In this attorney regulation case, the Supreme Court publicly censures Respondent Nicholas A. Wimmershoff. Wimmershoff charged his client an unreasonable fee in a workers' compensation case, failed to adequately explain that fee to his client, and violated the rules governing contingent fee agreements. The Court weighs the misconduct together with the aggravating and mitigating factors and concludes that public censure is appropriate sanction. In the Matter of Sather. In this attorney regulation case, the Supreme Court suspends Respondent Larry D. Sather.
Attorney fees are always subject to refund if they are excessive or unearned.
Sather also failed to return the unearned portion of an advance fee promptly, causing his client actual and potential harm. For these reasons, and in light of his prior discipline, the Supreme Court suspends Sather for six months, with conditions on his reinstatement. Flat fees, like other forms of advance fees, are unearned and remain client property until the attorney performs a service or confers a benefit on the client. The court recognizes that this holding may affect the wide practice of treating flat fees as earned upon receipt. Because the court has not previously made clear that, like all forms of advance fees, flat fees must be placed into trust accounts until they are earned, failing to place advance or flat fees in trust is not a basis for disciplinary action until after the court promulgates and adopts new rules of professional conduct.