Lamont, Matter of, s. 960258-960261

• Decision Date: 04 April 1997
• Docket Number: Nos. 960258-960261,s. 960258-960261
• Citation: 561 N.W.2d 650,1997 ND 63
• Parties: In the Matter of the Application for Disciplinary Action Against Robert J. LAMONT, A Member of the Bar of the State of North Dakota. DISCIPLINARY BOARD OF THE SUPREME COURT OF THE STATE OF NORTH DAKOTA, Petitioner, v. Robert J. LAMONT, Respondent Civil
• Court: North Dakota Supreme Court

Page 650

561 N.W.2d 650

1997 ND 63

In the Matter of the Application for Disciplinary Action Against Robert J. LAMONT, A Member of the Bar of the State of North Dakota DISCIPLINARY BOARD OF THE SUPREME COURT OF THE STATE OF NORTH DAKOTA, Petitioner, v. Robert J. LAMONT, Respondent

Civil Nos. 960258-960261.

Supreme Court of North Dakota.

April 4, 1997.

Paul W. Jacobson (argued), Assistant Disciplinary Counsel, Bismarck, for petitioner.

James S. Hill (argued) and Daniel S. Kuntz (appearance), of Zuger Kirmis & Smith, Bismarck, for respondent. Appearance by Robert J. Lamont.

PER CURIAM.

¶1 This is a disciplinary action against attorney Robert J. Lamont. We suspend Lamont's license to practice law in this state for 60 days.

¶2 Lamont is an attorney in private practice in Minot. He also served as general counsel for Trinity Medical Center (Trinity). In 1994, an acquaintance of Lamont's named Gardell Giffey received treatment at Trinity. Two doctors from Medical Arts Clinic, a competing medical facility in Minot, reviewed copies of Giffey's medical records, contacted Giffey, and advised him that he had received inappropriate treatment at Trinity. Giffey, upset that these doctors had reviewed his records and contacted him, consulted Lamont about the possibility of suing the doctors from Medical Arts Clinic. Lamont advised him that, because Lamont represented Trinity, he could not represent Giffey. He referred Giffey to attorney William Zuger, who initiated a lawsuit on Giffey's behalf against the two doctors.

¶3 During the trial of that action, Trinity's administrator, Terry Hoff, testified Trinity was not paying Giffey's legal expenses and was not financially interested in the outcome of the case. Zuger then approached the bench and advised the court he had an arrangement with Lamont whereby Lamont was paying Giffey's fees and expenses and including those costs in his billings to Trinity.

¶4 The doctors called Lamont to testify to clarify the financial arrangement. After establishing Lamont was Trinity's general counsel and had referred Giffey to Zuger, the doctors' attorney asked Lamont about the payment of Zuger's fees and expenses:

"Q Has your office entered into an arrangement with Trinity Medical Center regarding Mr. Giffey's attorney fees and expenses in this litigation?

"A No.

"Q Has your office, in any manner, advancing [sic] costs and attorney fees in this litigation for Mr. Giffey?

"A Yes.

"Q And would you tell us the nature of that arrangement?

"A Well, the nature of that arrangement is that Bill Zuger and I discussed the matter after I sent Mr. Giffey to Mr. Zuger. Bill and I discussed the fact that Mr. Giffey was not financially in a position to fund this lawsuit himself, and Bill had discussed with me the fee arrangement that he had with Mr. Giffey being a contingency arrangement, or at least that was what he was proposing to do. Again, because Mr. Giffey didn't have the financial ability. And I told Bill that I would see to it that his fees were paid, and if Mr. Giffey were to recover then I could be repaid.

"Q And so your office then has been paying those attorney fees as they have been coming in?

"A Yes.

"Q And have those amounts been then billed or in any manner recovered from Trinity Medical Center?

"A Every month we sent Trinity bills for our services and the amounts that I have paid Mr. Zuger have been included in those bills.

"Q Okay. So what you're telling me in a roundabout way is that Trinity is paying for Mr. Giffey's fees in this matter?

"A In a roundabout way, yeah.

"Q And has Trinity then therefore paid the bills that you have sent for Mr. Giffey's legal fees.

"A I never sent them any bills for Mr. Giffey's legal fees.

"Q The bills that you have sent Trinity has compensated the plaintiff for fees, has it not?

"A No.

"Q Well, tell me again then what Trinity's arrangement is or how---

"A Trinity doesn't have an arrangement.

"Q You have an arrangement.

"A I have an arrangement.

"Q And then--but you have then passed those bills on to Trinity for payment.

"A I have not sent them any bills that I've received from Mr. Zuger, no.

"Q Any costs?

"A I submit, as I said earlier, I submit a bill once a month to Trinity for the work we do for them.

"Q And what I'm getting at is does your bill for the work that you do that Trinity pays, does that bill include Mr. Zuger's attorney fees? Mr. Giffey's attorney fees?

"A Yes.

"Q Okay. Just so I understand this Bob. The--Trinity is paying the plaintiff's attorney fees in this case.

"A Trinity is reimbursing me for the payments I am making.

"Q And is Trinity's payment--that will continue all the way through this trial? This reimbursement procedure?

"A The arrangement that I have with Mr. Zuger is that I will continue to pay his fees through trial, yes.

"Q Through Trinity?

"A I'm paying the fees. Right.

"Q And passing the bills on to Trinity.

"A I'm not sending them any bill. They are reimbursing me for my expenses as they do for a lot of expenses that I incur.

"Q Who did you talk with at Trinity Medical Center to obtain their approval for that arrangement?

"A I didn't.

"Q What gives you the authority to commit Trinity to reimbursing Mr. Giffey's fees and expenses?

"A I haven't committed Trinity to anything. I made the arrangement with Mr. Zuger personally. If Trinity were to decide to quit paying me legal fees, then I guess they could. They're not committed to Mr. Zuger in any way, shape or form.

"Q Well, has Trinity reimbursed you for Mr. Giffey's fees up to this time?

"A Yes.

"Q And have you passed payment on to Mr. Zuger?

"A I pay Mr. Zuger first."

[Emphasis added].

¶5 The jury in the Giffey case found in favor of the doctors. After receiving negative publicity from this matter, Trinity terminated its relationship with Lamont. Lamont subsequently repaid Trinity for the fees and expenses billed to it for the Giffey case when it became apparent Trinity's tax exempt status might be jeopardized by its funding of Giffey's lawsuit.

¶6 The trial judge and the defendant doctors in the Giffey case filed disciplinary complaints against Lamont, calling attention to the unusual nature of the financial arrangements. An investigation revealed correspondence between Zuger and Lamont which conflicts with Lamont's testimony regarding the arrangement for payment of Giffey's fees. On July 18, 1994, Zuger wrote to Lamont:

"This will confirm that, pending outcome of the case, Trinity Medical Center will compensate me at an hourly rate, and reimburse all expenses, to be billed and paid on a monthly basis....

"This will also confirm that in the event that there is a recovery on behalf of Mr. Giffey, that Mr. Giffey will compensate this office on the basis of the enclosed contingency fee agreement. Whatever reimbursement is received from him will be turned directly over to your office, to be paid over to Trinity Medical Center.

* * * * * *

"Although Trinity is advancing fees and expenses during the pendency of this matter, it is clearly understood by all parties that Gardell Giffey is the client, and any decisions as to how to proceed will be made solely in his best interests."

Enclosed with the letter was a copy of the contingent fee agreement between Zuger and Giffey, which provided:

"I am aware that Trinity Medical Center has agreed to pay all expenses of this litigation, regardless of outcome, and to compensate Zuger Law Offices on an hourly basis for all work performed, pending final outcome of the matter. In consideration, Trinity Medical Center shall receive any contingency and any recovery of expenses made through verdict or settlement in this case.

"While Trinity Medical Center has agreed to be responsible for expenses of prosecution of this lawsuit, however, it is expressly understood that I am the client and I shall exercise control as provided in this agreement."

On July 20, 1994, Zuger again wrote Lamont, seeking clarification of the agreement:

"This letter is to follow up with one additional question relating to our meeting of July 15, 1994. Our understanding, as I have confirmed by letter, is that Trinity will be responsible for any expenses of litigation, ultimately to be recovered out of any settlement or judgment.

"Does this also apply to any potential costs and disbursements which might be taxed against Gardell? Please clarify this issue."

Lamont responded by letter dated July 26, 1994:

"The two letters you have sent me dated July 18, 1994, and July 20, 1994, regarding the fee arrangement for Gardell Giffey are accurate and your understanding is correct, including the fact that Mr. Giffey's costs would be covered in the event an adverse decision is rendered."

Lamont's letter explained the billing procedure he wanted to employ:

"I would like you to bill me directly and I will incorporate your billing in my monthly billing to Trinity Hospital. I do not want your itemized bills 'floating around' Trinity's accounts payable department. I bill Trinity Hospital at the end of each month and, generally, receive payment between the 15th and the 20th of the following month. Please submit your billing to me prior to the first day of each month."

Finally, Lamont stressed the necessity of protecting Trinity at all costs:

"I, again, would like to emphasize the importance of keeping Trinity's name out of this and if, under pain of death, someone is required to identify Trinity as having involvement in this I would suggest that involvement be as an agent to pay Mr. Giffey's costs, etc., in return for our understanding the neither Trinity or its employees would be defendants in this action."

¶7 A petition for discipline was served on Lamont on October 26, 1995. After hearing evidence from witnesses and reviewing the documentary evidence, a hearing panel found Lamont had engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; had failed to maintain respect for the court; and had violated ...