Cox's Case

813 A.2d 429, 148 N.H. 559, 2002 N.H. LEXIS 170
CourtSupreme Court of New Hampshire
DecidedNovember 26, 2002
DocketNo. LD-99-002
StatusPublished
Cited by1 cases

This text of 813 A.2d 429 (Cox's Case) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cox's Case, 813 A.2d 429, 148 N.H. 559, 2002 N.H. LEXIS 170 (N.H. 2002).

Opinion

Broderick, J.

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 [560]*560Dreher-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 [was] 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 DreherHolloway’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 [561]*561for “Collection on medical.” Although it was not explicitly spelled out in the memo, the amounts retained for “collection on medical” ($3,148.33) represented the collection fees that the respondent had negotiated with Seacoast Mental Health Associates and Dartmouth Hitchcock Psychiatric Association.

On September 6,1996, after completing his file review, Averill called the respondent’s office to resolve some billing questions. The respondent was not available to speak to him at that time. In a second phone conversation with the respondent’s secretary on September 18, Averill was asked to send a list of specific items of inquiry to the respondent. Averill then requested a meeting with the respondent, which was scheduled for October 2. Averill arrived at the meeting without a well-defined set of questions but made general complaints about the billing procedures, specifically regarding the $500 retainer sent to the respondent early in the case, the disposition of the $9,774.67 interest payment, the payment of his medical bills and the fees the respondent charged for this service. The respondent had no advance notice of these inquiries and was unable to provide specific answers. When their three-hour meeting concluded, however, he agreed to review the file and get back to Averill within a month.

On October 28, Averill wrote to the respondent, stating, “I realize that I am somewhat early in my request for some kind of answer to my questions to you on Oct. 2, but I am anxious to get [this] over with. If you can provide any help I would appreciate it very much.” On November 6, 1996, the respondent telephoned Averill and told him that he had reviewed the file and had found nothing wrong. He did, however, offer to return $2,648.33, which Averill rejected. On November 10, Averill wrote to the respondent specifically requesting an accounting for the funds held by the respondent from the 1992 interest check. The respondent did not respond.

In late November or early December 1996, Averill retained counsel to pursue his inquiries against the respondent. By letter dated December 3, 1996, Averill’s attorney informed the respondent of his involvement. In the letter, he also proposed a settlement and indicated that if a settlement could not be reached, litigation would follow. In subsequent letters, he continued to request financial information on behalf of Averill, including “office records concerning [Averill’s trust account], a copy of all deposit slips and checks written against this account and a copy of all bank statements reflecting deposits and withdrawals from this account.” On January 29, 1997, he prepared a writ of summons naming the respondent and the respondent’s law firm as defendants. He delayed filing the writ, however, pending the exploration of mediation and coverage by the [562]*562respondent’s malpractice carrier. The writ was filed in superior court in May 1997. On June 3, the respondent’s counsel filed an appearance. Averill’s counsel then sought production of his client’s file and an accounting of all trust accounts involving Averill, to which the respondent successfully objected on the basis that the requests were overbroad. Although the respondent provided some information and made conditional offers to allow counsel to examine the file, he did not make the entire original file available until this court’s decision in Averill v. Cox, 145 N.H. 328 (2000).

Upon reviewing the file, Averill’s counsel concluded that the $3,156.77 retained by the respondent from the interest cheek in June 1992 and the $3,010 awarded by the superior court in July 1992 represented double expense credits. The respondent acknowledged this error and reimbursed Averill. The file review by counsel also revealed that the payments made to Seacoast Mental Health Associates and Dartmouth Hitchcock Psychiatric Association in January 1994 were not in fact due.

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Bluebook (online)
813 A.2d 429, 148 N.H. 559, 2002 N.H. LEXIS 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coxs-case-nh-2002.