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Click here for the full text of this decision FACTS:Patricia A. Smith approached Tracy Dee Cluck in June 2001, seeking an attorney to represent her in a divorce case. Cluck agreed to represent Smith, who signed a contract for legal services in which she agreed to pay a $15,000 nonrefundable retainer. Under the contract, Cluck would bill Smith at $150 per hour, first against the $15,000 nonrefundable fee and then monthly thereafter. The contract stated that no part of the legal fee is refundable should the case be discontinued or settled in any other matter. Smith paid Cluck $15,000 on June 28, 2001. Cluck began work on Smith’s divorce, including filing the petition and obtaining service on Smith’s husband. On July 7, 2001, Smith asked Cluck to cease action on her divorce, because she wished to reconcile with her husband. Because her husband had already been served, Cluck advised Smith to leave the action pending in case she changed her mind; Smith agreed. On July 2, 2002, after receiving notice that her case was set on the dismissal docket, Smith contacted Cluck about resuming work on her divorce. Cluck requested that Smith sign an amendment to their contract, in which she agreed to pay an additional $5,000 “non-refundable fee” and to increase Cluck’s hourly rate to $200 per hour. Smith signed the amendment and paid Cluck the $5,000, and Cluck resumed work on her case. On Aug. 22, 2002, Smith terminated Cluck as her attorney, because she was dissatisfied with the lack of progress made by Cluck on her case and his alleged lack of responsiveness to her phone calls. She requested the return of her file, which she picked up two weeks later. On Oct. 10, 2002, Smith wrote a letter to Cluck asking for a detailed accounting and a refund of the $20,000, less reasonable attorney’s fees and expenses. Cluck replied on Dec. 4, 2002, explaining that he did not respond sooner because he was on vacation when Smith’s letter arrived and because an electrical storm destroyed his computer and phone systems. Cluck advised Smith that he did not believe she was entitled to a refund. The parties disputed the number of hours that Cluck worked on Smith’s case. The State Bar of Texas’ Commission for Lawyer Discipline (the commission) asserts that Cluck worked 11 hours, while Cluck contends he worked 28.5 hours. It is undisputed that Cluck ultimately collected $20,000 from Smith, which he deposited in his operating account, and that Cluck failed to refund any portion of the collected fees to Smith. Smith filed a complaint with the State Bar of Texas, and the commission initiated this suit, alleging that Cluck committed professional misconduct by violating several Texas Disciplinary Rules of Professional Conduct. The commission claimed that Cluck failed to promptly comply with a reasonable request for information; contracted for, charged and collected an unconscionable fee; failed to adequately communicate the basis of his fee; failed to hold funds belonging in whole or in part to a client in a trust account; and failed to promptly deliver funds his client was entitled to receive and render a full accounting regarding those funds upon the client’s request. Cluck and the commission both filed motions for summary judgment. The trial court denied Cluck’s motion and granted the commission’s motion, finding that Cluck violated all the disciplinary rules cited by the commission and thus committed professional misconduct. The court imposed a 24-month fully probated suspension from the practice of law on Cluck and ordered him to pay court costs and restitution to Smith in the amount of $15,000. Cluck appealed. HOLDING:Affirmed. The court first examined the difference between a retainer and an advance fee. A true retainer, the court stated, is not a payment for services. Rather, it is an advance fee to secure a lawyer’s services and remunerate him for loss of the opportunity to accept other employment. If a true retainer is not excessive, the court stated, it will be deemed earned at the time it is received and may be deposited in the attorney’s account. In contrast, the court stated that money that constitutes the prepayment of a fee belongs to the client until the services are rendered and must be held in a trust account. The court found that Smith’s $15,000 paid to Cluck was a prepayment of a fee and not a retainer. Specifically, the court noted that the contract for legal services did not state that the $15,000 payment compensated Cluck for his availability or lost opportunities; instead, it stated that Cluck’s hourly fee will be billed against it. In addition, the court noted, the $5,000 additional payment requested by Cluck in 2002 made clear that the $15,000 paid in 2001 did not constitute a true retainer. The court held that Cluck violated Texas Disciplinary Rule of Professional Conduct 1.14(a) because he deposited an advance fee payment, which belonged, at least in part, to Smith, directly into his operating account. Accordingly, the court affirmed the trial court’s holding that Cluck committed professional misconduct by violating Rule 1.14(a). Cluck’s other points of error challenged the trial court’s findings that Cluck committed additional rule violations. But because one rule violation is sufficient to support a finding of professional misconduct, the court did not examine the merits of the trial court’s findings that Cluck committed additional rule violations. OPINION:Puryear, J.; Patterson, Puryear and Henson, J.J.

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