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IDAHO STATE BAR

Bradley G. Andrews Bar Counsel Idaho State Bar P.O. Box 895 Boise, ID 83701 (208) 334-4500 ISB No. 2576

MAY 1 7 2011

BEFORE THE PROFESSIONAL CONDUCT BOARD OF THE IDAHO STATE BAR

IDAHO STATE BAR, Plaintiff,


v.

BRYAN S. STORER, Respondent.

) ) ) ) ) ) ) ) )

File No. FC I 0-04

AMENDED COMPLAINT

The Idaho State Bar ("ISB"), by and through its counsel Bradley G. Andrews, hereby charges Bryan S. Storer, an attorney admitted to practice before the courts of Idaho, with professional misconduct as follows: 1. Bryan S. Storer (hereinafter referred to as "Respondent"), was admitted to the

practice of law in the State of Idaho in 2004, at which time he took the oath required for admission, wherein he agreed to abide by the rules of professional conduct adopted by the Idaho Supreme Court. At all times mentioned herein, Respondent has continuously been under the jurisdiction of the Idaho Supreme Court as a member of the ISB on active status. 2. The Idaho Supreme Court has adopted the Idaho Rules of Professional Conduct

("I.R.P.C."), governing the ethical conduct of attorneys licensed to practice in the State of Idaho, which Rules were in effect at all times relevant herein.

Amended Complaint- 1

3.

Pursuant to Rule 511(a)(l) of the Idaho Bar Commission Rules ("l.B.C.R."), the

Board of Commissioners has approved the filing of these charges against the Respondent.

MISTY AND GABRIEL HERNANDEZ COUNT ONE

4.

On October 20, 2004, Misty and Gabriel Hernandez ("Hernandezes") were

injured in a car accident when another driver, John Copenhaver ("Copenhaver"), hit their vehicle. At the time of the accident, Copenhaver was operating a vehicle owned by his sister, Tiffany Hickey ("Hickey"). On July 18, 2006, Copenhaver died from unrelated causes.

5.

Sometime in 2006, the Hernandezes retained Respondent on a contingent fee

basis to handle their personal injury claim. On October 20, 2006, Respondent filed a Complaint against Copenhaver and Copenhaver's estate ("Estate") and wife, Crystal Peel ("Peel"). The Complaint also named Hickey as a defendant, based on claims of imputed negligence and negligent entrustment of the vehicle to Copenhaver. On March 23, 2007, Respondent filed an Amended Complaint that was substantively identical to the original Complaint. 6. On or around April 19, 2007, Hickey was served with a summons and copy of the Thereafter, Hickey's

Amended Complaint. Respondent did not serve the other defendants. insurer retained attorney James Ford.

7.

On May 15, 2007, Mr. Ford filed an Answer and served Respondent with

discovery requests. Respondent did not respond to the discovery requests.

8.

On June 19, 2007, Mr. Ford sent Respondent a letter reminding him that the He stated that he would file a motion to compel the

discovery responses were overdue.

Amended Complaint - 2

discovery responses and seek attorney fees and costs if the responses were not received by June 26, 2007. Respondent did not submit the discovery responses. 9. On July 5, 2007, Mr. Ford filed a Motion to Compel Discovery Responses and

Motion for Award of Attorney Fees and Costs (collectively "Compel Motion"). A hearing was scheduled for July 26, 2007. Respondent did not file a response to the Compel Motion. 10. On July 25, 2007, Respondent delivered discovery responses to Mr. Ford's office.

Also on that date, Respondent filed a Motion to Enlarge Time for Hearing ("Enlarge Motion"), citing his delivery of the discovery responses and a scheduling conflict. 11. On July 26, 2007, Respondent and Mr. Ford attended the hearing on the Compel

Motion. The Hernandezes and Hickey did not attend. At the hearing, the Court denied the Enlarge Motion and determined that Hickey was entitled to attorney fees and costs in bringing the Compel Motion. Respondent was advised that he could file an objection to the requested fees. 12. On August 2, 2007, Mr. Ford filed a Memorandum of Attorney Fees requesting

$435.25. Respondent did not file any objection to the requested fees. On September 21, 2007, Mr. Ford filed Defendant Hickey's Motion for Entry of Settlement of Attorney Fees based on Respondent's failure to timely file an objection. Respondent did not file any response. 13. On October 4, 2007, Mr. Ford sent Respondent a letter requesting specific

supplemental discovery responses based on recent depositions of the Hernandezes. Respondent did not reply.

Amended Complaint - 3

14.

On November 9, 2007, Mr. Ford filed a Motion to Compel Discovery Responses

and Motion for Award of Attorney Fee and Costs ("Second Compel Motion"). A hearing was scheduled for December 20, 2007. Respondent did not file any response. 15. On November 19, 2007, Respondent filed notice of his initiation of an action

under the Small Lawsuit Resolution Act ("SLRA"). On November 20, 2007, Mr. Ford filed an objection to the SLRA proceeding ("SLRA Objection"). A hearing on the SLRA Objection was scheduled for January 24, 2008. 16. On November 21, 2007, Mr. Ford filed Defendant Tiffany Hickey's Request for

Dismissal of Non-Served Defendants Pursuant to I.R.C.P. 4(a)(2) ("Dismissal Request"), based on Respondent's failure to serve the Estate and Peel by September 24, 2007. A hearing on the Dismissal Request was scheduled for January 24, 2008. Respondent did not file any response to the Dismissal Request. 17. On November 27, 2007, Mr. Ford filed a Motion for Partial Summary Judgment

("PSJ Motion") relating only to the negligent entrustment claim against Hickey. A hearing on the PSJ Motion was scheduled for January 24, 2008. Respondent did not file an objection to the PSJ Motion. 18. On December 20, 2007, neither Respondent nor the Hernandezes appeared for the

scheduled hearing on the Second Compel Motion. The Court granted that motion after argument by Mr. Ford's associate, attorney Joseph Pirtle.

Amended Complaint - 4

19.

On December 24, 2007, Mr. Pirtle filed a Memorandum of Attorney Fees and

Affidavit of Joseph N. Pirtle in Support of Award of Attorney Fees for $453.75. Respondent did not file any objection to the requested fees. 20. On January 11, 2008, Respondent filed a Motion for Continuance of Hearing on

Defendant Hickey's Motion for Partial Summary Judgment ("Continuance Request"). Respondent asserted that he needed additional time to obtain affidavits, conduct depositions and complete discovery. 21. On January 14, 2008, the Court entered an Order granting the Second Compel

Motion and directing the Hernandezes to serve supplemental discovery responses within 14 days. 22. On January 18, 2008, Respondent filed a Motion to Enlarge Time ("Second

Enlarge Motion") based on a scheduling conflict with the January 24, 2008 hearing. 23. Also on January 18, 2008, Mr. Pirtle filed a memorandum in opposition to

Respondent's Continuance Request and an Objection to the Second Enlarge Motion. 24. On January 23, 2008, attorney Mark Means filed a Notice of Association and

Appearance as co-counsel for the Hernandezes. At the January 24, 2008 hearing, Mr. Means appeared on behalf of the Hernandezes. Respondent and the Hernandezes did not attend. Mr. Ford appeared for Hickey. During the hearing, Mr. Means informed the Court that the

Hernandezes did not object to the Dismissal Request or SLRA Objection. The Court denied the Continuance Request, citing Respondent's failure to diligently pursue discovery or properly respond to prior discovery requests. The Court granted Hickey's PSJ Motion and attorney fee

award relating to both compel motions.

Amended Complaint- 5

25.

On February 13, 2008, the Court entered an Order Setting Awards of Attorney

Fees, directing the Hernandezes to pay Hickey $889 in attorney fees by May 15, 2008. The Court also entered Orders dismissing the non-served defendants, granting the PSJ Motion and SLRA Objection, and denying the Second Enlarge Motion. 26. On March 4, 2008, Mr. Ford filed a Motion for Summary Judgment ("SJ

Motion") on the remaining claim of imputed negligence, based on Respondent's failure to join Copenhaver and/or the Estate as defendants within the applicable statute of limitations. A hearing on the SJ Motion was scheduled for April 24, 2008. Respondent and the Hernandezes did not file any response to the SJ Motion. 27. On April 24, 2008, Respondent, Mr. Means and the Hemandezes failed to appear

for the scheduled hearing on the SJ Motion. The Court noted Respondent's failure to properly join Copenhaver as a necessary party before the statute of limitations ran and granted the SJ Motion. 28. On May 5, 2008, the Court entered an Order granting the SJ Motion. On May 8,

2008, the Court entered Judgment dismissing the Hernandezes' case. 29. On May 21,2008, Mr. Ford filed a Motion for Award of Costs and Attorney Fees

("Fee Motion"), requesting $13,729 in attorney fees (including $889 the Hernandezes failed to pay by May 15, 2008) and $979 in costs. A hearing on the Fee Motion was scheduled for June 26, 2008. Respondent and the Hernandezes did not file any objection to the requested fees. 30. On June 26, 2008, attorney Clinton Miner appeared on behalf of the Hernandezes

at the Fee Motion hearing. Respondent, Mr. Means and the Hernandezes did not attend. Mr.

Amended Complaint- 6

Miner did not object to Mr. Ford's request for $979 in costs but argued against the award of attorney fees. The Court granted the Fee Motion. On July 16, 2008, the Court entered an

Amended Judgment against the Hernandezes for $14,708. 31. On August 4, 2008, a Writ of Execution ("Writ") was issued against the

Hernandezes for $15,082.71. Thereafter, the Hernandezes contacted attorneys Rick Dredge and Sheli Fulcher Koontz to determine why they had been directed to pay any monies. On

September 8, 2008, Mr. Dredge sent Respondent a letter requesting information about the Writ and the Hernandezes' case. 32. On December 9, 2008, Mr. Dredge filed a malpractice action against Respondent

and Mr. Means. Respondent forwarded the Hernandezes' claim to his malpractice carrier, which settled the claim for $45,500 on February 9, 2009. 33. The conduct described in paragraphs 1 through 32 of this count constitutes

violations of Idaho Rules of Professional Conduct 1.1 [Competence]; 1.2 [Failure to pursue client objectives]; 1.3 [Diligence]; 1.4 [Communication]; 3.4(d) [Failure to make reasonably diligent effort to comply with discovery request]; and 8.4(d) [Conduct prejudicial to the administration of justice].
LISA HUNTER COUNT TWO

34.

On October 26, 2004, Lisa Hunter f/k/a Bruner ("Hunter") was injured in a car

accident involving anotherdriver, Donald Trinidad ("Trinidad"). On February 15, 2005, she retained Respondent to represent her in a personal injury action on a 33.3% contingent fee basis under an Attorney-Client Fee Agreement ("Agreement").

Amended Complaint - 7

35.

On November 7, 2005, Respondent sent Trinidad's insnrer, Geico, a Statement of

Claim and Demand ("Demand") seeking an $80,000 settlement, which Geico rejected. Respondent did not inform Hunter about the Demand or rejection. 36. On December 19, 2005, Geico tendered a $7,500 settlement offer. Later that day,

Respondent sent Geico a letter stating that he "discussed this offer in detail with [Hunter] and she agreed to reduce her offer to $75,000.00." Respondent did not inform Hunter about Geico's settlement offer or his statement that she would reduce her settlement offer. 37. On February 21, 2006, Respondent faxed Geico a letter disputing any assertion

that Hunter's injuries were the result of an unrelated fall. He requested that Geico "either make an offer that we can consider or tell us that Geico will not do so and we will move on." 38. $14,323.30. 39. On March 14, 2006, Respondent sent Geico a letter stating that Hunter declined On or around March I 0, 2006, Geico offered to settle Hunter's claim for

the offer and would "not bother making another counter offer due to the unreasonable position taken by Geico in this case." Respondent did not consult with Hunter about Geico's latest settlement offer and she did not authorize him to decline that offer. 40. On September I, 2006, Respondent filed a Complaint and Demand for Jnry Trial

("Complaint") against Trinidad. Hunter did not authorize Respondent to file the lawsuit and was not informed that the Complaint was filed. Answer for Trinidad. Thereafter, attorney William Fuhrman filed an

Amended Complaint- 8

41.

On November 21, 2006, Geico offered to settle Hunter's claim for $18,000.

Respondent rejected the offer without first consulting Hunter. 42. 43. On November 27,2006, Mr. Fuhrman served discovery requests. On December 5, 2006, Respondent faxed a letter to Pre-Settlement Financing

("PSF"), a company that provides loans to personal injury clients. Respondent attached copies of Hunter'smedical bills and vehicle collision report, and stated that he was aware of only one lien filed by a medical provider. He requested that PSF contact him directly if it had any questions. Respondent never informed Hunter that he intended to share confidential information about her case with PSF or any other third party. 44. On January 2, 2007, Respondent requested an extension to provide discovery

responses. Mr. Fuhrman agreed to the extension but indicated that he would file a motion to compel if the responses were not received by January 19, 2007. 45. On January I 0, 2007, the Court issued a Scheduling Order that required the

parties to disclose their expert witnesses by August 6, 2007. Trial was scheduled for December 10, 2007. 46. On January 19, 2007, Respondent submitted discovery responses. Mr. Fuhrman

determined that the responses were incomplete and filed a Motion to Compel ("First Compel Motion") on January 22, 2007. 47. On February 27, 2007, Hunter sent an email to Respondent's assistant, Matt,

inquiring about the status of her case. On February 28, 2007, Matt informed Hunter that trial

Amended Complaint - 9

was scheduled for late 2007 and indicated that discovery was completed. Hunter was not aware that the lawsuit had been filed until she received Matt's email. 48. On March 2, 2007, Mr. Fuhrman sent Respondent a letter requesting supplemental

discovery responses. Respondent provided those responses in mid-March 2007. 49. On April 6, 2007, the Court issued a Notice of Amendment to Scheduling Order

("Expert Notice") advising that any objections to expert witness disclosures not filed within 45 days from the due date would be waived. 50. . 51. On June 14,2007, Respondent filed an Expert Witness Disclosure . On July 10, 2007, Mr. Fuhrman sent Respondent a letter advising that Hunter's

supplemental discovery responses were still incomplete. He specified the interrogatories and requests for production that had not been answered and indicated that he would file another motion to compel unless the responses were provided by July 21, 2007. Mr. Fuhrman also requested that Respondent inform him as soon as possible whether Hunter would participate in a Rule 35 examination with Dr. Richard Wilson on July 24 or 25, 2007. Respondent did not respond to Mr. Fuhrman's request regarding the Rule 35 examination. 52. On July 11, 2007, Respondent sent Hunter a copy of Mr. Fuhrman's letter and

requested that she provide the additional information to his office before July 21, 2007. 53. On July 27, 2007, Mr. Fuhrman filed an Objection to Plaintiffs Expert Witness

Disclosure ("Fuhrman Expert Objection") and a Memorandum in Support of Motion for Sanctions ("Sanction Memorandum"). Both documents were mailed to Respondent's office.

Amended Complaint - I 0

Respondent later denied receiving the documents because they were mailed to his old office during an office relocation. 54. On August 6, 2007, Mr. Fuhrman filed Trinidad's Expert Witness Disclosure.

Under the Court's Expert Notice, Respondent was required to file any objections to the disclosure by September 20, 2007. 55. In early August 2007, Respondent relocated his office. On August 9, 2007, he

mailed Mr. Fuhrman a Notice of Change of Address. 56. On August 22, 2007, Respondent's assistant sent Hunter a letter regarding her

apparent failure to respond to Respondent's letter dated July II, 2007. The assistant enclosed another copy of Mr. Fuhrman's July I 0, 2007 letter and requested that she respond immediately to avoid a possible compel motion and court fine. 57. On August 24, 2007, attorney Christopher Graham of Mr. Fuhrman's firm sent

Respondent a letter, confirming an August 31, 2007 extension to provide supplemental discovery responses. Additionally, Mr. Graham requested that Respondent detail the proposed conditions for Hunter's participation in the Rule 35 examination. 58. On September 20, 2007, Mr. Graham sent Respondent another letter regarding the

Rule 35 examination. He explained that the July examination dates were canceled because Respondent failed to respond, listed available dates in November 2007, and asked Respondent to confirm Hunter's availability as soon as possible. Mr. Graham advised that he would file a Motion for a Rule 35 Examination ("Rule 35 Motion") unless Respondent responded by September 26, 2007.

Amended Complaint- II

59.

On September 24, 2007, Mr. Fuhrman filed a Second Motion to Compel ("Second

Compel Motion") the discovery responses. 60. On October 1, 2007, Mr. Fuhrman filed the Rule 35 Motion and a supporting

Affidavit("Exam Affidavit"), setting forth Respondent's repeated failures to respond to requests to confirm Hunter's availability for the examination. Mr. Fuhrman's office mailed the Rule 35 Motion and Exam Affidavit to Respondent at his prior office address. Respondent later stated that he did not receive the documents until they were forwarded to his new office on October 8, 2007. 61. On October 2, 2007, Mr. Fuhrman filed a Motion to Vacate Trial Setting ("Vacate

Motion") based on Respondent's failure to provide complete discovery responses. He also filed a Motion to Shorten Time ("Time Motion"), requesting that the Second Compel Motion, Rule 35 Motion and Vacate Motion be heard concurrently with the status conference scheduled for October 9, 2007. According to the fax cover sheet and Respondent's subsequent testimony, Mr. Fuhrman's fax to Respondent on that date included copies of the Vacate Motion, Time Motion and Notice of Hearing, but did not include the Rule 35 Motion and Exam Affidavit. 62. On or around October 2, 2007, Respondent filed an Objection to Defendant's

Designation of Experts ("Storer Expert Objection"). 63. On October 3, 2007, Respondent filed an Objection ("Vacate Objection") to the

Vacate Motion, Time Motion and Rule 35 Motion. He also filed the Affidavit of his assistant, Diana, who stated that she received a copy of the Vacate Motion, Time Motion and Notice of fl'earing by fax from Mr. Fuhrman's office on October 2, 2007. Diana explained that she called Mr. Fuhrman's office to advise that the Rule 35 Motion and Exam Affidavit were not included in

Amended Complaint- 12

the fax and was informed that those documents were served by U.S. mail on October 1, 2007. Diana stated that Mr. Fuhrman's office then faxed the Rule 35 Motion and Exam Affidavit to Respondent's office at her request. 64. 65. On October 4, 2007, the Court entered an Order granting the Time Motion. On October 9, 2007, despite notice by fax and by telephone call from the Court,

Respondent failed to appear for the hearing on the Rule 35 Motion, Second Compel Motion and Vacate Motion. At the hearing, the Court indicated that all of the motions would be granted. 66. On October 11, 2007, Mr. Fuhrman filed a Memorandum in Opposition

("Opposition Memorandum") to the Storer Expert Objection, asserting that the objections were untimely and therefore waived under the Expert Notice. Mr. Fuhrman added that, even if the objections were not waived, Trinidad was forced to file the Rule 35 Motion based on Respondent's repeated failures to respond to requests for available dates and, consequently, Trinidad could not provide a complete expert witness disclosure until Hunter's examination was conducted. 67. On October 15,2007, Mr. Fuhrman faxed Respondent a Notice of Hearing on the

Fuhrman Expert Objection set for October 30, 2007. The hearing was reset to November I, 2007, at Respondent's request due to an illness. 68. On October 19, 2007, the Court entered an Order granting the Rule 35 Motion,

Second Compel Motion and Vacate Motion, awarding attorney fees and costs to Mr. Fuhrman, and directing Hunter to provide complete discovery responses by November 3, 2007.

Amended Complaint - 13

69.

On October 26, 2007, Respondent faxed Mr. Fuhrman a letter, stating that he had

received the Notice of Hearing for the Fuhrman Expert Objection but did not receive the related "Memorandum or Motion." He stated that Diana had called Mr. Fuhrman's office twice and left messages with Mr. Fuhrman's staff, but did not receive any response. Respondent indicated that he was at a disadvantage because he was unaware of the issues and was "unable to respond to a Motion I know nothing about." In an apparent reference to the Sanction Memorandum,

Respondent requested a copy of any motion and supporting documents related to the upcoming hearing and further requested that Mr. Fuhrman reschedule the hearing so he could "respond appropriately." 70. On October 30, 2007, Respondent filed a Memorandum in Response ("Response

Memorandum") to the Fuhrman Expert Objection and a supporting Affidavit. He acknowledged that his Response Memorandum and Affidavit were untimely, but requested that the Court consider the documents because he purportedly did not receive a copy of the Fuhrman Expert Objection until October 26, 2007, despite several requests. According to Respondent, Hunter attempted to comply with the Scheduling Order but "[u]nintentional circumstances and logistical difficulties" led to "communication problems" between his office and Mr. Fuhrman. He

referenced "unanticipated mail delivery delays and losses" related to his office relocation and indicated that he did not receive the Fuhrman Expert Objection even though Mr. Fuhrman mailed the document on July 26, 2007. Respondent stated that he did not question Mr. Fuhrman's statements about mailing the documents; he asserted, however, that after he received the Notice of Hearing by fax on October 15,2007, "it should not have required 3 phone calls and a letter to obtain a copy of the Objection and Motion which then resulted in Plaintiffs response to the Objection and Motion being late." Respondent stated that he assumed responsibility for the

Amended Complaint- 14

problems associated with his office relocation, but he denied responsibility for Mr. Fuhrman's decision tb mail documents to the wrong address or Mr. Fuhrman's alleged failure to return phone calls requesting the documents. He requested that the Court deny the Fuhrman Expert Objection because Mr. Fuhrman allegedly failed to notice the matter for hearing until after the October 2, 2007 deadline and because a new Scheduling Order would be issued since the trial had been vacated.
71.

In his Affidavit ("Storer Affidavit"), Respondent referenced the Rule 35 Motion

and Exam Affidavit he received from Mr. Fuhrman's office by fax (October 2, 2007) and mail (October 8, 2007). He stated that after he filed the Vacate Objection on October 3, 2007, he did not receive any verification that the Time Motion was granted. According to Respondent, he expected the telephone status conference to proceed as scheduled on October 9, 2007, and was available during that time. He stated that he was not aware that the Court granted the Time Motion until he received a faxed copy of the Order from Mr. Fuhrman on October 15, 2007. Respondent acknowledged that the Clerk's Certificate of Service showed that the Order was faxed to his office, but he denied that his office ever received it. Respondent stated that he did, however, receive the Court's October 19, 2007 Order. He stated that when Mr. Fuhrman's office failed to respond to his assistant's calls requesting a motion and/or memorandum with the Notice of Hearing for the Fuhrman Expert Objection, he faxed a request directly to Mr. Fuhrman and received a copy by fax at the close of business on October 26, 2007. According to Respondent, Mr. Fuhrman mailed the Sanction Memorandum to his old address and it was never received. He stated that he did not receive any mail until late August 2007 "due to mistakes on the part of USPS."

Amended Complaint - 15

72.

On October 31, 2007, Mr. Fuhrman filed a Motion for Sanctions ("First Sanction

Motion") and a Motion to Strike ("Strike Motion") the Response Memorandum and Storer Affidavit because they were untimely. In a supporting memorandum, Mr. Fuhrman confirmed that he mailed the Fuhrman Expert Objection to Respondent on July 26, 2007, and faxed a copy of the notice of the October 30, 2007 hearing on that matter to Respondent on October 15,2007. He stated that Respondent already had a copy of the Fuhrman Expert Objection and could have timely responded after receiving the Notice of Hearing. However, the Response Memorandum and Storer Affidavit were not filed until October 30, 2007, the date of the original hearing, and therefore should be stricken. With respect to his request for sanctions, Mr. Fuhrman asserted that the Response Memorandum and Storer Affidavit included "sworn testimony and statements that are, in addition to being internally inconsistent, wholly contrary to statements made in prior pleadings filed in this matter," including the Storer Expert Objection and supporting memorandum. Mr. Fuhrman stated that despite Respondent's claim in both the Response

Memorandum and Storer Affidavit that Respondent did not receive a copy of the Fuhnnan Expert Objection, the Vacate Objection made "repeated references to arguments" outlined in the Fuhrman Expert Objection. Therefore, contrary to his testimony and statements, Respondent possessed a copy of the Fuhrman Expert Objection since at least October 1, 2007. Mr. Fuhrman argued that sanctions were appropriate based upon Respondent's misrepresentations. In support of the Strike Motion, Mr. Fuhrman submitted the Affidavit ofhis assistant, Patricia, who stated that she received a voicemail from Respondent's assistant on October 26, 2007, requesting a copy of the Fuhrman Expert Objection, which had been served by mail on July 26, 2007. Patricia stated that she immediately responded to Respondent's fax on October 26, 2007

Amended Complaint - 16

requesting the documents and denied that Respondent or his staff ever called before that date to request the documents. 73. At a November 1, 2007 hearing, Mr. Fuhrman informed the Court that

Respondent had received the Fuhrman Expert Objection and Sanction Memorandum. After Respondent apparently reviewed his file and found the documents, he acknowledged to the Court that the Response Memorandum and Storer Affidavit were inaccurate. 74. On November 8, 2007, Mr. Fuhrman filed another Motion for Sanctions ("Second

Sanction Motion") and an Affidavit of Attorney Fees for $2,100. 75. On November 13, 2007, the Court entered an Order Awarding Sanctions
(1) Hunter was ordered to disclose her remaining expert

("Sanction Order") as follows:

witnesses within 30 days; (2) Mr. Fuhrman was awarded attorney fees and costs in connection with the Fuhrman Expert Objection and Sanction Memorandum; (3) Respondent was ordered to pay $500 in sanctions by December 3, 2007, "based upon misrepresentations" he made in his Response Memorandum; and (4) Respondent was ordered to pay Mr. Fuhrman an additional $500 as a sanction in connection with the First Sanction Motion. 76. On November 16, 2007, Respondent filed a Motion for Leave to Withdraw as

Attorney of Record ("Withdraw Motion"). In his supporting Affidavit, Respondent asserted that Hunter was uncooperative and unresponsive and had "not produced documents relevant to her case resulting in multiple Motions to Compel." The hearing on the Withdraw Motion was set for December 14, 2007, the same date as a scheduled status conference.

Amended Complaint - 17

77.

On December 13, 2007, attorney Mark Means filed a Substitution of Counsel

("Substitution"), which both he and Respondent executed, stating: In this action, Mr. Mark L. Means appears as counsel for [Hunter], the Plaintiff, and is substituted for Mr. Bryan Storer, which said attorney hereby withdraws for the Plaintiff [Hunter], in the above entitled action. Hunter was not aware that Respondent was withdrawing from her case or that Mr. Means was substituting as her counsel of record. 78. At the December 14, 2007 status conference, Respondent addressed the

Substitution. Mr. Means did not appear. After noting that Respondent had already withdrawn from the case, the Court orally granted Mr. Fuhrman's Second Sanction Motion. 79. Sometime later that day, Respondent met with Hunter and Mr. Means at his

office. Respondent informed Hunter that because he had angered the Court, Mr. Means would attend all court appearances but Respondent would continue to work on her case as her attorney. Respondent also informed Hunter that the Court had ordered her to pay a $2, I 00 fine because Mr. Fuhrman did not receive complete discovery responses. When Hunter informed Respondent that she could not afford the fine, Respondent suggested that she obtain the funds from PSF. Hunter agreed to the arrangement after Respondent indicated he would prepare the necessary paperwork. 80. On December 26, 2007, Respondent prepared and faxed a Case Questionnaire

("Questionnaire") to PSF and scheduled an appointment for Hunter to sign a PSF agreement to obtain the funds. In the Questionnaire, Respondent identified both himself and Mr. Means as Hunter's attorneys and requested that PSF call him directly if it had any questions about the

Amended Complaint- 18

financing request. Thereafter, Respondent informed Hunter that he had arranged for a $2,500 advance, instead of $2,100 to pay the fine, so she would have additional cash.

81.

On December 27, 2007, Hunter visited PSF's office and executed a Transfer and The Security

Conveyance of Proceeds and Security Agreement ("Security Agreement").

Agreement provided that, in exchange for a $2,500 advance, Hunter "unconditionally and irrevocably grants, assigns, transfers and conveys" $2,500 to PSF from proceeds recovered in her lawsuit, together with a $200 fee. If Hunter failed to transfer the proceeds to PSF within ten business days of the due date, interest accrued at a rate of "eighteen (24%) [sic] per year or the highest rate of interest allowed by law, whichever is lower." The Security Agreement stated that Hunter acknowledged contacting PSF on or about December 24, 2007, that PSF advised her "to take no less than ten days to consider whether or not to sign this agreement," and that she had taken at least three days "to consider this agreement before signing it." Neither Respondent nor Mr. Means signed the Security Agreement where indicated. 82. After Hunter obtained the $2,500 check from PSF, she contacted Respondent's

office to inquire where she needed to go to pay the fine. She was instructed to bring the check to Respondent, who would arrange for the payment. When Hunter visited Respondent at his office, he informed her that the fine was actually $2,500 and she would need to write a personal check to him for that amount because only he could submit the payment to the Court. On December 28, 2007, Hunter wrote Respondent a $2,500 personal check for "repayment." 83. On January 2, 2008, the Court entered an Order based on its December 14, 2007

decision, as follows: (I) Hunter was ordered to comply with the Court's prior Orders granting Mr. Fuhrman's compel motions requiring complete discovery responses; (2) Hunter was ordered

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to provide complete expert witness disclosures as previously ordered; (3) Hunter was ordered to pay $2,100 in attorney fees to Mr. Fuhrman; and (4) Hunter was ordered to pay Mr. Fuhrman an additional $500 as a sanction. The Court stated that Hunter's case would be dismissed if she failed to comply with the Order. Thereafter, Hunter provided supplemental discovery responses, which Mr. Fuhrman deemed insufficient. 84. 85. On January 3, 2008, Respondent endorsed and deposited Hunter's check. On January 11, 2008, Mr. Fuhrman filed a Motion to Dismiss or in the Alternative

Third Motion to Compel Responses to Defendant's First Set of Interrogatories and Requests for Production ("Dismiss Motion"). The Dismiss Motion, supporting documents and notice of the February 4, 2008 hearing were mailed to Mr. Means. Mr. Means did not appear for the hearing or submit a written response to the Dismiss Motion. Hunter did not attend because Respondent, whom she believed was still her attorney, did not inform her about the Dismiss Motion or the hearing. 86. On February 12, 2008, the Court entered a Memorandum Decision and Order

("Dismiss Decision"), stating: In granting the motion to dismiss, the Court specifically finds that the sanction of dismissal without prejudice is appropriate because of: (1) the clear and repeated record of delay (the Defendant served his discovery requests on Plaintiff in January, 2007 and has filed several motions to compel full responses); (2) lesser sanctions, including warnings, orders to compel, monetary awards and the specific threat of dismissal have proved ineffective; and (3) the delay has been caused by the Plaintiffs intentional refusal to fully respond to discovery requests, resulting in prejudice to Defendant by the continued inability to prepare the case for trial (which had been set but vacated due to Plaintiffs conduct), the inability to conduct the independent medical examination of Plaintiff (which Defendant repeatedly tried to arrange, and which was ordered by the Court to occur but which has not), and by the necessity that Defendant's insurer has had to continue to reserve funds in this case longer than reasonably necessary.

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87.

Also on February 12, 2008, Mr. Means filed a Motion for Reconsideration

("Reconsideration Motion") and supporting documents which, he indicated, would include a forthcoming Affidavit from Respondent. Mr. Means scheduled a hearing for March II, 2008, which he vacated twice and reset for April 14, 2008. Mr. Means then vacated the April 14, 2008 hearing date without scheduling another hearing. Neither Respondent nor Mr. Means informed Hunter about the Reconsideration Motion or any of the scheduled hearing dates. 88. On April 30, 2008, Respondent filed an Affidavit with the Court ("First

Reconsideration Affidavit"). He referenced the Fuhrman Expert Objection and Storer Affidavit in which he stated that he did not receive Mr. Fuhrman's Memorandum in support of that objection. He stated that when Mr. Fuhrman insisted at the November I, 2007 hearing that Respondent had received the Sanction Memorandum, he "dug through the file and found the memorandum" and informed the Court that the document had apparently been misfiled. Respondent stated, however, that when he reviewed his file several weeks later, he realized that the Storer Affidavit was accurate because he never did, in fact, receive the Sanction Memorandum. Instead, what he "received in July was very likely only the Objection itself and not the Memorandum just as [he] had stated in [his] Affidavit." Respondent stated that he wanted to clarify the record in order to demonstrate that substantive issues in Hunter's case had been set aside because "the parties have been fighting over technical issues." He reiterated that he did not attend the October 9, 2007 hearing because he was under the mistaken impression that the status conference would be telephonic and, due to a "communication problem," he was not aware that the Time Motion had been granted. Respondent stated that because the hearing was held in his absence, he was unable to "communicate pertinent facts" that he believed would have resulted in a different conclusion by the Court. Respondent stated that when he withdrew from

Amended Complaint " 21

Hunter's case, his office was informed by a court clerk that Mr. Means' attendance at the December 14, 2007 hearing was not required. He explained that it was his understanding that he would be able to respond to any outstanding issues in Hunter's case at that hearing; however, the withdrawal matter was addressed first and consequently Hunter was not represented by counsel at the hearing. Respondent stated that rather than extending Mr. Means the professional courtesy to respond to the issues at another hearing, Mr. Fuhrman "took the opportunity to argue his issues knowing [Hunter] had no one there to respond." He again explained the problems he purportedly experienced with mail, fax and other communications during his office relocation in August 2007, and stated that the "technical challenges [he] had with this case were not the result of intentional or obstiferous [sic] behavior" by him or Hunter. 89. On May 12, 2008, Respondent filed a second Affidavit ("Second Reconsideration

Affidavit"), again referencing the issue of whether he received the Fuhrman Expert Objection and . Sanction Memorandum. He stated that Mr. Fuhrman's claim during the November 2007 hearing that he had "proof" that Respondent received the documents "resulted in a near panic" because he assumed that he had made a "serious and inadvertent mistake" in the Storer Affidavit. He reiterated that he "dug through the file" and believed he found the documents; however, he stated that the only document he found was the Fuhrman Expert Objection and he did not look further to confirm that the Sanction Memorandum was attached. Respondent stated that he assumed the document was attached and consequently informed the Court that the Storer Affidavit was erroneous and the Sanction Memorandum was in his file. He disputed the

assertion that he ever filed an affidavit claiming that he did not have the Sanction Memorandum and contended that Mr. Fuhrman "misrepresented to the Court that [other] documents were affidavits when they were not." Respondent maintained that the language in the documents he

Amended Complaint - 22

filed with the Court was consistent with his position that he only received the Fuhrman Expert Objection and not any supporting memorandum or affidavit. l-Ie reiterated that he did not receive the Sanction Memorandum from Mr. Fuhrman's office until October 26, 2007, by fax, and explained that his filings with the Court before that date were based on language provided in the Fuhrman Expert Objection.

90.

On May 13, 2008, the Court held a hearing on the Reconsideration Motion. On

May 29, 2008, the Court entered a Memorandum Decision denying that motion. The Court noted that Hunter had still failed to provide sufficient discovery responses and stated:

The Plaintiffs new counsel has put forth some additional information to explain the Plaintiffs discovery problems. The information presented about mail forwarding and other communication problems are not ones new to the Court, as [Respondent] (Plaintiffs former counsel) described them in earlier hearings. They are also in contradiction to the apparent communication problems that [Respondent] had with his client that caused him to ask for leave to withdraw. Additionally, the fact that this motion for reconsideration has been delayed for three months by the vacation of numerous hearings by Plaintiffs new counsel is, according to the Defendant, causing additional prejudice. No explanation as to why the Plaintiffs discovery responses have been deficient has been made. Plaintiff argues on the basis of when she submitted supplemental discovery, that these supplemental responses cured the deficiencies ordered by the Court. However, the Plaintiffs responses often simply state that she answered the question previously, wholly ignoring the fact that the Court specifically ordered further responses. Also, Plaintiffs new counsel states that some unidentified person from the Court told some other unidentified person from [Respondent's] office that Mr. Means (Plaintiffs new counsel) did not have to attend the December 14th hearing and that somehow that is why his client was unable to defend against the discovery sanctions and motion to dismiss. However, after the substitution of counsel had been handled by the Court the Court noted Mr. Means' absence and asked [Respondent] whether Mr. Means was aware of the pending motion for sanctions for failing to respond to discovery. [Respondent] at that time did not respond with the miscommunication story now the basis of Mr. Means's explanation. Rather, [Respondent] stated that he 'made him [Mr. Means] aware of the motion as well as any of the other problems which we'd had with the Plaintiff in complying with the discovery requests.'

Amended Complaint- 23

Further, nothing from the Plaintiffs brief sets forth a valid reason for his absence at the February 4th hearing regarding the Motion to Dismiss, or the reason that no brief was filed in opposition to that motion by the Defendant [sic]. The Plaintiff claims to have not received notice, yet there is a certificate of mailing to Plaintiffs counsel's current address. sent January II, 2008 for the motion and notice of hearing. At the hearing on this motion, Mr. Means conceded that he had received the motions and notice of hearing in his office but he had not received them from his own staff members. The record is abundantly clear that Defense Counsel has on multiple occasions attempted to obtain basic relevant information about the Plaintiffs medical issues and the Plaintiff and her counsel have utterly failed and neglected to abide by the Idaho Rules of Discovery and the orders of the Court to accomplish this fundamental task. Neither Respondent nor Mr. Means informed Hunter about the Memorandum Decision. 91. On August 13, 2008, Hunter sent Respondent an email requesting information

about the status of her case. Respondent did not reply.


92.

In October 2008, Hunter went to the Ada County Courthouse and discovered that On October 14, 2008, Hunter sent

the Court had dismissed her case in February 2008.

Respondent a letter terminating his representation and requesting a copy of her file. Respondent did not reply. 93. On July 2, 2009, Hunter's new attorney, Michael Brady, filed a civil Complaint

against Respondent and Mr. Means alleging legal malpractice, fraud and breach of contract. Attorney Robert Harwood filed Respondent's Answer on September 23, 2009, and an Amended Answer on March 18, 20 I 0. That case is still pending. 94. The conduct described in paragraphs 34 through 93 of this count constitutes

violations of Idaho Rules of Professional Conduct 1.1 [Competence]; 1.2 [Failure to pursue client's objectives]; 1.3 [Diligence]; 1.4 [Communication]; 1.6 [Confidentiality]; 2.1 [Exercise of

Amended Complaint- 24

independent professional judgment]; 3.4(c) [Fairness to opposing party and counsel]; 3.4(d) [Failure to make reasonably diligent effort to comply with discovery request]; 8.4(c) [Misrepresentation]; and 8.4(d) [Conduct prejudicial to the administration of justice].

TAMMI BILBREY-BARTH COUNT THREE


95. On August 21, 2002, Tammi Bilbrey-Barth ("Tammi") was injured in a car In June 2004, she retained

accident involving another driver, Dusty Mallory ("Mallory"). Respondent to represent her in a personal injury action. 96.

On August 20, 2004, Respondent filed a Complaint against Mallory. Thereafter,

Mallory's insurer, Allstate, retained attorney Gary Montgomery. On December 20, 2004, Mr. Montgomery filed an Answer. 97. On July I 0, 2006, a four-day jury trial commenced. On July 13, 2006, the jury

returned a verdict in favor of Tammi and awarded her a total of $82,687.29 ($42,000 in noneconomic damages and $40,687.29 in economic damages). 98. On August 17, 2006, Judge Sticklen entered Judgment, awarding Tammi a total of

$80,234.82. The Judgment stated: The parties are in agreement that the amount of medical bills submitted to the jury represented the normal charge by the treating health care providers, but that there were contractual adjustments, resulting in a reduction of $2,452.4 7 in the amounts actually billed by Intermountain Orthopedics (Dr. Shea) and Idaho Elks Rehab (St. Luke's). The parties are in further agreement that Defendant is entitled to an offset or credit against the jury verdict for said $2,452.27, leaving a net amount of $38,234.82, to which Plaintiff is entitled for economic damages, and total damages of $80,234.82.

Amended Complaint - 25

99.

On August 21,2006, Mr. Montgomery sent Respondent a check for the Judgment

amount and a proposed 'Satisfaction of Judgment to be executed and returned. 100. On August 30, 2006, Respondent filed Plaintiffs Motion for Costs and Fees. On

Septemberl3, 2006, Mr. Montgomery sent Respondent a letter confirming Allstate's agreement to pay Tammi's costs as a matter of right totaling $7,644.42, in exchange for the executed Satisfaction of Judgment and Tammi's waiver of any claim for discretionary costs. 101. On October 4, 2006, Mr. Montgomery sent Respondent a letter enclosing

Allstate's $7,644.42 check, made payable to Tammi and Respondent, and again requested that the Satisfaction of Judgment be executed and returned. Respondent did not inform Tammi about the $7,644.42 check for costs.
I 02.

On October 5, 2006, Respondent sent Tammi a $6,000 check and informed her

that he needed to complete additional work before he could disburse the remaining funds. I 03. On October 9, 2006, Respondent executed the Satisfaction of Judgment, which

Mr. Montgomery filed on October 12, 2006. 104. On October 10, 2006, Respondent responded to Tammi's repeated requests for

her portion of the settlement proceeds by sending her a $7,000 check. On October 18, 2006, he sent her a check for $14,683.27.
I 05.

Sometime in early November 2006, Tammi requested an itemized statement

("Statement") from Respondent's office and was informed that the Statement was in the mail. When Tammi did not receive the Statement, she called Respondent's office again and the

Amended Complaint - 26

Statement was sent via email on December 12, 2006. According to the Statement, Respondent made the following disbursements from the settlement proceeds: Attorney Fees (36.5%) Discretionary Costs Service of Process Dr.f{armon (expert witness) Insurance Subrogation Dr. Radnovich (expert witness) St. Luke's Payments to Client $29,405.19 $832.42 $75 $4,295.77 $13,069.45 $2,640.91 $2,232.81 $27,683.27 (three separate checks) $80,234.82

106.

When Tammi reviewed the Statement, she questioned why the initial balance was

$80,234.82, rather than the $82,687.29 awarded by the jury. She also noted that Respondent charged a 36.5% contingency fee, rather than the agreed-upon 33% fee. When questioned,

Respondent told Tammi that his wife, who was his bookkeeper, "did the math" and that Tammi should not dispute the matter because his wife was ill and he could have charged Tammi more. 107. Bar ("ISB"). On March 26, 2007, Tammi filed a Fee Arbitration Petition with the Idaho State Respondent declined to participate in binding arbitration and the matter was

assigned to attorney Audrey Numbers for mediation. 108. On June 15, 2007, Respondent faxed Ms. Numbers various documents, including

a revised Statement showing he paid attorney Brett Fox for "contract services" in the amount of $13,359.09, thereby reducing Respondent's attorney fees to $16,046.10. In an email regarding the documents, Respondent informed Ms. Numbers that he had finally "figured out" the disbursements, as follows:

Amended Complaint - 27

We received [from] Allstate We were paid fees We should have been paid fees Difference

$80,234.82 $29,405.25 $26,742.26 $ 2,687.0i

Respondent stated that his bookkeeper discovered the prior week that, based on his "error in reimbursement for costs," Tammi had not paid all of his $4,460.79 in costs, adding:

This happened because Tammy [sic] was pressuring us continually to get her paid and rather than wait for the bookkeeper to get all the cost records together which takes some time to sort through, I told the bookkeeper to cut Tammy [sic] checks. I did this without realizing that all the costs had not come in or were calculated yet. As a result, once all the costs did come in, everything had already been paid out from the trust account. The bookkeeper didn't point this out to me until this last week when I was inquiring about where we were on this. Respondent stated that, as corrected, Tammi owed him $4,460.79 in costs. With the $2,687.07 reduction for his fees, Respondent claimed that Tammi owed him a balance of $1,773.72. 109. In June 2007, Ms. Numbers advised the ISB that mediation was unsuccessful and

the fee arbitration case was closed. 110. On September 4, 2007, Respondent submitted a response to Bar Counsel He stated that he could not locate the written fee agreement

regarding Tammi's grievance.

("Agreement") signed by Tammi because it was apparently misplaced during his office relocation. He stated that the Agreement provided for a 33% contingent fee and acknowledged that he erroneously instructed his bookkeeper to reduce his standard 40% fee to 36.5% based on his assumption that Tammi's Agreement followed his standard form. With respect to the

disbursements, Respondent stated that he was waiting for checks to clear and was negotiating a

Amended Complaint - 28

reduction in the subrogation claim. He added that he was "out of the office much of that time due to health problems" and reiterated that Tammi actually owed him approximately $968 in outstanding costs that his bookkeeper omitted from the initial Statement. 111. On or around September 28, 2007, Mr. Montgomery called Respondent to inquire

about the status of the $7,644.42 check, which was never negotiated. Respondent informed Mr. Montgomery that he never received the check. Mr. Montgomery agreed to reissue the check and again send the funds to Respondent. Allied reissued the check on October 1, 2007. 112. On October 3, 2007, Respondent sent Bar Counsel a letter regarding Mr.

Montgomery's telephone call and subsequent agreement to reissue the cost check. According to Respondent, Tammi should receive "at least several thousand dollars" in addition to the initial disbursements after his fees were corrected and costs were paid. 113. On January 14, 2008, Respondent negotiated the $7,644.42 check. He did not

notify Tammi about his receipt of the funds and never provided the additional funds to Tammi. 114. The conduct described in paragraphs 95 through 113 of this count constitutes

violations of Idaho Rules of Professional Conduct 1.1 [Competence]; 1.3 [Diligence]; 1.4 [Communication]; l.S(c) [Contingent fee agreement must be in writing signed by the client]; l.IS(c) [Failure to promptly deliver funds]; 1.15(d) [Failure to distribute undisputed funds]; and 8 .4(c) [Misrepresentation].

The difference was actually $2,662.99.

Amended Complaint- 29

CANDY FRAZEE COUNT FOUR 115. In October 2006, Candy Frazee ("Frazee") was injured in a car accident and

subsequently retained Respondent to handle her personal injury claim on a one-third contingent fee basis. Thereafter, Respondent pursued settlement negotiations with the third-party insurer, Allied.

116.

On June 25, 2008, Respondent sent Frazee a letter advising that, at her request,

her claim against the other driver was settled for $15,000. He explained that he would retain $5,000 in attorney fees and asked her to review the following accounting for errors: (1) Dr. Whalen ($4,223 in original charges already paid); (2) Dr. Radnovich (outstanding balance of $1,138); and (3) Dr. Donaldson ($861 in original charges already paid). He explained that his office would issue a check to Dr. Radnovich for the outstanding balance and advised that Frazee would be responsible for any additional or undisclosed medical bills. He further explained that a $4,810 check had been issued to her insurance carrier, Farmers, to satisfy its subrogation interest based on payment of her medical bills. Accordingly, Frazee would receive a check for $4,052 after attorney fees, medical expenses and the subrogation claim were deducted from the $15,000 settlement. 117. On June 27, 2008, Frazee executed the settlement letter and received a $4,052

check from Respondent. 118. On or around July 1, 2008, Dr. Radnovich's office informed Frazee that the

$1,138 check it received from Respondent was in error and that the check had been returned to Respondent's office so the funds could be forwarded to her. Respondent did not contact Frazee about his receipt of that check or send her additional funds.

Amended Complaint- 30

119.

On August 28, 2008, Frazee contacted Respondent's office to request information She was informed that

about the status of the funds returned by Dr. Radnovich's office.

Respondent's office had contacted Dr. Radnovich and was told that she had an outstanding balance. 120. On August 29, 2008, Frazee contacted Dr. Radnovich's office and was informed

that she had a "zero balance." Later that day, Frazee faxed a letter to Respondent's assistant, Kimberly, explaining that any balance at Dr. Radnovich's office was for unrelated bloodwork and that she intended to file a grievance if she did not receive a $1,138 check by September 2, 2008. 121. Later on August 29, 2008, Respondent sent Frazee a letter stating that she

apparently misunderstood his obligation to "cover outstanding balances" from the settlement funds. He indicated that Dr. Radnovich's office provided inaccurate information when his staff called to verify her outstanding balance and suggested that Frazee address any billing issues with Dr. Radnovich directly. He stated that he would send her an additional check that day and, if she disagreed with the amount, she should contact the treatment providers directly since the funds in her trust account had been "zeroed." Under separate cover, Respondent's office sent Frazee a letter enclosing a $792.85 check in "full and complete satisfaction of [her] settlement disbursement." 122. Frazee responded to Respondent's August 29, 2008 letter by explaining that she

had tried, unsuccessfully, to reach someone in his office regarding her concerns about the funds since approximately July 15, 2008. She noted that his office had confirmed the overpayment to Dr. Radnovich and assured her that a check would be forwarded to her attention.

Amended Complaint- 31

123.

On August 30, 2008, Frazee received a letter from Farmers, dated August 27,

2008, regarding reimbursement of its subrogation interest. The letter explained that Frazee was being contacted directly because Respondent failed to respond to multiple requests by telephone and letter for a case update. The letter further explained that Farmers intended to exercise its right to recover the subrogation interest and asked her to provide a case status since Respondent failed to do so. 124. On September 2, 2008, Frazee faxed Respondent a copy of Farmers' letter for his

review. She stated that she sent Farmers a copy of the settlement letter and was concerned that Farmers had not yet received any payment, despite Respondent's statements to the contrary in the June 25, 2008 settlement letter. 125. On October I, 2008, Respondent and Farmers representative Jo Bayliss

("Bayliss") discussed the subrogation matter by telephone. 126. On October 3, 2008, Bayliss sent Respondent a letter stating that he failed to fax

information as promised regarding the reimbursement of Farmers' $4,810 subrogation claim. Bayliss stated that during their telephone conversation, Respondent indicated that his "primary concern regarding this matter is the compensation due to [Frazee] for a proportionate share of legal fees incurred for the settlement of [Frazee's] claim." Bayliss stated that based on the settlement documents, Farmers owed $1,600 (32%) of the $5,000 attorney fees. She noted that Respondent had already been compensated for his fees and therefore Frazee was entitled to $1,600 upon Farmers' receipt of the $4,810 payment from Allied. 127. On October 14, 2008, Allied sent Respondent a $4,810 check representing

Farmer's subrogation interest.

Amended Complaint- 32

128.

Also on October 14, 2008, Farmers sent Respondent a letter requesting that he

forward Farmers' share of the proceeds upon his receipt of the Allied check. 129. On October 22, 2008, Allied faxed Bayliss a letter advising that Respondent had

not deposited the subrogation check. Later that day, Bayliss sent Respondent a letter stating that Farmers intended to file a grievance and civil action based on Respondent's failure to comply with the subrogation terms set forth in the settlement letter. Bayliss demanded a response by October 27, 2008. 130. On November 16, 2008, Respondent sent Bayliss a letter stating that he was

unaware until that day that his office received Allied's check because he was away for family emergencies. He stated that he would send Farmers its subrogation amount after the Allied check cleared. 131. On November 17, 2008, Farmers sent Respondent a letter stating that it expected

payment within 30 days. 132. Also on November 17, 2008, Frazee sent a letter to Respondent's assistant,

Debbie, stating that she had called his office three times regarding her settlement proceeds and did not receive any response. She stated that Farmers called her several times about the

subrogation payment and informed her that Allied's $4,810 check was sent to Respondent in late October 2008. She noted that Respondent failed to advise Allied that the funds could have been released to Farmers directly. Frazee stated that Farmers also informed her that she would receive $1,600 upon its receipt of the reduced subrogation interest but Respondent failed to respond to numerous phone calls and letters regarding the disbursement. She noted that Respondent

Amended Complaint- 33

informed her that the settlement disbursement was complete on August 29, 2008, and therefore asked Debbie to clarify the "conflicting stories" regarding the settlement proceeds. 133. On November 18, 2008, Debbie faxed Frazee a letter stating that Respondent's She

office had recently received a $4,810 check from Allied for the subrogation amount.

explained that the check had not yet been deposited because Farmers continued to dispute the disbursement amounts. Debbie stated that Farmers initially refused to reduce its subrogation amount, which forced Respondent to take the position that he would not pay Farmers its entire amount because a portion belonged to Frazee. She indicated that Respondent spent a "ridiculous amount of time and aggravation fighting Fanners" over the subrogation interest in order to provide more funds to Frazee, and asserted that Farmers engaged in manipulation and made "numerous false statements" regarding the settlement. Debbie stated that Respondent had

already disbursed all previously received proceeds and would disburse the following funds after the Allied check cleared: Subrogation Amount Less 33% Attorney Fee Reduction Balance to Farmers: Balance to Frazee: $4,810.00 (1,603.17) $3,206.83 $1,603.17

Debbie stated that, as Frazee was aware, Respondent had been out of the country for family matters. She advised that the funds would be disbursed sometime in early December 2008, after Respondent returned and the Allied check cleared. 134. On November 24, 2008, Respondent faxed Frazee a letter, stating that he "only

recently received" Allied's check, which he would deposit that day. Respondent contended that Farmers refused to reduce its subrogation claim for six months and that Bayliss was manipulative

Amended Complaint- 34

and "made numerous false representations."

Later that day, Frazee contacted Bayliss and

requested copies of Farmers' correspondence with Respondent. 135. On November 25, 2008, Bayliss sent Frazee a letter enclosing the requested

correspondence and advising that Farmers had not yet received any payment from Respondent. 136. On January 28, 2009, Respondent sent Bayliss a letter, stating that he had

received a call from Frazee the prior week about the subrogation. He stated that he sent a $3,210 check to Farmers on an unspecified date but would issue another check that day because the first check was never negotiated. Respondent stated that once he verified that Farmers negotiated the check, he would issue a check to Frazee directly for the remaining funds. 137. On January 29, 2009, Respondent faxed Frazee a letter enclosing a copy of his

letter to Bayliss. He stated that, as he had previously explained, Farmers demanded money that he did not believe the company was entitled to receive. He maintained that the funds should have been disbursed to Frazee months ago, despite Farmers' continued insistence that it receive the entire subrogation amount and reimburse Frazee directly. He stated that once he verified that the reissued check to Farmers cleared, he would issue a check to Frazee for the remaining balance. 138. On February 5, 2009, Respondent issued a $1,600 check to Frazee. A final

statement from Respondent's office showed the following disbursements of the settlement proceeds:
(l) Respondent ($5,000); (2) Farmers (original $4,810 reduced to $3,210); Dr.

Whalen ($35); Dr. Radnovich ($31 0.15); and Frazee ($6,444.85).

Amended Complaint- 35

139.

The c.onduct described in paragraphs 115 through 138 of this count constitutes

violations of Idaho Rules of Professional Conduct 1.2 [Failure to pursue client objectives]; 1.3 [Diligence]; 1.4 [Communication]; 1.15(c) [Failure to promptly deliver funds to client and third party]; 1.15(d) [Failure to distribute undisputed funds]; and 8.4(c) [Misrepresentation].
KAREN COMPTON COUNT FIVE

140.

In December 2003, Karen Compton ("Compton") was injured in a motor vehicle

accident involving another driver, Karen Walsh ("Walsh"). 141. On May 20, 2005, Compton retained Respondent to represent her in a personal

injury action against Walsh for a 40% contingent fee. 142. On December 9, 2005, Respondent filed Compton's civil Complaint against

Walsh in Canyon County. Service was completed on June 4, 2006. 143. On June 16, 2006, attorney Joshua Evett filed Walsh's Answer and Demand for

Jury Trial. Thereafter, the parties engaged in discovery and trial was scheduled for October 16, 2007. 144. On December I, 2006, Walsh filed a Motion for Partial Summary Judgment ("PS.J

Motion"). A hearing on that motion was scheduled for January 25, 2007. Respondent did not file any responsive documents to the PSJ Motion. 145. On January 25, 2007, the Court held a hearing and granted the PSJ Motion. An Thereafter, the parties

Order consistent with that ruling was entered on February 8, 2007. continued to engage in discovery.

Amended Complaint- 36

146.

On June 29, 2007, Walsh filed a second Motion for Partial Summary Judgment

("Second PSJ Motion"). 147. On August 17, 2007, Respondent filed a Memorandum in Opposition to the

Second PSJ Motion and a supporting Affidavit. 148. On August 23, 2007, Respondent filed a Motion to Withdraw as Counsel of

Record ("Withdraw Motion") and supporting Affidavit. 149. On September 6, 2007, Walsh filed a Reply Brief in support of the Second PSJ

Motion. On September 7, 2007, Mr. Evett filed an Affidavit opposing the Withdraw Motion. 150. 151. On September 13, 2007, the Court held a hearing on the Second PSJ Motion. On October 1, 2007, the Court entered an Order granting in part, and denying in

part, the Second PSJ Motion. Specifically, the Court granted summary judgment to Walsh on Compton's claim that she was damaged in the amount of college financial aid she allegedly did not obtain and with respect to Compton's future wage loss and diminished earning capacity. The Court denied summary judgment with respect to medical causation. The October 16, 2007 jury trial date was vacated and rescheduled for December 1, 2008. 152. Also on October I, 2007, Walsh filed Motions in Limine relating to Compton's

expert witness and late disclosure of medical records. Respondent did not file any responsive documents to those motions. 153. On October 25, 2007, Respondent filed a Notice of Association of Counsel for

attorney MarkMeans, who was assisting him in Compton's case.

Amended Complaint- 37

154.

Also on October 25, 2007, the Court heard the Motions in Limine and ruled that

Respondent was required to personally pay Walsh's attorney's fees relating to the Motions in Limine and Mr. Evett's review of Compton's medical records. 155. On November 14, 2007, Walsh filed an Affidavit in support of her request to

award $4,050 in attorney's fees. On November 23, 2007, the Court entered an Order granting in part, and denying in part, Walsh's Motions in Limine. 156. On January 24, 2008, the Court entered an Order awarding attorney's fees in

favor of Walsh relating to the Motions in Limine ("January Order"). The January Order required that Respondent personally pay $4,050 directly to Mr. Evett on or before February 25, 2008. Respondent failed to make that payment as ordered by the Court. 157. On March 4, 2008, Walsh filed an Application for Order to Show Cause relating On March 17, 2008, the Court

to Respondent's failure to comply with the January Order.

entered an Order to Show Cause ("First Show Cause Order") requiring Respondent to appear on April 24, 2008, to show cause why he failed to comply with the January Order. Respondent failed to inform Compton about the First Show Cause Order. 158. On April 24, 2008, neither Respondent nor Compton appeared for the show cause

hearing. As a sanction for failing to appear, the Court ruled that Respondent must personally pay Mr. Evett's attorney's fees relating to the First Show Cause Order. 159. On May 7, 2008, the Court issued a Second Order to Show Cause ("Second Show

Cause Order"), requiring Respondent to appear before the Court on May 22, 2008, to show cause, if any, why he failed to comply with the January Order. The Court advised that if

Amended Complaint - 38

Respondent failed to appear at the May 22, 2008 hearing, attorney's fees and costs may be awarded to Walsh and the case may be dismissed. Respondent failed to inform Compton about the Second Show Cause Order. 160. On May 9, 2008, Walsh filed a Memorandum seeking $464 in attorney's fees

related to the First and Second Show Cause Orders. 161. hearing. On May 22, 2008, neither Respondent nor Compton appeared for the show cause

The Court found that the requested attorney's fees were reasonable and ordered

Respondent to personally pay $464 in attorney's fees to Walsh. 162. On June 4, 2008, the Court entered a Conditional Order of Dismissal

("Conditional Order"), indicating that Compton's case would be dismissed in 21 days if she failed to respond to the First and Second Show Cause Orders. The Court also awarded $464 to Walsh. Respondent did not file any response to the Conditional Order or inform Compton that her case may be dismissed if she failed to respond to the First and Second Show Cause Orders. 163. On July 9, 2008, the Court entered an Order of Dismissal with Prejudice and The Judgment

Judgment, dismissing all counts of Compton's Complaint with prejudice.

awarded $4,514 in favor of Walsh and against Respondent, personally, for attorney's fees. Respondent satisfied the Judgment on November 12, 2008. 164. On May 28, 2010, Compton filed a legal malpractice action against Respondent

through her attorney, Alan Morton. Respondent filed an Answer on November 24, 2010. 165. In February 2011, the malpractice action settled. Respondent paid Compton

approximately $61,000 to settle the case.

Amended Complaint- 39

166.

The conduct described in paragraphs 140 through 165 of this count constitutes

violations of Idaho Rules of Professional Conduct 1.2 [Failure to pursue client objectives); 1.3 [Diligence); 1.4 [Communication); 3.4(c) [Knowingly disobeying an obligation under the rules of a tribunal]; 1.16(a) [Failure to withdraw from representation if the lawyer's physical or mental condition. materially impairs the lawyer's ability to represent the client); and 8.4(d) (Conduct prejudicial to administration of justice]. WHEREFORE, based on the matters alleged above, Plaintiff prays for judgment against the Respondent as follows: That Respondent be suspended from the practice of law; that he be ordered to pay restitution; that he be ordered to pay the costs and expenses incurred in investigating and prosecuting this matter; and for other such relief as is deemed necessary and proper.

~
Dated this (/ day of May, 2011.

Bar Counsel

/Jd6,~

Amended Complaint - 40

CERTIFICATE OF SERVICE

I hereby certify that on the (/ - day of May, 20 II, I served a true and correct copy of the foregoing AMENDED COMPLAINT upon the following by regular U.S. mail, postage prepaid, addressed as follows:

f".

Bryan S. Storer c/o John L. Runft Runft & Steele Law Offices, PLLC 1020 W. Main, Ste. 400 Boise, ID 83702-5779

Bradley G. Andrews Bar Counsel

(iv~7~

Amended Complaint- 41

CERTIFICATE OF SERVICE _ /'1-o..

I hereby certify that on the

day of

20 II, I served a true and correct

copy of the foregoing AMENDED COMPLAINT by de ositing the same in the U.S. mail at Boise, Idaho, each enclosed in a separate, sealed, stamped envelope, addressed and directed as follows: John L. Runft Attorney at Law 1020 W. Main Street, Suite 400 Boise, ID 83702 Joel P. Hazel, Chairman Professional Conduct Board 608 Northwest Blvd., Ste. 300 Coeur d'Alene, ID 83814 Hon. Robert J. Caldwell Professional Conduct Board P.O. Box 9000 Coeur d'Alene, ID 83816-9000 Sarah T. Hope Professional Conduct Board 154 Keyhole Drive Jerome, ID 83338

Sue Nelson Clerk of the Professional Conduct Board

I further certify that I served a true and correct copy of the aforesaid document( s) upon Bar Counsel/Deputy Bar Counsel for the Idaho State Bar by personally delivering said copy to Office of Bar Counsel at the Idaho State Bar, 525 W. Jefferson, Boise, Idaho.