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In re Warner6/27/2003
ot commit a criminal act in connection with the settlement of Mr. Victor's personal injury claim; in particular, respondent did not commit forgery. Judge Winsberg explained that forgery is the false making or altering, with the intent to defraud, of any signature to or any part of a writing purporting to have legal efficacy. According to Judge Winsberg, the critical factor with respect to this case is that respondent "never had an intent to defraud anyone, and if you look at the result of what ultimately happened, he gained no unjust advantage by doing what he did."
Judge Winsberg also testified that in a legal sense, Mr. Victor's death was not a material fact in this case, further detracting "from any type of criminality" of respondent's conduct. According to Judge Winsberg, because the insurance company was going to pay the same amount of money whether Mr. Victor was alive or dead, the fact that he was dead at the time of the settlement was of no consequence. On cross-examination, it was pointed out to Judge Winsberg that at the time the settlement was consummated, respondent had no way of knowing whether, in fact, the insurance company would have settled for the same sum whether Mr. Victor was alive or dead. Judge Winsberg did not think that fact changed his opinion, however.
Ms. Albright testified that Ms. Pierre represented herself to the law firm as Mr. Victor's only child. Ms. Albright recalled that after Mr. Victor died, Ms. Pierre brought in her birth certificate, a copy of her father's death certificate, and a copy of her driver's license to verify that she was, in fact, Barbara Pierre. Furthermore, Ms. Albright testified that respondent specifically asked Mr. Victor about his children during the initial client interview, and Mr. Victor informed respondent that he had one child, Ms. Pierre.
Finally, respondent took the stand to testify on his own behalf. Respondent assumed the representation of Mr. Victor from another lawyer in July 1997. During his initial meeting with Mr. Victor, respondent learned that Ms. Pierre was Mr. Victor's only child. Ms. Pierre called respondent after her father died, and said she needed to settle his personal injury case because she had no money to bury her father. Respondent referred Ms. Pierre to Oceanside Finance Company, and he guaranteed a $1,400 loan out of the proceeds of any settlement. Respondent also asked Ms. Pierre to produce her birth certificate in order to establish that she was Mr. Victor's daughter, and he asked her whether she was Mr. Victor's only child. After satisfying himself that Ms. Pierre was the only person entitled to receive the proceeds of Mr. Victor's settlement, respondent settled the claim. Respondent admitted that he did not inform the insurance adjuster handling the matter that Mr. Victor had died, but testified that he told Ms. Pierre "it's time to settle the case" so that she would not incur additional expenses, including additional attorney's fees, court costs, and increased finance charges on the money Ms. Pierre had borrowed from the finance company. Respondent further testified that he did not "enlarge" the claim beyond what it was worth -- i.e., ten months of pain and suffering related to Mr. Victor's soft tissue injury, valued at approximately $2,000 per month, for a total of $20,000.
On cross-examination, respondent stated that he thought it unnecessary to inform the insurance company of Mr. Victor's death because he only settled the case "for the time period that he was alive." However, respondent admitted the one-year prescriptive period was about to run on the claim, and had he mentioned his client's death, the insurance company might have required "all kinds of things" that "didn't matt
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