O'Meara's Case

54 A.3d 762, 164 N.H. 170
CourtSupreme Court of New Hampshire
DecidedSeptember 18, 2012
DocketNo. LD-2011-002
StatusPublished
Cited by5 cases

This text of 54 A.3d 762 (O'Meara'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
O'Meara's Case, 54 A.3d 762, 164 N.H. 170 (N.H. 2012).

Opinion

Conboy, J.

On February 14, 2011, the Supreme Court Professional Conduct Committee (PCC) filed a petition recommending that the respondent, Timothy O’Meara, be suspended from the practice of law for three years. We order him disbarred.

I. Background

A. O’Meara’s Conduct

The following facts either were found by the PCC or are supported by the record. The conduct code violations at issue stem from O’Meara’s representation of Anita and James Conant in a personal injury lawsuit. On May 19, 2005, Ms. Conant was involved in a car accident in Pennsylvania. She was stopped at a red light when her car was rear-ended by a paving truck driven by an employee of its owner, Lyons & Hohl Paving, Inc. She suffered a severe spinal cord injury and is now a ventilator-dependent quadriplegic. At the time of the accident, she was forty-seven years old. She and her husband lived in Hampton with their three adult children. Mr. Conant owned his own electrical business, and Ms. Conant was the postmaster in New Castle.

Immediately after the accident, Ms. Conant was intubated for respiratory failure and flown by helicopter to the hospital at the University of Pennsylvania, where she remained for twenty-three days in critical condition. While in Pennsylvania, she underwent several surgeries to stabilize her condition, including a cervical spinal fusion to insert steel rods into her spine, a tracheotomy to insert a permanent tracheal ventilator upon which she is dependent to breathe, and the installation of a feeding tube.

Mr. Conant flew home to New Hampshire five days after the accident. Before flying back to Pennsylvania on May 25, he met with O’Meara at a fast food restaurant near the airport to discuss the possibility of O’Meara representing the Conants in a personal injury lawsuit. As a result of the meeting, Mr. Conant retained O’Meara and signed a one-page contingent [173]*173fee agreement, which provided that O’Meara would be paid 33.33% of the “gross amount recovered” in the case, and that the Conants would be responsible for all expenses.

On or about June 3, approximately ten days after the Conants retained him, O’Meara learned that the paving company had insurance coverage totaling $11 million. The insurance company retained Robert S. Davis, of Philadelphia, Pennsylvania, to represent the paving company and its employee.

On November 3, 2005, O’Meara filed a personal injury lawsuit on behalf of the Conants in a Pennsylvania federal court. On December 1,2005, Davis informed O’Meara that the insurer did not contest liability.

O’Meara sent Davis a letter dated December 8,2005, stating, in pertinent part: “As I have indicated on numerous occasions previously, this is a policy limits case. If said limits are not paid, the Conant family has instructed me to proceed to trial.” However, O’Meara was not authorized to settle the case for the insurance policy limits, and he sent the December 8 letter knowing that he lacked this authority.

On January 13,2006, O’Meara and Davis discussed settlement. O’Meara told Davis that the Conants would release the paving company and its employee from liability in exchange for receiving the $11 million policy limits, less any advance payments. That day, O’Meara spoke with Mr. Conant who confirmed that O’Meara was not authorized to settle the case for $11 million, even if the insurer offered this amount. Between January 13 and January 24, O’Meara did not inform Davis that he lacked the authority to settle the case for $11 million or that, to the extent he ever had such authority, it had been revoked.

On January 24, O’Meara and Davis again discussed settlement. Davis agreed to settle the case for $11 million, but O’Meara told Davis that the Conants would not settle for this amount. Davis responded that he believed the parties had an enforceable settlement agreement because, on January 13, O’Meara had offered to settle for $11 million, and, on January 24, Davis had agreed to do so.

On January 24, Davis sent O’Meara a letter confirming his understanding of the parties’ negotiations to date: “I write to confirm my telephone acceptance [today]... on behalf of the defendants and their insurer, of the plaintiffs’ . . . offer to settle all aspects of this case for . . . $11,000,000. Subsequent to the above referenced acceptance of the plaintiffs’ settlement offer you stated that the plaintiffs now withdraw the offer.”

Also on January 24, O’Meara sent a letter to Davis, which he dated January 20, four days earlier, stating, in pertinent part: “As we discussed on the phone this morning, this correspondence should serve to inform you that my clients have withdrawn their settlement demand for the policy [174]*174limits of $11,000,000.” Upon receipt of O’Meara’s letter dated January 20, Davis wrote O’Meara a letter stating, “I trust that the date used on the [January 20] letter was simply the result of inadvertence.”

In a subsequent discussion, Mr. Conant expressed dismay that O’Meara had stated in his January 24 letter (dated January 20) that the Conants “withdrew” their demand to settle the case for $11 million. Mr. Conant told O’Meara that he did not understand how the Conants could have withdrawn a settlement demand they had never made. O’Meara told Mr. Conant that Davis had simply misconstrued their conversations.

On or about January 25, 2006, O’Meara and two financial planners met with the Conants to discuss settlement. Mr. Conant expressed concern that O’Meara had communicated a demand to settle the case for $11 million even though he had no authority to do so and even though $11 million was insufficient to support Ms. Conant’s future needs. On December 26,2005, a certified life planner had opined that the total cost to sustain Ms. Conant for the rest of her life was over $15 million. The planner revised his estimate on January 26,2006, to more than $23 million. Because O’Meara had erred by demanding to settle for $11 million, Mr. Conant suggested that he reduce his fee. O’Meara agreed to consider doing so and, ultimately suggested reducing his fee by $166,000.

On January 31, the insurer filed a motion to enforce the alleged January 24 settlement agreement. O’Meara objected to the motion, arguing that his December 8 demand was not an “offer” to be “accepted” by the insurer, but rather a solicitation of an offer from the insurer, and that on January 24, the Conants had rejected the insurer’s offer to settle the case for $11 million. O’Meara conceded that the Conants “had not authorized [him]” to settle the case for $11 million.

The dispute between the insurer and the Conants was scheduled for mediation in federal court on February 27, only days before Ms. Conant was scheduled for surgery that her family feared she would not survive. O’Meara met with Mr. Conant and the other members of the Conant family on February 25 to prepare for the mediation. At some point, Mr. Conant shared with O’Meara that the family believed that, to meet Ms. Conant’s projected needs, $12.5 million needed to be placed in an annuity.

Mr. Conant asked O’Meara what he thought his fee should be in the event the case settled for the policy limits of $11 million. O’Meara said that he would be willing to reduce his $3.67 million potential fee by $500,000 if this occurred, angering Mr. Conant. Mr. Conant’s brother, Craig, said that he had been informed that a $2 million fee was reasonable in a case such as this one.

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Cite This Page — Counsel Stack

Bluebook (online)
54 A.3d 762, 164 N.H. 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/omearas-case-nh-2012.