Opinion
Prior report: 97 Wash.App. 901, 988 P.2d 467.
ORDER AMENDING OPINION
WEBSTER, J.
Respondent timely filed a Motion for Reconsideration on November 29, 1999. Appellants filed a Motion to Strike for late service by one day. We deny Appellants' Motion to Strike. Instead, we amend the opinion by replacing the last two paragraphs on Page 10 [first two full paragraphs on p. 472 of 988 P.2d] to read:
In addition, attorney fee agreements that violate the Rules of Professional Conduct (RPC) are against public policy and are unenforceable by the courts. Barr v. Day, 124 Wash.2d 318, 331, 879 P.2d 912 (1994) (citing Belli v. Shaw, 98 Wash.2d 569, 578, 657 P.2d 315 (1983)). RPC 1.5(b) requires an attorney to communicate the basis or rate of the fee, in writing, upon request by the client. Comments to the Model Rules of Professional Conduct suggest furnishing the client with a customary fee schedule or a memorandum setting forth the basis or rate of the fee. Model Rules of Professional Conduct Rule 1.5 cmt., reprinted in A Legislative History: The Development of the ABA Model Rules of Professional Conduct, 1982-1998 35 (Center for Prof'l Responsibility, American Bar Ass'n, 1999). Professional misconduct in billing attorney fees may be grounds for denying attorney fees. See Ross v. Scannell, 97 Wash.2d 598, 610, 647 P.2d 1004 (1982) (Supreme Court remanded to trial court to consider illegal or excessive fees and other charges of unethical conduct). It is within the trial court's discretion to decide what impact, if any, lawyer misconduct will have on a claim for attorney fees. Kelly v. Foster, 62 Wash.App. 150, 156, 813 P.2d 598 (1991) (breach of fiduciary duty did not mandate disgorgement of attorney fees). In Perez [v. Pappas, 98 Wash.2d 835, 659 P.2d 475 (1983) ], the Supreme Court found there had been full revelation to support an accord for attorney fees despite the attorney's breach of fiduciary duty. 98 Wash.2d at 844, 659 P.2d 475.
We find that there is an issue of fact as to whether Simburg sufficiently communicated the basis or rate of its fees as required by RPC 1.5(b). Olshan requested a reappraisal of the billings before entering the alleged accord. Simburg's reply did not communicate the basis of its fee by explaining its hourly rates but only gave general total figures charged by his paralegal and for disbursements, with no breakdown of attorney charges whatsoever. Perez, and [ Ward v. ] Richardss&sRossano [51 Wash.App. 423, 429, 754 P.2d 120 (1988)] involved contingent fees instead of hourly rates. Nevertheless, the clients in both cases had full revelation of the percentage rate charged (even if wrongfully charged as in Richardss&sRossano ). Here, there is no record that Olshan had any notice of the various hourly rates charged by each attorney and staff person at the Simburg firm. Therefore, viewing the facts and reasonable inferences in the light most favorable to Appellants, a reasonable person could conclude that the Simburg firm did not make a full revelation of its billing practices before entering into an accord for unpaid fees with Appellants. The finder of fact must determine whether there was full revelation or an RPC violation in this case.
The panel having determined that the opinion filed on November 8, 1999 in the above matter should be amended,
Now, therefore, it is hereby ORDERED that the opinion is amended as set forth above and further reconsideration is denied.