Wednesday, September 23, 2009

Ignorance No Excuse, But A Mitigating Factor

A unanimous Missouri Supreme Court has imposed a stayed suspension and probation for one year in a case that involved a fee agreement "purporting to give [the lawyer] sole authority to settle claims, with or without [the client's] consent." The attorney represented the client in three matters and initially charged by the hour. When the client was unable to keep current with the monthly bills, the attorney proposed (and the client agreed to) a contingent fee arrangement that included the following language:

...because I am taking a risk with you on this case, and because I am more familiar with the legal trends relative to judgments, settlements and summary dispositions, you agree that I shall have the exclusive right to determine when and for how much to settle this case. That way, I am not held hostage to an agreement I disagree with.

The lawyer then accepted an offer that the client had rejected. He actively attempted the enforce his right to settle the case and sought to thwart the client's right to her day in court.

The court held that the agreement created a conflict of interest. The lawyer had been disciplined on three prior occasions. He also failed to respond to requests for information after he withdrew from the client's matters and commingled funds. Nonetheless, the court concluded that suspension was not necessary:

[his] actions arose out of ignorance of the rules of professional conduct instead of an intention to violate the rules, and it is likely that his misconduct can be remedied by education and supervision.

The attorney was admitted in 1977.

The case is In re Coleman, SC89849, decided on September 15. This link should take you to the court's opinions page. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2009/09/retainer-agreement-granting-settlement-authority-to-lawyer-unethical.html

Bar Discipline & Process | Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341bfae553ef0120a5e96134970c

Listed below are links to weblogs that reference Ignorance No Excuse, But A Mitigating Factor:

Comments

What an outrageous case - the attorney only receives probation.

Posted by: Steve | Sep 23, 2009 1:57:59 PM

Mike, just FYI, your story was linked by the Crime and Consequences Blog, and the poster seems pretty amazed at how level the discipline was here. He makes a great pitch that the lawyer got off too easy.

http://www.crimeandconsequences.com/crimblog/2009/09/lawyer-conduct.html

Posted by: Alan Childress | Sep 28, 2009 9:53:07 AM

At least SCOTMO bothered to publish this outrage, of all their disciplinary orders maybe one or two a year are published. This one slipped through somehow.

Posted by: Dale Gribble | Oct 1, 2009 5:50:03 AM

Post a comment