Lawyer disbarred for neglecting client matters

By Lee Dryden
BridgeTower Media Newswires

DETROIT — A Grand Rapids lawyer was disbarred by an Attorney Discipline Board panel after it was found that he neglected legal matters — including waiting five years to file a lawsuit in one case.

The disbarment notice for James H. Davies, P 23266 was issued Nov. 16.

“Based on respondent’s admissions and the panel’s order granting summary disposition, the hearing panel found that respondent committed professional misconduct in his representation of a client in litigation against builders for damages based on deficiencies in a custom built home and in his representation of another client in a delayed appeal of a criminal conviction,” according to the ADB notice.

The case was assigned to Kent County Hearing Panel No. 5, which included chairperson Kent W. Mudie, and members James R. Saalfeld and Victoria A. Vuletich. John K. Burgess represented the Attorney Grievance Commission while Davies represented himself.

In August, the grievance administrator filed a formal complaint alleging professional misconduct in Davies’ representation of two separate clients.

The first count alleged that Davies was paid $1,500 to file a lawsuit against the builder.

“The complaint alleged that respondent did not file the lawsuit until five years after being retained,” according to the hearing panel report. “The lawsuit alleged breach of both express and implied warranties. Subsequently, the court entered an order dismissing the action based on breach of implied warranty because of the expiration of the statute of limitations, but denied the motion for the claim of breach of express warranty in that the statute of limitations had been tolled.

“Had respondent filed the lawsuit within a reasonable time after being hired, the claim for breach of implied warranty would not have been barred by the statute of limitations.”

The second count alleged that Davies was paid $10,000 to file a delayed appeal of a client’s criminal conviction. The complaint further alleged that there was no written fee agreement, there was no agreement that the payment was non-refundable, the funds were placed into Davies’ business account rather than a client trust account, Davies did “little to no work” on the appeal, and failed to respond to client inquiries for status updates.

After the complaint and hearing notice were served upon Davies, he filed an answer “admitting each and every factual allegation and charge levied against him, but requested that the complaint be dismissed.”

The report stated Davies did not respond to the grievance administrator’s summary disposition motion, which was granted. A sanction hearing was scheduled for Oct. 5.

The panel found that Davies neglected legal matters; failed to act with reasonable diligence and promptness when representing his clients; failed to keep his clients reasonably informed regarding the status of their matters; failed to refund unearned attorney fees; failed to hold legal fees and expenses that have been paid in advance in a client trust account; and failed to hold property of a third person in connection with representation separate from the lawyer’s own property, according to the ADB notice.

At the October hearing, the grievance administrator’s counsel argued that Davies’ conduct fell under two American Bar Association Standards for Imposing Lawyer Sanctions. The standard for misappropriation calls for disbarment.

Aggravating factors cited by counsel included dishonest or selfish motive and indifference to making restitution.

In a statement at the hearing, Davies stated that the matters occurred when he was practicing in Monroe and he has since retired and moved to Grand Rapids, the report stated.

“Respondent admitted that he is an alcoholic and acknowledged that his alcoholism affected these two underlying matters,” according to the report. “He further noted that these were his only two complaints in 42 years of practice. Respondent also revealed that since moving to Grand Rapids, he has joined AA, has had only two relapses in two years and has been sober for at least eight months.

“Respondent has no desire to return to the practice of law but wants to avoid the embarrassment of having his name appear in the Bar Journal as a disciplined lawyer.”

Davies asked for probation and expressed a desire to make restitution.

But the panel wasn’t convinced.

“While on one hand respondent appeared remorseful, in rebuttal statements, he tried to place some of the blame for the length of time of the case, the non-communication with the clients and the failure to provide refunds, on the clients themselves,” the report stated.

“The panel finds that respondent clearly violated ABA Standard 4.11, concerning the misappropriation of client property. Respondent admitted the relevant facts concerning misappropriation in his answer to the formal complaint. Standard 4.11 mandates disbarment. Respondent did not submit sufficient evidence to mitigate the penalty of disbarment.

“Respondent suffers from alcoholism and submitted testimony concerning same. However, the panel concluded that respondent did not present sufficient proof that his alcoholism prevented him from knowing he was converting client funds. There were insufficient grounds presented by respondent for the imposition of a period of probation to be an option available to the panel.

“Therefore, the panel will enter an order disbarring respondent from the practice of law.”

Davies also was ordered to pay $11,500 in total restitution. Costs totaling $1,899.19 were assessed.