KOSRAE STATE COURT TRIAL DIVISION
Cite as Ittu v. Palsis
11 FSM Intrm. 597 (Kos. S. Ct. Tr. 2003)

[11 FSM Intrm. 597]

JOSEPH ITTU,
Plaintiff,
 
vs.
 
AKIYUSI PALSIS,
Defendant.
 
SMALL CLAIM 48-03
 
MEMORANDUM OF DECISION; JUDGMENT
 
Yosiwo P. George
Chief Justice
 
Hearing: May 26, 2003
 
Decided: May 26, 2003

APPEARANCES:

For the Plaintiff:                           Joseph Ittu, pro se
                                                   Kosrae FM 96944
 
For the Defendant:                      Akiyusi Palsis, pro se
                                                   P.O. Box 224
                                                   Tofol, Kosrae FM 96944

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HEADNOTES

Attorney, Trial Counselor and Client ) Attorney Discipline and Sanctions
     The Model Rules of Professional Conduct apply to all attorneys and trial counselors. Ittu v. Palsis, 11 FSM Intrm. 597, 598 (Kos. S. Ct. Tr. 2003).
 
Attorney, Trial Counselor and Client ) Fees
     A counsel's fee must be reasonable. The Rules strongly suggest that a fee arrangement be made in writing and given to the client. This makes the fee arrangement clear and reduces the possibility of confusion. Ittu v. Palsis, 11 FSM Intrm. 597, 598 (Kos. S. Ct. Tr. 2003).

[FSM Intrm. 598]

Attorney, Trial Counselor and Client ) Fees
     The Rules allow a counsel to require advance payment of a fee by the client, but the counsel is required to return any portion which has not been earned. Ittu v. Palsis, 11 FSM Intrm. 597, 598 (Kos. S. Ct. Tr. 2003).
 
Attorney, Trial Counselor and Client ) Withdrawal of Counsel
     When a trial counselor defendant is still considered plaintiffís counsel since he has not withdrawn from the plaintiffís land matter, he should inform the plaintiff in writing of his withdrawal if he should seek to withdraw from representing the plaintiff based upon the partiesí inability to work together. Ittu v. Palsis, 11 FSM Intrm. 597, 599 (Kos. S. Ct. Tr. 2003).

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COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

     This small claim matter was heard on May 26, 2003. Both parties appeared pro se, on their own behalf. After hearing from both parties, I made the following findings of fact. Plaintiff and Defendant entered into a verbal agreement in October 2002. The Plaintiff retained the Defendant to represent him in a land dispute. Plaintiff gave the Defendant a retainer payment of $50. This retainer fee was made for the Defendant to begin work on the claim. The parties understood that the Plaintiff would later have to pay additional fees for legal services to the Defendant. The Defendant's hourly rate for legal services was $20 per hour. Defendant admitted that he did receive the $50 retainer payment from the Plaintiff, in two partial payments.

     Defendant had one meeting with the Plaintiff to collect factual information relating to Plaintiff's claim. Defendant also visited the Land Court and obtained information regarding the subject parcel. In the following weeks, while Defendant was thinking about the approach to Plaintiff's claims, received several phone calls from the Plaintiff and his wife inquiring about the status of his claim. During the last phone call in January 2003, the parties exchanged some angry words. The Defendant invited the Plaintiff to find substituted counsel if he was not satisfied with his work. Defendant has not done any work on the Plaintiff's claim since January 2003.

     The Plaintiff requests return of the $50 retainer fee paid to the Defendant. The Defendant claims that the retainer fee was non-refundable and claims additional fees for legal services already provided. The Defendant claims that the Plaintiff owes him an additional $40 payment for two hours of legal work performed: one meeting with the Plaintiff to assess his claims, and one trip to Land Court to review the file of the subject parcel. Plaintiff claims that the $50 retainer fee is non-refundable and cannot be applied to legal service fees.

     The Court relies upon the Model Rules of Professional Conduct, which apply to all attorneys and trial counselors, and apply to the Defendant in this case. Model Rule 1.5 sets out the requirements of a counsel's fee. First, a counsel's fee must be reasonable. The Rules strongly suggest that a fee arrangement be made in writing and given to the client. This makes the fee arrangement clear and reduces the possibility of confusion. The Rules also allow a counsel to require advance payment of a fee by the client, but the counsel is required to return any portion which has not been earned. Here, the client, the Plaintiff, made an advance payment of counsel's fee in the amount of $50 to the Defendant. The Defendant counsel spent two hours performing legal services, for a charge of $20 per hour or $40 total. Accordingly, the Defendant is required to return $10 to the Plaintiff, which is the portion of the retainer fee which has not been earned by the Defendant.

[FSM Intrm. 599]

     Furthermore, Defendant is still considered counsel for the Plaintiff, since he has not withdrawn from the land matter. If Defendant seeks to withdraw from representing the Plaintiff, based upon the parties inability to work together, Defendant should inform the Plaintiff in writing of his withdrawal.

     Based upon the information provided by the parties, applicable law and rules, and the Model Rules of Professional Conduct, I find in favor of the Plaintiff. The Plaintiff paid the Defendant a $50 retainer fee for legal services and expenses. The Defendant did provide legal services for a total value of $40. Therefore, the Plaintiff is entitled to reimbursement in the amount of $10.00. As the prevailing party, the Plaintiff is also entitled to reimbursement of the Court's filing fee of $2.50. Accordingly, judgment is entered in favor of the Plaintiff and against the Defendant in the total amount of $12.50. The Defendant shall pay the entire judgment amount no later than June 26, 2003.

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