Cluck v. Commission for Lawyer Discipline

Patricia Smith hired lawyer Tracy Cluck (defendant) to represent her in her divorce. Cluck asked Smith for $15,000 up front. Cluck also asked Smith to sign a fee agreement designating this payment as nonrefundable. The agreement said that Cluck would collect his hourly fees out of the $15,000 first and would bill Smith after that money was gone. Smith signed the agreement, and Cluck began work on the divorce. Later, after a brief pause in the matter, Cluck asked Smith to pay an additional $5,000 nonrefundable fee before he would start working again, and Smith paid the extra $5,000. A little over a month later, Smith fired Cluck because he was not being responsive to her calls and had not made sufficient progress on the divorce. Smith then sent Cluck a letter asking him to refund whatever portion of her $20,000 he had not yet earned. At that point, Cluck had earned, at most, approximately $5,000 in fees. However, Cluck claimed that the entire $20,000 was nonrefundable and refused to return any of it. Smith filed a complaint with the state bar, and the Commission for Lawyer Discipline (plaintiff) initiated an action against Cluck for professional misconduct, including a claim that Cluck had charged and collected an unconscionable fee. The trial court found that Cluck had violated the rules of professional conduct, suspended his law license for 24 months, and ordered Cluck to repay Smith $15,000. Cluck appealed.