Informal Approach Leads To Reprimand

The Vermont Professional Responsibility Board has reprimanded and placed on probation an attorney for lack of diligence in a civil matter.

He thought the case was not worth a lot of effort

Respondent testified that he believed his client’s case had modest value, which he estimated to be approximately $20,000, and that the value of the case did not justify extensive formal discovery. Respondent stated that the case was not complex as his client only saw one healthcare provider for treatment of the accident-related injury. Respondent stated that he believed he had fully cooperated with Opposing Counsel by providing Opposing Counsel with the information Opposing Counsel needed to prepare a defense. Respondent, however, never made or formalized any agreement with Opposing Counsel to forego or limit formal discovery. Respondent assumed that he did not need to undertake the preparation of formal discovery responses so long as he gave Opposing Counsel the requested information. Respondent did not protect his client’s interests by entering into an agreement with Opposing Counsel about the discovery process. Respondent’s assumptions in this regard, and his subsequent conduct, put his client’s interests at great risk.

His discovery lapses led to problems

Respondent’s mishandling of the discovery issue had the potential for harm. With the limited information presented, the Hearing Panel cannot make a finding of actual harm, as the Court had not ruled on the question of lifting its discovery sanction when the parties settled the case. The potential for harm, however, was great. At the time the parties settled the case, the Court’s discovery sanction was in place, and the Court had not yet ruled on Respondent’s request  to lift the sanction. If the Court enforced the discovery sanction, Respondent would have been barred from calling his expert witness. Without an expert witness, Respondent may not have been able to prove an essential element of the case (i.e., causation), putting the entire case at risk of dismissal.

 But

Respondent took remedial measures to address his errors, and abate the harm his client incurred. Respondent contributed his own funds to his client’s settlement, waived his right to be paid a fee, and waived his right to reimbursement of out-of-pocket costs. Respondent also waived attorney’s fees owed by his client’s spouse, incurred in a separate matter that Respondent handled during the uninsured motorist litigation. Respondent testified that he took these remedial measures as there was uncertainty about whether the Court would permit Respondent to call his client’s chiropractor as an expert witness at trial. By contributing to the settlement and waiving his right to fees and costs, Respondent believes his client received what his client’s case was actually worth, approximately $20,000.

The board weighed aggravating and mitigating factors. (Mike Frisch)