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B.B.O. File No. C6-95-0225

B.B.O. File No. C6-95-0225

Order Entered by the Board on June 14, 1999 Dismissing Petition for Discipline. Hearing Committee Report Bar Counsel filed a petition for discipline against the respondent on June 1, 1998, alleging that the respondent, in a child support contempt action, filed an affidavit in support of a fee award request which included fees already paid by the opposing party. The petition charged that the filing of this affidavit was a violation of Canon Six, DR 6-101(A)(2) (handling a legal matter without preparation adequate in the circumstances). The respondent filed an answer on July 1, 1998 and an amended answer on July 29, 1998. The respondent denied any misconduct and claimed that the mistake in the affidavit did not rise to a disciplinary offense. Prior to the hearing the parties filed a stipulation as to certain facts.1 At the hearing, held on December 9, 1998, the respondent was the sole witness. Exhibits 1 through 8 and 10 through 15 were admitted by agreement and Exhibit 16 was admitted without objection.2 I. Findings of Fact 1. The respondent was admitted to the bar of the Commonwealth on November 19, 1968, and is now and continually has been in good standing as an attorney in the Commonwealth (Stip. 1).3 2. From early 1990 through at least early 1995, the respondent represented a wife in divorce and post-divorce proceedings in Probate Court against her husband (Stip. 2; Ans. 3). A Judgment of Divorce Nisi was granted on January 8, 1992 (Stip. 2; Ans. 3). It was a highly contested divorce and the subsequent proceedings, involving at least five contempt complaints, were generally acrimonious (Ex. 1; Tr. 37-39). Over the course of the postdivorce proceedings, the ex-husband changed counsel a number of times and occasionally appeared pro se (Ex. 1; Tr. 37-38). 3. On August 12, 1992, the respondent filed a complaint for contempt, on behalf of his client, against the ex-husband, which alleged arrearages in child support payments (Stip. 3; Ans. 4; Ex. 2). This was the second complaint for contempt filed by the respondent against the exhusband for child support arrearages (Ex. 1). A hearing was held on the complaint on October 27, 1992 (Stip. 3; Ans. 4). 4. At that hearing, the respondent presented a Motion for Counsel Fees From March 25, 1992
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to and Including October 26, 1992, in which he requested that the ex-husband be ordered to pay the fees and expenses incurred by his client in the contempt proceeding (Stip. 4; Ans. 5; Ex. 3). 5. In support of this motion, the respondent submitted an Affidavit for Attorneys Fees for Services From March 25, 1992 To And [Including] October 26, 1992, in which he attested that he had billed his client $866.00 during the stated time period and to which he attached copies of three invoices to his client totaling $866.00 (Stip. 5; Ans. 6; Ex. 4). 6. On October 27, 1992, the court entered an Interlocutory Judgment of Contempt, finding the ex-husband in contempt for failure to pay $4,800.00 in child support, ordering him to pay $866.00 in legal fees (Stip. 6; Ans. 7; Ex. 5), and ordering him incarcerated until he purged himself of contempt by payment of the $5,666.00 total (Ex. 5). On October 28, 1992, a payment in the amount of $5,666.00 was made on behalf of the ex-husband to an associate of the respondent (Stip. 7). The respondent never saw the handwritten receipt given to the exhusband by the associate (Ex. 6; Tr. 40, 102).4 These funds were deposited into a clients fund account maintained by the respondents firm (Stip. 7; Ex. 7). On October 29, 1992, $4,800.00 was disbursed from the account to the client and $866.00 to the respondents firm (Stip. 7; Ex. 7). The payment of $866.00 in fees and expenses was applied to the clients account according to the firms accounting records (Stip. 7; Ex. 8). These accounting records do not identify the payor, and therefore, do not show that the ex-husband was the source of this payment (Ex. 7, 8).5 7. On March 5, 1993, the respondent filed another complaint for contempt on behalf of his client (Ex. 1; Tr. 40). On April 15, 1993, by agreement of the parties, the August 1992 and the March 1993 complaints for contempt were dismissed (Ex. 1; see Stip. 6 and Ans. 7 as to August 1992 dismissal). 8. On May 5, 1993, in response to an earlier complaint filed by the ex-husband with Bar Counsel, which was later dismissed, the respondent wrote to Bar Counsel, reviewing the lengthy divorce and post-divorce proceedings between the respondents client and her exhusband, the complainant (Ex. 10). In that letter, the respondent noted that, in October 1992, the ex-husband had been incarcerated on a contempt finding and had been released upon payment of $5,666.00 to the respondents office (Ex. 10). We find that the respondent was not specifically aware at that time or at any time after the entry of the interlocutory judgment in October 1992, that the ex-husbands payment included payment for attorneys fees. Indeed, we find that the respondent was only aware that the ex-husband had been incarcerated for failure to pay child support, since obtaining payment of child support was respondents primary focus in all of these proceedings (Tr. 61, 76-77).6 9. On July 12, 1993, the respondent filed another complaint for contempt against the exhusband, which again alleged arrearages in child support (Stip. 8; Ans. 9; Ex. 1). The exhusband did not file an answer or response to the contempt complaint (Stip. 8). A hearing was scheduled for January 18, 1994 (Stip. 8). 10. On January 14, 1994, the respondent filed a Motion for Counsel Fees From March 25, 1992 To and Including January 18, 1994, in which he requested that the ex-husband be
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ordered to pay the fees and expenses incurred by his client in the contempt proceeding (Stip. 9; Ans. 10; Ex. 12). 11. In support of his motion for fees, the respondent submitted an Affidavit For Attorneys Fees For Services From March 25, 1992 To And Including January 18, 1994, in which he attested that he had billed his client $2,319.00 during the stated period (Stip. 10; Ans. 11; Ex. 13). Attached to the affidavit were copies of eight invoices to the client totaling $2,319.68 (Stip. 10; Ans. 11). On its face, the affidavit accurately reflects the period of time and the amount billed to his client (Ex. 13). These eight invoices included the three invoices totaling $866.00, which the ex-husband had previously paid the respondents firm on October 28, 1992, as part of his total payment of $5,666.00 (Stip. 10; Ans. 11). 12. The respondent had an assistant prepare the motion and affidavit (Tr. 59-60), which he reviewed prior to signing and submitting them to court (Tr. 60, 107). To the best of his knowledge at the time, they were correct (Tr. 60). He also reviewed the invoices attached to the affidavit, but he did not review the entire file, nor did he review his firms accounting records (Tr. 107).7 Had the respondent reviewed those records prior to filing his motion and affidavit for attorneys fees, he still would not have learned of the ex-husbands payment, because the accounting records, although crediting the payment, did not state the source of the payment (Ex. 7, 8). Thus, the mistake would not have been avoided by checking the accountings (Ex. 7, 8). 13. In addition, we find that, at the time he prepared the affidavit in January 1994, the respondent had no recollection of previous payments by the ex-husband for attorneys fees incurred in any prior contempt actions (Tr. 59, 71-72, 99-100). The respondent had forgotten that the husband in October 1992, had made a payment on a contempt action to get released from jail, and in any event, was not on notice that such payment had included payment of attorneys fees (see 8, supra). The respondents primary focus at the time, and throughout these proceedings, was to get the ex-husband to pay child support (Tr. 61, 76-77). 14. Had the respondent been aware that his affidavit included fees that the ex-husband had already paid, he would not have included those amounts in the affidavit (Tr. 60, 62-64, 7172). The inclusion in the affidavit of the three invoices that had already been paid was a mistake (Tr. 99). 15. The ex-husband was represented by counsel with respect to this complaint for contempt (Ex. 1). Neither counsel nor the ex-husband contacted the respondent regarding the contempt or the motion for fees prior to the hearing on January 18, 1994 (Tr. 87, 101-102). Had they done so, the respondent would have credited any payment (Tr. 71-72). 16. The hearing on January 18, 1994, focused primarily on child support arrearages. The respondent also presented his request that the ex-husband be ordered to pay his clients fees and expenses (Stip. 11; Ans. 14). Due to the number of prior contempt actions, motions for fees and orders, the parties and the court were confused about what had been previously ordered and what had been paid for attorneys fees (Ex. 15). The ex-husband claimed that he had paid some of the fees included in the respondents request (Stip. 11; Ans. 14), and that the respondent was double-billing (Ex. 15). The respondent stated that he did not
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want to collect for any amounts which had been paid, he had no interest in double-billing the ex-husband, and would be more than willing to credit any payments the ex-husband could show had been made (Ex. 15; Tr. 50). The respondent did not, at any point, intend to double bill the ex-husband (Tr. 52, 88-89, 98), and was, at all times, willing to credit any payments made by the ex-husband (Tr. 71-72, 89-90). The judge gave the ex-husband a day to provide proof of payment (Ex. 15). The Probate Court entered a Further Interlocutory Judgment of Contempt on January 18, 1994, ordering the ex-husband to pay counsel fees in the amount of $1,123.68, which excluded the fees previously paid by the ex-husband from the amount sought by the respondent in his motion (Stip. 12; Ans. 15; Ex. 14). II. Conclusions of Law We conclude that the respondents conduct does not constitute a violation of Canon Six, DR 6-101(A)(2) (handling a legal matter without adequate preparation under the circumstances). We find that under the circumstances presented here, the respondents preparation was adequate. Although we question whether this disciplinary rule was intended to protect opposing parties rather than clients, our decision does not turn on that distinction. This was a complicated, highly contentious case, involving a series of contempt complaints, some of which went to judgment and others of which were dismissed prior to judgment. The respondents primary concern throughout the post-divorce proceedings was to obtain payment of child support arrearages for his client. Due to the number of contempt complaints brought over a lengthy period, it was difficult enough to track child support arrearages, let alone payment of attorneys fees. Contrary to Bar Counsels contention, we find that the ex-husbands payment of attorneys fees was not readily ascertainable from the records. The law firms accounting system was not designed to track the ex-husbands payments. Since the clients account was properly credited with the payment, review of the accountings by the respondent would have disclosed a payment, but would not have disclosed to him the identity of the payor. Thus, such review would not have prevented the mistake here. There was no way for the respondent to easily determine what the ex-husband had paid during the preceding several years, and the respondent was not aware of any need to check for such payments. We do not believe the obligation to keep track of payments was on the respondent. We conclude it would be unreasonable to place the burden on the respondent and his client to separately account for all of the ex-husbands payments, particularly where, as here, the ex-husband was the party with the primary knowledge and evidence as to payments. The motion and affidavit for fees were factually and literally accurate on their face: they showed the dates covered by the request and the amount of the fees incurred. There was no misrepresentation. Moreover, the ex-husband certainly knew what he had paid. He had the receipt. Unlike the conduct in AD-98-80, the respondent here did not fail to disclose to or hide from the other side information peculiarly within his knowledge, such as the actual fees incurred by his client because of a blended fee agreement with the client. The ex-husband was under no misapprehension as to what he had paid. There was no subterfuge, no attempt to mislead or overreach, and no harm. The ex-husband could have raised the issue of payment by filing an answer to the contempt or an opposition to the motion or by
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communicating with the respondent prior to the hearing. He did not do so. Finally, when the error was raised by the ex-husband at the hearing, the respondent promptly informed the court he had no wish to receive double payment and the ex-husband was not charged for the amounts he previously had paid. There was simply a mistake, and the proof of the mistake was, at all times, in the hands of the opposing party. We have reviewed the cases relied on by Bar Counsel, AD-98-57, AD-98-68, AD-98-80, AD-9885, and find that in each case the attorneys conduct was more serious than that involved here. The attorneys in those cases engaged in repeated, albeit negligent, misrepresentations involving information solely in their possession, or failed, after notice, to promptly correct the error, causing harm to the client, the court or the opponent. Here, the information regarding payment was in the possession of the opposing party, and the respondent promptly offered to correct any error. In AD-98-57, the attorney was appointed by the court to represent an indigent defendant, but accepted a fee from the client after his appointment. The appointment occurred prior to CPCS adoption of a rule prohibiting court-appointed counsel from accepting payment from a client. The attorney then negligently billed and received payment from CPCS for his services and falsely certified that he had not accepted any other payment. Upon learning of his error, the attorney reimbursed CPCS. The attorney made multiple errors. In AD 98-68, in the course of discovery disputes, the opposing party claimed to have never received certain letters. In response, the attorney filed a factually false affidavit attaching letters he claimed to have sent, but which were, in fact, never sent. The attorney erroneously assumed that he had sent the letters saved on his computer, but the affidavit failed to disclose the fact that his conclusions were based on his search of his computer and not personal recollection. The attorney in that matter was on notice as to the specific matter at issue and failed to adequately prepare his response. In AD 98-80, the attorney filed an affidavit erroneously claiming attorneys fees had been incurred by the client using standard rates, when in fact the fees incurred by the client were the subject of a different agreement for lower rates. The opposing party challenged the fees and initiated discovery, and the attorney filed a second erroneous affidavit with the court. Eventually, he filed a third, accurate statement with the court, but his misconduct caused substantial litigation and sanctions against the client. Here, there were no negligent misstatements of fact, only an omission -- a failure to credit a payment -- which the opposing party knew he had made, and the error was promptly corrected with no resulting harm. In AD-98-85, the attorney, representing a landlord, served a motion on a tenant, in accordance with Rule 9A. The certificate of service was dated April 28, 1998. The tenant received the documents on May 1, 1998, in an envelope postmarked April 30, 1998. In a letter dated May 8, 1998, which was hand-delivered to the attorney on May 11, 1998, together with an opposition to the motion, the tenant referred to the discrepancy in dates on the certificate of service and the postmark. The attorney thereafter filed an Affidavit of Counsel, together with the motion and opposition, in which she stated that she had served the documents on the tenant on April 28, 1998. At that point, the attorney was on notice of the discrepancy in dates and should have conducted an investigation to determine if her
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prior statement was true or false. In contrast with the above cases, the respondent here did not engage in repeated misrepresentations and when he was notified of the issue, promptly offered to rectify any mistake. We conclude that the respondents conduct, under the circumstances presented here, does not rise to the level of a disciplinary violation. III. Recommendation For the foregoing reasons, the hearing committee recommends that the petition for discipline against the respondent be dismissed and that no discipline be imposed. Respectfully submitted, By the Hearing Committee, Edward B. McGrath, Chair Brian W. Murray, Member Kenneth L. Carr, Member FOOTNOTES
1 2 3

The Stipulation of Agreed Facts is on pages 1-3 of the Joint Pre-Hearing Memorandum. There is no Exhibit 9.

The Stipulation of Agreed Facts is referred to as Stip. __, the Amended Answer is referred to as Ans. __, the transcript is referred to as Tr. followed by the page number, and the exhibits are referred to as Ex. ___.
4 5

The respondent did not have a copy of the receipt in his file (Tr. 102).

These accounting records were not reviewed by firm attorneys in the course of preparing legal work or billing clients (Tr. 56-58). Indeed, these documents were not seen by the respondent until Bar Counsel obtained them in the course of investigating this matter (Tr. 5658, 100).
6

It should be noted that there is no mention of attorneys fees in connection with the October 1992 contempt order in the respondents May 1993 letter to Bar Counsel (Ex. 10).
7

See n.4, supra.

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