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In re Shillen's Case2/18/2003
Original
Submitted: December 13, 2002
In May 2000, the Supreme Court Committee on Professional Conduct (Committee) filed a petition with this court seeking public censure of the respondent, Dennis O. Shillen. The petition was referred to a Judicial Referee (Capistran, J.) for hearing and the filing of a written report with specific findings of fact and rulings of law as to the alleged violations and recommended sanction.
Prior to the hearing, the parties submitted a memorandum stipulating to the facts giving rise to the Committee's position. However, the respondent also submitted requests for findings of fact and rulings of law in which he asserted that he did not violate any of the rules of professional conduct, and, in the alternative, that if he did, the appropriate sanction should be a private admonition and assessment of costs. After a hearing, the referee issued an order stating, "on the respondent's request for findings of fact and rulings of law the same are hereby granted."
Because the referee's conclusion was unclear, we remanded this case to the referee for the issuance of a written report stating: (1) whether the respondent violated any of the following Rules of Professional Conduct: 1.7(a) & (b), 1.9 (a) & (b), and 8.4(a); and (2) if so, what the appropriate sanction for such violation(s) should be.
On August 19, 2002, the referee forwarded his findings and rulings to this court. The referee adopted findings and rulings proposed by the respondent, and concluded that the committee failed to prove by clear and convincing evidence that the respondent violated Rules 1.7(a) & (b), 1.9(a) & (b), and 8.4(a). After supplemental briefing, the case was submitted on the briefs.
The referee's findings of fact and the record below support the following facts. The respondent is licensed to practice law in Vermont, where he has a law office. In early December 1993, Vincent and Pamela Hammond contacted the respondent regarding a New Hampshire automobile accident in which they had been involved. From the Hammonds' description of the accident and from the police report, the respondent understood that the other driver, Craig Scheller, caused the accident by failing to yield while making a left turn. Pamela Hammond was seriously injured in the accident. Vincent Hammond suffered relatively minor injuries.
Vincent Hammond was driving at the time of the accident. The car was owned and insured by his mother, Nina Hammond, through the Traveler's Insurance Company (Traveler's). Scheller was insured by Merchants Mutual Insurance Company (Merchants).
On December 7, 1993, Pamela and Vincent Hammond each retained the respondent to represent them in their claims for damages arising from the accident. Each signed a separate contingency fee agreement. The next day, the respondent made a first party claim against Traveler's on behalf of Pamela and Vincent Hammond for medical payments, property damage and uninsured motorist coverage. He also advised Merchants that he represented the Hammonds in connection with their personal injury claims. Sometime early in his representation of the Hammonds, the respondent received a copy of the police report indicating that Vincent Hammond had stated that he had been traveling at 40 mph in a 30 mph zone.
In October 1994, the respondent made a demand on Merchants. Pamela Hammond's case against Merchants was ultimately settled for $215,000. Vincent Hammond's case against Merchants was settled for $8,000. The respondent prepared a release in connection with the settlement with Merchants on February 17, 1995, which the Hammonds signed on February 27, 1995.
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