Opinion
No. CV03-0479677 S
January 28, 2004
MEMORANDUM OF DECISION
The Petitioner seeks to have the Respondent attorney disciplined based on alleged violations of Rules 1.2(d) and 4.1(2) of the Rules of Professional Conduct, claiming that the Respondent assisted his client in the presentation of duplicative claims to the two different insurance companies that insured the motor vehicles involved in two separate but similar motor vehicle accidents that occurred within a week of each other. The Petitioner further seeks to have the Respondent disciplined for violations of Rules 4.1(1) and 8.4(3) of the Rules of Professional Conduct which, it argues, occurred when the Respondent allegedly misled the insurance companies regarding other accidents and injuries suffered by the client.
Rule 1.2. Scope of Representation.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
Rule 4.1. Truthfulness in Statements to Others.
In the course of representing a client a lawyer shall not knowingly . . . (2) Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
Rule 4.1. Truthfulness in Statements to Others.
In the course of representing a client a lawyer shall not knowingly: (1) Make a false statement of material fact or law to a third person.
Rule 8.4. Misconduct.
It is professional misconduct for a lawyer to . . . (3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
The issues raised by this petition raise important questions about the way in which personal injury law is practiced in general, and, in particular, about the way settlements are negotiated prior to the filing of litigation. The resolution of this particular case, however, and a consideration of the extent to which our Rules of Professional Conduct apply to it, are both highly dependent on the facts surrounding the Respondent's conduct. These facts are essentially undisputed, and the court summarizes them here in some detail based on a joint exhibit submitted by the parties.
The Respondent has been a member of the Bar of the State of Connecticut since 1991. He practices with his brother, Edward, in the New Haven law firm of Gillis and Gillis, primarily in the field of personal injury. His firm has also had a long-standing professional relationship with Dr. Kathleen Barone, a New Haven chiropractor, to whom the firm has referred many personal injury clients.
On March 4, 1999, Nelson Ortiz was involved in the first of three motor vehicle accidents relevant to this petition. The Respondent's brother Edward Gillis represented Ortiz in a personal injury claim arising out of this incident. Ortiz treated with Dr. Barone for injuries to his lower back and shoulder. On May 12, 1999, Dr. Barone wrote to Edward Gillis to inform him that Ortiz had completed his chiropractic treatment and that he had sustained a five percent permanent partial disability to his lower back and a five percent permanent partial disability to his left shoulder, both causally related to this accident.
On December 8, 1999, Ortiz was injured in a second motor vehicle accident involving an individual who was insured by the Progressive Insurance Company ("Progressive"). The Ortiz vehicle, a 1988 Chrysler, sustained "left front quarter panel" damage. Ortiz complained of "minor back pain" at the accident scene.
One week later, on December 15, 1999, Ortiz was involved in the third of the three motor vehicle accidents relevant to this petition, this time with an individual insured by the Liberty Mutual Insurance Company ("Liberty Mutual"). The left front portion of the Ortiz vehicle was again the site of the impact. The investigating police officer reported no injuries at the scene.
Following the December 8th accident, Ortiz again consulted with the law firm of Gillis and Gillis. The firm referred him to Dr. Barone, who saw him on December 13, 1999, when she treated him for neck and back pain. He returned to Dr. Barone on December 17, 1999, two days after the December 15th accident, again complaining of neck and back pain.
Dr. Barone treated Ortiz on December 17 and billed the session to the December 8th accident. She also prepared a "Report of Findings" which she charged to the December 8th accident. On December 28, 1999, she wrote a "Report of Consultative Examination," in which she stated that the December 15, 1999 accident had caused neck and back pain, the same type of injuries as those sustained in the December 8, 1999 accident.
On December 30, 1999, the Respondent sent similar letters to both Progressive and Liberty Mutual to advise the companies that he was representing Ortiz. In each letter, the Respondent stated, "As a result of this accident Mr. Ortiz suffered injuries to his neck and back and sought medical attention with Kathleen Barone, D.C., of New Haven, Connecticut." The Respondent represented to Progressive that Ortiz's medical bills as a result of the December 8th accident already totaled "nearly $1,500.00" as of the date of his letter. In fact, however, the bills relating to that incident at that time totaled only $959.00. In his letter to Liberty Mutual, the Respondent represented that Ortiz's medical bills to date from that accident were "nearly $1,000.00," whereas, in fact, they were only $193.00. In neither of these letters did the Respondent disclose the existence of the other December accident or any injuries related to the March 4th accident. Indeed, the Respondent did not receive a separate written "Report of Consultative Examination" from Dr. Barone for the December 8th accident until approximately one week after writing to the two insurers.
Treatment for both December accidents was completed by March 22, 2000. The Petitioner characterizes Dr. Barone's treatment notes and bills as demonstrating that Ortiz received "identical treatments for identical injuries" on alternate days that Dr. Barone attributed to either the December 8th or December 15th accident. The undersigned is not able to conclude from the evidence presented that the injuries were in fact "identical," but it is certainly clear that similarly described treatments — chiropractic manipulations, massage and electrical stimulation to the neck and back — were provided for injuries to the same body parts and assigned to either one accident or the other as follows:
Treatment Date: Date of Accident To Which Treatment Was Assigned:
12/13/99 12/8 12/17/99 12/8 12/21/99 12/15 12/22/99 12/8 12/23/99 12/15 12/27/99 12/8 12/28/99 12/15 12/29/99 12/8 1/4/00 12/15 1/5/00 12/8 1/10/00 12/15 1/12/00 12/8 1/14/00 12/15 1/18/00 12/8 1/20/00 12/15 1/25/00 12/8 1/28/00 12/15 2/1/00 12/8 2/3/00 12/15 2/8/00 12/8 2/10/00 12/15 2/16/00 12/8 2/24/00 12/8 2/27/00 12/15 2/29/00 12/15 3/2/00 12/8 3/8/00 12/15 3/15/00 12/8 3/22/00 12/15
It should be noted that the December 23 and 28, 1999 treatments were originally billed to both the December 8th and December 15th accidents and not changed as indicated above until November of 2000. A treatment note for the December 8th accident that originally bore the date "2/3/00" was written over to make the date "2/1/00." The original treatment notes for the December 15th accident contain the entry for the February 3rd treatment, and the original treatment notes for the December 8th accident contain entries for January 28 and February 29, 2000, which were later scratched out and assigned to the December 15th accident.
With regard to the December 8, 1999 accident, Dr. Barone prepared a "Report of Final Examination," dated May 19, 2000, that did not specifically mention her prior treatment for the March 4, 1999 accident or the concurrent treatment for the December 15, 1999 accident. She also made no mention of the 5% permanent disability rating she had assigned to the lumbar spine after the March 4, 1999 accident, but she did state that "[p]ast history reveals injuries from a previous accident which were treated and have been resolved." Although Dr. Barone had originally diagnosed Ortiz with, inter alia, a lumbosacral sprain when she first saw him for the December 8 accident, had initially performed a variety of tests on the range of motion in his lower back, and had treated him for low back pain, her "Report of Final Examination" focused exclusively on his neck and upper back. She performed no final range of motion tests on the lower back, and she did not discuss the effect of the treatment to Ortiz's lower back. Dr. Barone assigned Ortiz a five percent permanent partial disability to his cervical spine, which she causally related to the December 8 accident.
The Petitioner argues that the lack of a specific mention of the March 4 incident represents an effort to deceive Progressive; the Respondent counters that the mention of a "previous accident" by Dr. Barone was more than sufficient to alert Progressive to the fact of a prior accident. He also argues that because the March 4 and December 8 accidents involved claims of injury to different body parts, Dr. Barone's statement that the earlier injury had been "resolved" has no bearing on the December 8 claim and was therefore not deceptive.
On June 15, 2000, the Respondent sent Progressive a copy of Dr. Barone's final report, along with a letter in which he demanded a settlement of $25,000 and claimed:
At the time of this accident, Nelson Ortiz was only 44 years old. He was an active man who enjoyed participating in a variety of activities, including dining out and socializing with friends and family. Since this accident, Mr. Ortiz has been unable to participate in any activity which requires the slightest bit of physical exertion due to the injuries suffered.
This letter specifically mentioned neither the March 4, 1999 and December 15, 1999 accidents nor any similar injuries suffered by Ortiz.
With regard to the December 15, 1999 accident Dr. Barone prepared a "Report of Final Examination," dated May 22, 2000, that also made no specific mention of her treatment for the March 4, 1999 accident, the permanency ratings she assigned to that accident, the December 8 accident, or the concurrent treatment she had provided for the December 8, 1999 accident. In a section of the report entitled "Past History," however, Dr. Barone stated, "Past history reveals accidents for which treatment has completed." Although Dr. Barone had initially diagnosed Ortiz with, inter alia, cervical and thoracic injuries, had performed a variety of tests on the range of motion in his neck and thoracic spine, and had treated him for these injuries, her "Report of Final Examination" for this accident focused exclusively on his lower back. She performed no final range of motion tests on the neck, and she did not discuss the effect of her treatment of Mr. Ortiz's neck. Dr. Barone did not rate Ortiz for any disabilities arising from this accident.
Again, while the petitioner claims that the lack of specific mention of the March 4 or December 8 accidents indicates an effort to deceive Liberty Mutual, the Respondent counters that Dr. Barone did alert Liberty Mutual to the existence of "accidents for which treatment has completed" (plural), as opposed to the single accident she referenced in the report that went to Progressive, a disclosure which Respondent argues more than satisfied any obligation to put the carrier on notice of the existence of prior accidents. Respondent also points out that although this accident involved the same body part as the March accident, Dr. Barone did not assign a permanency as a result of the December 15 accident. He therefore claims that there was no deception in the indication that treatment for the March injuries was completed with respect to any relevance of that accident to the December 15 claim. Similarly, because the two December accidents ultimately involved claims of injury to different body parts, the Respondent argues that with respect to the claim being made against Liberty Mutual, there was no deception by him in passing on Dr. Barone's statement that treatment for the other accidents had been completed.
On October 19, 2000, the Respondent sent copies of Dr. Barone's final report to Liberty Mutual along with a letter that contained a settlement demand of $14,000 and claimed:
At the time of this accident, Nelson Ortiz was only 44 years old. He was an active man who enjoyed participating in a variety of activities, including dining out and socializing with friends and family. Since this accident, Mr. Ortiz has been unable to participate in any activity which requires the slightest bit of physical exertion due to the injuries suffered.
This letter specifically mentioned neither the March 4, 1999 and December 8, 1999 accidents nor any similar injuries suffered by Ortiz.
When Ortiz saw Dr. Barone for treatment following the December 1999 accidents, he understood that she was treating him for upper and lower back pain for both accidents. He himself was not aware which accident or accidents caused his neck injury and which accident or accidents caused his low back injury. It is clear that whatever the nature of his original complaints of injury, Ortiz eventually elected to pursue only his claim of a lower back injury against the driver insured by Progressive, and to pursue only his cervical spine injury in the claim against the driver insured by Liberty Mutual. Although the petitioner imputes a sinister motive to this decision, this course of action is certainly not inconsistent with a recognition by the plaintiff that, first, his claims of injury were complicated by the fact that they arose out of two similar incidents that had occurred in close temporal proximity, and, second, that those claims could be significantly simplified by pursuing only one tortfeasor for each of his two injured body parts, even if that meant sacrificing a potential claim for injury to the other body part with respect to that tortfeasor.
It is also clear that Ortiz himself did not ask Dr. Barone to maintain separate bills and treatment notes for each accident. The Respondent, in his testimony before the Grievance Committee, stated that he did not ask Dr. Barone to allocate the bills and assumed that she did so "automatically." In his written answer to the grievance complaint, Respondent stated, "Dr. Barone confirmed to me that, to the best of her ability, she attempted to allocate her treatment (and her billing) between the two separate accidents." This court finds it unlikely that Dr. Barone allocated the bills "automatically," with no prompting from the Respondent but it is not necessary to determine at whose behest the bills were thus separated in order to resolve this case.
Based on this set of facts, the Petitioner claims that "[t]he Respondent's conduct in connection with his representation of Nelson Ortiz violated Rules 1.2(d) and 4.1(2) of the Rules of Professional Conduct in that he assisted Mr. Ortiz in the presentation of fraudulent personal injury claims to Progressive and Liberty Mutual." In paragraph 22 of the presentment, the Petitioner also claims, "[t]he Respondent's conduct in connection with his representation of Nelson Ortiz violated Rules 4.1(1) and 8.4(3) of the Rules of Professional Conduct in that the Respondent intentionally misled Progressive and Liberty Mutual regarding Mr. Ortiz's other accidents, injuries and disabilities through submissions to the companies of misleading letters prepared by the Respondent and misleading reports, treatment notes and bills prepared by Dr. Barone."
The specific acts of alleged misconduct which the Petitioner relies upon are:
1) the claim in the December 30 letters to the insurers that Ortiz's chiropractic bills to date arising from the December 8 accident were already nearly $1500 and those relating to the December 15 accident were nearly $1000, when in fact they were not;
2) the Respondent's failure to advise either insurer of the existence of the March 4, 1999 accident;
3) the Respondent's role in the allegedly improper allocation of chiropractic treatment and expenses to the two accidents;
4) the failure to advise either insurer of the existence of the other December accident;
5) the claims made by Respondent to each insurer that since the accident, Ortiz "has been unable to participate in any activity which requires the slightest bit of physical exertion due to the injuries suffered."
The court will discuss each of these acts individually:
1. The December 30, 1999 Medical Expense Claims
With regard to the December 30 letters, part of the Petitioner's argument is based on the contention that the Respondent's statement of the amount of medical expenses as of that date demonstrates his intention to aggregate the medical expenses for both the December 8 and December 15 accidents and to attempt to get each insurer to accept responsibility for the total amount. If this were so, the court would agree that such conduct is dishonest, deceitful and fraudulent. See, e.g., People v. Petsas, 214 Cal.App.3rd 70, 262 Cal.Rptr. 467 (1989). It is undisputed that in his December 30th letters, the Respondent told Progressive that Ortiz's chiropractic bills were almost $1500, and he told Liberty Mutual that the chiropractic bills relating to that accident were almost $1000. However, the final bills prepared by Dr. Barone's office suggest that while the estimates given by the Respondent were, at a minimum, inaccurate and/or exaggerated as of the time of that writing, the final bills for each accident exceeded the December estimates. At worst, and this is the petitioner's position, these medical expense claims are an indication that the Respondent was attempting to aggregate the cost of all of the treatment given for both accidents as of December 30, 1999 in order to receive payments for the aggregated total from both insurers. Because the evidence indicates that in December of 1999, Dr. Barone was still maintaining one bill for both accidents and had prepared only one report following these accidents, Petitioner urges the court to conclude that the respondent was attempting to induce each insurer to pay for the same bills, or, in the vernacular, to "double dip."
"The standard of proof applicable in determining whether an attorney has violated the [Rules of Professional Conduct] is clear and convincing evidence." Statewide Grievance Committee v. Presnick, 18 Conn. App. 475, 477 (1989) aff'd, 216 Conn. 127 (1990). While it is apparent that the Respondent significantly overstated the amounts of medical expenses arising from each accident as of the writing of these preliminary December 30 letters, the Petitioner's conclusion that this represented an effort to aggregate all of the statements from both accidents and then double-bill for them is speculative at best and is in fact belied by several considerations. CT Page 1962
First, both claims of medical expenses were clearly presented as approximations and in round numbers. Second, treatment was still on-going with respect to both cases, so that there could have been no reasonable expectation that these letters were going to result in immediate payment of the amounts alleged. Third, by the time of the final demand letters, and not in response to allegations of fraud by the Petitioner, the insurers or anyone else, Dr. Barone had allocated her bills among the two incidents. Fourth, this claim by the Petitioner is also inconsistent with its contention that the Respondent quoted significantly different amounts to each insurer, suggesting that he was not in fact trying to get each insurer to pay the total for both accidents. Fifth, the letters did not state a settlement demand but rather noted that the information was being "provided to you at this time so that you may set your reserves accordingly." Finally, the costs of the medical services that were eventually attributed to each accident by the time of the final demand letters exceeded the original estimates. The bills for chiropractic services ultimately presented to Progressive totaled $2030, and the amount presented to Liberty Mutual totaled $1302. The evidence that the Respondent was trying to "double-dip," such as it is, simply does not rise to the level of "clear and convincing."
People v. Petsas, supra, has a fact pattern similar to this case in that it also involved an attorney who failed to disclose the existence of two accidents to the two insurance companies that insured the individual tortfeasors involved in two separate accidents which had occurred hours apart and had caused similar injuries. The attorney in Petsas wrote demand letters to each insurer on the same day and argued that the injuries suffered by his client were solely caused by that accident. He used misleading chiropractic reports in support of his demands, and he sought payment for the full amount of all of the chiropractic bills from both insurers, a classic "double dip."
There are, however, some important differences between Petsas and this case. First of all, procedurally, Petsas was an appeal from the dismissal of a criminal action based on a finding of no probable cause. The Court's reported decision reversed the lower court, finding that probable cause existed but also noting that probable cause, or strong suspicion, did not guarantee that the defendant could be convicted on the available evidence. Indeed, there is no reported subsequent history of this case, so there is no way to know what happened to the prosecution upon remand.
More important are the factual differences between this case and Petsas. The Court in Petsas noted that the treating chiropractor had stated that he could not allocate the client's various injuries to one accident or the other. Petsas knew this and yet not only "represented separately to each carrier by his correspondence that a single accident caused by its insured alone had been the sole cause of all of [his client's] injuries," but also claimed the full amount of all of his client's medical expenses from each of the two separate insurers. Whereas Petsas "falsely represented these injuries and damages had resulted from a single accident when he knew that such was not the case and that all such injuries and damages were the product of two separate and sequential traumatic incidents," 214 Cal.App.3d at 77. Gillis claimed different injuries for Ortiz arising out of each accident and submitted portions of the total medical cost to each insurer.
The Petsas court observed that
respondent affirmatively represented that his client's injuries were the result of a single accident when in fact he knew they were not. Further, he submitted claims for all damages resulting from two successive accidents on the same day to the carriers of two separate insureds, concealing from each of them the fact that the damages he thus sought for his client stemmed from the trauma of both accidents. There is a distinct difference between restricting an attorney from divulging information learned in confidence from a client, and proscribing him from knowingly making affirmative false representations regarding a claim or claims of that client.
(Emphasis in original) 214 Cal.App.3rd at 79.
Here, of course, the Respondent, although he did not specifically advise each insurer of the existence of the other accident, also made an effort to separate the medical expenses and allocate them between the two accidents. He also claimed only a lumbar injury from one accident and a cervical injury from the other, rather than claiming that all injuries were the responsibility of both insurers.
The Petitioner has not established that Respondent's misstatement of the amount of medical expenses as of the dates of his initial letters to the carriers was anything other than carelessness or, at worst, an exaggeration. While attorneys should approach the serious matter of preparing demand letters with far greater care and precision than did the Respondent in this case, the Petitioner has not established by clear and convincing evidence that this aspect of the Respondent's conduct has violated our Rules of Professional Conduct.
2) The Respondent's Failure to Advise Either Insurer of the Existence of the March 4, 1999 Accident
The Petitioner has presented the Court with no authority for the proposition that in an initial letter to an insurer, or in a subsequent demand letter, a plaintiff's attorney is under an ethical obligation to disclose any and all facts that might prove detrimental to the client's claim. Nor has it presented any authority for the proposition that to the extent that an attorney does disclose potentially damaging material voluntarily, it must do so, figuratively speaking, in boldfaced type, underlined, and in gory detail.
The commentary to Rule 4.1 of the Rules of Professional Conduct notes, "[m]isrepresentations can also occur by a failure to act," and Petitioner argues that the Respondent's silence about the March 4 accident was such a misrepresentation. See, Statewide Grievance Committee v. Egbarin, 61 Conn. App. 445, 454-55, cert. denied, 255 Conn. 949 (2001) (lawyer's silence in failing to disclose outstanding tax obligation violated Rule 8.4(3) of the Rules of Professional Conduct). The Petitioner thus submits that the Respondent committed a textbook case of "passive misrepresentation" because he failed to disclose facts when under a duty to do so. Parese v. Statewide Grievance Committee, 8 Conn. L. Rptr. 618, 1993 WL 137568, CV88-0348079, April 1, 1993 (Wagner, J.); Egbarin, supra, 61 Conn. App. at 455.
The Petitioner also cites Kentucky Bar Association v. Geisler, 938 S.W.2d 578 (1997), in which an attorney was reprimanded for violating Kentucky's version of Rule 4.1 (identical in language to Connecticut's Rule 4.1(1)) by entering into settlement negotiations in a personal injury case without disclosing that he had learned that the client had died. The attorneys adversary learned of the death after the settlement was consummated. The court addressed and rejected the contentions that the attorney had no affirmative duty to volunteer information helpful to her opponent; that she was ethically prohibited from volunteering the information; that her opponent was under the duty to learn of her client's death; and that she would have provided the information if asked. The Petitioner analogizes the obligation to advise the adversary that the client is dead (i.e. that there was no client, no life expectancy, etc.) to what the Respondent is alleged to have done and not done in this case. To be sure, in both cases, the attorneys were seeking to increase the value of the monetary settlement. In Geisler, however, the attorney failed to reveal a fact fundamental to his representation: that, in fact, he had no client. In this case, the Petitioner has not shown by clear and convincing evidence that the Respondent was under any obligation to volunteer information about the earlier accidents at this stage of his representation. To the contrary, the Commentary to Rule 4.1 notes that although a "lawyer is required to be truthful when dealing with others on a client's behalf," the lawyer "generally has no affirmative duty to inform an opposing party of relevant facts."
Moreover, although the Respondent's initial correspondence neither mentioned nor even hinted at the March accident his final demand letters to both insurers included reports from Dr. Barone which clearly suggested that the accident which was the subject of the demand letter was not the plaintiff's first or only accident. Each adjuster was thus on notice of the existence of at least one prior incident. They were free to inquire further or to conduct their own investigations, which, in fact, they had already begun to do.
The Petitioner has not shown by clear and convincing evidence that the Respondent's failure to volunteer the details of earlier accidents constitutes dishonesty, fraud, deceit or misrepresentation. Petitioner has provided no authority, nor does this court find any, for the proposition that an attorney who represents a potential plaintiff must, especially in his preliminary contacts with an insurer, blurt out the details of all the facts that could have an adverse effect on the merits or value of his or her client's claim.
3) The Respondent's Role in the Allegedly Improper Allocation of Chiropractic Treatments and Bills Between the Two Accidents
Based on the Respondent's role in having Dr. Barone confirm that she had attributed particular treatments to one accident or the other, the Petitioner asks the court to conclude that because the Respondent was either aware of or suggested Dr. Barone's separation of the bills and treatments, but failed to inform Progressive and Liberty Mutual of the existence of both accidents, he engaged in ethical misconduct. This allegation actually consists of two separate claims: first, that it was improper under the circumstances of this case to try to separate the bills when the accidents were so similar, were nearly contemporaneous and involved injuries to the same body parts; and second, that it was improper for the respondent to fail to advise each insurer of the existence of the other accident.
3-A) Allocation of Bills
With regard to the first part of this claim, the Petitioner asserts in its Memorandum of Law, without any authority whatsoever, that "Dr. Barone's job as a chiropractor is to treat patients, not to assign treatments for identical injuries to particular automobile accidents that occur one week apart. In light of the proximity in time of the accidents, the similar property damage and the identical injuries, it would be impossible to separate treatment to a particular accident." This court would agree that if Dr. Barone felt that she was in fact unable to separate the treatments by accident but did so solely because the Respondent insisted that she do so to help him improve his case, the Petitioner's claim of misrepresentation might be well-founded. The Petitioner, however, has not produced any such evidence. Moreover, its assertion that a chiropractor's job is "not to assign treatments for identical injuries to particular, automobile accidents that occur one week apart" has not been established by any testimony, expert or otherwise. The question of whether it is outside the scope of a chiropractor's skills and duties to separate treatments and expenses in this fashion is not something that this court can determine without expert testimony. "If the determination of the standard of care requires knowledge that is beyond the experience of an ordinary fact finder, expert testimony will be required." Santopietro v. City of New Haven, 239 Conn. 207, 226 (1996). The only and uncontradicted evidence on this subject was from the Respondent himself, who testified before the grievance panel that he was generally aware of chiropractors allocating treatment expenses among two or more accidents, and attorneys asking them to do so, under comparable circumstances. The court certainly can not determine by clear and convincing evidence that Respondent violated the Rules of Professional Conduct merely on the basis of the fact that the chiropractor allocated her bills and treatments among the two accidents in question.
3-B) Non-disclosure of the Other Accident
The second part of this claim is thornier, involving the obligation of an attorney, in the context of pre-litigation negotiations with the representative of the insurer of an alleged tortfeasor, to disclose information of which it is aware, and of which the insurer might not be aware, which, if known, might undermine the strength of the claim being made. It is important to recognize that the context here is not the same as that when litigation has already commenced and attorneys are subject to Practice Book Rules governing discovery. The situation here involved the very preliminary stages of a negotiation between an attorney and an insurance adjuster, with no litigation pending.
It is also important to note at the outset that the Respondent is not claiming, nor could he claim, that disclosure of one accident to the other insurer would violate a client confidence and hence also violate Rule 1.6 of the Rules of Professional Conduct. He acknowledges an obligation to disclose the existence of the other accident "if asked," but in the absence of such an inquiry, he contends that he did nothing wrong by omitting the details and putting the best "spin" he could on the facts as they existed at this early stage of the negotiations.
Moreover, the materials submitted by the Respondent to the insurers, while they do not specifically recite the details of Ortiz's other accidents, do in fact suggest the existence of those prior accidents. Dr. Barone's report regarding the December 8 accident hints at the existence of the March 4 accident, which she characterizes as "resolved" without specifically mentioning its date or nature, and her report on the December 15 accident suggests, again without specificity, the existence of at least two prior incidents for which treatment had been "completed" by the time the report was written.
The record in this case also reveals that by January 11, 2000, each insurer had in fact learned of the existence of the other accident through the National Insurance Claims Bureau (NICB), an insurance industry database to which insurers can turn in order to learn about other claims being made by alleged accident victims, and the adjusters for both companies were in communication with each other. Through NICB, they also learned of the August 1999 accident, and by March 2000, each had obtained surveillance photographs of Ortiz. In January of 2001, James Harris, an investigator for Progressive, filed the grievance complaint that eventually led to this presentment. Notwithstanding all of this activity by the insurers, each case was settled for the sum of $4000 in 2002.
Respondent argues that because each case was eventually settled for more than the amount of the claimed medical expenses, "there is no question that the . . . claims were legitimate." He claims that the payments "constitute an admission that both of Mr. Ortiz's claims were and are legitimate." This contention lacks neither merit nor relevance. Both cases were settled on the basis of standard releases, which specifically state that they reflect compromises of claims that are disputed as to liability and the nature and extent of any injuries, and that the release may not be construed as an admission of liability. The settlements themselves, therefore, could not be used to legitimize any conduct that otherwise would be unethical.
It is certainly true that the reports from Dr. Barone that Respondent submitted to the insurers downplayed Ortiz's March 4, 1999 injuries and treatment, indicating that they were "resolved" or "completed" when in fact disability ratings had been assigned. Those reports also tended to buttress the Respondent's claim that Ortiz's injuries were limited only to his neck for the December 8th accident and to his lower back for the December 15th accident, despite the fact that Dr. Barone's prior diagnoses, reports and bills clearly indicated that Mr. Ortiz had initially complained of injuries to both the neck and back after both accidents and had also received one 5% disability to the back and another to the shoulder as a result of the March accident.
A minor threshold problem with this argument is that it was the Respondent's brother, Edward Gillis, who had represented Ortiz in connection with the March 4 event, not the respondent. The Petitioner has not presented the court with any evidence or legal authority upon which the court could conclude that the Respondent himself either was aware or had a duty to be aware of the prior disability rating to Ortiz's back.
Another and far more significant problem is that the Petitioner has not suggested that there is anything wrong with the plaintiff himself, presumably with the advice of counsel, electing not to pursue certain potential claims (e.g. a lumbar injury in the December 8 accident and a neck injury in the December 15 accident) that could complicate his prospects of resolving both cases. In other words, the evidence suggests that while Ortiz had potential neck and back claims against the drivers in both December accidents, he and his attorney made a tactical decision to pursue the injury to only one body part in each accident, in effect waiving the claim as to the other body part for purposes of that accident, in an effort (which has obviously failed with respect to the present Petition but was moderately successful, from Ortiz's point of view, with respect to the resolution of the two December accidents) to avoid muddying the proverbial waters.
One implication of the Petitioner's argument is that an individual who has the misfortune to be similarly injured in two accidents in close temporal proximity to each other can only recover against one tortfeasor, presumably the first one, since, according to its analysis, a treating physician lacks the ability to determine the extent to which his or her patient's symptoms are the result of one accident or the other. The Petitioner has offered no support for such a conclusion. This is not to state that the court necessarily believes that Dr. Barone has correctly assigned the various treatments to their corresponding accidents. That would have been an appropriate subject on which to have inquired of Dr. Barone, but no evidence of any questioning of Dr. Barone has been submitted to the court in this case.
4) The Failure to Advise Either Insurer of the Existence of the Other December Accident.
This issue has already been fully discussed in section 3-B, supra.
5) The Claims Made by Respondent to Each Insurer That Since the Accident Ortiz "Has Been Unable to Participate in Any Activity Which Requires the Slightest Bit of Physical Exertion Due to the Injuries Suffered."Petitioner accuses Respondent of misrepresenting the state of Ortiz' health prior to the December accidents, by describing him, before each of the December accidents, as "`an active man' (despite the two prior five percent permanent disability ratings from the March 4, 1999 accident) who, after December, could not `participate in any activity which requires the slightest bit of physical exertion . . .'" Although it recognizes that a certain amount of "puffing" is a part of the process of negotiation, the Petitioner argues that such statements go far beyond mere "puffing" and rise to the level of "clear misrepresentations on a fundamental factor in the settlement of cases: the impact of an accident and resulting injuries on a person's life."
No one — certainly no experienced insurance adjuster — could be expected to take at face value the claim that Ortiz could not "participate in any activity which requires the slightest bit of physical exertion . . ." Indeed, one wonders whether such hyperbole could possibly have any positive effect at all upon an adjuster. As the Commentary to Rule 4.1 of the Rules of Professional Conduct observes, "Under generally accepted conventions in negotiation, certain types of statements are not taken as statements of material fact." Although characterizations of a client's infirmities are not specifically included among the examples given in the Commentary, this court concludes that the general statement made by the Respondent does not amount to a misrepresentation that would violate Rules 4.1 or 8.4.
On the other hand, had the Respondent written, for example, "As a result of the accident, Mr. Ortiz is permanently paralyzed from the waist down," this court might reach a quite different conclusion.
Although this court concludes that the Petitioner has not established that the Respondent's conduct violated any of our Rules of Professional Conduct it also recognizes that the Petitioner has identified important questions that are not readily answered by reference to those Rules. In State v. Marks, 758 So.2d 1131, 1135-36 (Fla.App. 4 Dist. 2000), the court observed:
It is customary to attempt settlement of personal injury claims before any suit is actually filed in court. Whether before or after suit is filed, attempts at settlement often involve extensive communications between claimant's counsel and the insurer providing coverage. These settlement communications are a dance of nuance and strategy, of cajolery and intimidation, of exaggeration and minimization. Counsel for the claimant is at once bound by the attorneys tradition of zeal for the client's cause, yet also by the constraints of the profession, including the prohibition against misrepresentation . . . Clearly in settlement discussions between a claimant and the insurer where the parties are dealing at arm's length, counsel need not disclose information directly contrary to the client's position, so long as the nondisclosure does not have the effect of affirmatively misrepresenting a material fact.
It is thus possible to advocate a very close case, one where the issue of negligence is cloudy or injuries are not indisputably related to the injury, yet not misrepresent anything to the insurer. In this circumstance, counsel can lawfully seek to advocate the client's position to achieve the maximum recovery available. Again we stress, counsel cannot commit a fraud on the insurer by misrepresenting facts counsel knows to be untrue. The problem is locating the demarcation between acceptable advocacy — a tolerable adversarial, hyperbolic presentation of inferences, implications and conclusions about symptoms, causes and effects and unacceptable fraud by outright lying. The point at which advocacy passes from the one to the other may well be exceedingly beclouded in a given case, as where the facts point in both directions.
Rightly or wrongly, in negotiating the settlement of personal injury cases with insurers, attorneys work in an adversarial setting in which the Rules of Professional Conduct "do not contemplate paragons of virtue." Harduvel v. General Dynamics Corp., 801 F. Sup. 597, 609 (M.D.Fla. 1992). In Brown v. County of Genesee, 872 F.2d 169 (6th Cir. 1989), the court acknowledged that:
An attorney is to be expected to responsibly present his client's case in the light most favorable to the client, and it is not fraudulent for him to do so . . . We need only cite the well-settled rule that the mere nondisclosure to an adverse party and to the court of facts pertinent to a controversy before the court does not add up to "fraud upon the court" for purposes of vacating a judgment.
Citing Kerwit Med Prods. v. N.H. Instruments, Inc., 616 F.2d 833, 837 (5th Cir. 1980).
Rex R. Perschbacher, in Regulating Lawyers' Negotiations, 27 Ariz.L.Rev. 75 (1985), concludes generally that most present Codes of Conduct do not effectively address the activities of lawyers in their role as negotiators. He points out that "[t]he rules of professional ethics simply do not give clear guidance to lawyer-negotiators . . . Commentators argue that certain deceptions are an accepted convention of negotiation tactics; adherence to the ethical proscriptions may risk prejudicing the client's interest . . . In some situations, the lawyer-negotiator is dealing with an equal adversary, trained with the same tactics that might otherwise appear unfair. If the lawyer-negotiator does not recognize this and act accordingly, the client may be disserved. Thus, a lawyer-negotiator should only be liable for misrepresentation when it causes some unfairness in the bargaining situation. The ethical rules provide guidelines for this limitation. Id. At 126-27.
"The critical inquiry becomes whether the injured party justifiably relied on the negotiator's statement . . . The ethics cases suggest that lawyers have a responsibility to limit their traditional duty of zealous advocacy when the lawyers know that her statements or other conduct will be acted upon without the usual check of an opposing advocate." Id. at 128. When in the early, pre-litigation stages of negotiation with professional insurance adjusters, it is reasonable for an attorney to conclude that his general statements of the nature of his or her client's injuries, conclusory opinions on the impact on the client's lifestyle, and the probable economic damages, are not going to be relied upon by the adjusters without their first having received and reviewed medical reports by treating physicians, documented statements of medical expenses and, in many cases, conducted their own independent verification through investigation, interviews, surveillance and the like. "The ethics cases suggest that lawyers have a responsibility to limit their traditional duty of zealous advocacy when the lawyer knows that her statements or other conduct will be acted upon without the usual check of an opposing advocate . . . Again, the crucial distinction turns on the concept of reliance." Id. at 128.
There has been no evidence in this case that either insurer relied on those of the Respondent's statements which the petitioner alleges to have been of dubious accuracy. To the contrary, within a month of receiving the respondent's initial letters announcing his representation of Ortiz, their adjusters had consulted the industry's data base to determine the existence of other claims made by Ortiz, they had conferred with each other, and they had commenced their own investigations, including surveillance.
The Respondent is guilty of imprecision and exaggeration, traits that are not directly addressed by any of the Rules whose violation the petitioner alleges. Although he was less than totally candid about the full extent of his client's prior accident history, our Rules do not require total candor, and he provided enough information about that history, through the reports submitted by Dr. Barone, to put the insurers on notice that they ought to inquire further. The insurers did not rely, nor could they have reasonably been expected to rely, on the information and representations provided by the Respondent in his correspondence to the adjusters. The Petitioner has not shown by clear and convincing evidence that the conduct of the Respondent amounted to fraud, deceit, misrepresentation or dishonesty, and the petition seeking that he be disciplined is therefore dismissed.
Jonathan E. Silbert, Judge