In re Hester
| Decision Date | 22 November 2022 |
| Docket Number | SC99550 |
| Parties | IN RE: LORENZO ANTOINE HESTER, Respondent. |
| Court | United States State Supreme Court of Missouri |
ORIGINAL DISCIPLINARY PROCEEDING
The Office of Chief Disciplinary Counsel ("OCDC") charged Lorenzo Antoine Hester with violations of the Rules of Professional Conduct. After an evidentiary hearing, Hester rejected the disciplinary hearing panel's recommendation of disbarment. Before this Court, Hester seeks an order imposing discipline no greater than an indefinite suspension of his law license, with leave to reapply for reinstatement after two years. Following a de novo review of the record, this Court finds Hester violated rules pertaining to the client-lawyer relationship in the realm of communication fees, prohibited transactions, and safekeeping property. He also violated Rule 8.4(c) by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. After consideration of mitigating and aggravating factors, this Court orders Hester disbarred.
In April 2021, OCDC determined probable cause existed that Hester was guilty of professional misconduct. OCDC prepared an information in four counts, alleging the violation of numerous rules. Hester filed an answer to the information. A two-day hearing occurred in October 2021 before a disciplinary hearing panel.
The panel issued its decision in February 2022. Two panel members recommended Hester be disbarred. One member recommended a three-year suspension. OCDC accepted the panel's decision recommending disbarment. Hester rejected the decision, and as a consequence, the matter was set for briefing and argument before this Court. See Rule 5.19(d)(2).
"This Court has inherent authority to regulate the practice of law and administer attorney discipline." In re Gardner, 565 S.W.3d 670, 675 (Mo. banc 2019). The panel's findings, conclusions of law, and recommendation are not binding. Id. This Court reviews the evidence de novo and reaches its own conclusions of law. Id. Before imposing discipline upon an attorney, the "[p]rofessional misconduct must be proven by a preponderance of the evidence." In re Kayira 614 S.W.3d 530, 533 (Mo. banc 2021).
Hester was admitted to practice law in Missouri in April 2004. In addition to his law degree, obtained in 2003, Hester previously earned a master of business administration in 1995. After licensure, Hester worked part-time for his own law firm, The Hester Group LLC, while also working full-time for Centene as the director of information security and compliance. After leaving Centene in approximately 2012 Hester transitioned to working full-time for his law firm. His practice evolved to primarily representing clients in personal injury and workers' compensation matters. He has three law offices in the St. Louis area.
At the time of the disciplinary hearing, Hester's license was active and in good standing. Hester accepted a written admonition, pursuant to Rule 5.11, in April 2011 for violations of Rules 4-1.3 (Diligence), 4-1.16 (Declining or Terminating Representation), and 4-3.2 (Expediting Litigation). Later in 2011, Hester received a letter of caution from OCDC for violating Rule 4-1.15 (Failure to Reconcile Trust Account). The letter provided information regarding a continuing legal education course titled "Fundamentals of Trust Accounting" and informed Hester to register for the course. OCDC's communication apprised Hester that his participation in the course would be considered favorably if he should subsequently become the subject of similar disciplinary investigations. Hester was instructed to report his attendance. In May 2012, OCDC contacted Hester to notify him it did not have a record of his attendance. Hester never attended the course. He testified he had no excuse for failing to attend, other than he was "just overwhelmed with things."
The information filed against Hester contained three counts relating to specific clients and a fourth count generally alleging trust account violations, unreasonable fees, and dishonesty.[1]
In December 2016, Richard Payne retained Hester's services for a personal injury claim arising out of a motorcycle accident. Hester informed Payne he would file a lawsuit. He subsequently told Payne he could settle the matter outside of court. After learning a lawsuit was not filed, Payne discharged Hester in June 2019 and retained new counsel. Payne then discovered Hester had submitted a claim to Payne's personal automobile insurance carrier for $500 in medical payments coverage.
In February 2017, the insurance carrier sent a $500 check to Hester's law office. Hester signed Payne's name on the back of the check, despite lacking the authority to do so. Hester did not have a power of attorney allowing him to endorse the check. The proceeds from the check were deposited into Hester's operating account, not into his trust account.
Payne filed a complaint to OCDC in January 2020. Hester subsequently sent Payne $500, along with a letter of apology.
Hester is guilty of professional misconduct as a result of violating Rule 4-1.15(a)[2]when he failed to deposit the check from the insurance carrier into his trust account. Hester is further guilty of professional misconduct as a result of violating Rule 4-1.15(d)[3] when he failed to notify Payne he had received the insurance carrier's check, money in which Payne had an interest.
In October 2019, Sierra Davis retained Hester to represent her for a personal injury claim arising from an automobile accident. Shortly thereafter, Hester provided Davis a check for $300. The check memo indicated it was intended for "medical and travel expenses." Davis used the money as a deposit for a rental car. Hester testified he believed the $300 payment was permitted. Prior to February 2020, Hester advanced funds in this manner "frequently."
In June 2020, Davis filed a complaint with OCDC. In addition to other grievances, her complaint referenced the money Hester advanced. Davis hired new counsel, who likewise filed a complaint with OCDC suggesting Hester's check to Davis appeared to violate Rule 4-1.8.
At the beginning of the representation, Davis signed Hester's contingent fee agreement. The agreement provided:
You agree to pay Us a fee equal to (1) 33.333% of all amounts offered, obtained or recovered if settled prior to filing suit, or Forty (40%) percent of all amounts offered, obtained, or recovered after suit is filed; plus (2) reimburse Us for any expenses paid by Us for the investigation and prosecution of the case.
In bold letters, the agreement's fee section continued: In a separate section governing liens and provider bills, the agreement stated:
You authorize us to attempt to reduce provider bills and liens to lessen amounts paid or owed to providers. We are not obligated to achieve a reduction; in the event we are able to achieve a reduction we shall pay the provider and our fee for such services through those efforts.
(Emphasis added).
Hester admitted the language in the agreement "could have been a lot more clear[]" as to what he was taking for a fee in his efforts to reduce provider bills and liens. In operation, Hester kept any reductions as firm fees. None of the reductions went to any client, nor was any client notified of the reduction or of the amount being kept as fees. Davis testified Hester did not explain he would be charging an additional fee for negotiating reductions in medical bills.
Hester is guilty of professional misconduct for violating Rule 4-1.8(e)[4] when he provided financial assistance to Davis. Hester also violated Rule 4-1.4(b)[5] because he failed to explain to Davis what his fee would be for reducing liens and provider bills. This hindered Davis's ability to make an informed decision about the representation.
Oscar Neal and Josephine Clark were in an automobile accident in October 2014 and retained Hester to handle their cases. Hester filed a lawsuit on behalf of Neal.
In June 2020, Neal filed a complaint with OCDC, alleging Hester and his contract attorney misrepresented Neal's case status to the court. In June 2018, the contract attorney informed the court the case should be continued to allow a settlement to be completed. In September 2018, the contract attorney informed the court, by written memorandum, that the case was settled and that counsel was negotiating liens. Hester takes responsibility for the content of the court memoranda. The case was not settled until October 2019.
In October 2019, Hester presented Neal with a check for $5,600 from Hester's trust account. Neal signed a full and final release, which indicated the case had settled for $25,000. The specific funds were not in Hester's trust account. In fact, Hester never sent the release to the insurance company.
On the same day, Hester had Neal sign a document titled "General Release of All Claims." The instrument "release[d] The Hester Group LLC and Lorenzo Hester … from all claims of any kind whatsoever from the beginning of time to the date of the execution of [the] release." Hester testified he informed Neal that Neal should seek independent counsel, but the client wanted the money immediately. Neal did not have another lawyer review the release before signing.
Clark while she was Hester's client, received advances from Hester totaling $1,350...
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