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IDAHO STATE BAR v. TWAY6/18/1996
This is an attorney discipline case. A hearing committee of the Professional Conduct Board (Hearing Committee) has recommended that William J. Tway be disbarred for professional misconduct. Tway objects to the Hearing Committee's Findings of Fact, Conclusions of Law, and Recommendation for Discipline. This Court reviews the matter pursuant to Rule 511(o) of the Idaho Bar Commission Rules (I.B.C.R.).
I.
BACKGROUND AND PRIOR
PROCEEDINGS
The charges of professional misconduct stem from Tway's representation of Leland Shipley who contacted Tway to represent him in a possible police brutality action against the Boise Police Department in August of 1989. Tway informed Shipley that he would be interested in taking the case if a police brutality expert determined that the case was valid. Tway then told Shipley he would have to pay a $2,500.00 cost advance, which would include the funds necessary to retain the expert.
Shipley's $2,500.00 cost advance was deposited on August 10, 1989, into a client trust account managed by Tway and his former partner. On August 11 and August 15, 1989, Tway wrote two checks from the trust account which brought the balance below the amount which should have been in trust for Shipley. Neither of the checks pertained to Shipley's case. In late August of 1989 Tway's partner contacted a police brutality expert on Shipley's behalf and subsequently paid the expert a $500.00 retainer fee. The fee was not paid from the client trust account.
Tway and his former partner dissolved their partnership as of January 1, 1990. Although Tway's former partner was present during Shipley's initial meeting with Tway and contacted the expert on Shipley's behalf, Shipley considered Tway to be his lawyer. When the partnership dissolved, Shipley's case was retained by Tway. After the dissolution of the partnership, the balance of Tway's client trust account was consistently below the amount which should have been in trust for Shipley alone. In the spring of 1991 Tway asked Shipley for permission to transfer the balance of his funds to Nevada where they would make more interest. Shipley agreed, provided the funds would be safe.
On August 29, 1989, Tway filed a Notice of Tort Claim with the City of Boise on Shipley's behalf, and on September 13, 1989, he forwarded copies of Shipley's medical reports to the City's insurance carrier. Tway took no other action in furtherance of Shipley's
claim until March of 1992, although Shipley made telephone calls and visits to Tway inquiring about the status of the case during this time. Representatives of St. Alphonsus Regional Medical Center, which had an agreement for payment of its medical bills from Shipley and Tway, also, made numerous telephone calls to Tway regarding the status of Shipley's case. The Hearing Committee found that in the interim between August 29, 1989 and March of 1992, Tway repeatedly assured Shipley that the case was "progressing," despite the fact that Tway had not taken further steps to advance Shipley's claim.
On March 25, 1992, Tway filed a claim in district court on behalf of Shipley. Counsel for the city sent Tway a letter stating that it was her belief that the claim was governed by a two year statute of limitations and was barred. The letter enclosed a copy of Henderson v. State, 110 Idaho 308, 715 P.2d 978, cert. denied, 477 U.S. 907, 106 S.Ct. 3282, 91 L.Ed.2d 571 (1986), in which this Court held that the two-year statute of limitations contained in section 5-219(4) of the Idaho Code applied to claims filed pursuant to 42 U.S.C.A. ยง 1983. Henderson, 110 Idaho at 311, 715 P.2d at 981. Tway agreed to dismiss the complaint if the legal
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