Takeaways from a Not-Sexy Discipline Case

          "Sexy” lawyer-discipline cases get all the attention.

          You know the ones: lawyer steals lots of money from clients or public agencies; lawyer flagrantly lies to courts multiple times; lawyer repeatedly abuses the public trust. And some might even involve sex.

          The mainstream news media finds those types of cases understandably newsworthy. Anti-lawyer commentators also may pounce on them. (I might even have highlighted the “sexy” cases in CLE seminars....)

          Mundane, non-sexy cases are more instructive to lawyers because most lawyers -- 99.9 percent, IMHO -- try to do the right thing. Most lawyers don't steal client or law firm money, lie to the court or abuse the public trust. They don’t implode and abandon their law practices.

          Rather, they make common mistakes. Maybe they get in so deep into common mistakes that they freeze, making problems even worse.

          The non-sexy discipline cases – mundane, common situations – often involve problems with communicating with clients, acting diligently, paying attention to litigation, and following basic client-lawyer-relationship rules.

          This case, resulting in an agreement for discipline by consent between the State Bar and the lawyer, is one of those. Even though it's not sexy, it provides good reminders for us all.

Facts

          Client, a landlord, hired Lawyer when Client had a dispute with his tenants. Client allegedly pushed one of the tenants, resulting in a charge of misdemeanor assault. Client alleged the tenants removed his property from the residence.

          Client paid Lawyer $3,000 to represent him on the criminal charge as well as a civil suit for conversion. Lawyer’s engagement letter, however, referred only to the criminal charge. Nonetheless, Lawyer handled both matters.

          After trial, Client was found guilty of criminal damage and assault and eventually ordered to pay restitution to the tenants.

          Meantime, Lawyer drafted and filed a complaint in Justice Court, served it, and received the tenants’ answer and counterclaim. The case was transferred to Superior Court because the counterclaim exceeded jurisdictional damages.

          Lawyer said Client advised him that he didn’t want to pursue the civil case. Nonetheless, over the next couple of months, Lawyer communicated with Client about the status of the matter, noting that he was not aware that the tenants had paid their filing fee and, if they didn’t, the matter would be dismissed.

          Several months later, Lawyer relocated his law practice to a new law firm. When he moved, he didn’t include Client’s civil action on his list of cases, nor did he file a change of address with the court. He believed the tenants had been satisfied with Client’s restitution and had abandoned their counterclaim.

           The tenants had, however, paid the filing fee. Shortly after Lawyer moved, the tenants filed an application for default and eventually a notice of default hearing. Because both documents were served on Lawyer at his former address, he did not receive them.

          After the default hearing in August 2011, judgments for $46,494.26 were entered against Client.

          Flash forward to June 2014: Client emailed Lawyer, saying he had learned of the default judgments on the Maricopa County Recorder’s website. When Client and Lawyer eventually talked, Lawyer recalled, he told Client that because the tenants had made no effort to collect the judgments, Client didn’t need to do anything.

         More than a year later, in October 2015, Client contacted Lawyer again because he wanted the judgments set aside. Lawyer again told Client he could wait to see if the tenants took any action to collect.

          In May 2016, Lawyer and Client entered into a settlement, described in the discipline consent agreement this way:

[Lawyer] refunded to [Client] the $3,000 fee he had paid [Lawyer], and paid [Client] $10,000 for [Client] “to use in obtaining an agreement from the holders of the Judgments to satisfy the Judgments, which [Client] may retain if no such agreement should be reached.” [Client] further agreed to release [Lawyer] “from any liability arising from or relating to the Judgments.”

Lawyer’s mistakes resulting in discipline

  • The engagement letter identified the criminal case as the purpose of representation, but Lawyer and Client also intended for him to file the civil action against the tenants for conversion. Lawyer did, indeed, handle the civil action, but ER 1.5(b) required that he communicate the scope of representation in writing to Client.
  • Lawyer failed to diligently monitor the civil case, violating ER 1.3, which requires that a lawyer “act with reasonable diligence and promptness in representing a client.”
  • Lawyer failed to communicate with Client about the status of the matter, violating ER 1.4(a)(3).

Lawyer received a reprimand.

Takeaways

  • Make sure your engagement letter or fee agreement – or whatever you use to memorialize the rate and basis of your fee and scope of representation – accurately describes what you’re doing for the client.
  • Don’t assume! Lawyer may have assumed the tenants hadn’t paid the filing fee and were happy with the criminal restitution. Instead, while he was assuming, the tenants paid the filing fee.
  • Or stay up to date! If Lawyer hadn’t assumed and had, in fact, timely checked on whether the tenants had paid the filing fee and/or were happy with the restitution, then Lawyer should have checked again.
  • Keep an updated list of all of your litigation cases. Any cases in which Lawyer was counsel of record should have been included on his pending list when he moved.
  • Change your addresses. If you change law firms or just physically relocate your office, change your physical and email addresses in all applicable venues, such as in any litigation in which you are counsel of record and with the State Bar. And don’t forget those cases in which you are court-appointed arbitrator. Unless the litigation was officially over, Lawyer should have changed his address with the court.
  • Tie up loose ends. In this case, Lawyer said Client told Lawyer he didn’t want to pursue the civil case. That’s all well and good, but the tenants had already filed an answer and a counterclaim. Simply stopping wasn’t an option; it had become more complicated.

 

          Note: Source documents available here

"Among the most shocking, unethical, and unprofessional conduct"

Color Within the Lines

Color Within the Lines