A.R. v. chambers/lattimer

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In the Matter of Conservatorship for:

A.R.,
a minor,
_________________________________

MYKEL CHAMBERS,
Petitioner/Appellee,

v.

LAW OFFICE OF GREGORY L. LATTIMER, PLLC,
Appellant.

No. 1 CA-CV 21-0531
FILED 7-26-2022

Appeal from the Superior Court in Maricopa County
No. PB2014-003388
The Honorable Thomas Marquoit, Judge Pro Tempore

AFFIRMED

COUNSEL

Law Office of Florence M. Bruemmer, PC, Anthem
By Florence M. Bruemmer
Counsel for Appellant
Law Offices of Joseph M. Boyle, Phoenix
By Joseph M. Boyle
Co-Counsel for Appellee A.R.

Theut, Theut & Theut, PC, Phoenix
By Brian J. Theut
Co-Counsel for Appellee A.R.

MEMORANDUM DECISION

Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Brian Y. Furuya and Judge Jennifer M. Perkins joined.1

W E I N Z W E I G, Judge:

¶1 The Law Offices of Gregory Lattimer appeals the denial of its
petition for attorney fees from A.R.’s conservatorship. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Rumain Brisbon was shot and killed by Phoenix police on
December 2, 2014. He died intestate, survived by four children, including
daughter A.R., and his parents, including his father Ricky McGee.

¶3 Mykel Chambers was A.R.’s mother. Chambers wore two
hats in this case. She was first the conservator of A.R.’s conservatorship
and later the personal representative of Rumain’s estate. On December 9,
donning her conservator hat, Chambers hired Gregory Lattimer to pursue
any claims A.R. had as a result of Rumain’s death. Chambers signed a
written fee agreement for Lattimer to assert A.R.’s tort claims against the
City of Phoenix. She did not, however, indicate whether she signed as an
individual or in a representative capacity. Because Lattimer was licensed
only in the District of Columbia, Chambers also retained the Jenkins Law
Firm (“Jenkins”) as local counsel.

¶4 About 11 months later, after she was appointed as personal
representative of Rumain’s estate, Chambers signed a second written fee
agreement. This time, under the agreement, Lattimer would assert the tort

1 IT IS ORDERED the above caption must be used in all further filings
with the court.

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Decision of the Court

claims of both A.R. and the estate. Both fee agreements provided that
Lattimer would receive a one-third contingency fee if the case was resolved
before he sued, or forty percent if a lawsuit was required.

¶5 Also around this time, Lattimer accepted a third client, father
McGee. Apparently forgetting to change the template, McGee and Lattimer
entered a written agreement for Lattimer to press McGee’s tort claims “for
the injuries my daughter sustained as a result of the shooting death of Rumain
Brisbon.” McGee also retained Jenkins as local counsel. McGee agreed to
pay the same contingency fee as A.R. and the estate.

¶6 And so, Lattimer now represented three clients in the flood of
tort litigation created by Rumain’s tragic death: Chambers, A.R.’s
conservatorship, and father McGee. Chambers sued the City of Phoenix in
federal court in April 2015, asserting a Section 1983 claim on the estate’s
behalf, and wrongful death claims on behalf of the statutory beneficiaries:
four children and two parents. See 42 U.S.C. § 1983; A.R.S. § 12-612.

¶7 About two years later, in May 2017, the City of Phoenix
reached a universal settlement, resolving all tort claims against it for
$1,500,000, divided between the Section 1983 and wrongful death claims
($1,200,000), and the individual claims of those who witnessed Rumain’s
death ($300,000). The court approved the settlement, apportioning the
wrongful death award between Rumain’s three other children ($720,000),
A.R. ($240,000) and father McGee ($20,000). Over Lattimer’s objection, the
court awarded $108,000 in attorney fees to Lattimer and Jenkins for their
work on the wrongful death action. We affirmed in June 2020. See In re Est.
of Brisbon, 1 CA-CV 19-0389, 2020 WL 3053614 (Ariz. App. June 9, 2020)
(mem. decision).

¶8 The probate court returned the question of Lattimer’s fee for
representing A.R.’s conservator to the conservatorship action. The probate
court also reported Lattimer and Jenkins to the state bar (1) for a conflict of
interest because they simultaneously represented the estate, A.R.’s
conservatorship and father McGee, and (2) because their fee agreements
were unclear about the scope of representation, Chambers’ role, and the
expenses.

¶9 The state bar investigated and opened disciplinary
proceedings against Lattimer, which he settled. Lattimer accepted an
admonition by consent for violating E.R. 1.5(b) and (c) because he did not
communicate with the clients about the possible costs and expenses

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Decision of the Court

associated with litigation. The state bar, in exchange, dismissed the conflict-
of-interest charges under ER 1.7 and 1.8.

¶10 A year after conceding that ethical misstep, Lattimer asked
the court in A.R.’s conservatorship action to award him $50,000. Jenkins
had withdrawn by this time and, given the disciplinary proceedings, he did
not believe he was entitled to these fees. The court denied Lattimer’s
petition. He timely appealed. We have jurisdiction. See A.R.S. § 12-
1201.21(A)(1), -2101(A)(1).

DISCUSSION

¶11 We review the superior court’s denial of attorney fees for an
abuse of discretion, In re Guardianship of Sleeth, 226 Ariz. 171, 174, ¶ 12 (App.
2010), and will affirm the decision if reasonable, Orfaly v. Tucson Symphony
Soc’y, 209 Ariz. 260, 265, ¶ 18 (App. 2004) (citation omitted).

¶12 All compensation paid by a conservatorship to counsel must
be reasonable and necessary. A.R.S. § 14-5109(C). “To determine the
reasonableness and necessity of compensation, the court must consider the
best interest of the ward or protected person.” Id. Arizona law lists six
factors to consider: (1) whether the work benefitted the ward, (2) customary
fees for similar work, (3) the conservatorship’s assets, (4) whether the
services were reasonable, efficient and cost-effective, (5) whether delegation
was appropriate and prudent, and (6) any other factors on reasonableness.
Id. A probate court has “discretion to determine a reasonable fee on a case
by case” basis. See In re Conservatorship of Fallers, 181 Ariz. 227, 229 (App.
1994).

¶13 The superior court had ample evidence to deny Lattimer’s
request for attorney fees based on his ethical violations. See In re Est. of
Shano, 177 Ariz. 550, 558 (App. 1993) (a court may deny a fee request if
attorney violates his ethical duties). Lattimer admitted he violated E.R.
1.5(b) and (c). The court also had ample evidence of a conflict of interest.
Lattimer emphasizes his settlement with the state bar, but he misses the
point. State bar discipline is not required for courts to enforce ethical rules.
In re Martinez, 248 Ariz. 458, 469, ¶ 41 (2020). Whatever the disposition of
the bar’s disciplinary charges, the record had ample evidence of ethical
conflicts:

• As the personal representative of Rumain’s estate, Chambers and her
attorney owed a duty of impartiality to the estate’s successors. See
In re Est. of Fogleman, 197 Ariz. 252, 257, ¶¶ 10-11 (App. 2000). As the
conservator of A.R.’s conservatorship, Chambers and her attorney

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Decision of the Court

owed a conflicting fiduciary duty to A.R. See Sleeth, 226 Ariz. at 179,
¶ 36.

• Lattimer represented two statutory beneficiaries in the wrongful
death lawsuit, A.R. and father McGee, whose recovery would be
taken from the same pool of settlement money. McGee’s recovery
thus reduced A.R.’s recovery.

• The estate recovered damages under the Section 1983 claim, while
A.R. recovered damages under to the wrongful death claim. The
more the estate received from the settlement, the less A.R. could
receive as a wrongful death beneficiary. A.R. is not guaranteed a
devise from the estate, so the estate’s victory was A.R.’s loss.

¶14 This was more than enough for the court to deny Lattimer’s
fee petition. See Rodriguez v. Disner, 688 F.3d 645, 653 (9th Cir. 2012) (“A
court has broad equitable power to deny attorneys’ fees . . . when an
attorney represents clients with conflicting interests.”). The court did not
abuse its discretion.

CONCLUSION

¶15 We affirm.

¶16 A.R.’s guardian ad litem (“GAL”) requests attorney fees on
appeal. We deny the request because ARCAP 21 provides no independent
basis for attorney fees, and the GAL provides no other authorities. See Neal
v. Brown, 219 Ariz. 14, 20, ¶ 22 (App. 2008). As the prevailing party,
however, the GAL is awarded her costs on appeal, contingent upon her
compliance with ARCAP 21(a). See A.R.S. § 12–341.

AMY M. WOOD • Clerk of the Court
FILED: JT

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