In re O'Meara

2013 VT 17, 67 A.3d 280, 193 Vt. 671, 2013 WL 1010491, 2013 Vt. LEXIS 16
CourtSupreme Court of Vermont
DecidedMarch 6, 2013
DocketNo. 12-355
StatusPublished
Cited by1 cases

This text of 2013 VT 17 (In re O'Meara) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re O'Meara, 2013 VT 17, 67 A.3d 280, 193 Vt. 671, 2013 WL 1010491, 2013 Vt. LEXIS 16 (Vt. 2013).

Opinion

¶ 1. This is a reciprocal-discipline petition concerning respondent Timothy A. O’Meara, Esq., an attorney admitted to practice in Vermont. The record before the Court may be summarized as follows.

¶ 2. In October 2012, disciplinary counsel for the Professional Responsibility Board filed a notice that respondent had been disbarred from the practice of law in New Hampshire. The notice included a certified copy of the New Hampshire Supreme Court’s disbarment decision, is[672]*672sued on September 18, 2012. See O’Meara’s Case, 54 A.3d 762 (N.H. 2012). Pursuant to Administrative Order 9, Rule 20.B, we issued an order directing respondent to inform the Court within thirty days of any claim that imposition of the identical discipline in this state would be unwarranted and the reasons therefore, based on the grounds set forth in Rule 20.D. We subsequently granted respondent’s unopposed motion to extend time, and he filed an “Answer to Notification of Discipline” on January 16, 2013. Disciplinary counsel has submitted a written response.

¶ 3. The rules governing attorney discipline provide that, when a lawyer admitted to practice in Vermont has been disciplined in another jurisdiction, the Court

shall impose the identical discipline unless the Court finds that upon the face of the record from which the discipline is predicated it clearly appears, or disciplinary counsel or the lawyer demonstrates, that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the Court would result in grave injustice; or
(4) The misconduct established warrants substantially different discipline in this state.

A.O. 9, Rule 20.D(l)-(4). Except where these grounds exist, “a final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this jurisdiction.” Id. Rule 20.E.

¶ 4. Respondent contends that imposition of the identical discipline of disbarment in Vermont would be unwarranted for the reasons set forth in Rule 20.D. To address the claim requires a brief summary of the New Hampshire disciplinary proceeding. The case arose from charges of misconduct involving respondent’s representation of a forty-seven-year-old New Hampshire woman who was involved in an automobile accident in Pennsylvania that left her a quadriplegic. The disciplinary charges were heard by a hearing panel of the New Hampshire Supreme Court’s Professional Conduct Committee. Following a five-day evidentiary hearing, the panel issued an exhaustive 40-page report containing extensive findings and conclusions.

¶ 5. In brief, the findings disclosed that respondent was retained by the victim and her husband in May 2005 pursuant to a signed one-page contingent-fee agreement providing that respondent would be paid one-third of the “gross amount recovered” in the ease. O’Meara’s Case, 54 A.3d at 764. Within the next several months, respondent filed a personal injury suit in federal district court in Pennsylvania, discovered that the defendant, a paving company, had insurance coverage totaling $11 million, and learned from the company’s attorney that the company did not contest liability.

¶ 6. In December 2005, respondent sent a letter to opposing counsel stating, in part, that “this is a policy limits case” and that if the limits were not paid his clients had “instructed [him] to proceed to trial.” Id. However, respondent was not, in fact, authorized to settle for the policy limits, and he sent the letter “knowing that he lacked this authority.” Id. On January 13, 2006, respondent told the company’s attorney that his clients would settle the case for $11 million and later discussed [673]*673the matter with the victim’s husband, who informed him that he was not authorized to settle for that amount. Respondent did not, however, immediately inform opposing counsel that he lacked the authority to settle.

¶ 7. On January 24, 2006, when opposing counsel agreed to the $11 million settlement offer, respondent rejected the settlement. Respondent then sent a letter to counsel, which he back-dated to January 20, 2006 (four days earlier), stating that his “clients [had] withdrawn their settlement demand for the policy limits.” Id. at 765. One week later, the company filed a motion to enforce the settlement agreement. Respondent argued in response that he had not made an offer to settle but had merely solicited an offer from the insurer, and conceded that he lacked the authority to settle the case for $11 million.

¶ 8. In the meantime, respondent’s clients informed respondent of their concern that he had offered to settle for the policy limits when a certified life planner had opined that the cost to sustain the victim over her lifetime was as much as $23 million. The victim’s husband suggested that respondent reduce his fee if they received only $11 million. Id.

¶ 9. On February 25, 2006, respondent met with his clients to prepare for a federal mediation on February 27. The victim was scheduled for surgery within a few days which the family feared she might not survive. A heated discussion ensued as to whether respondent would reduce his fee if they had to settle for the policy limits. When his clients asked respondent what would happen if they fired him, he responded that litigation “gets ugly” and that he would sue them for his one-third contingency and “would win.” Id. They ultimately agreed to enter into a new agreement providing that respondent’s fee was “to be negotiated,” and this was handwritten onto the one-page fee agreement and initialed by respondent and the victim’s husband. Id. at 766.

¶ 10. The next day, however, respondent faxed the victim’s husband a memorandum purporting to confirm their agreement but providing instead for a fee of $2 million if the settlement did not exceed $11 million. At the federal mediation on February 27, 2006, respondent told his clients that he would not proceed unless he received a fee of at least $2 million, and the victim’s husband signed the memorandum agreement for the $2 million fee believing that respondent would otherwise refuse to represent them. Following the mediation, respondent’s clients terminated his services and accepted a settlement from the company of $11.5 million. Id.

¶ 11. A fee arbitration hearing followed in which respondent testified that his clients had agreed to pay him a revised fee of $2 million. Every other witness testified to the contrary, and the hearing panel found that respondent presented false testimony at the arbitration hearing on this point. Ultimately the arbitrator awarded respondent a fee of $1,587,000. Id.

¶ 12. Based on the foregoing, the hearing panel found by clear and convincing evidence that respondent had violated several provisions of the New Hampshire Rules of Professional Conduct.

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Cite This Page — Counsel Stack

Bluebook (online)
2013 VT 17, 67 A.3d 280, 193 Vt. 671, 2013 WL 1010491, 2013 Vt. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-omeara-vt-2013.