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In re Scanio

March 29, 2007


The opinion of the court was delivered by: Fisher, Associate Judge

On Report and Recommendation of the Board on Professional Responsibility (BDN 354-01)

Argued January 16, 2007

Before REID and FISHER, Associate Judges, and KING, Senior Judge.

The principal question presented by this attorney disciplinary case is whether respondent acted dishonestly while representing himself in settlement negotiations with an insurance company. We agree with the Board on Professional Responsibility and Bar Counsel that respondent's conduct was "dishonest," but we do not adopt the sanction of public censure recommended by the Board. We conclude, rather, that a suspension of thirtydays is warranted.

I. The Factual Background

Respondent's vehicle was rear-ended by another automobile on September 21, 2000. He sought treatment at a hospital and missed the next day of work. Soon after the accident, Melanie King, a claims adjuster for GEICO, the offending driver's insurance company, called respondent. Respondent told Ms. King that he was a lawyer and a partner at the firm of Spriggs & Hollingsworth. Over the next several months respondent and Ms. King exchanged information about his economic loss, his medical bills, and property damage to his vehicle.

According to Ms. King's notes, respondent informed her during a telephone conversation early in their dealings that "[h]e doesn't get paid hourly, he gets paid off his litigation." On January 16, 2001, respondent sent Ms. King a letter and chart describing his "economic loss." He explained that he had calculated "lost income," which he also described as "forgone income," "by multiplying my hourly billable rate" of $295 by "the time lost directly attributable to the injury." As of December 29, 2000, respondent indicated, he had suffered a total "economic loss" of $16,697.00. In a follow-up letter dated February 16, 2001, respondent notified Ms. King that his "hourly billable rate" had increased to $325 per hour on January 1, 2001. He attached an updated chart, which showed his total "economic loss" through February 8, 2001, as $23,034.50. At that point respondent calculated that he had missed approximately seventy-six hours of work recovering from the collision and attending appointments with an orthopedic specialist and a physical therapist.

After requesting and receiving respondent's tax records, Ms. King called the law firm where he worked as a non-equity partner. The Human Resources Manager told Ms. King that respondent was a salaried employee who was paid roughly $122 per hour. Ms. King also learned that respondent had not been docked for sick leave or any other missed time. Indeed, this telephone conversation between the Human Resources Manager and Ms. King marked the first time the firm knew of respondent's car accident.

After learning that Ms. King had spoken with his firm, respondent tried to "clarify" the basis for his claim of lost income. He wrote to Ms. King on March 26, 2001 (and faxed the letter to her on March 27), explaining that billable hours were the "goods [and] services" he had to "sell" and that, "[a]s a result of the injury that reduced my billable hours, the income of my Firm of which I am a partner was reduced and my compensation was adversely impacted." Respondent claimed that the loss in billable hours caused his bonus to decrease from $30,000 in 1999 to $25,000 in 2000.

Upon its request, Ms. King sent the firm a copy of her correspondence with respondent.In a memorandum dated April 2, 2001, the equity partners informed respondent that, after reviewing the "unambiguous" correspondence provided by GEICO, they had concluded that his conduct was "incompatible with the ethics and values of this Firm." The partners explained that respondent's January 16 and February 16 letters, which included the charts calculating his "economic loss," "suggest[ ] that your personal loss of income equals the loss of revenue to the Firm. Your representations to GEICO do not appear justifiable. You are not entitled to any portion of the Firm's billings as you are a salaried employee of the firm . . . ." Referring to respondent's March 26, 2001, letter to Ms. King, the memorandum stated, "[y]our letter falsely implies that your position at the Firm entitled you to some share of the revenues or profits of the Firm." The memorandum suggested that respondent had modified his claim to GEICO in his March 26 letter in an effort to "circumvent" the information given to Ms. King by the firm's human resources department. "Your statements to GEICO appear to be misleading and represent the kind of sharp practice that is unacceptable behavior for any attorney in this Firm." Finally, the equity partners announced that they were terminating respondent's employment subject to further review based on any written explanation respondent could provide by eleven o'clock the next morning.

Respondent called Ms. King the next day, April 3, and requested that she send him a letter confirming that there had been a miscommunication regarding his claim for lost income. According to respondent, he explained to Ms. King that he was not claiming a loss of approximately $23,000, and only discussed billable hours with her so that she could consider that in the context of the entire negotiation. Ms. King refused to send respondent such a letter because she did not think there had in fact been a miscommunication.

Respondent also wrote to his firm on April 3, denying that he made a specific claim for $23,000 of lost income and explaining that numerous times he discussed a more "speculative" economic loss with Ms. King -- whether he could somehow be compensated for lost time. Respondent asserted that he "clearly explained to [Ms. King] that as a salaried employee [he] was not going to have any [lost wages.]" He understood Ms. King to be requesting the information about his lost time and his hourly rate to help her "determine whether [his] 'speculative' concept had a positive value or not; i.e., the information was merely illustrative. [He] did not understand this to be the basis for a claim of lost income."

The next day the firm informed respondent that it would not reverse its decision to terminate his employment. The firm subsequently forwarded the correspondence among respondent, the firm, and Ms. King to the Office of Bar Counsel in compliance with its ...

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