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In re Boydell5/26/2000
ATTORNEY DISCIPLINARY PROCEEDINGS
This attorney disciplinary proceeding arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Earl Boydell, Jr., an attorney licensed to practice law in the State of Louisiana.
UNDERLYING FACTS
In September 1984, Cynthia Ratcliff retained the law firm of DuBarry and Boydell to represent her in a wrongful death and survival action arising out of the death of her husband. The firm filed suit on behalf of Mrs. Ratcliff and her two-year-old son in October 1984. The case was set for trial in October 1985, but during jury selection, the parties agreed to settle the matter. The settlement consisted of an immediate cash payment to Mrs. Ratcliff (the "cash portion"), in addition to a deferred portion which was placed into an annuity (the "structured portion") for the benefit of herself and her son.
Because the firm had not previously handled a settlement structured in this fashion, respondent was unsure how to calculate the 40% contingency fee due the firm under its agreement with Mrs. Ratcliff. However, during settlement negotiations, counsel for one of the defendants told respondent that the fee was properly based upon the present-day value of the structured portion, and that an expert qualified to compute present-day values, such as an economist, an actuary, or a structured settlement broker, should be consulted. Respondent did not heed this advice, but instead telephoned his CPA to discuss the value of the settlement. The CPA advised respondent that without knowing either the applicable interest rate or the cost of the annuity, he could only calculate a range of present-day values based upon various interest rates. Respondent selected a number in the middle of the range, $112,500, upon which to calculate the attorney's fees on the structured portion. Respondent asserts that Mrs. Ratcliff agreed to this method of calculating the attorney's fees, but she denied any such agreement. Nevertheless, what is clear is that respondent did not consult an economist, an actuary, or a structured settlement broker -- either before or at any time after the settlement was confected -- to determine the actual value of the deferred payments.
Respondent disbursed the settlement funds to Mrs. Ratcliff at a November 5, 1985 meeting. At that time, respondent deducted attorney's fees of $90,000 and costs of $17,217.50 from the cash portion. He also deducted an additional $45,000 in attorney's fees which he charged on the structured portion, based upon his representation that the annuity had a present-day value of $112,500. However, it was later revealed that the actual cost of the annuity was only $49,465, and a 40% attorney's fee on the structured portion should have been less than $20,000.
There is some question whether Mrs. Ratcliff expressed any reservations about respondent's calculations during the November 5, 1985 meeting. According to Mrs. Ratcliff, she had not felt comfortable with respondent during the representation and asked if she could take some time to review his figures, particularly the calculation of the attorney's fees on the structured portion. Respondent accused her of not trusting him, and in tears, she ultimately backed down and took the settlement check. By contrast, respondent testified that Mrs. Ratcliff never expressed any concern about the attorney's fees and "happily" left the November meeting with a check for $72,782.50, her net share of the cash portion of the settlement. The same day, the firm's share of the settlement was paid to respondent, Ms. DuBarry, and Barbara Arnold, the associate who referred the case to the firm. Mrs. Ratcliff deposited her check int
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