Contingency Fees Cannot Attach to Routine Probate Distributions; Disputed Fees Must Remain in Trust—Conversion Warrants Disbarment

1. Introduction

In the Matter of Nubiyn Matamalaki Mosi Mzekewe (S26Y0121, decided Jan. 21, 2026) is a lawyer-discipline decision in which the Supreme Court of Georgia disbarred attorney Nubiyn Matamalaki Mosi Mzekewe (State Bar No. 519898). The case arose from Mzekewe’s representation of a client seeking control and accounting of a disabled veteran brother’s benefit funds that were being administered by a court-appointed “VA guardian.” The disciplinary proceeding focused on (i) expansion of representation and fee arrangements, (ii) filing and pursuing federal litigation deemed unwarranted, (iii) charging and collecting a large contingency fee from a probate distribution that was not a litigation “recovery,” and (iv) trust-account duties when a fee is disputed.

The primary issues were whether Mzekewe violated multiple Georgia Rules of Professional Conduct by: (a) failing to keep the client informed and obtain consent as to the scope of representation and fee basis; (b) charging an unreasonable fee; (c) failing to segregate disputed funds and withdrawing them for personal use; and (d) advancing unwarranted claims. A Special Master recommended disbarment; neither side filed exceptions; the Court adopted the recommendation.

2. Summary of the Opinion

The Court accepted the Special Master’s findings that Mzekewe violated GRPC Rules 1.2(a), 1.4(a)(1) and (4), 1.5(a) and (b), 1.15(I)(a) and (d), 1.15(II)(b), and 3.1(b). The misconduct centered on Mzekewe treating a routine distribution of already-belonging VA funds to the estate as a “recovery” and taking a 40% contingency fee ($80,000) from a $200,000 partial distribution, despite (i) no litigation recovery, (ii) probate administration not being plainly covered by the contingency agreement, (iii) a fee dispute, and (iv) the client’s refusal to approve the disbursement.

The Court held that disbarment was warranted, consistent with prior Georgia discipline cases involving conversion/misappropriation and trust-account violations. The Court also imposed a condition on any future readmission: Mzekewe must make full restitution to the grievant and provide proof of restitution.

3. Analysis

3.1. Precedents Cited

The Opinion is heavily precedent-driven, using prior disciplinary decisions and a fee-contingency contract case to evaluate both rule violations and sanction. Each cited authority functioned as a building block for (i) defining misconduct, (ii) rejecting defenses, and (iii) calibrating disbarment as the proportionate sanction.

  • In the Matter of Sneed, 314 Ga. 506, 507-08 (2022)
    Cited for the proposition that failing to consult with and obtain client consent regarding a significant decision can violate Rule 1.4. Here, it supported the finding that Mzekewe violated Rule 1.4(a)(1) by not informing the client that he intended to apply a 40% contingency fee to probate/distribution work.
  • In the Matter of Crowther, 318 Ga. 277 (2024)
    Used to anchor Rule 1.4(a)(4) (promptly comply with reasonable requests for information) in a practical communication context. The Special Master analogized Crowther to Mzekewe’s evasive conduct (evading service and refusing to speak with successor counsel) as actionable non-communication.
  • In the Matter of McDonald, 319 Ga. 197, 205 (2024)
    Central to the unreasonable-fee analysis: McDonald recognizes that an “excessively large” fee, especially where not grounded in work performed, can be unreasonable under Rule 1.5(a). This supported the conclusion that a 40% contingency was unreasonable given the minimal probate effort and lack of litigation recovery.
  • Paris v. E. Michael Ruberti, LLC., 355 Ga. App. 748, 753 (2020)
    Provided the contract-law principle that a contingency is a condition precedent: the “precise event” contemplated must occur to trigger entitlement. This was critical to rejecting Mzekewe’s position that he was entitled to a contingency share of the VA account distribution, where no recovery occurred in the federal litigation.
  • In the Matter of Fagan, 314 Ga. 208, 212 n.1 (2022)
    Cited for waiver principles in disciplinary procedure. The Special Master used Fagan to conclude that by failing to participate/appear, Mzekewe waived defenses (including the effort to steer the fee dispute to arbitration) and waived presentation of mitigating evidence (including mental-health context).
  • In the Matter of Arrington, 314 Ga. 696, 698 (2022)
    A key trust-account comparator. Arrington supported findings that (i) commingling/failed segregation violates Rule 1.15(I)(a), and (ii) withdrawing trust funds for personal use violates Rule 1.15(II)(b). It reinforced that “conversion to personal use” is a high-severity trust violation.
  • In the Matter of Morales, 282 Ga. 471, 472 (2007)
    Used to evaluate Rule 3.1(b) (unwarranted claims). Morales stands for the idea that claims lacking legal/factual basis—where immunity/jurisdiction doctrines are obvious—are sanctionable. This framed Mzekewe’s continued pursuit of federal claims after being advised about lawful commission authority and jurisdictional barriers.
  • In the Matter of Morse, 266 Ga. 652, 653 (1996)
    Cited as authority for considering the ABA Standards for Imposing Lawyer Sanctions in Georgia discipline cases. Morse legitimizes the structured sanction analysis (duty violated, mental state, injury, aggravation/mitigation).
  • In the Matter of Morrison, 321 Ga. 526 (2025); In the Matter of Boyd, 312 Ga. 282, 284-85 (2021); In the Matter of Webster, 318 Ga. 27, 28-29 (2023)
    These cases functioned primarily as sanction benchmarks: misappropriation/conversion, unauthorized fee taking, and repeated trust-account failures often justify the profession’s strongest sanction. They supported the Special Master’s conclusion that disbarment here aligns with Georgia’s typical response to conversion of client funds.
  • In the Matter of Cook, 311 Ga. 206, 216-18 (2021) and In the Matter of Favors, 283 Ga. 588, 589 (2008)
    Cited as contrasts to explain why a lesser sanction was inappropriate. Cook involved premature negotiation/transfer issues without proof of dishonesty or client harm and included mitigation. Favors involved misappropriation but featured remorse, full restitution, counseling, and no prior discipline—mitigation absent (or not credited) in Mzekewe’s case.
  • In the Matter of Butler, 283 Ga. 250, 253 (2008); In the Matter of Harris, 301 Ga. 378, 379-80 (2017); In re Wathen, 290 Ga. 438, 439 (2012)
    These authorities strengthened the Court’s conclusion that disbarment is consistent where lawyers misappropriate/convert entrusted funds, commingle funds, or convert settlement/estate proceeds—especially where the lawyer offers no persuasive mitigation and fails to make restitution.
  • In the Matter of Herbert, 319 Ga. 881, 884 (2024)
    Cited for the Court’s authority to impose a restitution شرط for any reinstatement/readmission after disbarment. Herbert was the direct template for requiring proof of restitution as a precondition to seeking readmission.

3.2. Legal Reasoning

A. Scope, client decisions, and communication (Rules 1.2(a), 1.4(a)(1), 1.4(a)(4))

The Court accepted the Special Master’s view that the written agreements did not clearly cover the probate administration in the manner Mzekewe later claimed, and that he expanded the practical scope and (more importantly) the financial consequences of the representation without obtaining informed client buy-in. The Rule 1.4(a)(1) violation turned on the missing disclosure that Mzekewe intended to apply the 40% contingency to estate distributions—an allocation the client did not knowingly accept.

Rule 1.4(a)(4) was supported by conduct after the dispute erupted: evasion of service and refusal to engage successor counsel. The Court treated this as a disciplinary-grade failure to respond to reasonable information requests, consistent with the communication principles emphasized in In the Matter of Crowther.

B. Unreasonable fee and inadequate fee communication (Rules 1.5(a), 1.5(b))

The fee analysis rested on two interconnected propositions:

  1. No triggering contingency and no contractual basis for the claimed percentage: Under Paris v. E. Michael Ruberti, LLC., contingency entitlement requires the contemplated event. Here, the federal litigation yielded no recovery; the distributed VA funds were not created by litigation success.
  2. Even if a contingency model were considered, the percentage and circumstances were unreasonable: The record (including expert testimony) characterized the probate/distribution task as minimal and typically hourly-billed. The Court accepted the Special Master’s conclusion (tracking In the Matter of McDonald) that charging an excessively large fee disconnected from work performed is unreasonable.

Rule 1.5(b) was violated because Mzekewe did not adequately communicate the basis/rate of fees for the probate administration that produced the distribution letter and fee extraction. Put simply: the client was never clearly told, at the relevant decision point, “I will take 40% of the VA account distribution as my fee for probate-related work.”

C. Safekeeping property and disputed funds; personal withdrawal (Rules 1.15(I)(a), 1.15(I)(d), 1.15(II)(b))

The trust-account reasoning reflects a strict disciplinary principle: when entitlement is disputed, the disputed portion must remain protected and separate until resolution. The Special Master treated Rules 1.15(I)(a) and 1.15(I)(d) as part of an integrated safeguarding framework: even if funds briefly passed through a trust account, the lawyer cannot treat disputed funds as his own.

The critical factual hinge was that the client refused to approve the distribution/fee allocation and promptly sought recovery, making the fee “in dispute.” Nonetheless, Mzekewe converted $80,000 to personal use—conduct condemned in comparators such as In the Matter of Arrington and In the Matter of Harris. Once the Court agreed the fee was disputed and not clearly earned, Rule 1.15(II)(b)’s prohibition on withdrawing trust funds for personal use became decisive.

D. Unwarranted claims (Rule 3.1(b))

The Rule 3.1(b) violation was grounded in the mismatch between (i) clear jurisdictional/immunity barriers and statutory authority for the commission rate and (ii) Mzekewe’s decision to press forward with federal claims against actors including government officials and a judge. Like In the Matter of Morales, the case reflects that lawyers may not use courts as leverage when the legal basis is plainly absent and no good-faith argument for changing the law is coherently pursued.

E. Sanction selection: ABA Standards, aggravation/mitigation, and proportionality

Applying In the Matter of Morse and ABA Standard 3.0, the Special Master (and Court) emphasized: knowing/intentional conversion, client harm (including exposure to a $23,811.48 fee award), and systemic harm from frivolous litigation. Aggravators were extensive (including prior discipline, selfish motive, pattern, multiple offenses, obstruction, refusal to acknowledge wrongdoing, vulnerability of the victim, and indifference to restitution).

Potential mitigation (mental health letter) was not credited procedurally because Mzekewe did not appear at the hearing; waiver reasoning tracked In the Matter of Fagan. The Court also rejected the notion that this case resembled lower-sanction cases like In the Matter of Cook or mitigation-rich outcomes like In the Matter of Favors.

3.3. Impact

The decision reinforces several practical discipline “rules of the road” for Georgia lawyers:

  • “Recovery” is not whatever money moves through a lawyer’s hands: Where funds belong to the client/estate independent of litigation success, labeling a fiduciary’s distribution as a litigation “recovery” will not justify a contingent percentage.
  • Contingency agreements will be policed against overreach into adjacent matters: Even where a lawyer performs related work, fee entitlement must align with the agreement’s scope and the contingency’s occurrence; otherwise Rule 1.5(a)/(b) exposure follows.
  • Disputed fees must remain segregated: Once disputed, funds cannot be treated as earned; withdrawal for personal use is a fast track to disbarment.
  • Rule 3.1 discipline risk is real: Persisting with claims after clear notice of immunity/jurisdiction defects (and after factual/statutory clarification) can itself be a separate ground for serious discipline.
  • Restitution as a readmission gate: By invoking In the Matter of Herbert, the Court signals continued willingness to condition reinstatement on proven repayment, especially where conversion is present.

4. Complex Concepts Simplified

Contingency fee / condition precedent
A contingency fee is payable only if a specified outcome occurs (the “contingency”). Under Paris v. E. Michael Ruberti, LLC., the precise triggering event must happen; otherwise the lawyer is not entitled to the contingent percentage.
Disputed funds; segregation
If a client disputes a fee, the lawyer must keep the disputed portion separate (typically in trust) until the dispute is resolved. The lawyer cannot simply pay himself first and argue later.
Commingling vs. conversion
Commingling is mixing client money with the lawyer’s money. Conversion (or misappropriation) is using client money as if it were the lawyer’s own. Conversion is treated as especially grave and often results in disbarment.
Subject matter jurisdiction and sovereign immunity
Subject matter jurisdiction is a court’s power to hear a type of case. Sovereign immunity is a doctrine that can bar suits against the government absent consent. Filing or persisting in claims that plainly run into these barriers can violate Rule 3.1(b).
Special Master in attorney discipline
A Special Master functions like a fact-finder who conducts hearings, makes credibility determinations, and recommends conclusions and sanctions to the Court.
Restitution condition for readmission
Even after disbarment, a lawyer may later seek to return to practice. Georgia can require proof that harmed clients were repaid before the lawyer may be readmitted.

5. Conclusion

In the Matter of Nubiyn Matamalaki Mosi Mzekewe consolidates Georgia’s strict stance on three recurring disciplinary themes: (1) contingent fees must track both contract scope and the occurrence of the true contingency; (2) once a fee is disputed, the lawyer’s trust-account duties require segregation and forbids personal withdrawal; and (3) knowingly pressing legally unwarranted claims can independently support serious discipline.

The case’s broader significance lies in its clear message that re-labeling routine fiduciary distributions as “recoveries,” using that label to extract a large contingent percentage, and then converting disputed funds will be treated as disbarment-level misconduct—coupled with a restitution prerequisite for any future return to practice.