A building contractor had erected scaffolding on the side of a building. As Client was walking along the sidewalk next to the building, the scaffolding collapsed, injuring her severely. While Client was hospitalized due to this accident, she received a visit in her room from a man who introduced himself as a “victim’s advocate.”
This man told Client that she probably had a claim against the contractor who erected the scaffolding, so she should consult a lawyer. He highly recommended Attorney, as a lawyer with a great reputation for recovering maximum compensation in personal-injury cases. Unknown to client, however, Attorney had hired the “advocate” to scout area hospitals, while posing as an impartial advisor, and find potential clients for him.
After discharge from the hospital, Client met with Attorney to discuss a possible claim against the contractor. During the consultation, Attorney focused primarily on Client’s medical treatment and lost earnings. Attorney felt it unnecessary to ask Client detailed questions about the accident, because this seemed like an obvious case of contractor negligence. Attorney also did not see the need to visit the accident scene.
After the consultation, Attorney obtained Client’s medical records and a copy of the official accident investigation report. This confirmed Attorney’s assumption that the contractor had improperly erected the scaffolding. Based on this information, Attorney recommended suing the contractor in tort, claiming $750,000 in damages for medical expenses, lost earnings, and pain and suffering. Attorney told Client: “I will charge you a contingent fee. This means that you will owe me nothing if I don’t recover any compensation for you, but I will keep, as my fee, one-third of anything we do recover.” Client agreed, and Attorney filed suit against the contractor.
Shortly after this, the contractor’s lawyer wrote to Attorney, offering to settle the suit for $100,000. Attorney was confident that Client had a strong case and that the offer was ridiculously low, so he rejected the offer without bothering to tell Client about it.
The contractor’s lawyer then filed an answer to the complaint. The answer raised the defense that Client’s own negligence contributed to her injury, because she had ignored barriers and prominent warning signs stating that the sidewalk was closed. Under the relevant state’s tort law, the plaintiff’s contributory negligence is a complete defense that bars any recovery by the plaintiff. The allegation of contributory negligence took Attorney by surprise, because he had never thoroughly questioned Client about the circumstances of the accident. Attorney immediately confronted Client with this new information, and she admitted that it was true.
Attorney became concerned that a jury might well find that Client was contributorily negligent and, therefore, not entitled to recover. Attorney explained this to Client, who agreed to let Attorney settle her claim as best he could. However, Attorney could not reach a settlement, because the contractor’s lawyer was no longer interested in settling the case. Attorney therefore decided to voluntarily dismiss the suit. Not wanting to admit this failure to Client, Attorney falsely told Client that he had settled the suit for $6,000. He then sent Client a check for $4,000, stating that this was the settlement amount, less his agreed one-third fee.
- Has Attorney violated the American Bar Association Model Rules of Professional Conduct (Rules)? Explain, detailing all Attorney’s actual or potential violations of the Rules.