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Click here for the full text of this decision FACTS:In March 1998, Stephen E. McCleery agreed to represent Alonzo Williams in a legal matter. This representation occurred by way of referral from the Houston Volunteer Lawyers Program (HVLP). McCleery signed an agreement with HVLP to represent Williams pro bono. McCleery agreed to represent Williams in a matter concerning defective home repairs and the financing of those repairs. McCleery agreed to contact the financing company concerning repayment of the note, draft a Deceptive Trade Practices Act (DTPA) demand letter to the home repair business and forward a copy of the demand letter to the financing company. In its findings of fact, the district court found that: “[a]lthough the [Professional Services Agreement between Williams and McCleery] does not explicitly reference litigation, Respondent agreed that he would, on a pro bono basis, file a lawsuit on behalf of the Williams’ and take the case through trial if it became necessary.” The suit eventually went to trial on May 23, 2000. On the evening of May 22, McCleery met Williams at a restaurant for dinner. During the course of the one-hour meeting, McCleery presented to Williams a fee agreement. Williams saw this fee-based contract for the first time at the meeting. McCleery did not tell Williams that he could have an independent legal review of that document done by another lawyer. Williams was elderly, infirm, indigent and had only a grade school education. Williams signed the fee agreement. McCleery had a fiduciary relationship with Williams when he presented Williams with the fee agreement. The fee agreement changed the attorney-client relationship between McCleery and Williams from pro bono to fee-based. The fee agreement called for McCleery to receive 40 percent of all sums collected. After trial resulted in a verdict in Williams’ favor, negotiations produced a final settlement in which Williams would receive a $36,210 cash payment plus debt forgiveness of $13,790. McCleery characterized the settlement as a $50,000 award and thus, under the new fee agreement, took 40 percent of $50,000 ($20,000) as attorneys’ fees. Respondent also withheld $1,427 for expenses incurred. This left with Williams with $14,783 in cash. Williams filed a grievance with the State Bar of Texas against McCleery. A district grievance committee panel found that McCleery violated several of the Texas Disciplinary Rules of Professional Conduct. It recommended that McCleery accept a private reprimand and make restitution to the State Bar of Texas. McCleery rejected the district grievance committee’s recommendation and appealed the recommendation to the state district court. On May 14, 2004, a bench trial on the merits was held. There were two witnesses at trial: McCleery and Williams. The trial court filed extensive findings of fact (which make up the narrative of this case summary) and conclusions of law. In its conclusions of law, the district court found that McCleery violated one or more of the Texas Disciplinary Rules of Professional Conduct. The district court found McCleery violated Rule 1.04(a) by entering into an arrangement for, charging or collecting an illegal fee or unconscionable fee. The district court also found that McCleery violated Rule 1.04(c). In situations where a lawyer has not regularly represented a client, this rule sanctions attorneys who fail to communicate to the client the basis or rate of the fee before or within a reasonable time after commencing the representation. The district court ordered a public reprimand against McCleery, and also ordered McCleery pay $20,000 restitution to the Estate of Alonzo Williams and $11,274.60 in attorneys’ fees and costs to the State Bar of Texas. McCleery appealed, arguing in 15 points of error that the evidence was legally and factually insufficient to support the trial court’s findings of facts and conclusions of law. HOLDING:Affirmed. Finding “McCleery’s 11th hour fee agreement unconscionable,” the court held that the evidence was legally and factually sufficient to support the trial court’s finding that McCleery violated rule 1.04(a). Noting that McCleery had a fiduciary relationship with Williams, an elderly, infirm and indigent man with only a grade school education, the court held that the evidence was legally and factually sufficient to support the trial court’s finding that McCleery violated rules 1.04(c). The court held the evidence was legally and factually sufficient to support the $20,000 sanctions award. The court also held that there was more than a scintilla of evidence to support the district court’s findings of fact and conclusions of law. The evidence was not so weak and the findings were not so against the great weight and preponderance of the evidence, the court stated, that they were clearly wrong and unjust. Finally, the court held that McCleery failed to show how a payment plan ordered by the district court to pay Williams’ estate was “arbitrary, not supported by the evidence, and seek[ing] only to enforce a non-existent breach of contract action.” OPINION:Hanks, J.; Taft, Keyes and Hanks, J.J.

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