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Attorney Grievance Commission v. Ellison2/4/2005
Ellison further asserts, as he did in his pre-hearing motion for discovery, that he was required to deliver funds under MRPC 1.15(b) only to parties he believed had a valid interest in the settlement proceeds and then only when the amount of the funds due was undisputed. In Ellison's opinion, Strulson did not have a valid interest because the Assignment was "null and void." Furthermore, he claims that he did not receive any billing statements from Strulson and therefore it was impossible for him to conform with MRPC 1.15(b). Finally, he defends his inability to comply because the amount due to Strulson was disputed. We already have addressed Ellison's failed extension of Stolarz in addressing his pre-trial discovery motion. Ellison was subject to a valid Assignment and Judge Geter had ample evidence before her supporting the conclusion she reached that Respondent did not fulfill his obligation to notify or pay Strulson.
Ellison next excepts to Judge Geter's conclusion that he violated MRPC 8.1(b) because he failed to disclose that he received a fee for representing Moody. Ellison highlights the following exchange during cross-examination of Reburn at the hearing that he claims makes Judge Geter's associated fact-finding clearly erroneous:
[RESPONDENT'S COUNSEL]: He never actually said to you, in these words, I never received it, a fee, did he?
[MR. REBURN]: Those words, I never received a fee?
[RESPONDENT'S COUNSEL]: Yeah?
[MR. REBURN]: No.
In reaching her conclusion, Judge Geter instead credited Reburn's testimony on direct examination. Reburn there stated that he asked Ellison during the 15 April 2003 interview if he received a fee and that Ellison replied "I paid it to Mr. Moody."
Ellison maintains that he never knew there was a misunderstanding about the fee he received from Moody and, in accordance with the Comment to MRPC 8.1, he cannot be in violation of that rule. In his opinion, there was never a question throughout his correspondence with Bar Counsel and Reburn that he represented Moody at all times and the Firm never represented Moody. Contrary to this contention, Judge Geter correctly found a violation based on the executed retainer agreement and fee arrangement with the Firm, the termination letters from Moody to the Firm, and the letters and conversations between Strulson and Ellison regarding representation of Moody. In addition, during Reburn's interview on 15 April 2003, he asked Ellison if he had received a fee. At that point, Ellison knew that there was a question regarding the representation, fee arrangement, and disbursement of settlement proceeds to Moody; he was on notice of the misrepresentations and did not make the appropriate disclosures to correct the "misapprehension" of Bar Counsel and Reburn throughout the investigation.
Ellison lastly excepts to Judge Geter's finding of a violation of MRPC 8.4(c). Judge Geter explained that Ellison's 7 November 2002 letter, in which he informed Strulson that the Firm no longer represented Moody and to direct all future inquiries to Moody, misrepresented his ongoing representation of Moody. Judge Geter found that this letter's main purpose was to declare erroneously the Assignment "null and void" and allow Ellison to avoid paying Strulson under the Assignment. Furthermore, the hearing judge found that Ellison's dishonesty in misrepresenting the facts to Reburn supported finding a violation of MRPC 8.4(c). Once again, there is ample evidence in this record to support Judge Geter's findings and conclusions.
III.
Bar Counsel excepts to Judge Geter's refusal to find that Ellison's conduct violated MRPC 8.4(d). T
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