In re Avery
| Decision Date | 02 August 2018 |
| Docket Number | No. 17-BG-0877,17-BG-0877 |
| Citation | 189 A.3d 715 |
| Parties | IN RE Michael L. AVERY, Sr. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 447083) |
| Court | D.C. Court of Appeals |
Michael L. Avery, Sr., pro se.
Julia L. Porter, Senior Assistant Disciplinary Counsel, with whom Hamilton P. Fox, III, Disciplinary Counsel, and Jennifer P. Lyman, Senior Assistant Disciplinary Counsel, were on the brief, for respondent
Before Glickman, Thompson, and Easterly, Associate Judges.
An Ad Hoc Hearing Committee (the "Hearing Committee" or the "Committee") recommended that respondent Michael Avery be suspended for forty-five days for violations of several District of Columbia Rules of Professional Conduct in connection with his representation of a client, Mary Brown, in 2004 and 2005. The Board on Professional Responsibility (the "Board") recommended a forty-five-day suspension stayed in favor of six months of probation. Respondent states that he disagrees with some of the Hearing Committee's and Board's findings, but he does not ask us to overturn any, and he takes no exception to the Board's recommended sanction. Disciplinary Counsel does not take exception to a forty-five-day suspension (although characterizing it as "particularly lenient"), but argues that respondent should be required to serve an actual suspension. Agreeing with the Board that this case is "most similar to those in which sixty-day suspensions were imposed" and acknowledging the assessment by the D.C. Bar Practice Management Advisory Service that respondent has made changes in his practice that "make an occurrence like that which gave rise to the bar complaint in 2004 very unlikely," but also concurring with Disciplinary Counsel that an actual period of suspension is warranted as a deterrent, we conclude that a sixty-day suspension, with thirty days stayed in favor of a one-year period of probation, is the appropriate sanction.
Respondent's law firm had a high-volume personal injury practice. Ms. Brown was injured in an automobile accident in November 2004. On November 10, 2004, she met with Adam Katzen, who was the only other attorney at the law firm, and thereafter signed a retainer agreement to have respondent represent her in connection with her claim for damages arising out of the accident.
Respondent sent a letter to Ms. Brown dated January 25, 2005, advising her of the insurance settlement process. Thereafter, respondent did not himself handle Ms. Brown's claim but instead assigned it to Dawn Seegars, a paralegal in his office. On the same day, without waiting for further documentation from Ms. Brown, Ms. Seegars wrote GEICO, the responsible insurer, a "demand for settlement" and included a "specials" (i.e., special damages) package of medical bills totaling $2507. In March 2005, Ms. Brown provided her employment records to the law firm in support of her claim for lost wages, and in April 2005, Ms. Brown signed a lien for medical services provided to her by Kaiser Permanente and signed a release authorizing Kaiser to send her records to respondent. In June 2005, Kaiser notified respondent of the dollar amount of the lien. A month later, in July of 2005, Ms. Seegars sent GEICO a second settlement demand, indicating a "special damages" amount that did not include the full amount of the Kaiser-Permanente lien and omitting any claim for lost wages, hospital emergency room expenses, and damages for pain and suffering. The Hearing Committee found that no one at the law firm had discussed the settlement demand with Ms. Brown, and that she was not sent a copy of the letter.
On July 28, 2005, a GEICO claims examiner called Ms. Seegars to discuss settlement negotiations. During the phone call Ms. Seegars made a demand for $10,000, the claims examiner countered at $8800, and Ms. Seegars immediately accepted that settlement offer. The same day, the claims examiner sent respondent written confirmation of the settlement of Ms. Brown's claims along with a check for the agreed upon settlement amount. Once the check arrived, respondent's office manager endorsed Ms. Brown's name on the check (pursuant to the power-of-attorney provisions in the retainer agreement) and had it deposited in respondent's IOLTA account. The Hearing Committee found that "neither [r]espondent nor Ms. Seegars obtained Ms. Brown's consent to the July 28, 2005 settlement offer before it was accepted by Ms. Seegars." The Committee further found that Ms. Brown did not receive notice of the settlement, despite her many efforts to contact the law firm, until March 14, 2006, when Mr. Katzen called her. The Committee found that when Ms. Brown was informed of the settlement offer, she was "very upset" and told Mr. Katzen that the settlement amount was unacceptable, that she had never approved the settlement, and that she wanted the settlement check returned to GEICO and a lawsuit filed to recover her damages from the accident.
When Ms. Brown contacted the law firm on September 12, 2006, she was told that the firm "was ‘in the process’ of sending the check back." Respondent finally met with Ms. Brown for the first time on September 19, 2006, at which time he attempted to persuade her to accept the settlement amount. She did not do so, and this time she instructed respondent not to file a suit on her behalf. On September 25, 2006, she filed a complaint against respondent with the Office of Disciplinary Counsel. On October 10, 2006, respondent returned the settlement amount to GEICO, explaining, as reflected in telephone call notes made by a GEICO representative, that the money was being returned because Respondent told the Hearing Committee that this explanation to GEICO was not a true explanation, and that he "kn[e]w" (based on the policies of his office but not based on personal knowledge) that the case would not have been settled without authority from Ms. Brown.
The Hearing Committee found by clear and convincing evidence that respondent violated Rules 1.1 (a) (competence) and 1.1 (b) (skill and care) by "delegat[ing] day-to-day responsibility for Ms. Brown's case to his staff without maintaining familiarity with the matter and [without] proper oversight." The Committee found that respondent was "disengaged" from the matter and "abdicated responsibility for his representation of his client," thereby failing to discover that his office had not "conduct[ed an] adequate investigation of Ms. Brown's injuries," had not considered whether to obtain medical reports "to determine the precise nature of her injuries," had not conveyed GEICO settlement offers to her, had not consulted with her before agreeing to a settlement, had deposited the GEICO check without obtaining a signed release from her, and had failed to notify her of the check and to send her a settlement disbursement sheet.
The Committee next found that respondent violated Rules 1.2 (a) (), 1.4 (a) (duty to keep client reasonably informed), 1.4 (b) (duty to explain a matter to the extent reasonably necessary to permit the client to make informed decisions), and 1.4 (c) (failing to promptly notify client of settlement offer) by failing to communicate settlement offers to the client, accepting a settlement offer without her consent, failing (until after she had filed a disciplinary complaint) to comply with her instructions to rescind the settlement and return the settlement amount to the insurance company, filing a lawsuit on her behalf contrary to her instructions and without her knowledge,1 and failing to communicate meaningfully with her (including by failing to explain to her the strengths and weaknesses of her case and to advise her of important developments).
The Committee found that respondent violated Rules 1.3 (a) (diligence and zeal) and 1.3 (c) (reasonable promptness) by failing to represent Ms. Brown diligently and to act with reasonable promptness (in the matters described above) and also by failing to compile a comprehensive list of damages, failing to timely return phone calls relating to the case, and failing to prepare to actually litigate.
In determining what sanction to recommend, the Hearing Committee took into account that while respondent's misconduct was serious, the misconduct arose out of a single representation, that respondent's demeanor showed that he "understood the seriousness of the issues," and that there was no allegation that Ms. Brown was actually prejudiced by respondent's misconduct.2 But the Committee also found "troubl[ing]" and "significant aggravating factor[s]." The Committee found that respondent made misrepresentations to Disciplinary Counsel when he responded to Ms. Brown's complaint, "mischaracterizing the $8,800 payment from GEICO as a [mere] settlement offer and ... giving the misleading impression that he had met with Ms. Brown to discuss the offer soon after it was made" (even though he did not meet with Ms. Brown until a year and a half later). (emphasis added). Further, the Hearing Committee found that respondent's testimony that Ms. Brown had approved the settlement ("despite all evidence pointing to the contrary conclusion") was "not credible," that respondent "essentially conceded that he had lied to GEICO ‘in an effort to protect [his] client's interest,’ " and that respondent "falsely testified" before the Committee when he told the Committee that his statement to GEICO was itself a lie. The Committee also cited as an aggravating factor the fact of respondent's prior discipline (a public censure in 2007 for incompetence, neglect, and failure to communicate with a client), but reasoned that the prior discipline was "not as aggravating as if the conduct had taken place[ ] after [respondent] had...
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In re Wilson, No. 19–BG–34
...such concerns, by permitting Dr. Wilson some flexibility with respect to the timing of the suspension. See, e.g. , In re Avery , 189 A.3d 715, 721 (D.C. 2018) (per curiam) ("[W]e are satisfied that the interests of the public, as well as fairness to the respondent, will best be accommodated......