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In re Shillen's Case2/18/2003
ndent violated Rule 1.7(a) when he continued to represent both Vincent and Pamela Hammond after discovering evidence that Mr. Hammond bore at least some fault for causing Mrs. Hammond's injuries, and he filed an insurance claim on Mrs. Hammond's behalf against Mr. Hammond. The record compels the conclusion that the respondent was merely negligent in failing to recognize the conflict. Indeed, as soon as the conflict was called to his attention by Attorney Whaland, the respondent withdrew from the case, and ceased to represent Pamela Hammond in the action against her husband. However, it is equally clear from the record that the respondent's violation injured his client, Vincent Hammond.
During the course of his representation of Mr. and Mrs. Hammond, the respondent prepared and forwarded to Mr. Hammond an affidavit confessing liability for the injuries Mrs. Hammond sustained in the accident. As the Committee notes in its brief, the affidavit was used against Mr. Hammond in the case of Hammond v. Hammond. In addition, Mr. Hammond was obligated under his insurance policy to cooperate in defense of the case and to take no action that might compromise the defense of the case. By signing the affidavit, he compromised the defense of the case and placed his insurance coverage at risk, exposing him to personal liability for the damages. Mr. Hammond testified at trial in Hammond v. Hammond that he was traveling between 35-40 mph, testimony that was consistent with the police report, but clearly inconsistent with his affidavit. Therefore, the existence of the affidavit exposed him to a criminal investigation for perjury and/or insurance fraud. Finally, the existence of the affidavit contradicting his testimony caused a mistrial to be declared in the case of Hammond v. Hammond.
Section 9.2 of the Standards sets forth factors which may justify an increase in the degree of discipline to be imposed; section 9.3 sets forth factors which may justify a reduction. We have reviewed the record and conclude that the facts do not justify either an increase or a decrease in the sanction generally imposed in these circumstances. While it is clear that given the respondent's years of experience practicing law, he should have recognized the conflict of interest and potential consequences to his client, there is no evidence that he acted with a dishonest or selfish motive, he has no prior disciplinary record, and there is substantial evidence in the record of his good character and reputation.
Under these circumstances, we conclude that public censure is the appropriate sanction, and hereby publicly censure the respondent for his violation of Rule 1.7(a). The respondent is ordered to reimburse the Committee for the costs of investigating and prosecuting this matter. See Sup. Ct. R. 37(16).
So ordered.
NADEAU, DALIANIS and DUGGAN, JJ., concurred.
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