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Foley v. Daniel

Under Texas Rules of Disciplinary Procedure �1.15(d), 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 that has not been earned. In this case, appellees performed some work under the contract but did not complete it. There was no testimony as to the value of the services rendered in the partial performance. Therefore, there is a genuine issue of material fact as to whether or not the services provided by appellees earned the entire $25,000 fee. El Paso Court of Appeals, No. 08-07-00188-CV, 10-15-2009

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OPINION

This is an appeal from the granting of a traditional motion for summary judgment and no-evidence motion for summary judgment in a suit alleging breach of contract and unjust enrichment by attorneys who were retained to make a citizen’s presentation to the grand jury. We affirm in part and reverse and remand in part.

Appellant retained Appellees in January 2002 to make a citizen’s presentation to the grand jury in hopes of obtaining an indictment of Nia Umoja, who was involved in a credit card scam that defrauded Appellant’s business. Ms. Foley stated in her affidavit that the agreement was that the presentation would be made in April or May of 2002, but no later than June 2002. Appellees state that there was no time frame by which to make the presentation. Appellant paid a non-refundable retainer of $25,000 for the services. Appellees obtained files from the District Attorney’s office regarding Ms. Foley’s case. Appellees also hired an investigator, Fred Pendergraf, to help find evidence of the case. Appellees interviewed Jeanita Moore, who had all ready plead guilty in this case, by first attempting to visit with her in jail, and then by obtaining a bench warrant. Appellees met with a representative from Bank One to familiarize themselves with the credit and debit card system. They also obtained two grand jury subpoenas to be issued for documents that were not initially produced in the District Attorney’s grand jury presentment. In January 2003, Ms. Foley terminated the representation agreement with Appellees. After the termination, Appellees returned $3,000 to Ms. Foley, and provided her with copies of Mr. Pendergraf’s reports.

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