In re Cox's Case11/26/2002
Original
Argued: September 18, 2002
The Supreme Court Committee on Professional Conduct (committee) issued a letter of reprimand to the respondent, Paul R. Cox, for violating Rules 1.4(a), 1.15(b) and 8.4(a) of the New Hampshire Rules of Professional Conduct. See Sup. Ct. R. 37(3)(c)(5). The respondent appealed the reprimand to this court and requested that the case be referred to a judicial referee. After conducting a de novo hearing, the Referee (Horton, J.) found by clear and convincing evidence that the respondent had violated Rules 1.4(a) and 8.4(a), but not Rule 1.15(b), and recommended that a letter of reprimand be issued. We adopt the referee's recommended sanction.
The complaint against the respondent arose from his successful representation of Richard Averill in a workers' compensation case against Dreher-Holloway. See Averill v. Dreher-Holloway, 134 N.H. 469 (1991). The case was resolved in late 1993, after many years of litigation. In January 1994, the respondent sent Averill a letter stating that "the Dreher-Holloway matter paid in full and nothing further [would] be due." However, in June 1995, Averill received a bill for $257.30, which puzzled him and prompted him to review the documents that the respondent had sent him throughout the course of the litigation.
The record reflects that numerous financial transactions took place during the representation. In December 1986, Averill sent the respondent a check, as requested, for $500 "on account." In 1992, Averill was awarded $215,494.91 in workers' compensation benefits. In June of that year, the respondent received a check from the insurance company for $9,774.67, representing interest owed to Averill on back benefits. He forwarded the check to Averill with a request that he endorse it and return it for allocation as follows: $5,000 to be held in escrow; $3,156.77 for reimbursement of expenses incurred between January 1, 1986, and June 17, 1992; and the remainder credited to Averill. The respondent sent Averill a check for $218.10 on July 22, 1992, and a check for $1,399.80 on July 23, 1992, accompanied by a letter stating that the two checks represented the funds remaining from the interest check.
On July 16, 1992, the superior court awarded the respondent $70,000 in fees and $3,010 in expenses for the period between April 14, 1987, and March 2, 1992. This was paid directly to the respondent by Dreher-Holloway's insurance carrier. In December 1993, the respondent negotiated a lump-sum settlement on behalf of Averill in the amount of $115,000, from which the respondent received $23,000 for attorney's fees.
Because the settlement agreement provided that Averill would pay all outstanding medical bills, he sent the respondent a check for $11,000. From these funds, the respondent sent $3,000 to Seacoast Mental Health Associates, which represented a negotiated balance of $4,000 less a $1,000 fee agreed upon by the provider for his collection services, and $7,500 to Dartmouth Hitchcock Psychiatric Association, which represented a negotiated balance of $9,900 less a $2,400 collection fee. On January 26, 1994, the respondent informed Averill of these payments in a letter, which was accompanied by copies of the correspondence to the medical providers and a memo explaining the allocation of the $11,000 as well as $5,193.24 that was in the "Trust Savings." The memo indicated that the respondent took the $500 remaining from Averill's $11,000 for "Services for collection on medical" and allocated the $5,193.24 as follows: $2,228.38 to attorney Jim Schulte, who had done legal work for Averill in another matter; $316.53 to the respondent for "Expenses"; and $2,648.33 to the respondent for
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