Waldron, In re, 70107

• Decision Date: 19 June 1990
• Docket Number: No. 70107,70107
• Citation: 790 S.W.2d 456
• Parties: In re Kenneth E. WALDRON, Respondent.
• Court: Missouri Supreme Court

Page 456

790 S.W.2d 456

In re Kenneth E. WALDRON, Respondent.

No. 70107.

Supreme Court of Missouri,

En Banc.

June 19, 1990.

Daniel J. McMichael, Chesterfield, for informant.

Leonard J. Frankel, St. Louis, for respondent.

ORIGINAL DISCIPLINARY PROCEEDING

COVINGTON, Judge.

This is an original disciplinary proceeding instituted by the Advisory Committee of the Missouri Bar pursuant to Rule 5 ¹ against respondent, Kenneth E. Waldron.

                A six-count information charged respondent with violation of the following Supreme Court Rules and Disciplinary Rules of Rule 4:  Rules 1.5(a) and (b), 1.15(b), 1.16(d), 3.3(a)(1), 8.4(c);  DR 1-102(A)(5);  DR 2-111(A)(2);  DR 7-102(A)(1) and (5);  DR 7-104(A)(1);  DR 9-102(B)(4).   The information prays that respondent be disbarred from the practice of law
                

The Court appointed as Master to hear the proceedings the Honorable Flake L. McHaney, Judge of the 35th Judicial Circuit. Judge McHaney made findings and recommended that respondent be suspended from the practice of law for six months. The Master's findings, conclusions and recommendations in a disciplinary proceeding are advisory in nature. In re Adams, 737 S.W.2d 714, 717 (Mo. banc 1987). This Court reviews the evidence de novo, determines independently the credibility, weight and value of the witnesses, and makes its own conclusions of law. In re Murphy, 732 S.W.2d 895, 902 (Mo. banc 1987). After independent review of the record this Court agrees substantially with the Master's findings and recommendations.

Of the six counts charged, this Court agrees with the Master that the evidence does not require discipline in Count IV. Because the purpose of disciplinary proceedings is to protect the public and maintain the integrity of the legal profession, In re Littleton, 719 S.W.2d 772, 777 (Mo. banc 1986), there is no need to recite facts that do not serve that purpose.

THE AINSWORTH MATTER

Gerald Ainsworth retained respondent to represent him in matters related to an automobile accident in which Mr. Ainsworth was involved on August 28, 1985. Ainsworth sustained serious injuries and was hospitalized for twelve days. Ainsworth was covered by a liability insurance policy with State Farm Insurance Company ("State Farm"). The policy included medical payment benefits in the sum of $5,000.00. During Ainsworth's hospitalization, State Farm's claims adjustor advised Ainsworth of State Farm's complete willingness to make available the medical payment benefit up to the amount of $5,000.00 upon receipt of appropriate verification of medical expenses incurred. State Farm's obligation to pay medical expenses up to $5,000.00 was never in dispute.

James W. Barnes operated the other automobile involved in the accident. Approximately one week after Ainsworth was discharged from the hospital, he received correspondence advising of Barnes' claim for damages against Ainsworth. Ainsworth engaged respondent to represent his interests in the matter and to file a counterclaim against Barnes for Ainsworth's personal injuries. Ainsworth agreed to pay respondent a contingency fee of fifty percent of the recovery.

The following day respondent mailed a written contract covering matters related to the personal injury to Ainsworth for his signature. The contract, executed on September 13, 1985, contained no provision relating to collection of medical payment benefits. Respondent sent an attorney's lien letter to State Farm. Respondent and Ainsworth dispute the time at which they initially discussed disposition of the medical pay benefits and disagree about the content of respondent's representations to Ainsworth regarding the purpose of the lien on the medical payments benefit.

Ainsworth also requested representation in proceedings arising from two traffic tickets issued as a result of the August 28, 1985, accident and from an unrelated traffic ticket issued in Crestwood, Missouri. In addition, Ainsworth wanted respondent to initiate litigation against the City of Crestwood and the police officers of Crestwood for "false arrest." Respondent secured continuances in the traffic cases and, with the consent of Ainsworth, referred the traffic matters to another lawyer whom Ainsworth paid directly.

Ainsworth subsequently discharged respondent. On December 4, 1985, before State Farm had knowledge of the discharge, respondent sent his investigator to the office of State Farm and obtained from State Farm a draft in the amount of $5,000.00 representing the medical payment; the draft included respondent as Ainsworth's discharge of respondent was communicated to respondent through letter dated December 3, 1985, and stamped "received" by respondent December 6, 1985. By that letter Ainsworth also requested respondent to send "a fair bill for services." It is not clear whether respondent knew he was discharged when he obtained the medical payment draft. The Master found and the record reflects clearly, however, that respondent knew at the latest on December 5, 1985, that he was discharged. His statement for services to Ainsworth sought, by its language, Ainsworth's approval "... this 5th day of December, 1985." The statement itemized two services related to the contingency fee damage suit.

payee along with Ainsworth and the hospital. To secure possession of the draft, respondent's investigator obtained copies of Ainsworth's hospital records and discharge summary and delivered them to the insurance company. Through other hospital insurance, Ainsworth's hospital bill, well in excess of $5,000.00, had been substantially paid; $646.11, however, remained unpaid.

Ainsworth refused to execute the draft for medical payments and respondent refused to deliver the draft to Ainsworth. Respondent filed suit in the associate division of the Circuit Court of Cape Girardeau County praying in the alternative for attorney's fees of $1,800.00 pursuant to the statement rendered or $2,500.00 representing fifty percent of the recovery. Respondent appeared on his motion for summary judgment and gave testimony. Neither Ainsworth nor his attorney was present. Ainsworth subsequently filed a counter-affidavit, and on that date the court entered judgment in favor of respondent and against Ainsworth in the amount of $2,500.00. Respondent then issued a garnishment to State Farm, returned the $5,000.00 draft to State Farm, and received from State Farm a draft payable to him in the amount of $2,500.00.

The Master found in mitigation that respondent quickly filed suit against Ainsworth and obtained a judgment after promptly notifying Ainsworth that respondent was holding the draft. The Master found that Ainsworth requested respondent to do other work for him and owed respondent a reasonable fee for the work. In aggravation, however, the Master found respondent's testimony and evidence of the amount of time spent in service to Ainsworth unbelievable and damaging to respondent's credibility in the entire proceeding.

Respondent's actions discredit the profession. At no time was respondent employed to collect the medical payment nor was respondent ever authorized to obtain the draft and, borrowing the Master's accurate description, "hold it hostage." Respondent did not promptly pay to his client funds which the client was entitled to receive. Respondent violated Rule 1.15(b) and DR 9-102(B)(4).

THE FADLER AND HECHT MATTERS

In both the Fadler and Hecht cases, respondent violated DR 7-104(A)(1). The rule prohibits a lawyer, when representing a client, from communicating about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

In the Fadler matter respondent represented Sherry Lee Fadler who instituted dissolution proceedings against her husband, Larry Fadler. On the eve of January 4, 1985, the date of the trial setting in the matter, an ice storm caused the trial judge to cancel all court proceedings in Bollinger County where the contested case was scheduled to be heard. Neither attorney appeared because each had been notified there would be no trial. Unaware of the cancellation, both parties appeared, Mrs. Fadler having traveled from St. Charles, Missouri, to do so.

The parties met without counsel and negotiated an agreement. They attempted to contact Mr. Fadler's attorney but were informed that he was out of town. Mrs. Fadler then contacted respondent who agreed to permit the Fadlers to come to his Respondent sent Mr. Fadler's attorney a copy of the agreement. The attorney did not object to the agreement or to what had transpired. Neither Mr. Fadler nor his attorney intended to seek to have the agreement set aside. The decree ultimately rendered did not substantially change the terms of the agreement as modified.

office. At respondent's office, respondent made changes in a previously proposed settlement agreement to effect the agreement finally reached by Mr. and Mrs. Fadler. Each party signed the agreement at respondent's office, and respondent notarized both signatures. Although respondent testified that he did not communicate with Mr. Fadler, the record contains credible contrary evidence. Respondent's testimony in this regard is not believable.

In permitting Mr. Fadler to come to his office, knowing that Mr. Fadler was represented by another attorney, and in discussing the settlement in the presence of Mr. Fadler without attempting to contact the other attorney and without the prior consent of the other attorney, respondent directly violated DR 7-104(A)(1).

In the Hecht dissolution case respondent represented James Hecht. LaRhonda Hecht, wife of James, employed a Cape Girardeau attorney. After unsuccessful negotiations, the case was set for trial on July 11, 1985. On or about July 6, without notice to respondent, James and LaRhonda Hecht appeared at respondent's office. Mr. Hecht advised respondent that the parties had agreed to...