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In re Comish12/13/2004
sign respondent's name as notary on a document that was placed into the public record. With respect to Counts I and II, the committee found that respondent violated Rules 5.3 and 5.5(b) by failing to properly supervise Mr. Matthews and by assisting him in conduct that constitutes the unauthorized practice of law. The committee rejected respondent's assertion that he adequately supervised Mr. Matthews. To the contrary, the committee found overwhelming evidence that Mr. Matthews acted without supervision in the negotiation with Mr. Caffey of the Logan Farms dispute, and with Ms. Chaffers in the negotiation of the personal injury claim of Mr. Ihsan. When respondent was advised that a misunderstanding existed regarding Mr. Matthews' role as a paralegal, respondent took no affirmative steps to correct the misunderstanding other than to advise Mr. Matthews to take care of it. The committee concluded that if respondent had been adequately supervising Mr. Matthews, he would have seen the continuous references to Mr. Matthews as an attorney in the communications from various parties and would have taken steps to correct the problem. Respondent also failed to institute any procedure to prevent the misunderstanding from occurring with future clients.
Turning to Count III, the committee determined that respondent violated Rules 1.1, 1.3, and 1.4 in his representation of Mrs. Collins. Respondent failed to properly date the will and failed to advise Mrs. Collins to seek other counsel to determine what courses of action were available to her. Furthermore, respondent failed to advise Mrs. Collins of the possibility that she could file a civil action against him. Instead, respondent attempted to probate an invalid will, failed to diligently proceed with Mrs. Collins' case, and failed to find any way to protect her interest or assert any rights she may have had in the matter.
In considering the issue of an appropriate sanction, the committee found that respondent violated duties owed to his client and as a professional, and caused serious harm to a client and to the profession. Respondent's actions were negligent in the Collins matter, but knowing and intentional with respect to Mr. Matthews. The ABA's Standards for Imposing Lawyer Sanctions suggest that the baseline sanction for this conduct is a suspension from the practice of law.
The committee found the following aggravating factors are present in this case: pattern of misconduct; vulnerability of the victim, Mrs. Collins; and substantial experience in the practice of law (admitted 1976). In mitigation, the committee recognized the absence of a prior disciplinary record and remorse.
Under these circumstances, the committee recommended that respondent be suspended from the practice of law for one year and one day, with all but 120 days deferred, followed by a two-year period of probation subject to specified conditions.
The ODC filed an objection to the leniency of the sanction recommended by the hearing committee.
Disciplinary Board Recommendation
The disciplinary board adopted the hearing committee's factual findings and application of the Rules of Professional Conduct. In Counts I and II, the board determined the record demonstrated that Mr. Matthews was meeting with clients, corresponding with counsel and adjusters, handling fees, engaging in discovery, and negotiating settlements. The board noted that these acts, under certain circumstances and with proper supervision, may be properly delegated to non-lawyers. However, it found the evidence in the instant matter revealed that Mr. Matthews was not supervised and that his actions in handling the Logan Farms dispute and the Ihsan settlement
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