Take It Away

By Daniel Richardson

In re O’Meara, 2013 VT 17 (mem.)

Give this to the lawyers.  We don’t mess around when it comes to discipline.  When one of our members is caught doing something wrong, our professional conduct boards are not known for their great sympathy.  In fact, every state bar in this country employs a staff of lawyers whose sole job it is to investigate and prosecute allegations of misconduct and ethical violations. 

Anyone who has been on the wrong end of such a discipline investigation can tell you that these people take their job seriously and the resulting call is hardly a clubby or chummy visit from a fellow barrister here to set you straight.  It is an eye-opening experience, during which you are quickly aware of how much is at stake.  Let’s just say it is kind of like a being pulled over by a state trooper who just noticed your N.W.A. bumper sticker and backseat bong collection. 

Or so I have been told.

In any attorney discipline action, there are a number of potential punishments on the table.  Depending on the offense, it can be as little as a private reprimand all the way up to disbarment.  Moreover, once an attorney is found guilty, the punishment is applied in every jurisdiction where the attorney holds a license. 

The mechanism for this is the subject of today’s appeal involving the disbarment of a New Hampshire attorney who also happened to hold a Vermont license. 

Attorney’s troubles began in 2005 when he was hired to represent a woman who had become a quadriplegic as a result of a car accident.  Like most personal injury cases, Attorney agreed to represent the woman for a contingency fee of 1/3 of the recovery. 

Within a few months, Attorney learned that the defendant company did not contest liability and had insurance coverage of $11 million.  Attorney, perhaps a bit gung-ho at the prospect of $3.6 million for a few month’s work, sent a demand letter to the defense counsel stating that this was a “policy limits case” and that if the defense did not settle for the limits, Attorney’s clients would take the defendant to trial.  This, however, proved not to be true.  Attorney had not reviewed the policy limits with his clients, and he had no authority to settle on their behalf. 

Defense counsel, recognizing a bargain, accepted the offer to settle on January 24th.  This did not sit well with Attorney’s client when she and her husband were informed.  They had recently learned that the woman’s lifetime healthcare costs would likely be $23 million.  Suddenly, $11 million did not look so hot. 

So what’s an overzealous attorney to do?  In this case, he backdated a letter to defense counsel to January 20th and stated that his client withdrew their settlement offer.  Company moved to enforce the settlement agreement with the court, and Attorney was forced to admit that he had lacked the authority to make such a settlement offer. 

In the meantime, Attorney and his client got into a fight about his fees.  Attorney does not come out of this well.  Client’s husband first suggested that Attorney take a lower fee if they settled for the $11 million.  Attorney balked at this.  When the clients suggested that they would fire him, the Attorney threatened to sue them for his contingency fees.  The parties ultimately agreed to negotiate the Attorney’s fees later. 

The next day the client and her husband received a letter from the attorney purporting to memorialize their prior conversation.  It stated that they had agreed to give the attorney $2 million in fees if the case settled for less than $11 million.  This was, of course, not what the parties had agreed to do.

To make things worse, the following day was the scheduled mediation session with the defendants.  When the Client and her husband arrived, Attorney refused to proceed unless Client and her husband agreed to his no-less-than-$2 million-fee demand.  Fearing that they would be left without counsel at this critical juncture, Client and husband agreed.

At the end of mediation Client and husband settled for $11.5 million.  They then took Attorney to fee arbitration.  There, before a panel of attorneys, Attorney testified that Client and her husband willingly agreed to pay him $2 million dollars.  Every other witness denied this fact.  The panel reduced Attorney’s fees to $1.5 million but also found that Attorney had given false testimony to the panel. 

This, of course, put attorney into the cross-hairs of the New Hampshire disciplinary counsel and the attorney discipline process.  The first step was a disciplinary committee that found misconduct but voted for three-year disbarment.  The disciplinary counsel appealed this to the New Hampshire Supreme Court, which found that the conduct of lying to an arbitration panel and allowing his interests to interfere and conflict with a client’s interests to be egregious violations of the professional code of conduct that were done in a willful and knowing manner to the detriment of the client, the profession, and the public.  As such, the Court reversed the Committee and found the only suitable punishment to be disbarment.

This ruling, of course, triggered an automatic proceeding in Vermont, which brings us to today’s case.  Attorney tried to fight his Vermont disbarment on the grounds that the disbarment was unwarranted, that he did not lie to the arbitration panel, and that the New Hampshire decision was faulty because only four of the five justices signed it.

The standard for a collateral disbarment based on misconduct in another state is less of a re-trial of the underlying claims and more of an investigation into whether the process was fair, the findings are supported by evidence, and the punishment fit the law. 

More specifically, Vermont will not apply a collateral disbarment if the attorney can show that:

1. The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process;
2. There was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistent with its duty, accept as final the conclusion on that subject; or
3. The imposition of the same discipline by the Court would result in grave injustice; or
4. The misconduct established warrants substantially different discipline in this state.

The SCOV goes through the New Hampshire proceedings and finds that they none of these factors were a problem.  Attorney had adequate notice.  The proof of his misconduct was clear.  The discipline was fair and consistent with Vermont’s standards. 

The SCOV goes on to note that the evidence was sufficient to show that Attorney gave false testimony to the fee arbitration panel.  The SCOV characterizes the New Hampshire proceedings as thorough, comprehensive, and exhaustive.  That is enough for Vermont to adopt the decision, and Attorney is disbarred here as well.

With that, Vermont goes down one lawyer.  Anyone available to take his place?