Lawyer Disciplinary Bd. v. Hardison
| Decision Date | 09 July 1999 |
| Docket Number | No. 22430.,22430. |
| Citation | 205 W.Va. 344,518 S.E.2d 101 |
| Court | West Virginia Supreme Court |
| Parties | LAWYER DISCIPLINARY BOARD, Complainant, v. Richard E. HARDISON, a Member of the West Virginia State Bar, Respondent. |
Steven Johnston Knopp, Esq., Lawyer Disciplinary Counsel, Charleston, West Virginia, Attorney for the Complainant.
Richard E. Hardison, Pro Se.
This case involves a lawyer disciplinary matter. At the hearing held by a Hearing Panel Subcommittee of the Lawyer Disciplinary Board (Board), seven complainants testified for the Office of Disciplinary Counsel (ODC). Each of these complainants, Teresa Tessaro, Sylvia Moore, Grant C. Bailey, Alice Matherly, Charles M. Evans, D.C., Michael Orra, M.D., and David L. Shamblin, M.D. were clients, former clients or doctors of clients or former clients of Respondent, Richard E. Hardison. Their cases will be summarized below. On November 19, 1998, the Board filed with this Court its findings of fact, conclusions of law and recommendations regarding these complaints. Both Hardison and the ODC objected to the disposition of the formal charge recommended by the Board. The matter was then set for hearing.
Hardison was admitted to the West Virginia State Bar on May 14, 1971. He is currently an inactive member of the bar, having voluntarily placed himself on inactive status on December 16, 1996. He practices from his office in Beckley, Raleigh County, West Virginia.
Ms. Tessaro, as mother and next friend of Vernon T. Tessaro, retained Hardison and his associate to represent them for injuries arising out of an accident Vernon suffered at a church near his home. The lawsuit settled and the church's insurer paid the sum of $8,009.54 from which certain disbursements, including medical bills and litigation expenses, were to be subtracted. On May 29, 1992, a final order was entered by the circuit court approving the settlement. Dr. Syed Zahir submitted medical bills in the amount of $3,037.60 and Dr. E.H. Isaacs submitted medical bills in the amount of $750.00. Hardison and Ms. Tessaro agreed that Hardison would attempt to negotiate a fee reduction from the two doctors in an effort to maximize the amount of recovery Vernon would receive. The hospital and Dr. Isaacs reduced their bills; however, Dr. Zahir declined to do so. Hardison failed to timely pay the medical bills or to disburse the remaining funds. Ms. Tessaro filed an ethics complaint on February 15, 1994. Hardison paid Dr. Zahir on March 17, 1994 and later paid Dr. Isaacs. The remainder of the funds was released to Ms. Tessaro on June 16, 1994.
The Board concluded that the delay for a period of more than two years in disbursing the proceeds of the settlement balance to the client and the medical providers violated Rule 1.3 (Diligence) and Rule 1.15(b) (Safekeeping property) of the Rules of Professional Conduct. Rule 1.3 states, "A lawyer shall act with reasonable diligence and promptness in representing a client." Rule 1.15(b) states:
(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
The ODC does not contest this finding.
Sylvia Moore retained Hardison in 1988 to represent her in a medical malpractice action, involving a missed diagnosis of three brain aneurysms. Hardison delayed filing the claim until April 26, 1990. The defendant doctors were dismissed with prejudice because of Hardison's failure to answer discovery. Hardison testified before the Board that he was unable to find a medical expert who would testify on Ms. Moore's behalf. When Hardison consented to the dismissal of the malpractice action in 1992, he was given leave to file a memorandum within two weeks to persuade the court to permit him to amend the complaint against the hospital for wrongful discharge (the hospital was also Ms. Moore's employer). Neither the memorandum nor any amended pleadings were filed. His client was not informed he had not filed a wrongful discharge action against the employer.
On May 2, 1994, Ms. Moore notified Hardison that she wanted to pick up her file on May 13, 1994 at 1:00 p.m. Ms. Moore traveled from Summersville to Beckley on that date, and when she arrived at Hardison's office, she was told the file was not ready, but it would be sent to her in portions as it was copied. On May 15, 1994, Ms. Moore wrote to the West Virginia State Bar concerning the matter. On June 1, 1994, Hardison represented to disciplinary counsel that he had hired temporary help to make copies of the file and would make arrangements to send it to Ms. Moore. Hardison finally mailed Ms. Moore her file on July 14, 1994.
The Board concluded Hardison violated Rule 1.4(a) (Communication) and Rule 1.16(d) () of the Rules of Professional Conduct. Rule 1.4(a) states, "A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." Rule 1.16 states:
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.
The ODC does not contest this finding.
On October 12, 1989, Mr. Bailey underwent back surgery after an on-the-job injury damaged two intervertebral discs. Due to a mislabeled X-ray, the surgeon operated on the wrong disc. A second operation was required. Mr. Bailey met with Hardison and provided him with his medical records and the report of an expert on November 29, 1990. Thereafter, Mr. Bailey contacted or attempted to contact Hardison's office on numerous occasions without success. Twice he spoke with someone at the office but received no information regarding his case; on other occasions, his calls were not returned. On November 7, 1991, Hardison filed a complaint in circuit court which he did not share with his client. On November 20, 1991, Hardison sent Mr. Bailey a copy of the complaint and a letter to notify him that the lawsuit had been filed. Upon reviewing the complaint, Mr. Bailey determined Hardison sued the wrong radiologist and the wrong corporation. The court dismissed the two medical providers from the action, and the case was lost to the statute of limitations on the amended complaint against the proper doctors. Hardison failed to timely appeal.
The Panel concluded Hardison violated Rule 1.3 (Diligence) and Rule 1.4(a) (Communication) of the Rules of Professional Conduct.1 The ODC does not contest this finding.
Claims were made against the estate of Ewell Hatfield, and Hardison represented the administratrix of the estate. A trial date was scheduled for May 2, 1994 in the Circuit Court of Mingo County, West Virginia. On that day, Hardison called the judge and stated that his car had broken down. Disciplinary counsel believed that Hardison also said he would obtain a replacement vehicle. Later, after setting out in the replacement vehicle, disciplinary counsel believed Hardison called the court to say he could not make an appearance because he had been stopped for speeding. The court granted default judgment against the estate on the complaint and a cross complaint.
A complaint was filed against Hardison, but no witnesses were located to support the allegation that Hardison had called to advise the court that he would obtain another vehicle or that he was stopped for speeding. Hardison under oath denied making such representations to the court. The Board determined there was insufficient evidence to support the charge that Hardison had violated Rule 8.4(c) (Misconduct) or Rule 8.4(d) of the Rules of Professional Conduct, which read as follows:
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice[.]
The Panel recommended dismissal of the charges and the ODC does not contest this finding.
On April 26, 1992, Ms. Matherly retained Hardison to pursue a products liability claim against Dow Corning as the manufacturer of silicone implants, and Dr. Fred Pulido, the doctor who performed her implant surgery. Hardison assured Ms. Matherly the complaint had been filed. She met with him on August 8, 1994, at which time she asked for proof of filing. Hardison responded he would provide proof within one week; Ms. Matherly set a deadline of August 15, 1994. The lawsuit was finally filed on August 12, 1994. By letter dated August 15, 1994, Ms. Matherly discharged Hardison and demanded the return of her files. On October 21, 1994, Hardison sent Ms. Matherly's file to her new attorney. Ms. Matherly ultimately received a portion of a second global settlement from the Dow Corning lawsuits, but contends that if her complaint had been filed timely, she would have obtained a larger settlement from the first global settlement. However, no evidence was submitted to support this contention.
Hardison refutes that he was retained by Ms. Matherly on April 26, 1992, in that he does not agree to represent anybody in a product liability and/or a medical malpractice action until it is...
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