In re Fenlon

775 S.W.2d 134, 1989 Mo. LEXIS 79, 1989 WL 86093
CourtSupreme Court of Missouri
DecidedAugust 1, 1989
DocketNo. 70265
StatusPublished
Cited by3 cases

This text of 775 S.W.2d 134 (In re Fenlon) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Fenlon, 775 S.W.2d 134, 1989 Mo. LEXIS 79, 1989 WL 86093 (Mo. 1989).

Opinion

COVINGTON, Judge.

The Bar Committee of the Twenty-First Judicial Circuit of the State of Missouri instituted disciplinary proceedings against respondent Joseph A. Fenlon, charging him with several counts of professional misconduct arising from his representation of Mrs. Darlene Hutchison in a personal injury claim. After a plenary hearing, appointed Special Master, the Honorable Jack 0. Edwards, found that respondent had violated Rules 1.4, 1.15(a) and 1.15(b) of Rule 4 (Rules of Professional Conduct), resulting in a violation of Rule 8.4(a) of Rule 4, ⅛ that respondent failed to keep Mrs. Hutchi-son informed about the status of her claim, including its settlement; failed to notify Mrs. Hutchison of the receipt of settlement monies or promptly deliver such monies to her; and failed to hold Mrs. Hutchison’s funds in a separate account, commingling the funds with his own. The Master recommended that respondent be disbarred and that a motion for reinstatement not be entertained for two years from the date of disbarment. After independent review of the record, this Court agrees with the Master’s findings and orders the respondent disbarred.

THE FACTS

On September 4, 1985, Mrs. Hutchison engaged respondent to represent her in connection with injuries she sustained in a car accident. Respondent had previously represented Mrs. Hutchison in connection with a worker’s compensation case and, on occasion, Mrs. Hutchison referred other clients to respondent. At the September 4th meeting, Mrs. Hutchison and her husband signed a contingent fee agreement and a medical authorization allowing respondent to obtain Mrs. Hutchison’s medical treatment information from the appropriate health care providers.

Although Mrs. Hutchison received emergency treatment at St. Mary’s Health Center immediately after the accident, she did not have a physician to provide further treatment. Respondent consequently directed Mrs. Hutchison to visit a Dr. Chand, a neurologist and client of respondent. Since Mrs. Hutchison did not have insurance, respondent also agreed to guarantee the payment of any treatment costs incurred by Mrs. Hutchison at St. John’s Mercy Medical Center. Dr. Chand subsequently sent Mrs. Hutchison to St. John’s on several occasions for physical therapy and X-rays. Mrs. Hutchison was eventually released from treatment as fully recovered in November, 1985.

On or about January 15, 1986, Mrs. Hutchison went to respondent’s office to discuss her injury claim and to gather information about a possible bankruptcy for her husband. At that time, respondent stated that the insurance company had made an offer of approximately $4500.00 on the injury claim, but that respondent turned it down because he knew that they could obtain a greater amount.

Through February of 1986, Mrs. Hutchi-son made several attempts to reach respondent by telephone to check the status of the claim. Often times, respondent was not in the office, but on occasions when he was available, he told Mrs. Hutchison either that the insurance company was not ready to settle or that he had not been able to contact the necessary person. In one such conversation, however, respondent reported the insurance company had raised the offer to $7000.00. Mrs. Hutchison authorized respondent authority to settle for that amount.

Without Mrs. Hutchison’s knowledge, respondent settled the case on January 8, 1986, for $8,674.45 and received a settlement check in that amount from the insurance company on January 15, 1986, along with a release of claims. Respondent signed Mrs. Hutchison’s name to both documents, returned the release to the insurance company, and deposited the check in his regular office account, even though he also maintained a trust account.

By early March, 1986, Mr. and Mrs. Hutchison became frustrated about the apparent delay in settling the claim. On March 7, 1986, Mr. Hutchison telephoned the insurance company to inquire about the claim. The company informed Mr. Hutchi-son that it settled in January. Mr. Hutehi-[137]*137son requested, and ultimately received, a copy of the check and release that the company had sent previously to respondent.

At Mr. Hutchison’s behest, Mrs. Hutchi-son immediately called respondent and inquired whether respondent had heard anything from the insurance company. Respondent replied in the negative, but added that he was scheduled to speak with a representative of the company within the next few days and would call as soon as he heard something. Mrs. Hutchison did not reveal to respondent that she had discovered that the matter had been settled. Respondent did not report back to Mrs. Hutchison. Neither of the Hutchisons spoke with respondent after the March 7, 1986, telephone conversation.

Mrs. Hutchison described the developments to a friend who spoke to her own attorney and inquired whether anything could be done to hasten the release of the money. The attorney telephoned respondent and informed him that Mrs. Hutchison wanted her money. Respondent and the attorney discussed the amount that Mrs. Hutchison should have received from the settlement. As a result of this conversation, on March 28, 1986, respondent sent Mrs. Hutchison a check in the amount of $3,252.00.

Respondent never advised Mrs. Hutchi-son as to how he calculated the amount she received or how he distributed the total settlement. The evidence established that $1,678.10 of the settlement paid hospital bills at St. Mary’s Health Center and St. John’s Mercy Medical Center. The bills were not paid, however, until April 1, 1986. Because of the delay in payment, Mrs. Hutchison was denied access to the family planning clinic at St. John’s, and, as a result, Mrs. Hutchison alleges that she had an unplanned pregnancy.

Respondent claims that Dr. Chand’s bill was also paid from the settlement money by allowing Dr. Chand a $757.00 credit on a preexisting $1,000.00 account receivable owed to respondent. Respondent presented no documents indicating a payment or credit to Dr. Chand, however, nor any proof of an account receivable against which the settlement money could be applied.

Finally, respondent also deducted his contingent fee in the amount of $2,891.48 from the settlement.

The check which Mrs. Hutchison ultimately received was drawn on respondent’s trust account and not the office account into which respondent initially deposited the settlement check. From January 3, 1986, until March 26, 1986, the trust account lacked sufficient funds to pay the amount due Mrs. Hutchison. A deposit was made to the trust account on March 26, 1986, for the purpose of covering the check to Mrs. Hutchison. For substantial periods of time from January 15, 1986 (the date the settlement check was deposited) until March 28, 1986 (the date of the check to Mrs. Hutchison), the balance in the office account was insufficient to cover the amount owed to Mrs. Hutchison.

On March 18, 1986, Mrs. Hutchison wrote a letter of complaint to the Bar Committee. Mrs. Hutchison also instituted a civil suit against respondent based on his actions in handling her personal injury settlement.

Respondent challenges the factual findings and conclusions of the Master. Respondent contends that he informed Mrs. Hutchison about the settlement at the January 15,1986, meeting and, although he did not tell her the terms or amount of the settlement, she did not inquire. Respondent further claims that he told Mrs.

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Cite This Page — Counsel Stack

Bluebook (online)
775 S.W.2d 134, 1989 Mo. LEXIS 79, 1989 WL 86093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-fenlon-mo-1989.