“Lip Service Does Not Translate Into Legal Service”

An Ad Hoc District of Columbia Hearing Committee recommends a 90-day suspension for an attorney of 40 years experience who seriously mishandled a civil claim and did not cover himself with glory in his defense to the disciplinary charges

Romeo Morgan, the owner of Morgan’s Seafood on Georgia Avenue, N.W., retained Respondent to represent him in a civil case against two officers of the Washington Metropolitan Transportation Authority (“WMATA”), WMATA itself, and any other appropriate entity, for injuries that resulted from an incident that occurred outside his restaurant. Respondent agreed to represent his interests. Respondent did not file suit within either the one-year statute of limitations for potential intentional torts or within the three-year statute of limitations for all other forms of tortious conduct. Mr. Morgan was a client who frequently called and spoke to Respondent not only about his case but also about other unrelated matters. Respondent assured Mr. Morgan that his matter was progressing properly. Respondent led Mr. Morgan to believe that a lawsuit had been filed by Respondent on his behalf and that settlement offers had been made by WMATA. At some point, Mr. Morgan asked an attorney who represented him in another matter, Jennifer Bezdicek, Esquire, to check on the case. Ms. Bezdicek learned that no suit had ever been filed by Respondent and that the three-year statute of limitations had expired. Further, she learned that there had been no offer of settlement from WMATA. Instead, Respondent had given the impression that Mr. Morgan could have a sum of money from WMATA, in an attempt by Respondent to avoid responsibility for failing to actually seek recovery from WMATA. 

The committee sets out at length the bumpy history of the representation. Respondent did not handle the criminal case brought against the client, which resulted in a not guilty verdict.

The client shopped the WMATA case to several lawyers (including respondent for a period of time) and retained him one day before the statute for intentional torts ran.

The disciplinary case was hotly contested with the attorney denying any misconduct.

Adverse findings.

At the hearing, Respondent attempted to deceive the Hearing Committee concerning his conversations with Mr. Morgan. Tr. 541-546 (Respondent). Respondent was unwilling to admit that he had specifically told Mr. Morgan at any time that he was advancing his legal interests. Id. Respondent also claimed, incredibly, that in his numerous phone conversations with Mr. Morgan over a two-year period, they never discussed the WMATA case—the case for which Mr. Morgan had hired him—and that his conversations with Mr. Morgan never caused Respondent to review the case file.

He dealt with the problem by deception

 In the summer of 2012, after Respondent knew that the statute of limitations had expired, he called Mr. Morgan and told him that WMATA wanted to settle the case and had offered $10,000. Tr. 57 (Morgan). Respondent was seeking to create the impression that the money was a settlement from WMATA. The offer was an attempt to deflect responsibility for blame rather than an offer of restitution. 

The hearing committee sustained most of the charged violations, rejecting only charges of intentional misconduct.

Disciplinary Counsel has proven by clear and convincing evidence that Respondent “dropped the ball” by allowing the statute of limitations to expire without filing suit or informing his client of an intent not to do so. In fact, Respondent didn’t just “drop the ball,” he never even got in the game…

Respondent’s effort to blame his secretary for misfiling Mr. Morgan’s file is not a defense. An attorney is responsible for his client’s case despite any errors by subordinates…

Respondent cannot excuse his failures by blaming his secretary for several reasons: 1) he had the case for two years before the statute of limitations for negligence actions expired; 2) during that time he was in frequent contact with Mr. Morgan; 3) Respondent never put any notes, information, or evidence in the file during that time; and 4) the whereabouts of Mr. Morgan’s file were easily discoverable. It should be noted that Respondent discovered, in December 2011, without any particular difficulty, that the case had been misfiled. All that it required was the desire to look for it. Respondent was not the victim of a set of bad circumstances. He did nothing during a time when his basic duties as a lawyer required him to act. Returning Mr. Morgan’s phone calls was not enough. Lip service does not translate into legal service.

Dishonesty

For a period of almost three years, Respondent misled Mr. Morgan into thinking that he was vigorously pursuing Mr. Morgan’s cause of action, even though he was not pursuing the claim. Respondent ignored the case despite a steady stream of questions from Mr. Morgan. However, even more disturbing than Respondent’s placating “we’re on top of it” pronouncements was what occurred after December 2011. At that point, Respondent knew that Mr. Morgan’s case was dead, but he still kept up the pretense of representation. Respondent had every opportunity to tell Mr. Morgan the truth, but he chose not to do so. During his testimony, Respondent did not explain why he kept silent. We can only infer that Respondent was trying to limit the amount of damage done, not to Mr. Morgan, but rather to himself. Proof of Respondent’s continuing dishonesty can be found in the fact that Mr. Morgan (a “high maintenance client”) continued to have discussions with Respondent even after the statute of limitations expired. Had Respondent been honest, Mr. Morgan would have known something in December 2011. 

Prior record

Respondent received an informal admonition for threatening an opposing party with criminal prosecution in violation of DR 7-105(A) in 1987. Respondent testified that he had no previous disciplinary record. He then tried to backtrack and say that it was a “minimal” history. 

On the respondent’s defense

Certainly, Respondent has the right to put the evidence of Disciplinary Counsel to the test on its burden of proof. Such action is not counted against Respondent in any way. However, what is counted against Respondent is his attitude toward his misconduct. First, while blaming his secretary for misfiling, he “acknowledges” that the case was his responsibility. What Respondent fails to realize is that it was not the filing of the case folder in the wrong drawer that is the issue. Rather, it is everything he did and did not do after the case jacket was sent to the “Never Never Land” of the criminal filing drawer. He sat on a case doing absolutely nothing while assuring Mr. Morgan that he was looking after his interests. He did not even know where the file was. What happened is Respondent’s fault and not his secretary’s. After the discovery of his failure to file the case before the lapse of the statute of limitations, Respondent played a coy game with Mr. Morgan while he tried to figure a way to limit his own liability. When discovered by another attorney, he continued to try to bluff his way out without facing responsibility. He insulted the client to Ms. Bezdicek by saying that all he (Mr. Morgan) was interested in was money. He gratuitously insulted Mr. Morgan by referring to him as “the Mayor of Georgia Avenue.” This was clearly an insult implying that Mr. Morgan had an inflated sense of his own importance. It is uncertain what would have happened to Mr. Morgan if he had not had Ms. Bezdicek follow up on the case. It was her diligence alone that finally brought Respondent’s conduct to light. Respondent has never truly acknowledged his misconduct in any way.

The case is In re Jay Weiss and can be found at this link. (Mike Frisch)