The Honorable Brian McDonald

Noted for Hearing: February 26, 2021, 11:00 a.m.

With Oral Argument

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KING 9

Plaintiff Dorette Banghart through her attorneys of record, Marc L. Silverman and
G. Lee Raaen, submits her response to Defendants Motion to Dismiss.

21 I. RELIEF REQUESTED

Defendant’s Motion for Summary Judgment does not contain a section specifying

24 the relief they seek by their motion, and their statement of issues do not accurately reflect

the primary elements of their proposed order. Nevertheless, plaintiff requests that
defendants’ motion be denied in its entirety.

4 II. STATEMENT OF FACTS

Defendants spend the first six pages of their motion for summary judgment
attempting to convince the court that their representation of plaintiff was a risky
proposition. Certainly, there are risks in litigation and Ms. Banghart’s case was no 8

exception. Any risks involved in litigation can be taken into consideration by the court in

determining the reasonableness of attorneys’ fees. However, that determination is a
question of fact and “risk” is only one of multiple factors to be considered.
Defendants do not, and cannot, show that the court can rule that an attorney’s fee is
reasonable as a matter of law through summary judgment based solely on a parties 14

perceived risk in taking on the case. The relevance of defendants’ long discussion of risk as

related to the current motion is not explained, other than to suggest that “risk” was taken
into account by other courts in different types of cases in determining a reasonable fee.
Since defendants’ discussion in this motion of the risks of plaintiff’s case only
provides a peek into the facts of the case, a more detailed history is provided for the court’s 20

consideration to the extent the court may deem it relevant at this time. Attached to

Silverman declaration as Exhibit 1 is “Petitioner’s Combined Motion for Order to Show
Cause and to Vacate Divorce Decree as to a Single Communal Asset” (without exhibits)
and filed with the court by Defendant Van Kampen in October 10, 2018.

Defendants use the “risk” allegation to justify a $3.2 million fee for what amounted
1. to 4 months work (amounting to 251.3 hours of attorney time) spent in preparing one
1. motion (which was never argued nor even responded to) and attending a one-day
1. mediation. The undisputed facts are that defendants did virtually nothing to prepare this 5

case besides some research into the Push Pay stock and plaintiff’s ex-husband’s action

regarding it. Part of the relief defendants sought in the unanswered CR 60 motion was the
chance to do some discovery. Defendants did not even stick around long enough to get the
court’s answer as to whether discovery would be granted. Hence, as a matter of “work”
done, they hired no experts, took no depositions, propounded no written discovery, 11

subpoenaed no documents of any kind, indeed did nothing whatsoever to advance

plaintiff’s claim, instead settling for the quick outcome in mediation and pocketing $3.2
million for this meager effort. Even if they had seen the CR 60 motion through to at least
seeking discovery, what “risk” would they have encountered for the effort they expended?
Indeed, even if they had seen the motion through and lost entirely, what “risk” would they 17

have encountered as measured by the work they put in? Despite their protestations of

“risk”, what transpired here was transparent; it amounts to an unconscionable grab of fees
for what amounted to little work. If there was “risk” here for anyone, it was plaintiff’s ex-
husband; and his fear he might have to pay a truly fair share of his $75 million stock sale
to plaintiff upon the CR 60 motion being granted, played at least as much a role here as any 23

“lawyering” by defendants.

Attempting to claim that plaintiff did not timely raise objections to their fees,
1. defendants inconsistently misuse the facts. For example, on page 7, ln 14 they argue that
1. the final disbursement statement was on January 8, 2019, but that she did not file suit until

4 April 27, 2020. They claim, “she did not raise any objection whatsoever to her attorneys 5

even though she knew she was entitled to do so.” Id. ln.16. However, in responding to

plaintiff’s discovery requests, defendants refused to provide any responses relating to
information beyond June 2019 on the grounds of privilege and work-product because they
claim that was the date they learned of the threat of suit regarding their fees. (For examples
using the June 2019 date to refuse to respond to discovery, see Defendants’ Supplemental 11

Responses to Plaintiff’s Interrogatories and Requests for Production, Interrogatories 8, 11,

13 12, 13, Dkt.156, Ex. 2b.)

Regarding timing, suit was delayed because of claims of confidentiality raised by
plaintiff’s ex-husband to plaintiff’s complaint. That issue had to go through arbitration first,
and ultimately this court denied a request to seal the file. (Dkt. 49.) 17

18 III. STATEMENT OF ISSUES

[AS DEFINED IN DEFENDANTS’ MOTION]
A. Whether disgorgement can be ordered on the undisputed material facts? Yes.
B. Whether plaintiff is statutorily or contractually barred from bringing an
untimely claim? No.
C. Whether the claim should be dismissed because plaintiff agreed to the fee disbursements without protest? No.

25 D. Whether any claim survives for trial? Yes.

1 IV. EVIDENCE RELIED ON

Plaintiff relies upon the pleadings filed in this action, the Court’s Order entered on

8/11/2020, and the Declaration of Marc L. Silverman with exhibits.
- ??? our list of evidence relied on described?

6 V. AUTHORITY AND ARGUMENT

Defendants have refused to discuss the basic elements and law governing this 8

action in their current motion and in their prior pleadings submitted to the court.

Furthermore, often assertions regarding the law governing their current motion are absent,
incorrect, or not applicable. As an overview, plaintiff submits the following general
principles of law involved in this case.
[A] fee agreement between lawyer and client is not an ordinary business contract.
The profession has both an obligation of public service and duties to clients which transcend ordinary business relationship[s] and prohibit the lawyer from taking
advantage of the client. Thus, in fixing and collecting fees the profession must remember that it is “a branch of the administration of justice and not a mere money
getting trade.”

Holmes v. Loveless, 122 Wn. App. 470, 478, 94 P.3d 338 (2004) (quoting In re

18 Swartz, 141 Ariz. 266, 686 P.2d 1236, 1243 (Ariz. 1984), and ABA Canons of

Professional Ethics, Canon 12).
Mark J. Fucile (Editor in Chief), Washington Legal Ethics Deskbook, § 3.1, pg. 3-1 (Wash.
State Bar Assoc. 2020).
An attorney’s fee contract is touched by the ethical duty a lawyer owes the client.
An attorney fee agreement that violates the Rules of Professional Conduct is contrary to public policy and is unenforceable. Simburg, Ketter, Sheppard & Purdy,
LLP v. Olshan, 109 Wn. App. 436, 445, 33 P.3d 742, review granted, 141 Wn.2d 25 1001 (2000).

1 Id. 2

An essential element of a claim for attorney fees is that fees be reasonable. The basic rule is that, “[a] lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.” RPC 1.5(a). The reasonableness requirements of RPC 1.5 apply whether the fee is being paid by the client or by a third party. Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 859 P.2d 1210 (1993).

Id. at §3.4(1), pg. 3-19.

Defendants here incorrectly claim that plaintiff has the burden of proof regarding
questions regarding a lawyer’s entitlement to fees. (Defendants’ Motion for Summary
Judgment at pg. 10, ln. 11).
The burden of proving the reasonableness of the fees is upon the attorney requesting
them. Herring v. Dep’t of Social & Health Servs., 81 Wn. App. 1, 34, 914 P.2d 67 (1996.) “In addition to establishing entitlement to attorney fees, the party requesting
them must also establish they are reasonable.” McGreevy v. Or. Mut. Ins. Co., 90 Wn. App. 283, 291, 951 P.2d 798 (1998) (citing Absher Constr. Co. v. Kent Sch. Dist., 79

13 Wn. App. 841, 847, 905 P.2d 1229 (1995)); Scott Fetzer Co., 122 Wn.2d 141.

14 Whether attorney fees are reasonable is a question of fact to be decided in light of the circumstances of each individual case. Commercial Credit v. Wollgast, 11 Wn. App.

15 117, 521 P.2d 1191 (1974). [emphasis added.]

16 Id. at §3.4(3), pg. 3-22.

Throughout this litigation, defendants have ignored the basic principles of law

governing this case. They continue that failing in their current motion for summary judgment
and argue positions unsupported by and even contrary to law.

DEFENDANTS’ ARGUMENTS THAT THE ATTORNEY FEE CANNOT NOW BE

22 DISGORGED ARE INCORRECT AND CONTRARY TO LAW.

Defendants motion for summary judgment is confusing and grossly misleading. The

25 primary focus of defendants’ motion is their argument that their attorneys’ fees cannot be

“disgorged.” This argument is represented by the first of their statement of issues,
“Whether disgorgement can be ordered on the undisputed material facts?” That is also the
statement of issue used as their headline at Section V.A. of their motion which reads, “The
Attorney Fee Cannot Now Be Disgorged.” Nowhere do Defendants identify the 5

reasonableness of their claimed fees as one of the issues brought before the court.

The defendants confuse and ignore the vast differences between a determination of
the reasonableness of attorney’s fees and the question of disgorgement of attorney’s fees.
These are clearly distinct and critical issues regarding claims for fees. Defendants motion
for summary judgment completely ignores the elements of those two distinct claims. It 11

should be noted that plaintiff’s complaint sharply distinguishes and alleges

“reasonableness” and “disgorgement” as separate claims. DKT. # 1. In Plaintiff’s “Second
Cause of Action”, section V of her complaint, plaintiff seeks a determination of the
reasonableness of the fees taken by defendants and a judgment for the difference.
Plaintiff’s “Third Cause of Action”, whose elements are alleged in section VI of plaintiff’s 17

complaint, independently seeks the disgorgement of the fees taken by defendant for

violations of fiduciary duties and the rules of professional conduct. These two causes of
action, a reasonableness determination and disgorgement, are completely different in their
elements and requirements.
In almost every substantive pleading filed before the court, plaintiff has outlined the law’s 23

requirements for determination of the reasonableness of attorney’s fees as prayed for in her

1 Second Cause of Action. Plaintiff summarizes the basic elements again below at section 2 “d”.

Disgorgement, which appears to be the basis for defendants’ motion , is completely
different than a determination of the reasonableness of attorney’s fees. 5

Regardless of what a lawyer’s fee agreement may provide,

Washington courts have applied fiduciary duty principles in denying a lawyer’s right to receive or retain attorney fees for breaches of ethical
obligations to clients under the RPCs. These forfeitures and disgorgements of
fees are not “damages” that require showing proximate cause between the unethical conduct and a loss to the client, but are based on the inherent power
of a trial court to “discipline specific breaches of professional responsibility, and to deter future misconduct of a similar type.” Eriks v. Denver, 118

10 Wn.2d 451, 463, 824 P.2d 1207 (1992).

In Ross v. Scannell, 97 Wn.2d 598, 609-10, 647 P.2d 1004 (1982), the

Washington Supreme Court held that professional misconduct or breaches of ethical obligations by lawyers to their clients may result in either total or
partial denial of quantum meruit fees, or an order for disgorgement of fees
already paid. In Eriks, the Supreme Court confirmed that a lawyer’s fees could be reduced or eliminated where a lawyer violated the ethics rules and
breached fiduciary duties to the client. 118 Wn.2d at 463.

16 Fucile at §3.6, pg. 3-28. 17

Defendants further confuse the issues before the court by referring to a right to a

reasonableness review as necessitating a predicate disciplinary proceeding. See,
Defendants’ motion, page 9 line 1-3. The reference is not relevant in this action.
Ignoring the specific and separate causes of action brought by the plaintiff,
defendants’ arguments not only misuse the ~~names~~ labels and descriptions of plaintiff’s two 23

different claims, they fail to distinguish between the two in arguing the law. Moreover, a

statement of the relief they seek offers no clarification because they ignore the court rules
for the format of a motion and do not include such a statement. LCR 56 and 7(b)(5)(B)(i).
Since defendants’ motion ignores the clear requirements for the determination of
the reasonableness of fees and their statement of issues and arguments in their motion 5

makes no mention of reasonableness, one can only assume that their motion only addresses

the claim of “disgorgement.” In any case, the “reasonableness of attorney fees is a question
of fact to be decided according to the circumstances of each individual case. Commercial
Credit v. Wollgast, 11 Wn. App 117, 126 (Div. 2, 1974). 10

11 1. Defendants’ Argument That Without Clear Guidance, Disgorgement Cannot

Be Ordered Is Irrelevant to This Action.

Defendants rely solely on Chism v. Tri-State Construction, Inc., 193 Wn. App. 818
(2016) for the first section of their summary judgment motion regarding “disgorgement.”
This reinforces the assumption that their motion is limited to the issues and requirements
regarding disgorgement. The reasonableness of attorney’s fees was not an issue in Chism. 17

There the question was whether attorney’s fees should be disgorged because of a conflict of

interest arising out of the negotiation of attorney’s fees (salary) by in-house counsel. The
court held that “disgorgement” would not apply in that setting because of the lack of clear
guidance regarding the particular ethical responsibilities of in-house counsel in negotiating
the lawyer’s salary. 23

In its Aug. 11, 2020 order granting in part defendants’ motion to dismiss, the court

25 permitted defendant’s use of the contingent fee, ruling no more than that RPC 1.5(d) (use

of a contingent fee in domestic relations cases) ~~would~~ ~~not~~ ~~serve~~ as ~~a “predicate” fiduciary~~
~~breach~~ ~~sufficient~~ to ~~warrant~~ ~~disgorgement~~ based on the lack of prior guidance by the
Supreme Court ~~under~~ applying the analysis of Chism.
Chism is inapplicable to plaintiff’s remaining claims in this action. Plaintiff’s claim 5

has nothing whatsoever to do with the ethics question in Chism. In making this argument,

defendants apparently did not read plaintiff’s complaint or hope the court will not. In this
section of their motion, they claim at pg. 10, ln. 11 that, “Thus, to defeat summary
judgment, plaintiff must show the attorneys violated RPC 1.5(a) – and violated it in the
face of clear guidance that their conduct violated the rule.” ~~While~~ pPlaintiff does allege 11

violations of fiduciary duties and cite several Rules of Professional Conduct in her

disgorgement cause of action. However, RPC 1.5(a) ~~was~~ ~~not~~ ~~one~~ of ~~them~~is also central to
plaintiff’s “reasonableness” claim. It is settled beyond any question that the violation of
fiduciary duties will absolutely serve as a basis for the court to consider the remedy of
disgorgement. Eriks v. Denver, 118 Wn. 2d 451, 463 (1992). ~~What~~ ~~plaintiff seeks~~ ~~under~~ 17

RPC 1.5(a) may be considered regarding both claims. , ~~however, is~~ a ~~determination~~ of ~~the~~

~~reasonableness~~ of ~~the fee defendants~~ ~~took~~ ~~from~~ ~~her.~~ ~~She~~ ~~has~~ ~~not~~ ~~alleged~~ ~~that~~ a
~~reasonableness~~ ~~determination~~ ~~reducing~~ ~~defendants’~~ ~~fee, would~~ ~~serve~~ as a ~~predicate~~ to
~~disgorgement~~ ~~based~~ ~~upon~~ ~~that~~ ~~alone.~~
Furthermore, even under defendants’ misapplication, Chism, would not fit this case. 23

It can hardly be argued that our courts have not offered any guidance on the questions of

25 the reasonableness of attorney’s fees. The Supreme Court, in promulgating RPC 1.5(a) and

its Comments, and our appellate courts through decades of case law, have provided a
massive amount of “guidance” on the question of the reasonableness of attorney’s fees. The
court can take judicial notice that Washington courts are called upon every day in a wide
variety of cases and contexts to make determinations of the reasonableness of attorney’s 5

fees.

2. Defendants’ Argument that the Agreed Percentage Was Reasonable Is

7 Incorrect and Irrelevant in this Matter.

This section of defendants’ motion is based on their incorrect claim that there must

first be a rule that a 40 percent contingent fee violates RPC 1.5(a), and that the court would
have to conclude “all other superior courts in this state would agree that a 40 percent
contingency fee was unreasonable in this instance.” See, defendants’ motion, p. 10-11. On
what basis do they make this claim? The issue before the court is not whether the 40 14

percent contingency fee provision in the fee agreement is unreasonable, but whether the

$3.2 million fee taken by defendants is unreasonable under all the factors to be considered
in determining a reasonable fee under the law.
a. Defendants’ Argument that the Fee Was Set at a Permissible Rate Is
Irrelevant to the Matter Before the Court.
Plaintiff does not argue that the 40% rate was per se impermissible or that its
inclusion in the contract renders the contract unenforceable. But the terms of the fee
contract, including the percentage rate, is only one of nine factors to be considered in deciding the reasonableness of fees under RPC 1.5(a). Whether 40% was a reasonable

contingent fee percentage in other cases or circumstances is completely irrelevant here.

b. Defendants’ Argument That a Performed Contingent Fee Agreement Should

Be Enforced as Agreed if Fair When Entered Into Is Inconsistent With Well
1. Established Law.

4 Defendants’ argument that a fee agreement must be enforced by the court as written 5

is simply incorrect. That is not the law in Washington State.

Whether a fee is reasonable may be subject to reexamination throughout the

representation as circumstances change. Cotton v. Kronenberg, 111 Wn. App. 258,
44 P.3d 878 (2002), review denied, 148 Wn.2d 1011 (2003). A fee reasonable at the time that the fee agreement was entered into and when the work was done can
become unreasonable with the passage of time.
Fucile, at 3-20. 11

An attorney’s fee contract can be modified by time and events. The fee an attorney

charges for services must be “reasonable.” The question of the reasonableness of a fee is
not limited to the time the agreement was entered into but extends over the course of the
agreement. A fee agreement reasonable at inception may become unreasonable and
unenforceable over time. Holmes v. Loveless, 122 Wn. App. 470, 473, 477 (Div. 1, 2004). 17

As a leading commentator puts it,

…….Moreover, under the Model Rules, the reasonableness of a fee

is measured at three critical and equally important moments: the entering
into of the fee agreement, the charging (or billing) of the fee, and finally, the collecting of the fee. Unreasonableness at any one of these points can
result in discipline and a finding of breach of duty.
[Emphasis in original]. Mallen, LEGAL MALPRACTICE, Sec. 2:106 p. 198 (2021 ed.). 23

This rule is particularly true in the case of contingent fee agreements. Unlike hourly

25 agreements, the ultimate fee claimed by a lawyer is not directly tied to time and effort.

The use of 40 percent as the contingency amount in defendants’ fee agreement is
not the issue. The terms of any fee agreement are only the beginning, not the end, of a fee
reasonableness analysis. Whether the fee is contingent is only one of the factors the court is
to consider under RPC 1.5(a) to determine the reasonableness of a fee. It is not conclusive. 5

The percentage of the fee is not the salient issue here; it is the amount of the fee this

translated to and whether the amount was reasonable given all the circumstances including
the effort expended, the risk undertaken, the novelty of the legal issues, what other work
was precluded to the lawyer by taking on the case, etc. These factors are applied to adjust
the lodestar foundation. See Section “(d)” below. 11

To support their contention, defendants misapply Washington case law. They first

cite Barrett v. Freise, 119 Wn. App. 823 (2003). That opinion supports plaintiff’s claim
requiring a determination of reasonableness based on RPC 1.5(a). Defendants even point
out that in Barrett “the fee review was under RCW 4.24.005.” (Def. Motion pg. 12, ln. 4.)
The reasonableness considerations in that statute are almost identical to those in RPC 17

1.5(a). In Barrett the court found that the attorney’s fee was reasonable after applying that

analysis.
Taylor v. Shigaki, 84 Wn. App. 723, (1997) is of even less support for defendants’
argument. There the issue was when the contingent fee agreement had been performed by
the lawyer. The opinion applied the substantial performance standard. That is not an issue 23

in this case. The Court of Appeals in Taylor specifically noted that neither party had

1 asked the trial court to use its discretion in determining the reasonableness of the fee

as they could have. Taylor, at 732.
Similarly, the Goncharuk and Forbes opinions cited in this section of defendants’
motion also involve the question of substantial performance, not the reasonableness of the 5

claimed fee. Defendants also cite Schultheis v. Nash, 27 Wn. 250, 258 (1902), an

opinion written more than eighty years prior to the adoption of the Rules of Professional
Conduct. Nevertheless, the Supreme Court there referred to the attorney’s entitlement to a
fee as one of a “reasonable fee.”
Contrary to defendants’ argument, plaintiff’s claim does not call for overruling the 11

“substantial performance” opinions. That issue is not present in this case. Defendants offer

no legal authority to support their contention that the court is required to blindly enforce
the original contingency percentage without any consideration of its reasonableness. If the
court could do this, simply apply the math of the contingency percentage without
undertaking the analysis under RPC 1.5(a), what need would there be for the rule? 17

c. Defendants’ Argument That Hindsight Is Rejected As a Test to Second

Guess a Fee Agreement on an Ad Hoc Basis ignores the law and reality.
Defendants exalt the “contract” but ignore “reasonableness” requirements entirely. 20

To defendants, RPC 1.5(a) is unjust when applied “in hindsight”. See, Defendants’ motion,

page 14, line 1 and following. The rule itself belies that argument. It opens with, “A lawyer
shall not make an agreement for, charge, or collect an unreasonable fee…”. [Emphasis
added.] How could critical elements of the rule, such as “the time and labor required” §1,

and the “results obtained” §4, to say nothing about the lodestar foundation be applied other
than “in hindsight”? See, plaintiff’s following lodestar discussion at section “d”.
Interestingly, defendants rely on In re Brothers, 149 Wn. 2d 575 (2003) for the
proposition that a fee cannot be viewed as to reasonableness, in hindsight. See, Defendants’ 5

motion, page 14. This is not what Brothers held at all. In Brothers, the Supreme Court

suspended a lawyer for a year for charging a grossly unreasonable fee (nearly a third of the
value of the estate) for performing an estate planning transaction which was easy and
which the lawyer correctly suspected would be (and in fact was) met with no challenge by
heirs. In Brothers, a fee of $36,663 was held to be grossly unreasonable, violating not only 11

RPC 1.5(a) but his fiduciary duties as well. The proposition for which defendants cite

Brothers was in a one paragraph concurring opinion without citation to any law by Justice
Sanders. His concurrence was not joined in by any of the other eight justices. Defendants’
reliance on this lone concurrence in a disciplinary opinion demonstrates how little support
they can conjure for their argument. 17

Defendants’ citation to one sentence in the ~~fourteen~~ ~~page~~fourteen-page ABA

Formal Opinion 94-389 is similarly out of context. The single sentence they claim is a
“determination” which sets a rule, is found in a discussion with the heading “H. The
Contingent Fee Arrangement Must Be Reasonable” providing that, “In deciding whether a
contingent fee arrangement is reasonable the lawyer must consider the following factors set 23

forth in Model Rule 1.5(a).”

Defendants insist that the reasonableness of a fee must be determined and
1. approved, in advance of the work and the outcome, and not subsequently. They rely upon
1. WSBA Ethics Advisory Opinion 2034 which is inapposite; it deals with a non-refundable
1. fee paid by the client up front, for specific legal work. The opinion confirmed that even 5

non-refundable fees are subject to the “reasonableness” standard of RPC 1.5(a) and the

refund requirements of RPC 1.15. And what defendants do not explain is how, unless one
is a prophet, she could know in advance whether her lawyers would charge a reasonable
fee? Until they took a $3.2 million fee for one uncontested motion and a mediation, the
issue did not arise. 11
d. Defendants’ Argument That Lodestar Is Not a Measure of Contingent Fees
Ignores Well Established Law.
The “lodestar” method is the accepted starting point for judicial attorney fee reasonableness determinations. “The ‘lodestar’ fee is determined by multiplying the
hours reasonably expended in the litigation by each lawyer’s reasonable hourly rate of compensation.” Absher Constr., 79 Wn. App. at 847. Certain types of legal work
performed by nonlawyer staff can be included. N. Coast Elec. Co. v. Selig, 136 Wn.

17 App. 636, 643-44, 151 P.3d 211 (2007).

However, the “lodestar” is only the starting point, and the calculated fee is not necessarily a “reasonable” fee. The “lodestar” amount is adjusted upward or
downward to reflect factors not already considered in the calculation.
Mehlenbacher v. DeMont, 103 Wn. App. 240, 248, 11 P.3d 871 (2000). Those factors can include those listed in RPC 1.5(a).

22 Fucile , at § 3.4(3), pg. 3-22.

Defendants’ argument that contingent fees are not subject to this analysis is simply
wrong. In fact, these very principles are memorialized in RCW 4.24.005 and to be applied
to contingent fees in tort cases, the very statute they seek to have the court apply to this

action. And if the application of these 9 factors to the fee claimed in a tort recovery is not
“hindsight”, it is hard to imagine what is.
Defendants argue that the lodestar method is only used in cases where the court
awards fees to the prevailing party, quoting a portion of WSBA Advisory Opinion 978 and 5

citing Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 593 (1983). The cited

Advisory Opinion says the opposite of defendants’ representation. (Silverman Dec., Ex. 3.)
The opinion posed the question of whether a lawyer handling a case under a contingent fee
arrangement could charge more than the court awarded fees if they were less than the
contingent amount. The answer was yes. The opinion pointed out that a determination of a 11

reasonable contingent fee using the RPC 1.5(a) factors could properly exceed a court

awarded fee because the court award of fees could involve different considerations.
The opinion also recognized the general rule to be applied in this case.
“The fact that the attorney and client agree to a contingent fee does not mean that the resulting fee will necessarily be reasonable. Both in agreeing to a percentage,
and deciding at the conclusion whether a reduction is warranted, the attorney must
consider the unique facts of the particular case. Under RPC 1.5, ‘reasonable’ is to be determined in view of the particular case; a reasonable percentage in one case

18 may be unreasonable in another.”

19 Opinion 978, Summary paragraph 2. 20

The opinion affirmed that the reasonableness of a first party contingent fee is to be

determined considering the RPC 1.5(a) elements, which may or may not be different than a
court awarded fee. The opinion supports plaintiff’s claim, not defendants’ arguments.
Defendants claim that Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 593
(1983) holds that the lodestar method is only use for setting court awarded fees. That is

flatly incorrect. Bowers did involve a fee shifting award which applied a formula involving
a lodestar adjusted by factors like those in RPC 1.5(a). The court did not hold that the same
formula would not be applied in first party cases. That issue was not before the court. Of
relevance to this action however, the court did hold that “The burden of justifying any 5

deviation from the ‘lodestar’ rests on the party proposing the deviation.” Bowers, at 598

7 quoting Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1980); RPC 1.5(a) Comment 8 3.

9 e. Defendants’ Policy Argument Regarding Enforcement of Contingent Fee

Arrangements Would Have the Court Ignore or Rewrite the Law.
Plaintiff agrees that contingent fees are important and serve a significant purpose.
However, there is no basis for claiming that contingent fees should not be subject to ethics
requirements. The legislature has balanced the policies of allowing access to the legal 14

system through contingent fees with the reasonableness of those fees. Those objectives

have been memorialized in RCW 4.24.005 regarding “tort” claims – probably the area of
law with the greatest use of contingent fees.
Our Supreme Court has likewise addressed the balance in promulgating RPC 1.5(a)
which includes the contingent nature of a fee as only one of nine elements to be considered. 20

Defendants would also have the court ignore Comment 3 to RPC 1.5. “Contingent fees,

like any other fees, are subject to the reasonableness standard of paragraph (a) of this Rule.
In determining whether a particular contingent fee is reasonable, or whether it is reasonable
to charge any form of contingent fee, a lawyer must consider the factors that are relevant
under the circumstances.” A client does not give up their right to judicial supervision of the

fairness of fees they pay simply because they sign a contingent fee agreement. To the
contrary, the mandate that fees be reasonable is “incorporated by reference” into every fee
agreement between a lawyer and client. RPC 1.5(a), Comment [1], [10] and [11]. 4

B. PLAINTIFF IS NOT BARRED FROM BRINGING HER CLAIMS.

As Previously Ruled by this Court, Plaintiff’s Claims Are Not Barred by RCW

7 4.24.005 and the statute is inapplicable .

On page 18 of their motion, defendants once again argue that plaintiff’s claims are

barred by RCW 4.24.005. They present this claim in a one paragraph – half page argument
without citation to any authority. As the court will recall, this issue was extensively briefed
and argued in defendants’ motion to dismiss. The court ruled unequivocally that the tort
statute did not apply to this domestic relations case. DKT# 62. See, Silverman Dec. 14

Exhibit 2.

Defendants are essentially moving for reconsideration without complying with
court rules and requirements for doing so. Under those rules, plaintiff would not be
required to respond to the motion unless requested by the court. KLCR 59(b). Nevertheless,
should the court reconsider this matter, plaintiff incorporates her prior authority on the 20

matter here. (Dkt. #46)

Defendants continuing argument that RCW 4.24.005 should apply is inconsistent
with the arguments they make here. On one hand they contend that no “hindsight” review
of the fee is permitted and that the RPC 1.5(a) elements do not apply, while arguing that

such a review under the statute with identical considerations was required. As discussed
elsewhere, both contentions are invalid. 3

4 2. Plaintiff Is Not Contractually Barred From Bringing Her Claims.

Defendants’ argument that plaintiff is contractually barred from bringing her claims

for a fee reasonableness determination under RPC 1.5(a) is preposterous. Our ethical rules
do not grant carte blanche to lawyers to contract in any way the wish with clients.
In addition, under contract law, a written contract is construed against the drafter such that
he cannot later benefit from “mistakes” that he was able to prevent. The drafter cannot take 11

advantage of ambiguities he could have prevented with greater diligence. McKasson v.

13 Johnson, 178 Wn. App. 422, 429-30, (2013).

Consider the language of the paragraph in defendants fee agreement they contend
bars plaintiff from bringing a claim against them. The contract is to be construed against
the drafters – Van Kampen & Crowe. The language seems to be designed to be deceptive. 17

Compare, for example, the terms of RCW 4.24.005 – which they must have been aware of.

Not only is the time period for review less than half of the statute, but the scope of review
is more ambiguous and less broad than the law provides.
The statute provides that a party charge with paying a fee can seek a “court’s
determination of the reasonableness of that party’s fee.” It then itemizes the factors to be 23

considered in deciding if a fee is reasonable.

By contrast, defendants’ fee agreement says: “Client acknowledges that she has
1. been advised that this fee agreement and the written statement to be provided at the
1. conclusion of the case are subject to review by the court, if the Client so desires.” (See
1. Defendants’ Motion for Summary Judgment, pg. 19, ln 6.) There is not a word about 5

determining the reasonableness of their fees, just review of the fee agreement itself and a

statement “showing the remittance to the Client and the method of its determination.”
Defendants’ statement only provides that client acknowledges that she has been advised
that those documents are subject to review, not that she has a right to challenge the
reasonableness of the fees. Defendants’ language only recites that the client “agrees to 11

request a review” within twenty-one days, not that such a request would be barred after that

time, or as in the case of the tort fee statute, that a client “may petition the court not later
than forty-five days.” Defendants’ position that there is no “hindsight” review is plainly
contrary to and incompatible with their position that such a demand needed to be made
within 21 days? 17

Defendants read far more into their self-serving language then is there, and expect

plaintiff to be bound to more than they have written or disclosed. They should not be
allowed to profit from their efforts to deceive.
Moreover, defendants’ “review period” violates fundamentally important public
policy. The fee agreement at issue here, as in any case under RPC 1.5(a), is no mere 23

commercial contract as the litany defendants recite (See, defendants’ motion page 20-22).

Holmes v. Loveless, 122 Wn. App. 470, 478 (2004). Its genesis is of the highest fiduciary
relationship known in the law.
Courts often remark that unflinching fidelity is the duty of every attorney. The rationale is that such matters concern the highest level of importance for public
policy through preservation of an untainted standard of conduct by the attorney
toward the client. Courts strictly enforce these standards. Assuring that attorneys’ conduct comports with these principles is a task zealously pursued by the courts in
an action initiated by the client or even by a motion brought by an adversary. The phrase that an attorney is an “officer of the court” perhaps has no greater meaning
than when a court undertakes to assure the integrity of that statement. A court can
and will use its power to compel attorneys to fulfill their obligations to their clients.
[Emphasis added]. Mallen, LEGAL MALPRACTICE, sec. 15.1 page 654-55 (2020 Ed.).
Even if defendants’ language in the fee agreement was clear in its attempt to bar 11

any reasonableness determination of their fee, such a clause would be unenforceable as

contrary to public policy. As pointed out by our Supreme Court, “We have previously and
repeatedly held that violations of the RPCs or the former Code of Professional
Responsibility in the formation of a contract may render that contract unenforceable as
violative of public policy.” LK Operating, LLC v. Collection Grp., LLC, 181 Wn.2d 48, 85 17

(2014).

A contract entered in violation of an RPC is presumptively unenforceable. This is
particularly true regarding “the formation and terms of business transactions, including
contracts, between attorneys and their clients.” Id. at 88. While LK Operating involved a
contract involving a conflict of interest in an outside business contract, the public policy 23

considerations would be greater when the business contract (fee agreement) violates an

25 RPC’s public policy. What more explicit statement of public policy in the business

relationship between attorney and client could there be than, “A lawyer shall not make an
agreement for, charge, or collect an unreasonable fee…”? (RPC 1.5(a)). The obscure
language of defendants’ statement of a right to a review of fee documents and the
incredibly short time for a client to exercise her rights should be declared void and 5

unenforceable as a contravening of public policy.

If defendants’ “21 day fee agreement and statement review” provision passes
muster for the fulfillment of their fiduciary duties owed to their client, what would prevent
a lawyer from proposing a one week or 3 day “review period? And what rationale allows
a lawyer to impose an arbitrary “fee review” period where only the ethics rule (RPC 1.5(a)) 11

and statute (when applicable in personal injury cases, RCW 4.24.005) have previously

enjoyed exclusive jurisdiction?
Defendants reliance on EPIC v. CliftonLarsonAllen, LLP, 199 Wn. App. 257 (Div.
3, 2017) (2 year limitation period between a client and its auditor to challenge audit
accuracy) offers them no refuge. As the EPIC court observed, “A stipulated limitation 17

period prevails over the general statute of limitations unless prohibited by statute or public

policy, or unless it is unreasonable”. [Emphasis added]. Id. at 271. As the court clearly held
in LK Operating, agreements which allow an attorney to violate the public policies
represented by the RPCs are unenforceable. Clearly the limitation period here is not only
unreasonable on its face but does not and cannot supplant RPC 1.5(a) which imposes no 23

such limitation – other than possibly the limitations relating to contracts. Lawyers cannot
“contract away” the ethical duties owed to a client.¹
Unlike normal business contracts, lawyers have special fiduciary obligations in
negotiating contracts with clients. “Because the attorney-client relationship involves 5

professional and fiduciary duties on the part of the lawyer that generally are not present in

other relationships, the retainer contract may be subject to special oversight and review.
The authority for this oversight comes from the Model Rules, which impose rigorous
disclosure obligations on the lawyer and expressly limit and condition the lawyer’s
freedom to enter into contractual arrangements with clients.” ABA Formal Opinion 02- 11

425, pg. 2. (Silverman Dec., Ex. 6.)

The ABA opinion went on to provide that a lawyer has a duty to fully disclose
the risks and benefits of mandatory arbitration provisions in a fee agreement. Id. pgs.
4-7. There should be no less responsibility of disclosure for a contract provision that
bars a remedy after 21 days than one that just limits the forum for a dispute. 17

Defendants’ reliance on the LUPA 45 day limit for seeking review of a land

19 use decision to show the reasonableness of their self-created statute of limitations is 20

21 1 “An attorney is a fiduciary for a client, though not every activity by the lawyer involves a specific fiduciary duty. Even if the fees are negotiated as a condition precedent to forming an attorney client relationship, the fees cannot be sent in disregard of basic fairness. Even though some degree of arms-length bargaining is permitted between attorneys and clients, courts have inherent power to limit the legal fees and expenses if the legal fees and expenses were not proper.” Mallen, LEGAL MALPRACTICE, sec. 2:106, p. 198 (2021 Ed).

24 Here, the court will recall that plaintiff signed defendants’ first fee agreement in July 2018 and then she signed their modified one on Sept. 17, 2018, the one pursuant to which they took their fee. By this time a full fiduciary relationship existed between the parties and beyond “basic fairness”, defendants owed plaintiff full fiduciary duties.

bizarre. Obviously, there are public policy considerations in land use decisions that
require prompt review. A more relevant comparison would be to the six-year statute
of limitations for claims based on written contracts. If fact, the fee agreement here is
a written contract and without a valid alternate limit, six years applies. 5

Amazingly, defendants also brandish their 21 day review period as a shield to bar

plaintiff’s claims under RCW 19.86 et. seq., Washington’s Consumer Protection Act. The
two cannot be linked. Even if plaintiff never sought a reasonableness determination under
RPC 1.5(a), she could independently bring a CPA claim which has a four- year limitation
period. RCW 19.86.120; Short v. Demopolis, 103 Wn. 2d 52 (1984). Defendants knew 11

plaintiff challenged their fee within 6 months of receiving her net settlement.

Even though irrelevant to the issue before the court, defendants cannot resist
repeating a claim they should know to be false. On page 19, ln. 20 of their motion they
claim that plaintiff consulted her CPA brother about the fee agreement before she signed
the amended version citing as “evidence” an email (Tondini ex. 3) by which plaintiff 17

forwarded a message from Mr. Van Kampen to which he had attached an amended fee

agreement. However, as the exhibit shows, the reason plaintiff forwarded the message to
her brother was to seek his testimony as requested by Van Kampen in the email, not to
review the contract. More importantly, as defendants know, the attached file with the fee
agreement could not be opened and two days later plaintiff requested – and defendants sent 23

– another copy which she could open, read and sign. (Silverman dec. Ex.4 ). Plaintiff did

not solicit or receive any advice on the agreement from her brother, nor is there any
evidence that she did. 3
3. Plaintiff’s Claims Are Not Barred by Defendants’ Presentation of Their
Claim For Fees to Plaintiff.
It is not incumbent upon a lay client to know whether a fee is reasonable or not.
The burden is upon the lawyer to charge and justify a fee as reasonable. Absher, 79 Wn. 8

App. at 841, supra. By defendants’ argument, there would never be a need for RPC 1.5(a)

since “after the fact” a plaintiff could never challenge a fee. Defendants argue that,
because she received 4 or 5 monthly invoices from defendants itemizing their work as it
proceeded on her case (amounting to, in rough numbers, $144,000), plaintiff somehow
acquiesced to their ultimate 40% contingent fee of $3.2 million. Nowhere in the invoices is 14

a “warning” provided about the “binding implications” of the invoices as to the

reasonableness of any contingent fee. (See, Tondini Dec. in support of Defendants’ motion,
ex. 5) Nor in their fee agreement with plaintiff is there any representation of the legally
binding effect of such “acquiescence” by force of the “monthly invoices” which
incidentally showed a “zero” balance. Moreover, plaintiff’s signature on the Dec. 2018 and 20

Jan. 2019 settlement disbursal summaries attests only to plaintiff’s acknowledgment that

the 40% was correctly applied to the settlement amounts, not its lawfulness and certainly
not to the reasonableness of the fee under RPC 1.5(a). By her signatures on these, plaintiff
ratified nothing as to the reasonableness of the fee nor did she waive any rights under RPC
1.5(a) to seek a reasonableness determination of the fee.

Defendants’ reliance upon Ward v. Richards and Rossano, Inc. P.S., 51 Wn. App.
1. 423, 433 (1988) for the proposition that plaintiff ratified their fee is misplaced; Ward
1. supports that plaintiff did not ratify their fee. Unlike Ward, who waited six years to
1. challenge Richard’s fee, defendants knew plaintiff challenged their fee within 6 months of 5

their taking it. In fact, until she spoke to estate planning and family lawyers Claire

Bellefleur and Stacey Smythe in April and June 2019 and learned she should get another
opinion on defendants’ fee, she had no idea the fee was even suspect. Though she admitted
it seemed high to her, plaintiff just believed she was bound by it and that there was nothing
she could do. (See, defendants’ motion, page 22, footnote 14). She never “affirmatively 11

disputed” the fee following the disbursal nor even had any reason to inquire about it until

she was told by lawyers within a few months that it was suspect. See, Silverman Dec. Ex._
Dep. of Dorette Banghart, p. 157. line 25-p. 159, line 14.
For the same factual reasons, Defendants’ reliance on Schroeder v. Excelsior Mgmt.
Grp. LLC., 177 Wn. 2d 94 (2013) for the proposition that plaintiff waived her right to 17

contest their fee is equally flawed. The problem for defendants here, as Justice Chambers

noted was the problem for the foreclosing lender in Schroeder, is that statutory
requirements cannot be waived. Schroeder, at 107.
RPC 1.5(a) does not just describe the client’s right to a reasonableness
determination, it places an affirmative burden on the lawyer, independent of the client’s 23

rights, to charge only a reasonable fee as guided by those principles. How can a lay client,

25 to whom the lawyer owes affirmative fiduciary duties of honesty and fair dealing, including

a duty of full disclosure, be held to have waived her right to a reasonableness
determination, when “[a] waiver is the intentional and voluntary relinquishment of a known
right or such conduct as warrants and inference of the relinquishment of such a right”?
Schroeder, at 106. The requirements of RPC 1.5 are the obligation of the lawyer to know 5

and abided by, not the client.

The opinion of Ferguson v. Law Office of Brian J. Waid, No. 74512-3-I, 2019 WL
1644134, at *8-10 (Wash. App. Apr. 15, 2019) does not offer defendants refuge from their
ethical obligations. Not only is the opinion unpublished, but this matter is not an account
stated situation. Unlike Ferguson, plaintiff was not billed monthly for defendants’ services 11

for which she was to pay. The court held that only the invoices Ferguson paid were found

to be within the “account stated” claim. The court pointed out that assent may be implied
from a failure to object within a reasonable time, but what is a reasonable time may be is a
question of fact not subject to summary judgment. Ferguson at ¶49. Here plaintiff was not
invoiced and did not “pay” defendants’ charge. Defendants took their fee from the 17

settlement. If defendants’ account stated argument in this situation had any validity, there

could never be a reasonable determination of fees once a final accounting was rendered and
the fee taken, in a contingent fee case. 21
C. DEFENDANTS’ ARGUMENTS THAT THERE ARE NO MERITORIOUS RPC CLAIMS,
NOR A VALID CPA CLAIM BEFORE THE COURT ARE WITHOUT FOUNDATION IN FACT OR LAW.

It is difficult to see how defendants can claim a right to summary judgment on
1. claims they do not even identify. Defendants do not even attempt to properly seek
1. summary judgment on RPC and CPA claims.
1. A party moving for a summary judgment has an initial burden of showing there are
1. no issues of material fact requiring trial. If the moving party fails to sustain this burden, it is unnecessary for the nonmoving party to submit affidavits or other
1. materials. [citations omitted.] The court must consider all facts submitted and all reasonable inferences from the facts in the light most favorable to the nonmoving
1. party. [citation omitted] Moreover, where undisputed facts are reasonably
1. susceptible to more than one interpretation, summary judgment may be improper.
1. Hash v. Children’s Orthopedic Hosp. & Med. Ctr., 49 Wn. App. 130, 132 (1987).
1. Conclusions of law stated in an affidavit filed in a summary judgment proceeding
1. are improper and should be disregarded. Orion Corp. v. State, 103 Wn.2d 441, 693 P.2d 1369 (1985). Unsupported conclusional statements alone are insufficient to
1. prove the existence or nonexistence of issues of fact.
1. Hash, at 133. 14

They seem to argue (defendants’ motion at p. 24-25) that because plaintiff did not

testify in response to questions at her deposition to matters which defendants argue should
be part of her claims as they see them, the court should dismiss all such claims as a matter
of law. Defendants do not prove, or even identify, the elements of plaintiffs RPC and CPA
claims they contend are without issues of material fact. Of course, proof of plaintiff’s 20

claims are not limited to her testimony. Their argument also assumes and depends on the

court’s dismissal of all of plaintiff’s claims discussed in the sections above.
For example, if plaintiff prevails on her claim defendants’ fee was unreasonable, or
that defendants’ 21- day review clause was “unfair or deceptive” she well may have made
out a claim under RCW 19.86 et. seq., the Washington Consumer Protection Act. In Short

v. Demopolis, 103 Wn. 2d 52 (1984) our Supreme Court held that attorney fees and billing
practices of a law firm, i.e., the “entrepreneurial” aspects of law practice, are within the
sphere of “trade or commerce” of RCW 19.86.010 (2) and RCW 19.86.020 and hence are
subject to the CPA. 5

Defendants yet again argue that plaintiff has somehow waived all claims beyond the

reasonableness of fees. They do so by taking one statement out of context and misapplying
it. In an earlier motion, defendants argued that they were entitled to plaintiff’s subsequent
fee agreements to show she knew how they worked. In challenging the relevance of these
unrelated fee agreements, plaintiff simply pointed out that other than the RPC 1.5(d) issue, 11

plaintiff is not arguing that the use of a contingent fee by defendants is invalid. That does

not mean that all objections to the terms of the agreement, claims regarding defendant’s
violation of their fiduciary duties, consumer protection and other claims were waived. 15

16 VI. CONCLUSION

Defendants’ Motion for Summary Judgment should be denied. The legal premises

they ask the court to adopt are unsupported by law or involve questions of fact reserved for
trial.
Respectfully submitted, this 16^th day of February 2021. 22

23 I certify that this memorandum contains 7874~~5253~~/8400 words, in compliance with

the King County Civil Rules.

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RESPONSE TO DEFENDANTS MOTION

21 I. RELIEF REQUESTED

4 II. STATEMENT OF FACTS

18 III. STATEMENT OF ISSUES

1 IV. EVIDENCE RELIED ON

6 V. AUTHORITY AND ARGUMENT

1 asked the trial court to use its discretion in determining the reasonableness of the fee

B. PLAINTIFF IS NOT BARRED FROM BRINGING HER CLAIMS.

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RESPONSE TO DEFENDANTS MOTION

21 I. RELIEF REQUESTED

4 II. STATEMENT OF FACTS

18 III. STATEMENT OF ISSUES

1 IV. EVIDENCE RELIED ON

6 V. AUTHORITY AND ARGUMENT

1 asked the trial court to use its discretion in determining the reasonableness of the fee

B. PLAINTIFF IS NOT BARRED FROM BRINGING HER CLAIMS.

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