AURORA, Colo. — Attorneys representing the mother of Elijah McClain are challenging nearly $4 million in legal fees requested by her previous lawyers, according to a complaint filed in court Tuesday, which was first reported by the Denver Gazette.
The complaint names Sheneen McClain and the Estate of Elijah McClain as the plaintiffs and the law firm of Killmer, Lane & Newman, LLP (KLM) as the defendant.
According to the complaint, McClain fired KLN for wrongful conduct early on during the process of the federal lawsuit against the City of Aurora over the death of her son, which eventually resulted in a $15 million dollar settlement.
KLN continued to represent Lawayne Mosley, McClain's father.
> Video above from Nov. 2021: City of Aurora settles civil lawsuit with Elijah McClain's family for $15 million.
According to the complaint, KLN's contingency fee agreement with McClain and Mosley, the sole beneficiaries of the Elijah McClain Estate, said that KLN forfeited its entitlement to attorney fees if terminated for wrongful conduct.
KLN did not enter into a written fee agreement with the estate, according to the complaint.
"KLN's attorney repeatedly engaged in wrongful conduct including breach of fiduciary duty, negligence, and violations of the Colorado Rules of Professional Conduct by (without limitation) placing KLN's desire for publicity and self-aggrandizement ahead of Ms. McClain's interest and instructions, collecting a contingency fee from the Estate without a written and signed contingency fee agreement; providing erroneous legal advice to Ms. McClain while under a substantial conflict of interest, and, after Ms. McClain's termination of KLN, surreptitiously advocating against her," the complaint reads.
The complaint goes on to say that KLN is not contractually entitled to a 40% contingency fee or any other attorney fees, "because the contingency, i.e., a judgment or settlement, did not occur during KLN’s representation."
KLN is also accused of collecting a $140,000 contingency fee from the estate for a $350,000 settlement with an ambulance company "without having obtained a signed, written contingency fee agreement with the Estate and that, at most, KLN is entitled to quantum meruit fees for its representation of the Estate."
"As a result, KLN received substantially and disproportionately more remuneration for its legal services than it would be received had its fees been calculated on an hourly basis," the complaint says.
The complaint also accuses KLN of not disclosing, as required by Colorado's ethics rules, that under Colorado's Wrongful Death Act that the parents of a child whose estate is seeking a wrongful-death recovery are not necessarily treated equally.
"An absentee parent who had little or no relationship and who provided minimal financial support for the deceased child is not entitled to recover the same amount as the parent who had the most significant relationship with the child and who provided the predominant financial support for him. Nor, in such circumstances, are both parents equally entitled to serve as personal representatives of their child’s estate," the complaint reads.
McClain objected to Mosley's involvement in the federal lawsuit because of his lack of involvement in Elijah McClain's life, according to the complaint.
"From Elijah’s birth until his murder, Ms. McClain was his sole parent and provider. During Elijah’s life, Mr. Mosley had contested his paternity and, after paternity was established, was a permanently absent father who owed substantial back child support. He was a father in name only. Ms. McClain bore all the burdens of a single parent," the complaint reads.
The complaint says KLN "exacerbated its ethical violations by leading Ms. McClain to believe that she had no choice but to be joined in litigation with Mr. Mosley; each parents’ respective relationship with Elijah made no difference under the law; and each parent would receive 50% of the proceeds regardless of his or her relationship with or support of Elijah when he was alive. Ms. McClain relied on this advice to her detriment."
The complaint also claims KLN attorneys "incessantly sought media attention for their own self-aggrandizement campaign and, in doing so, made inappropriate and unauthorized public comments that did not reflect the client’s position."
McClain fired KLN in April 2021 and at the time, the complaint argues, no depositions or significant motions took place, and the federal case was in the preliminary stages.
After McClain terminated KLN, the complaint says, KLN offered "sworn testimony in the Federal Action through an affidavit in support of Mr. Mosley’s settlement position and in opposition to Ms. McClain’s settlement position regarding the language of the settlement agreement and the inclusion of certain language by KLN."
The final settlement "did not include the language championed by KLN," the complaint says.
After the settlement in the federal lawsuit was finalized, "KLN was continuing to surreptitiously advocate against Ms. McClain," the complaint says.
The complaint argues another law firm representing Mosley, Dill and Dill, presented an email in federal court that was "a proposed email to Ms. McClain’s attorneys, a draft of which was being sent to KLN for their review and comment prior to sending. The purpose of this email was to solicit KLN’s comments and obtain KLN’s approval to send a response designed to harm Ms. McClain’s interests."
The complaint claims the email "was not the only time that Dill and Dill worked together with KLN regarding the allocation dispute."
"The tone and substance of [the email] — along with KLN’s history of seeking to maximize Mr. Mosley’s apportionment of the settlement proceeds — suggests an ongoing process whereby KLN was actively litigating in the shadows against its former client while outwardly assuring Ms. McClain and the federal court that KLN was not involved in the dispute. Ms. McClain never consented to KLN’s representation of Mr. Mosley in the allocation dispute," the complaint claims.
McClain and Mosley reached a settlement in the appointment proceedings in the federal lawsuit on March 10, the complaint says, and KLN sent a letter to McClain's counsel on March 11 requesting $3.9 million, according to the complaint.
Killmer, Lane & Newman, LLP released the following comment:
"For decades we have fought alongside our clients to protect their constitutional rights and civil liberties. This is not just what we do, it is who we are and what we believe. Our team poured our hearts and souls into seeking justice for the McClain family and helped them achieve the largest civil rights settlement in Colorado history. We stand by our hard work on this case. The allegations are misleading, and in many cases entirely false. We hope that this misdirected anger does not distract from the important goals of continuing to force change in policing, and criminal accountability for Elijah’s killers."
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