State ex rel. NSBA v. Miller
| Decision Date | 19 November 1999 |
| Docket Number | No. S-98-769.,S-98-769. |
| Parties | STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. James P. MILLER, Respondent. |
| Court | Nebraska Supreme Court |
John J. Reefe, Jr., Omaha, for respondent.
Kent L. Frobish, Assistant Counsel for Discipline, Lincoln, for relator.
This is an attorney discipline case in which the Nebraska State Bar Association (NSBA), relator, seeks to discipline James P. Miller, respondent.
This disciplinary case arises from Miller's representation of Sharon Best (Sharon) and her son, Brian Best (Brian), who is now deceased. A brief factual background is set forth to give context to the charges filed against Miller. Since birth, Brian had been plagued by significant heart and kidney problems. Because of his poor health, Sharon had maintained a health insurance policy on Brian through Blue Cross Blue Shield of Nebraska. When Sharon was employed by U S West in 1993, she insured Brian under her group health insurance policy, MetLife, as a handicapped dependent. Sharon maintained both policies on Brian so that if she lost her U S West job, Brian would still be covered by Blue Cross Blue Shield. The two policies did not coordinate benefits.
In April 1994, Brian's health deteriorated and he was admitted to the University of Michigan Medical Center at Ann Arbor, Michigan (Hospital), and was treated there for over a month. The total hospital bill was $242,740.26. Both insurers paid the bill in full, with MetLife paying $242,737.76 on July 22, 1994, and Blue Cross Blue Shield paying $242,422.76 on September 26.
For 10 months, Sharon sought a refund of the excess payment, but was unsuccessful. She contacted the Nebraska Department of Insurance, which recommended that she hire an attorney to write a demand letter. Sharon hired Miller, who had previously employed her and represented her, to obtain the overpayment. Sharon and Miller met for a consultation on or about July 3, 1995. There is a factual dispute about the fee arrangement. Sharon claims that Miller orally agreed at the July 3 meeting to charge a 20-percent contingent fee. Thereafter, Brian went to Miller's office on July 14, at which time Brian was asked to sign an assignment of proceeds, which he did. Brian was also presented with an "Attorney Fee Contract" (written agreement) by Miller. When Brian questioned the percentage fees in the written agreement (one-third if settlement is reached before filing suit and 40 percent after suit is filed), Miller stated that it was just a formality and that Miller had an oral agreement with Sharon to charge a 20-percent contingent fee. Based upon that assurance by Miller, Brian signed the written agreement; Brian was not given a copy of the written agreement. Miller denies any separate fee discussion with Brian, and Miller claims that the written agreement that Brian signed on July 14 is the true agreement: one-third if settlement is reached before filing suit and 40 percent after suit is filed.
Between July 5 and 18, 1995, Miller made telephone calls to Ann Arbor to talk to the Hospital's attorney, Leslie Kamil. Miller testified that he performed some research and had informal discussions with other attorneys about the issues in the case. Miller also drafted an assignment of proceeds and a complaint for filing in federal court. Miller estimated the total time he spent on the Best matter was 50 hours.
On July 19, 1995, at about 2:30 p.m., Kamil, the Hospital's attorney, contacted Miller's partner, Ernest Addison, and told Addison that the Hospital was trying to correct the overpayment situation and had agreed with Julie Nurre at MetLife that MetLife would pay Sharon the money. Notwithstanding this information, at 4:04 p.m. on the same day, Miller filed suit against the Hospital in the U.S. District Court for the District of Nebraska. Miller explained that he filed suit that day because he thought the money could be obtained more quickly from the Hospital, rather than having the money returned to MetLife and then passed on to Sharon. In a letter sent by Miller to Sharon dated July 19, Miller enclosed the complaint but failed to mention Addison's conversation with Kamil.
On August 1, 1995, Kamil called Addison and agreed to send the federal district court a check for $242,737.76. A settlement agreement was reached, and interest was never discussed. Brian later went to Miller's office to sign the settlement agreement, but refused to do so when Brian saw that Miller was claiming 40 percent of the recovery. On September 27, Miller sent Sharon a check for $145,642.66, which is the total recovery less Miller's 40-percent fee. Sharon then hired attorney Melvin Hansen to represent her in connection with this fee issue. Hansen advised Sharon to negotiate the check because although the check to Sharon in fact was written on Miller's trust account, the check itself did not indicate its source. Sharon negotiated the check on October 26. On November 7, Miller withdrew $96,000 in attorney fees from his trust account.
On November 27, 1995, Sharon lodged a complaint against Miller with the NSBA Counsel for Discipline, and the Disciplinary Review Board of the NSBA subsequently filed formal charges against Miller. The Disciplinary Review Board charged that while representing Sharon and Brian, Miller violated his oath of office as an attorney and Canon 1, DR 1-102(A)(1) and (4); Canon 2, DR 2-106(A) and (B); and Canon 9, DR 9-102(A)(2), of the Code of Professional Responsibility. The relevant provisions of the code are as follows:
(B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
(Emphasis supplied.) In his answer, Miller denied that he violated the attorney's oath of office or any disciplinary rules.
This court referred the matter to a referee, who conducted a formal evidentiary hearing and made findings of fact and conclusions of law. Miller attended and was represented by counsel. The referee found that the actions of Miller constituted violations of his oath of office. Specifically, the referee found that Miller did not faithfully discharge the duty mandated by Neb.Rev.Stat. § 7-105(6) (Reissue 1997), which prohibits an attorney from encouraging the commencement of an action from any motive of passion or interest. Also, the referee found a violation of Neb.Rev. Stat. § 7-106 (Reissue 1997) by Miller's acts, determining that he engaged in deceit or collusion with intent to deceive a party to the action. Finally, the referee found that Miller violated all the disciplinary rules (DR 1-102(A)(1) and (4), DR 2-106(A) and (B), and DR 9-102(A)(2)) for which he was formally charged by the Disciplinary Review Board.
After concluding his findings of fact, the referee recommended disbarment. In his recommendation, the referee noted the previous disciplinary action taken against Miller, State ex rel. NSBA v. Miller, 225 Neb. 261, 404 N.W.2d 40 (1987), in which Miller was found to have previously violated DR 1-102 and DR 9-102 by taking money from a client, but he had returned it before the impropriety was discovered. In his report, the referee concluded: Miller filed exceptions to the referee's report, challenging the referee's findings and his recommendation of disbarment.
A proceeding to discipline an attorney is a trial de novo on the record, in which the Nebraska Supreme Court reaches a conclusion independent of the findings of the referee; provided, however, that where the credible evidence is in conflict on a material issue of fact, the court considers and may give weight to the fact that the referee heard and observed the witnesses and accepted one version of the facts rather than...
To continue reading
Request your trial
-
State v. Trail
...See State v. Estrada Comacho , 309 Neb. 494, 960 N.W.2d 739 (2021).76 Brief for appellant at 25.77 Id. at 26.78 State ex rel. NSBA v. Miller , 258 Neb. 181, 602 N.W.2d 486 (1999).79 State v. Swillie, supra note 8.80 See State ex rel. NSBA v. Miller, supra note 78.81 State v. Hess , 225 Neb.......
-
City of Omaha v. Savard-Henson
...818 (1998). Thus, Mathes is premised upon the shortcomings in the underlying "science" of lie detection. In State ex rel. NSBA v. Miller, 258 Neb. 181, 602 N.W.2d 486 (1999), the court said that polygraph examinations have been held inadmissible in both administrative and criminal proceedin......
-
State ex rel. Cherry v. Burns
... ... HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ ... MILLER-LERMAN, J ... NATURE OF CASE ... John D. Cherry, M.D., and Randy ... ...
-
State ex rel. Counsel for Dis. v. Cannon, S-02-490.
...misconduct are distinguishable from isolated incidents and are therefore deserving of more serious sanctions. State ex rel. NSBA v. Miller, 258 Neb. 181, 602 N.W.2d 486 (1999). In this regard, we note that the record reflects that respondent has been involved in two prior disciplinary proce......