DATE FILED: May 17, 2022 12:13 PM

DISTRICT COURT, DENVER COUNTY, FILING ID: CB813D24E8427

STATE OF COLORADO CASE NUMBER: 2022CV31376
1437 Bannock Street
Room 256
Denver, CO 80202
303-606-2300
Plaintiffs:

The Estate of Elijah McClain and Sheneen McClain,

Individually and as Co-Personal Representative of the
Estate of Elijah McClain;

v.

Defendant:

Killmer, Lane & Newman, LLP ▲ COURT USE ONLY ▲

Attorneys for Plaintiff:
Daniel A. Wartell, #34902 Case No.:
Ciancio, Ciancio & Brown, P.C.
1660 Lincoln Street, Suite 2000 Div: Ctrm:
Denver, Colorado 80264
Tel: 303-451-0300
Fax: 303-464-8000
E-Mail: dwartell@colo-law.com
COMPLAINT

Plaintiffs the Estate of Elijah McClain (“the Estate”) and Elijah’s mother Sheneen
McClain (collectively “Plaintiffs”), by and through their attorneys, Ciancio, Ciancio & Brown,
P.C., allege the following for their Complaint against the Defendant law firm Killmer, Lane &
Newman, LLP (“KLN”):

INTRODUCTION

1. This case arises out of KLN’s recent demand for almost $4 million in attorney fees
against Elijah McClain’s single mother, Sheneen McClain, from the proceeds of a federal wrongful
death action. The demand was made in this context:

• Shortly after Elijah McClain’s death, KLN met with Sheneen McClain to discuss legal
representation. KLN insisted that it also represent Lawayne Mosley (Elijah’s absentee
father who denied paternity and owed substantial back child support) and the Estate,
of which Ms. McClain and Mr. Mosely were the sole beneficiaries. KLN did not
obtain any written or signed conflict waiver from either client.
 • KLN’s contingency fee agreement with Ms. McClain and Mr. Mosely provided that
KLN forfeits its entitlement to attorney fees if it is terminated for wrongful conduct.
KLN did not enter into a written fee agreement (contingency or otherwise) with the
Estate.

• Early in the federal lawsuit, and well before settlement, Ms. McClain fired KLN
because of its wrongful conduct. KLN continued to represent Mr. Mosely for the
duration of the federal lawsuit and beyond.

• KLN attorneys 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 interests 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.

2. Pursuant to C.R.C.P. 57 and Colo. Rev. Stat. §§ 13-51-101, et seq. (the “Uniform
Declaratory Judgments Law”), Plaintiffs ask this Court for declaratory relief in the form of a
judgment that concludes:

(a) Pursuant to the terms of KLN’s fee agreement and Colorado law, KLN forfeited
any attorney fees it otherwise would have been entitled to from Ms. McClain
because of her termination of KLN for its wrongful conduct;

(b) Alternatively, KLN is not contractually entitled to the 40% contingency fee it
has demanded from Ms. McClain because the contingency, i.e., a judgment or
settlement, did not occur during KLN’s representation;

(c) Alternatively, under principles of quantum meruit, KLN is not entitled to any
additional attorney fees from Sheneen McClain; and

(d) KLN improperly collected a contingency fee from the Estate for an early
settlement with an ambulance company (Falck) 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.

3. Plaintiffs expressly reserve the right to amend this Complaint as additional

information becomes available and depending on any claims or defenses asserted by KLN.

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 PARTIES, JURISDICTION AND VENUE

4. Plaintiff the Estate of Elijah McClain was established in In re Elijah McClain, No.
2019PR30783 (Adams Cnty.) (the “Probate Action”). Ms. McClain is a Co-Personal
Representative for the Estate.

5. Plaintiff Sheneen McClain, Elijah’s biological mother, is a Denver County resident.

Ms. McClain, together with the Estate and Mr. Mosley, were plaintiffs in an underlying federal
action concerning the wrongful death of Elijah McClain, Estate of Elijah Javon McClain v. City
of Aurora, Colorado, No. 1:20-cv-2389-DDD-NRN, District of Colorado (the “Federal Action”).
All filings from the Federal Action are incorporated by reference herein. Ms. McClain brings this
action individually to address KLN’s formal demand for payment of fees and costs and as Co-
Personal Representative for the Estate to address KLN’s improper collection of a contingency fee
related to an early settlement with the ambulance company (Falck) that employed the paramedics
involved in Elijah’s death.

6. Defendant Killmer, Lane & Newman, LLP (“KLN”) is a Colorado limited liability
partnership conducting business as a law firm. Its principal place of business is 1543 Champa
Street, Suite 400, Denver, Colorado. At all times relevant to this action, KLN, through its
principals, attorneys and employees, each of whom was acting within the course and scope of their
partnership, employment and agency, provided legal representation of and legal services to the
Estate, Ms. McClain and/or Mr. Mosley.

7. This Court has personal and subject matter jurisdiction over the Defendant and this
dispute. Venue is proper in this court pursuant to C.R.C.P. 98(c) because KLN’s principal place
of business is in the City and County of Denver (“Denver”), the fee agreement at issue was
executed and to be performed primarily in Denver, and most of the acts, errors or omissions
complained of occurred in Denver.

GENERAL ALLEGATIONS

8. On August 24, 2019, Aurora police officers and paramedics murdered 23-year-old
Elijah McClain. Some of these officers and paramedics were subsequently charged with crimes
related to his death.

9. 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.

10. After Elijah’s death, KLN advised Ms. McClain that a probate court would need to
create an estate for Elijah, both Ms. McClain and Mr. Mosley should be appointed as the estate’s
personal representatives, both would share equally in the estate’s recovery of any damages, and
KLN was required to represent not only Ms. McClain but also Mr. Mosley. At the time she gave
this advice, Ms. Newman knew of the facts in the previous paragraph and knew Ms. McClain

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objected to Mr. Mosley’s sudden participation in the wake of Elijah’s death when he was AWOL
during Elijah’s life.

11. On about September 3, 2019, KLN prepared a “Fee Agreement” that was presented
to, and signed by, both Ms. McClain and Mr. Mosley. Mari Newman signed the Fee Agreement
for KLN. The Fee Agreement is incorporated by reference herein.

12. After KLN commenced the Probate Action, the probate court appointed
Ms. McClain and Mr. Mosley as the Estate’s Co-Personal Representatives. All filings from the
Probate Action are incorporated by reference herein.

KLN Improperly Collects Contingency Fee from the Estate

13. KLN never entered into a contingency or any other fee agreement with the Estate.

14. On about July 27, 2020, KLN, representing the Estate, procured a $350,000
settlement between the Estate and the ambulance company, Falck Rocky Mountain.

15. Although it had no contingency or other fee agreement with the Estate, KLN
charged the Estate a 40% contingency fee. As a result, KLN received substantially and
disproportionately more remuneration for its legal services than it would have received had its fees
been calculated on an hourly basis.

16. KLN’s conduct was impermissible. Under Colorado law, no contingent fee is
permissible unless the lawyer and client have entered into a written contingent fee agreement, no
contingent fee agreement is enforceable unless the lawyer has substantially complied with the rule,
and without a contingent fee agreement the lawyer is not otherwise entitled to compensation from
the client.

17. The August 10, 2020, Disbursement Schedule prepared by KLN, and incorporated
by reference herein, states that 60% of the $350,000 Falck settlement (exclusive of costs and liens)
was paid to the “Estate of Elijah McClain” and 40%--or $140,000—was paid to KLN “Based on
Fee Agreement.” However, there is no fee agreement with the Estate and KLN was, at the very
most, only permitted to charge the Estate a reasonable fee under quantum meruit.

18. Prior to commencing this action, Sheneen McClain specifically requested that KLN
provide any documentation or other evidence that would allow her to assess the reasonableness of
KLN’s fees and the amount that should have been paid by the Estate under quantum meruit. KLN
did not provide Ms. McClain with any responsive information or support for their attorney fees.

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 Sheneen McClain Terminates KLN for Wrongful Conduct

19. KLN filed the Federal Action on August 11, 2020.

20. As the Federal Action progressed, Ms. McClain became increasingly concerned
with KLN’s representation.

21. From the inception of KLN’s joint and simultaneous representation of the Estate,
Ms. McClain, and Mr. Mosley, KLN faced obvious conflicts of interest.

22. One conflict of interest resulted from Colorado’s Wrongful Death Act, which
provides 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.

23. Colorado’s ethics rules required KLN explain these and any other conflicts of
interest to their clients and, if the conflicts are waivable, to obtain written, informed consent from
the Estate, Ms. McClain, and Mr. Mosley. KLN violated these ethics rules. It failed to explain
these conflicts to the Estate, Ms. McClain, and Mr. Mosley and failed to obtain any written,
informed consent from them.

24. KLN exacerbated its ethical violations by leading Ms. McClain to believe that she
had no choice but to be joined in the litigation with Mr. Mosely; 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.

25. During KLN’s representation, it became clear to Ms. McClain that KLN’s attorneys
were more concerned about promoting their own careers than in honoring their client’s—Ms.
McClain’s—wishes, interests and directives. Despite Ms. McClain’s directives, KLN’s 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.
Ms. McClain pursued the Federal Action to obtain justice for Elijah; she did not bring the Federal
Action as a platform for KLN attorneys to promote themselves.

26. In or around April 2021, Ms. McClain fired KLN and retained new counsel, Rathod
Mohamedbhai, LLC, to represent her in the Federal Action.

27. At the time of KLN’s termination, no depositions had taken place, no significant
motions practice had occurred, and the Federal Case was in its preliminary stages.

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 KLN Attempts to Harm Sheneen McClain’s Interests During Settlement of
Federal Action While Still Representing Lawayne Mosley

28. After its termination, KLN, while still representing Mr. Mosley, continued to
operate under a conflict of interest and breached its fiduciary and ethical obligations to Ms.
McClain by actively litigating against her and in support of Mr. Mosley.

29. KLN, through its partner and attorney Darold Killmer, went so far as to offer 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.

30. On other occasions, KLN attempted to conceal its ongoing legal campaign against
Ms. McClain. Acknowledging the clear conflict of continuing to represent Mr. Mosley in
proceedings adverse to a former client, KLN purported to renounce any representation of Mr.
Mosley concerning the allocation of any settlement proceeds. See, e.g., 2021.09.28
Communication from KLN Attorney (“We have assiduously avoided putting KLN in a conflicted
position by ensuring that the Plaintiffs had separate counsel to advise and represent them regarding
any issues pertaining to the division of settlement funds. . . . [W]e continue to maintain that KLN
not be involved in the discussion of the division of the settlement funds as between the Plaintiffs.”).
Indeed, KLN had offered these assurances to Ms. McClain before. See, e.g., 2021.09.06
Communication from KLN Attorney (“but I confirm that neither I, nor anyone else at KLN, have
or are negotiating regarding the allocation of settlement funds as between the parties”).

31. Nevertheless, KLN began taking legal positions adverse to—and actively litigating
against—Ms. McClain. On July 23, 2021, as the plaintiffs in the Federal Action discussed a
tentative settlement with defendants, KLN inexplicably took the position that the settlement
proceeds should be “payable to the estate of Elijah McClain.” See 2021.07.23 Communication
from KLN Attorney (emphasis added).

32. KLN’s demand that Defendants pay the proceeds to the Estate was an intentional
and premeditated effort to bypass the apportionment proceedings permitted under Colorado’s
Wrongful Death Act—proceedings in which KLN feared that Ms. McClain, the sole custodian and
provider for Elijah throughout his life, would receive more funds than Mr. Mosley. In other words,
before the Parties had even signed the settlement agreement, KLN was taking a legal position
designed to reduce the amount of settlement proceeds that Ms. McClain could recover.

33. Despite KLN’s continued assurances that it was not involved in the allocation
dispute, Mr. Mosely’s new attorneys from the law firm of Dill & Dill took positions in the Federal
Action at the direction of KLN and consistent with KLN’s strategy to harm Ms. McClain. See,
e.g., November 15, 2021, Mosley Brief filed by Dill & Dill (“…payment must be made solely to
Elijah’s Estate.”)

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 34. After numerous hearings and settlement conferences, KLN’s attempt to undermine
Ms. McClain’s interests through the settlement agreement failed, although KLN’s efforts delayed
the case and caused Ms. McClain to incur substantial attorney fees. On or about September 1,
2021, the plaintiffs and the defendants in the Federal Action executed a settlement agreement that
did not include the language championed by KLN and, instead, expressly permitted Ms. McClain
to seek judicial apportionment of the settlement proceeds pursuant to the Wrongful Death Act

KLN Surreptitiously Litigates Against Ms. McClain During Apportionment Proceedings

Between Ms. McClain and Mr. Mosley

35. After finalizing the settlement agreement in the Federal Action, KLN continued to
provide assurances to opposing counsel and the federal court that it would not be involved in any
controversy between Ms. McClain and Mr. Mosely for the obvious reason that KLN’s former
client (Mr. Mosely) and current client (Ms. McClain) were pitted directly against one another.

36. An exhibit attached to one of Mr. Mosely’s filings in the Federal Action
demonstrated with startling clarity that, despite its assurances and representations, KLN was
continuing to surreptitiously advocate against Ms. McClain. In one of Mr. Mosley’s filings, Dill
and Dill represented to the federal court that its “Exhibit 5” was an email sent to Ms. McClain’s
attorneys. In reality—as shown by the recipients to the email and its subject line—Exhibit 5 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.

37. On information and belief, Exhibit 5 was not the only time that Dill and Dill worked
together with KLN regarding the allocation dispute. Instead, the tone and substance of Exhibit
5—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.

38. Despite KLN’s ongoing interference, on March 10, 2022, Ms. McClain and
Mr. Mosely reached a settlement in the apportionment proceedings in the Federal Action.

Within 24 Hours of the McClain/Mosely Apportionment Settlement,

KLN Demands that Ms. McClain pay KLN $3.9 Million in Attorney Fees

39. On March 11, 2022, Mr. Killmer sent a formal letter to Ms. McClain’s counsel
demanding that she pay KLN $3,900,000 in attorney fees (the “Demand Letter”).

40. KLN’s Demand Letter also purported to charge Ms. McClain over $50,000 for all
remaining costs that KLN had advanced in the Federal Action. KLN made no attempt to apportion

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these costs between Ms. McClain and Mr. Mosley (their own client), inexplicably choosing to
instead allocate all costs to Ms. McClain.

41. In the Demand Letter, KLN stated that Ms. McClain was “contractually bound to
pay [KLN] 40% of all monies received, or $3,900,000.” In fact, KLN’s fee agreement provides
for an entirely different result.

42. Paragraph 13 of the KLN Fee Agreement provides:

Clients are not to be liable to pay compensation otherwise than from amounts
collected for clients by law firm, except in the event clients terminate this
Agreement without wrongful conduct by law firm which would cause law firm to
forfeit any fee, or if law firm has a justifiable reason for withdraw from the
representation of clients, law firm may ask the court or other tribunal to order clients
to pay law firm a fee based upon the reasonable value of the services provided by
law firm. If law firm and clients cannot agree how law firm is to be compensated
in this circumstance, law firm will request the court or other tribunal to determine:
I) if clients have been unfairly or unjustly enriched if clients do not pay a fee to
law firm; and 2) the amount of the fee owed, taking into account the nature and
complexity of clients' case, the time and skill devoted to clients' case by law firm,
and the benefit obtained for client as a result of law firm's efforts. Any such fee
shall be payable only out of the gross recovery obtained for or on behalf of clients
and the amount of such fee shall not be greater than the fee that would have been
earned by law firm if the contingency described in this Agreement had occurred.

(Emphasis supplied.)
43. By the terms of KLN’s own Fee Agreement, withdrawal or termination without
cause requires a determination that (1) Sheneen McClain will be unjustly enriched by not paying
KLN a fee and (2) if so, a reasonable fee based on the factors stated in Paragraph 13. By necessary
implication, when the termination is for cause—as is the case here—the law firm forfeits any fee.
Nowhere does the Fee Agreement support KLN’s position that a former client who has terminated
KLN for cause and well before settlement is nevertheless obligated to pay a contingency fee.

44. Colorado law does not support KLN’s position either. “Quantum meruit literally
means ‘as much as [is] deserved.’” Dudding v. Norton Frickey & Assoc., 11 P.3d 441, 444 (Colo.
2000) (quoting Black's Law Dictionary 1255). An attorney’s claim to quantum meruit recovery
may be mitigated or reduced in several ways: (1) demonstrating termination for cause or voluntary
withdrawal by the attorney; (2) if the retainer agreement does not speak to the possibility of
quantum meruit recovery; (3) the attorney caused substantial harm to the client; or (4) the work on
the case was unnecessary or superfluous. Here KLN was terminated for cause and KLN caused
substantial harm to Ms. McClain.

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 45. An attorney terminated without cause has the right to payment based on quantum
meruit. ABA Comm’n on Prof’l Ethics, Formal Op. 487 at 6 (2019). However, if the client asserts
that the prior attorney was terminated for cause, the attorney may not have any right to proceeds
from the recovery. Id.; People v. Gilbert, 348 P.3d 970, 982 (2013) (“forfeiture has been deemed
appropriate in cases where a lawyer represented a client despite a conflict of interest”).

46. Colorado precedent places an emphasis on limiting recovery where an attorney is

discharged with cause. In such cases, attorney misconduct may forfeit the right to earn a fee.
Additionally, the client may bar recovery if she can demonstrate “actual or substantial prejudice
to [the client’s] interests occurred.” Garrick v. Weaver, 888 F.2d 687 (10th Cir. 1989).

47. KLN was terminated for cause and/or forfeited its right to collect a fee through
the following, without limitation:

• KLN repeatedly failed to listen to or follow Ms. McClain’s instructions regarding

public statements and appearances concerning Elijah’s death. KLN repeatedly placed
its own self-aggrandizement ahead of its client’s interests and directives. When Ms.
McClain refused to participate in KLN’s campaign for media attention, KLN
subverted her wishes by using Mr. Mosley as an improper surrogate to represent “the
family” of Elijah.

• KLN failed to advise Ms. McClain of known and obvious conflicts of interest in
representing two plaintiffs with disparate legal rights and interests. This failure was
compounded by KLN’s failure to obtain a written and signed consent and conflict
waiver (assuming such a conflict was waivable), as required by the Colo. R. Prof.
Conduct 1.7(b)(4).

• KLN erroneously advised Ms. McClain that KLN was required to represent jointly and
simultaneously both her and Mr. Mosley in the probate and wrongful-death
proceedings.

• KLN erroneously advised Ms. McClain that both she and Mr. Mosley were required
to serve as co-personal representatives of the Estate.

• KLN purported to represent the Estate without advising Ms. McClain that she could
and should engage her own probate counsel.

• KLN improperly collected a contingency fee from the Estate in the absence of a written
and signed contingency fee agreement.

• KLN erroneously advised Ms. McClain that any settlement proceeds from the
wrongful-death action must be shared evenly with Mr. Mosley under Colorado law.

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 • KLN distributed the settlement proceeds from the Falck settlement to the Estate
without explaining to Ms. McClain the applicability and operation of the Wrongful
Death statute.

• KLN distributed the Falck settlement proceeds to Mr. Mosley without requiring him
to remit unpaid child support owed to Ms. McClain or advising Ms. McClain of her
right to assert a lien on his portion of the settlement proceeds.

• KLN failed to withdraw from representing Mr. Mosley after Ms. McClain’s
termination and instead actively and surreptitiously advocated for Mr. Mosley in direct
opposition to its former client Ms. McClain and her legal interests.

48. The Demand Letter also attached an April 2, 2021, email between KLN and Rathod
Mohamedbhai regarding a purported fee split between the firms. Sheneen McClain is not a party
to this Agreement, and it has no bearing on her contractual obligations vis a vis KLN.

49. Ms. McClain, through her counsel, requested that KLN produce any documents or
other information—such as a contemporaneous records of the time KLN attorneys and staff spent
in relation to its representation of Ms. McClain—that would allow her and, if necessary, a court to
undertake a meaningful evaluation of any fees that may be owed under quantum meruit. KLN has
produced nothing in response to this request.

FIRST CLAIM FOR RELIEF

(Declaratory Judgment)

50. Plaintiffs incorporate paragraphs 1-49 of this Complaint as if fully set forth herein.

51. Pursuant to C.R.C.P. 57 and Colo. Rev. Stat. §§ 13-51-101, et seq., Plaintiffs
request that this Court enter declaratory judgment in favor of Plaintiffs and against KLN as
follows:
(a) KLN is not contractually entitled to the 40% contingency fee it has demanded
from Sheneen McClain pursuant to the terms of its own Fee Agreement and because the
contingency (judgment or settlement) did not occur during KLN’s representation;

(b) Pursuant to the terms of KLN’s fee agreement and Colorado law, KLN’s
termination for wrongful conduct resulted in a forfeiture of any attorney fees it would otherwise
have been entitled to from Sheneen McClain;

(c) Under principles of quantum meruit, KLN is not entitled to any additional
attorney fees from Sheneen McClain;

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 (d) KLN improperly collected a contingency fee from the Estate of Elijah McClain
without first procuring a signed, written contingency fee agreement from the Estate as required by
law. At the very most, KLN is entitled to quantum meruit fees for its representation of the Estate,
the evidence of which has never been provided; and

(e) Any further relief the Court deems just and proper to effectuate Plaintiffs’
claim for declaratory judgment including an award of attorney fees and costs of suit as
authorized by law.

Respectfully submitted, this 16th day of May, 2022.

CIANCIO, CIANCIO, BROWN, P.C.

Original signature is on file at Ciancio, Ciancio, Brown, P.C.,
pursuant to C.R.C.P. 121 § 1-26

By: /s/ Daniel A. Wartell

Daniel A. Wartell, #34902
Attorneys for Plaintiffs

Plaintiffs’ address:
c/o Ciancio Ciancio Brown, P.C.
1660 Lincoln Street, Suite 2000
Denver, Colorado 80264

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