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In re Warner6/27/2003
er," like an affidavit "that there's no illegitimate children." Therefore, in order to avoid having to file a lawsuit, or open Mr. Victor's succession (which he testified would have been "the long way"), respondent "took a short way of doing it" and simply settled the claim without telling the insurance company Mr. Victor had died. Respondent claimed to have had no fraudulent intent in doing so because the insurer "paid exactly what the file was worth, and it went to the right person." Therefore, when he received the settlement check and release in Mr. Victor's name, respondent told Ms. Pierre, "If you want to sign your father's name, I think it's okay to do so under these circumstances."
Hearing Committee Recommendation
After reviewing the evidence presented at the hearing, the hearing committee made the following factual findings:
1. Mr. Victor died prior to the settlement of his personal injury claim, and his daughter Barbara Pierre forged his name to the settlement document and to the settlement check. Respondent either directed or participated in this forgery.
2. Respondent's expert witnesses both believed that the timing of the settlement had something to do with the need to fund Mr. Victor's burial; they both made specific mention of this issue on direct examination. However, the record is clear that Mr. Victor had been buried in September, at least two months prior to the settlement.
3. Respondent had much to gain by settling the case at the time and in the fashion that he did. The claim was very close to prescription. Even though the insurance adjuster testified that had he known of Mr. Victor's death, the amount of the settlement would not have changed, there is no way to know if the documents necessary to settle the matter in such a way that they properly reflected that Mr. Victor had died, could have been confected within the remaining week left before the claim tolled.
4. The more time respondent was required to spend on the case, the less he would profit from any settlement. Respondent testified that one of the reasons to settle at that particular time was that his fee was increased under his contract if suit had been filed on the claim, from 1/3 to 40%. But once that was done, and the insurance company hired a lawyer to defend the claim, there was no assurance that it would settle at all, and respondent certainly knew that as well.
5. Judge Winsberg testified that there was no forgery because there was no intent to defraud nor advantage to be gained. This, however, ignores the fact of the time value of money, and the uncertainty of litigation had the settlement not occurred when it did.
6. Further, there is the still-unresolved issue of the possibility of other heirs. The evidence if there are any such heirs or not is entirely unclear. [Whether] the possibility of other heirs would have affected or delayed the insurance company's decision to settle is also unclear.
Based on these factual findings, the committee concluded that respondent violated Rule 1.2(c) by directing, counseling, or assisting Ms. Pierre in forging her father's name on the settlement documents; violated Rule 1.7 in light of the conflict of interest between respondent and Ms. Pierre as to the timing of the settlement, and in light of the potential for a conflict of interest if there had been heirs other than Ms. Pierre; violated Rule 4.1 by failing to disclose Mr. Victor's death to the insurance company; and violated Rule 8.4 by violating the Rules of Professional Conduct as discussed. The committee made no findings as to the other rule violations alleged in the formal charges.
Considering the ABA's S
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