Friday, March 19, 2010
The Lousiana Supreme Court imposed a public reprimand of an attorney who was involved in a dispute over the installation of stained concrete flooring in a custom home.
The owner of the building company (respondent was dating the owner at the time; they are now married) met with the supplier and manufacturer of the staining product. They "vigorously asserted" that the stain was not defective. The builder asked the respondent about a possible lawsuit and he agreed to pursue the claim. He had concerns about the proper plaintiff as the staining product had been purchased by the builder but was now incorporated into the home. The respondent decided to have the homeowners assign the right to sue to the builder.
The builder presented the assignment to one of the homeowners, who signed it without the passing of consideration. The respondent then filed suit on the builder's behalf against the supplier and manufacturer. The case was removed to federal court (where he did not practice) and was eventually dismissed.
Meanwhile, the homeowners retained their own attorney and filed a lawsuit against the builder. The respondent defended the suit and claimed that the assignment deprived the homeowners of the right to sue. The homeowners filed a bar complaint, alleging a conflict of interest on the part of the respondent.
The court found that the evidence did not establish an attorney-client relationship betwen the respondent and the homeowners. Thus, there was no violation of the rule prohibiting either concurrent or successive conflicts of interest. The hearing committee specifically found no such relationship and the homeowner with whom the attorney dealt "was a mature, sophisticated, and well-educated consumer of contracting services. She could not reasonably have assumed respondent was representing her in a lawsuit based upon a three-minute cell phone conversation with a person who may or may not have been the respondent or even an attorney."
However, the respondent did violate ethical rules in his unfair dealing with a unrepresented person. His failure to clearly state his interest to the homeowners constituted a misrepresentation by omission. The court found that the conduct was negligent and caused little or no actual harm to the complaining homeowners.
Respondent has been ineligible to practice law since September 2006 for failure to pay bar dues and the disciplinary assessment.
Update: Corrected in light of the comment. (Mike Frisch)