In re Coleman
| Decision Date | 15 September 2009 |
| Docket Number | No. SC 89849.,SC 89849. |
| Citation | 295 S.W.3d 857 |
| Parties | In re Larry D. COLEMAN, Respondent. |
| Court | Missouri Supreme Court |
Alan D. Pratzel, Shannon L. Briesacher, Office of Chief Disciplinary Counsel, Jefferson City, MO, for appellant.
Larry D. Coleman, Raytown, MO, for respondent.
The Office of Chief Disciplinary Counsel (OCDC) seeks discipline of Larry D. Coleman for multiple violations of the rules of professional conduct in his representation of a client in three cases and one violation for the improper handling of his IOLTA account. This Court finds that Mr. Coleman violated Rule 4-1.2, Scope of Representation, by accepting a settlement offer in a wrongful death case without the consent of his client and filing a motion in that case requesting that the court enforce the agreement despite his client's refusal to settle; Rule 4-1.7, Conflict of Interest, by entering into written agreements with his client purporting to give him the exclusive right to settle her three cases and taking direct, adverse action against his client's directives when he filed and proceeded on a motion to enforce the agreement; Rule 4-1.15, Safekeeping Property, by failing to keep his personal funds separate from his IOLTA account; Rule 4-1.16, Declining or Terminating Representation, by failing to take reasonable steps to protect his client's interest on termination of representation; and Rule 4-8.4, Misconduct, by violating other rules of professional conduct and by engaging in conduct that is prejudicial to the administration of justice.1 Mr. Coleman is suspended from the practice of law, with execution of such suspension stayed, subject to Mr. Coleman's completion of a one-year term of probation in accordance with conditions imposed by this Court.
Larry D. Coleman was licensed to practice law in Missouri in 1977. Mr. Coleman has had three prior disciplinary matters. Mr. Coleman was admonished in 1990 for failure to communicate with a client and for unreasonable fees. He was admonished in 1999 for failure to act with reasonable diligence, to expedite litigation and to communicate with a client. In April 2008, he received a public reprimand for violations regarding diligence, unreasonable fees, and conduct prejudicial to the administration of justice.
The present disciplinary action arises from his representation of a client, Vera Davis, and his handling of his IOLTA account. Beginning in July 2001, Ms. Davis hired Mr. Coleman to represent her in three separate civil actions that eventually were pending simultaneously. Ms. Davis hired Mr. Coleman to represent her in a wrongful death action for medical malpractice in the death of her sister. She then hired Mr. Coleman to represent her in a wrongful termination case against her employer, Two Rivers Psychiatric Hospital. Finally, Ms. Davis hired Mr. Coleman to represent her in a discrimination claim against her employer, Western Missouri Mental Health Center. The fee agreement in each case required Ms. Davis to pay Mr. Coleman nonrefundable retainers of $5000, $2000 and $1000 respectively, and then an hourly rate of $200 per hour. In addition, the agreement required Ms Davis to pay the litigation expenses in each case.
From July 2001 to September 2006, Mr. Coleman periodically sent bills to Ms. Davis for his legal fees and expenses in the three cases; as the bills arrived, Ms. Davis paid them. Ms. Davis did not keep a ledger or receipts for all monies she paid to Mr. Coleman, but she was able to produce receipts for payments of more than $38,000. She believes she may have paid him up to $50,000, which Mr. Coleman does not dispute. Mr. Coleman did not maintain copies of any documentation showing his billable hours, the litigation costs accrued, or her payments. Mr. Coleman maintains that his records of all bills and statements were delivered to Ms. Davis when she picked up her legal files from his office.
In July 2006, the state of Missouri, on behalf of Western Missouri Mental Health Center, made an offer to settle Ms. Davis' discrimination claim for $20,000. When Mr. Coleman advised Ms. Davis of the settlement offer, she told him that she did not find the settlement offer acceptable and instructed him to reject it. In September 2006, Ms. Davis informed Mr. Coleman that she no longer had the financial ability to pay him as previously agreed. Mr. Coleman proposed that their fee agreements in her three cases be converted to contingent fee agreements. For each case, Mr. Coleman prepared a written contingent fee agreement, which he executed and mailed to Ms. Davis. Each agreement provided that Mr. Coleman was forgiving any currently owed fees in exchange for the right to one-third of any future recovery.2 Mr. Coleman also included the following provision in each agreement:
In consideration of one-third (1/3) of any recovery, I agree to forego my hourly rate, and instead, agree to accept one-third of any recovery. However, because I am taking a risk with you on this case, and because I am more familiar with the legal trends relative to judgments, settlements, and summary disposition, you agree I shall have the exclusive right to determine when and for how much to settle this case. That way, I am not held hostage to an agreement I disagree with.
Mr. Coleman did not explain or otherwise discuss this clause with Ms. Davis prior to the execution of the agreements. Ms. Davis signed each of the new agreements.
In October 2006, the state, on behalf of Western Missouri Mental Health Center, again offered to settle Ms. Davis' case for $20,000. When Mr. Coleman advised her of the offer, Ms. Davis again informed Mr. Coleman that the offer was unacceptable. Without Ms. Davis' consent, Mr. Coleman accepted the state's $20,000 offer. Mr. Coleman then informed Ms. Davis that he had settled her case against Western Missouri Mental Health Center for $20,000. Because it was necessary for Ms. Davis to execute the settlement documents to effectuate the settlement, Mr. Coleman repeatedly requested that Ms. Davis sign the documents. Ms. Davis refused and informed Mr. Coleman that she wished to proceed to trial.
In November 2006, Mr. Coleman sent a letter to Ms. Davis stating that, if Ms. Davis refused to sign the settlement agreement, Mr. Coleman would be forced to withdraw in all three of her cases or move the court to enforce the settlement agreement against Western Missouri Mental Health Center despite her explicit refusal to settle. Thereafter, Mr. Coleman filed a motion in the Western Missouri Mental Health Center case to enforce the settlement agreement against Ms. Davis. In February 2007, the court ruled against Mr. Coleman and declined to enforce the settlement agreement. The court placed the case back on the trial docket for April 2, 2007. Mr. Coleman mailed her a copy of the order overruling his motion. He mailed Ms. Davis another letter, dated February 16, 2007, informing her that if she did not contact him in writing within one week of his letter, he would withdraw as her attorney. After more than one week had passed, on February 28, 2007, Mr. Coleman filed a motion to withdraw as Ms. Davis' attorney in the Western Missouri Mental Health Center case, citing Ms. Davis' failure to respond to his deadline as his reason for withdrawal. Mr. Coleman did not send Ms. Davis a copy of his motion to withdraw.
On March 2, 2007, Ms. Davis sent Mr. Coleman a letter requesting her files. Three days later, on March 5, 2007, Ms. Davis sent a representative to pick up her files. She took her files to one attorney and discussed her cases with another attorney. At some point, Ms. Davis received from the court a copy of Mr. Coleman's motion to withdraw, as well as a directive from the court that she respond on or before April 12, 2007, if she wished to object to Mr. Coleman's motion. Ms. Davis was uncertain as to how to proceed, so on April 5, 2007, she directed a letter to Mr. Coleman asking him a number of questions, including whether she needed to obtain another lawyer, what his fees were in her cases and whether he intended to assert attorney fee liens in her cases, the status of each of her cases, and whether he anticipated that she would have any problems in her cases. Her letter directed Mr. Coleman to respond by the next day, April 6. Mr. Coleman did not reply to Ms. Davis' letter. On April 5, 2007, the same day that Ms. Davis wrote Mr. Coleman with questions about her case, Mr. Coleman sent a letter to Ms. Davis acknowledging that her files had been retrieved from his office. Mr. Coleman closed his letter by stating, "It was a pleasure to serve you."3
In May 2007, Ms. Davis filed an objection to Mr. Coleman's withdrawal in the Western Missouri Mental Health Center case because he had not provided the information sought in her letter. Despite her objection, the court granted Mr. Coleman leave to withdraw. Ms. Davis' case was placed on the fall 2007 accelerated trial docket. Unable to obtain new counsel, her case ultimately was dismissed.
During the time period described above, summary judgment was issued against Ms. Davis in her wrongful death action. In March 2007, Mr. Coleman filed an appeal of the summary judgment. Mr. Coleman then filed a motion to withdraw as Ms. Davis' counsel, which the court of appeals granted. Similarly, in June 2007, Mr. Coleman requested and was granted permission to withdraw as Ms. Davis' attorney in her wrongful termination action against Three Rivers. In July 2007, Ms. Davis filed a complaint against Mr. Coleman with OCDC. OCDC filed an information, in April 2008, charging that Mr. Coleman violated multiple rules of professional conduct in his legal representation of Ms. Davis and another client. In his answer, Mr. Coleman denied all of the alleged violations.
Independent to the issues arising out of his representation of Ms. Davis, other...
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