The Kansas Supreme Court thinks so. See In re John W. Thurston, No. 114,543 (Ks. Apr. 15, 2016). In Thurston, the respondent represented a client in a criminal case on a fixed-fee basis, but withdrew before completion of the client’s matter. The respondent thereafter failed to provide his former client with an accounting of the unearned portion of the fixed fee. In imposing discipline, the court noted that:
[u]pon termination, a lawyer needs to be in a position to accurately determine the fees earned to date. That requires lawyers to keep time records reflecting actual time spent in the representation. In this case, the respondent failed to keep adequate time records which would indicate the amount of unearned fees. Relying on notations on the respondent’s calendar and on the respondent’s recollection is unacceptable.
Id. at 7; id. at 11 (adopting hearing panel’s findings and conclusions).
This is a disturbing opinion. Few lawyers who charge on a fixed-fee basis keep regular time records. As long as such lawyers have a reasonable basis for computing the unearned portion of a fee upon termination, the standards of conduct should not force them to keep time sheets.
