Kilmer Lane Newman and Mother of Elijah McClain Go to Court Over Attorneys Fees

The mother of Elijah McClain is suing her former attorneys at Denver civil rights firm Kilmer Lane Newman, LLP over about $4 million in legal fees.

In her complaint, filed on May 17 in Denver District Court, Sheneen McClain says lawyers at KLN, who initially represented her and Elijah McClain’s father, Lawayne Mosley, in a federal wrongful death lawsuit against the City of Aurora, engaged in wrongful conduct and aren’t entitled to a contingency cut of the $15 million settlement reached with the City of Aurora last year.

KLN in its response filed June 2 has disputed many of McClain’s claims and, in a counterclaim, is asking Denver District court to award it costs, interests and attorneys fees and decide how legal fees should be split between KLN and the counsel McClain hired to represent her midway through the wrongful death action.

Elijah McClain died in August 2019 following a police stop in Aurora where he was given a high dose of Ketamine by paramedics and physically restrained by officers. He became unresponsive at the scene and died several days later from complications related to the stop. McClain’s death resurfaced to national headlines in the summer of 2020 during the Black Lives Matter movement around racial disparities in use of force in policing.

Attorneys at KLN contacted Elijah McClain’s parents following his death and first represented them, as well the estate they created on behalf of Elijah McClain, in a lawsuit against an ambulance company which resulted in a $350,000 settlement.

The Denver firm collected 40% of the ambulance settlement, $140,000, in line with a fee agreement signed by both parents, paid to Elijah McClain’s estate.

KLN then filed a federal wrongful death lawsuit in 2020 against the City of Aurora, initially representing both parents and the estate. McClain fired KLN in April 2021 and retained Rathod Mohamedbhai to represent her for the remainder of the suit.

The City of Aurora agreed to settle the lawsuit last year and appropriation proceedings wrapped up earlier this year. Shortly afterward, KLN requested about $4 million for its work on the lawsuit.

According to her complaint, McClain fired KLN after she “became increasingly concerned” with the firm’s representation in the federal lawsuit. By representing both her, Mosley and the estate, McClain argues in her latest filing, “KLN faced obvious conflicts of interest” since parents aren’t necessarily entitled to equal shares of a child’s wrongful death settlement under state law. In her suit, McClain calls Mosely a father “in name only,” and says he was absent for most of their son’s life. McClain claims that KLN didn’t properly advise her on this potential conflict of interest and didn’t explain that she and Mosely weren’t necessarily entitled to equal shares of any settlement.

McClain also claims that the attorneys at KLN made unauthorized public statements about the case and “incessantly sought media attention for their own self-aggrandizement campaign.”

McClain is asking the Denver District Court to rule KLN isn’t entitled to a contingency fee and to find that it improperly collected money from the ambulance settlement. According to her lawsuit, the firm never entered into a contingency or fee agreement with the estate and therefore improperly collected part of the ambulance settlement.

In its response, KLN disputes this, noting that Mosely and McClain both signed contingency agreements and were appointed as co-personal representatives of the estate and arguing that therefore the agreement also applied to the estate.

KLN, also in its response, disputes many of McClain’s claims and argues that her new counsel, Mohamedbhai, isn’t honoring an agreement the two firms entered into when he took over representation on the case. KLN says that both parents had the same interest in reaching a settlement in the federal lawsuit, “to obtain the largest settlement possible as a remedy for the killing of Elijah,” and that only after the lawsuit closed did their interests diverge during allocation proceedings. According to KLN, both parents were advised to hire probate counsel for allocation before the case was filed.

KLN also disputes McClain’s claim that its attorneys made public statements on the case without her consent and rather, with her approval, the firm ran a public awareness campaign that led to new witnesses and helped their case. The firm is asking the Denver District Court to dismiss McClain’s suit for failing to make a claim on which relief can be granted.

In its own counterclaim, KLN detailed the work that went into filing the federal lawsuit six months before McClain hired new counsel, which included detailing the practices of Aurora Police, conducting extensive interviews and more. The counterclaim asks the Denver District Court to order McClain to pay the firm a 40% contingency fee to be split between KLN and Mohamedbhai as well as 65% of costs that KLN advanced in the proceedings.

KLN’s response includes an excerpt from an email the firm says was sent by Mohamedbhai when he took over McClain’s representation in April 2021. In the email, according to KLN’s complaint, Mohamedbhai agreed to split recovered attorneys fees from the potential federal settlement with 80% going to KLN and 20% to his firm. KLN is asking the district court to find that the email is a binding contract for dividing attorneys fees.

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