AFFIDAVIT OF GARY SCHEPPS - Page 2
receiver. Still, the receiver refused to produce what they had promised to
produce, and I was forced to make a formal motion. The withheld material
is necessary to fairly evaluate and respond to claim for unpaid attorney’s
fees.
3. The rules of ethics require that an attorney’s fee be limited to
reasonable fees for the services rendered. An attorney is prohibited from
charging unreasonable fees and fee forfeiture of the entire fee paid the
attorney is the remedy for an attorney’s excess fee demand. As a matter of
law, proof of the reasonable of an attorney’s fee requires expert opinion. I
formally requested from the receiver access to some of Jeff’s funds to hire
an expert on the fees issue. I requested this even in a formal ‘meet and
confer’ session with the receiver. The receiver refused to provide any such
funding. I attempted to find an expert who would work on a contingency
basis, and was unable to find any qualified expert agreeing to do so. As a
matter of law, without an expert’s opinion is not possible at this time to
present evidence that any attorney’s fee is unreasonable. Accordingly, it is
not possible to offer evidence in defense of the attorney’s claims with
respect to that aspect of the claim’s defense. It is my opinion there are
grounds to assert the defense of unreasonable fees on Jeff’s behalf.
4. Proof of Malpractice requires expert opinion. In order to present
evidence of malpractice an expert’s opinion is required. The facts stated
above apply to an expert on malpractice. If Jeff is prohibited from using his
own money to hire an expert, as a matter of law he is unable to present
evidence to establish a defense of malpractice. It is my opinion there are
grounds to assert the defense of malpractice, on Jeff’s behalf.
5. I handle federal appeals, not federal trials. I have never on my own
handled a federal trial, bench or jury, and have always relied upon hired trial
counsel for trials in the federal court. I am not qualified on my own to
appear in federal court and defend multiple claims against multiple teams of
attorneys. I require assistance to handle the organization of the files, tracking
of admission of evidence, preparation and tracking of objections, and many
other aspects of the appearance. If I was up against a single attorney who
also had no support, I think I could manage. It is simply not possible for me
to properly represent Jeff’s interests by myself. My engagement was
express and clear that I was not accepting employment to make any
appearance as trial counsel. An AV rated trial attorney was representing Mr.
Baron at the time I was retained as appellate counsel, but he was ‘fired’ by
Case 3:09-cv-00988-F Document 499-1 Filed 04/28/11 Page 2 of 4 PageID 18389Case 12-37921-sgj7 Doc 55-4 Filed 02/08/13 Entered 02/08/13 12:06:24 Desc
Exhibit D3 Page 2 of 4