Since the
above email [Carson’s March 22, 2019 email
to the client] was sent after I asked you to
stop all actions, I will not pay you for
your time in writing it.
Please provide me with the details of when I
will be refunded the balance of the retainer
and filing fee.
Carson replied to the client’s April 8, 2019
email the same day, stating in part, “The
itemization of work on your behalf will take
a few days.”
At the time of the client’s April 8, 2019
email terminating Carson’s representation,
Carson’s work in the matter included
communications and consultation with the
client, communication with the unrepresented
adverse party, and drafting of pleadings. No
divorce action had been filed as of the time
the client terminated Carson’s
representation. The client and her husband
would file as joint divorce petitioners in
an action filed in circuit court on May 6,
2019.
In early May 2019, the client and Carson had
an email exchange in which the client
repeated her request from April 8, 2019 for
an itemization and refund, and asked that
Carson provide the requested information no
later than May 10, 2019. Carson responded in
part, “I am in China until the 13th, so it
will have to wait until the following week.”
Carson had departed the U.S. for China on
May 3, 2019 (more than three weeks after the
April 8, 2019 termination of representation)
to pick up his wife, a Chinese national.
Upon returning to the U.S., Carson was
immediately occupied with his wife’s health
issues, which included a surgery performed
shortly after their arrival in Wisconsin.
Carson sent the client the post-
representation notices required under SCR
20:1.5(g)(2) on October 22, 2019. By check
dated October 22, 2019, Carson refunded
$1,025.00 of the advanced fee paid by the
client. By check dated December 3, 2019,
Carson refunded the $200 cost advance paid
by the client.
Carson asserts that the accounting and
refunds owed to the client slipped his mind,
and that he had no intention of defrauding
the client or otherwise improperly holding
funds owed to her.
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By acquiring a lien on all of the client’s
property via the fee agreement without
advising the client of the desirability of
seeking independent counsel and without
obtaining the client’s informed written
consent, separate from the fee agreement, to
the adverse property interest, Carson
violated SCR 20:1.8(a), which states, “A
lawyer shall not enter into a business
transaction with a client or knowingly
acquire an ownership, possessory, security
or other pecuniary interest adverse to a
client unless: (1) the transaction and terms
on which the lawyer acquires the interest
are fair and reasonably to the client and
are fully disclosed and transmitted in
writing in a manner than can be reasonably
understood by the client; (2) the client is
advised in writing of the desirability of
seeking and is given a reasonable
opportunity to seek the advice of
independent legal counsel on the
transaction; and (3) the client gives
informed consent, in a writing signed by the
client, to the essential terms of the
transaction and the lawyer’s role in the
transaction, including whether the lawyer is
representing the client in the transaction.”
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By depositing and holding the client’s cost
advance in his business account, Carson
violated SCR 20:1.5(f), which states in
relevant part, “. . . Funds advanced by a
client or 3rd party for payment of costs shall
be held in trust until the costs are
incurred.”
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By delaying until October 22, 2019 to refund
the unearned portion of the client’s advanced
fee and until December 3, 2019 to return the
client’s cost advance, Carson in each instance
violated SCR 20:1.16(d), which states in
relevant part, “Upon termination of
representation, a lawyer shall take steps to
the extent reasonably practicable to protect a
client’s interests, such as . . . refunding
any advance payment of fee or expense that has
not been earned or incurred. . .”
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Carson received a private reprimand in 2008, a
public reprimand in 2009, a 90-day
disciplinary suspension in 2015, and a private
reprimand in 2016.
In accordance with SCR 22.09(3), Attorney
Christopher S. Carson is hereby publicly
reprimanded.
Dated this 21st day of December, 2020.
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