In re Michael L. Avery, Sr.
June 27, 2018
Member of the Bar of the District of Columbia Court of
Appeals (Bar Registration No. 447083)
Report and Recommendation of the Board on Professional
Responsibility (DDN-3 54-06)
Michael L. Avery, Sr., pro se.
L. Porter, Senior Assistant Disciplinary Counsel, with whom
Hamilton P. Fox, III, Disciplinary Counsel, and Jennifer P.
Lyman, Senior Assistant Disciplinary Counsel, were on the
brief, for respondent
Glickman, Thompson, and Easterly, Associate Judges.
Hoc Hearing Committee (the "Hearing Committee" or
the "Committee") recommended that respondent
Michael Avery be suspended for forty-five days for violations
of several District of Columbia Rules of Professional Conduct
in connection with his representation of a client, Mary
Brown, in 2004 and 2005. The Board on Professional
Responsibility (the "Board") recommended a
forty-five-day suspension stayed in favor of six months of
probation. Respondent states that he disagrees with some of
the Hearing Committee's and Board's findings, but he
does not ask us to overturn any, and he takes no exception to
the Board's recommended sanction. Disciplinary Counsel
does not take exception to a forty-five-day suspension
(although characterizing it as "particularly
lenient"), but argues that respondent should be required
to serve an actual suspension. Agreeing with the Board that
this case is "most similar to those in which sixty-day
suspensions were imposed" and acknowledging the
assessment by the D.C. Bar Practice Management Advisory
Service that respondent has made changes in his practice that
"make an occurrence like that which gave rise to the bar
complaint in 2004 very unlikely," but also concurring
with Disciplinary Counsel that an actual period of suspension
is warranted as a deterrent, we conclude that a sixty-day
suspension, with thirty days stayed in favor of a one-year
period of probation, is the appropriate sanction.
law firm had a high-volume personal injury practice. Ms.
Brown was injured in an automobile accident in November 2004.
On November 10, 2004, she met with Adam Katzen, who was the
only other attorney at the law firm, and thereafter signed a
retainer agreement to have respondent represent her in
connection with her claim for damages arising out of the
sent a letter to Ms. Brown dated January 25, 2005, advising
her of the insurance settlement process. Thereafter,
respondent did not himself handle Ms. Brown's claim but
instead assigned it to Dawn Seegars, a paralegal in his
office. On the same day, without waiting for further
documentation from Ms. Brown, Ms. Seegars wrote GEICO, the
responsible insurer, a "demand for settlement" and
included a "specials" (i.e., special damages)
package of medical bills totaling $2507. In March 2005, Ms.
Brown provided her employment records to the law firm in
support of her claim for lost wages, and in April 2005, Ms.
Brown signed a lien for medical services provided to her by
Kaiser Permanente and signed a release authorizing Kaiser to
send her records to respondent. In June 2005, Kaiser notified
respondent of the dollar amount of the lien. A month later,
in July of 2005, Ms. Seegars sent GEICO a second settlement
demand, indicating a "special damages" amount that
did not include the full amount of the Kaiser-Permanente lien
and omitting any claim for lost wages, hospital emergency
room expenses, and damages for pain and suffering. The
Hearing Committee found that no one at the law firm had
discussed the settlement demand with Ms. Brown, and that she
was not sent a copy of the letter.
28, 2005, a GEICO claims examiner called Ms. Seegars to
discuss settlement negotiations. During the phone call Ms.
Seegars made a demand for $10, 000, the claims examiner
countered at $8800, and Ms. Seegars immediately accepted that
settlement offer. The same day, the claims examiner sent
respondent written confirmation of the settlement of Ms.
Brown's claims along with a check for the agreed upon
settlement amount. Once the check arrived, respondent's
office manager endorsed Ms. Brown's name on the check
(pursuant to the power-of-attorney provisions in the retainer
agreement) and had it deposited in respondent's IOLTA
account. The Hearing Committee found that "neither
[r]espondent nor Ms. Seegars obtained Ms. Brown's consent
to the July 28, 2005 settlement offer before it was accepted
by Ms. Seegars." The Committee further found that Ms.
Brown did not receive notice of the settlement, despite her
many efforts to contact the law firm, until March 14, 2006,
when Mr. Katzen called her. The Committee found that when Ms.
Brown was informed of the settlement offer, she was
"very upset" and told Mr. Katzen that the
settlement amount was unacceptable, that she had never
approved the settlement, and that she wanted the settlement
check returned to GEICO and a lawsuit filed to recover her
damages from the accident.
Ms. Brown contacted the law firm on September 12, 2006, she
was told that the firm "was 'in the process' of
sending the check back." Respondent finally met with Ms.
Brown for the first time on September 19, 2006, at which time
he attempted to persuade her to accept the settlement amount.
She did not do so, and this time she instructed respondent
not to file a suit on her behalf. On September 25, 2006, she
filed a complaint against respondent with the Office of
Disciplinary Counsel. On October 10, 2006, respondent
returned the settlement amount to GEICO, explaining, as
reflected in telephone call notes made by a GEICO
representative, that the money was being returned because
"a paralegal (who no longer works for him) said M[s].
Brown had accepted the settlement when she had not.
Therefore[, ] Ms. Brown rejected the settlement and
instructed the att[orney] to send the money back."
Respondent told the Hearing Committee that this explanation
to GEICO was not a true explanation, and that he
"kn[e]w" (based on the policies of his office but
not based on personal knowledge) that the case would not have
been settled without authority from Ms. Brown.
Hearing Committee found by clear and convincing evidence that
respondent violated Rules 1.1 (a) (competence) and 1.1 (b)
(skill and care) by "delegat[ing] day-to-day
responsibility for Ms. Brown's case to his staff without
maintaining familiarity with the matter and [without] proper
oversight." The Committee found that respondent was
"disengaged" from the matter and "abdicated
responsibility for his representation of his client,"
thereby failing to discover that his office had not
"conduct[ed an] adequate investigation of Ms.
Brown's injuries," had not considered whether to
obtain medical reports "to determine the precise nature
of her injuries," had not conveyed GEICO settlement
offers to her, had not consulted with her before agreeing to