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In re Hamar9/26/1997
Per Curiam
{1} This matter came before the Court following disciplinary proceedings conducted pursuant to the Rules Governing Discipline, 17-101 to -316 NMRA 1997 and upon a recommendation by the disciplinary board that we approve the conditional agreement not to contest and consent to discipline executed by Duane S. Hamar, wherein he agreed to accept the sanction of disbarment and to make restitution to those injured by his misconduct. Under the uncontested facts of this case, we agree that disbarment is the appropriate sanction and approve the agreement.
{2} Margaret Spriggs retained respondent to represent her in a personal injury case for injuries she received on December 4, 1994. Spriggs was receiving treatment from a certain physician and, in February 1995, respondent signed a letter of protection on behalf of Spriggs agreeing to pay her physician for medical costs incurred from the proceeds of any settlement or judgment received. The physician's services totalled $8357.24.
{3} Spriggs and a certain insurance company settled the case and on September 8, 1995, she received a settlement check in the amount of $25,000, which was deposited into respondent's trust account.
{4} The physician was not notified of the receipt of these funds until he made inquiry in January 1996 and was then told that the case had settled in December 1995. Despite requests from the physician's office and his attorney, the physician's costs remained unpaid. On July 11, 1996, the physician filed a complaint with the office of disciplinary counsel.
{5} In responding to the complaint, respondent stated in a letter dated August 2, 1996, that he had been attempting to have the bill discounted but, since he "did not get the discount authorization in writing," would make payment within the next few days. He paid the doctor $8357.24 for Spriggs' medical expenses on August 16, 1996, and notified disciplinary counsel that he had done so.
{6} To ascertain whether the funds owed to the physician had been on deposit in trust at all times since the settlement, disciplinary counsel wrote to respondent and requested copies of bank records pertaining to his trust account. The records provided by respondent indicated that the balance in the trust account had fallen far below $8357.24 on several occasions between September 1995 and August 1996, at one point even showing a negative balance of -$5.77.
{7} When asked to explain, respondent replied that he understood that payment of a client's medical bills was his own personal responsibility. Consequently, he had distributed all settlement funds to the client and to his office, leaving nothing in trust. Respondent's purported understanding that he had some obligation to accept personal responsibility for a client's medical bills is unknown to us. This is a novel concept and certainly not one espoused by this Court. It is possible, however, that respondent may have misinterpreted an earlier opinion of this Court, wherein we held that once an attorney had accepted from a client an assignment of settlement proceeds to a creditor, the client (as assignor) may not unilaterally cancel or modify the agreement. See . We further held in Romero that if the lawyer were to accede to a client's demands not to pay the assignee (in that case a health care provider) and instead give the disputed funds to the client, the lawyer could be held liable to the assignee. The opinion does not, however, hold that attorneys are generally obligated to pay a client's medical bills.
{8} Respondent's own trust account ledger pertaining to the Spriggs case indicated that only $20,427.59 of the $25,000 had been distributed, which sho
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