Board of Overseers of the Bar v. Anthony P. Shusta II, Esq.

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Docket No.: GCF#15-063

Issued by: Grievance Commission

Date: November 10, 2016

Respondent: Anthony P. Shusta II, Esq.

Bar Number: 003424

Order: Reprimand

Disposition/Conduct: Communication, Responsibilities Regarding Nonlawyer Assistants, Bar Admission and Disciplinary Matters


REPORT OF FINDINGS AND ORDER OF PANEL A OF THE GRIEVANCE COMMISSION
M. Bar R. 13(e)

On September 26 and September 27, 2016, pursuant to due notice, Panel A of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 13(e), concerning the Respondent, Anthony P. Shusta II, Esq., of Madison, Maine. Panel members included Acting Chair Sarah McPartland-Good, Esq., Catherine L. Haynes, Esq., and Milton R. Wright, Public Member. The Board of Overseers of the Bar was represented by Assistant Bar Counsel Alan P. Kelley. Respondent Anthony P. Shusta II, Esq., was present and was represented by William D. Robitzek, Esq. Complainant Alan T. Belanger was also present for both days of the hearing.

This proceeding was initiated by the filing of a Formal Disciplinary Petition by the Board of Overseers of the Bar dated April 21, 2016. Attorney Shusta filed a response through counsel dated May 25, 2016. Those documents are part of the Board's official record. The Board submitted Exhibits 1-21 and those exhibits were accepted by the panel at the hearing without objection. Attorney Shusta submitted Exhibits 1 and 2 at the hearing and those were accepted by the panel at the hearing without objection.

PROCEDURAL AND FACTUAL HISTORY

Respondent Anthony P. Shusta II, Esq., of Madison, Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Shusta was admitted to the Maine Bar in 1985 and is currently practicing as a solo practitioner.

The events that led to this proceeding began in October of 2013 when Mr. Belanger was involved in a motor vehicle accident. Upon a recommendation from his brother, Mr. Belanger called Attorney Shusta regarding representation on a personal injury claim stemming from the accident.

Contingency Fee Agreement

Attorney Shusta and Mr. Belanger made an appointment for the afternoon of October 31, 2013. Attorney Shusta left the office before the appointment on October 31, 2013, and Mr. Belanger instead met with a paralegal who was new to handling personal injury claims and (according to her May 29, 2015 Affidavit) had only been working for Attorney Shusta since October 14, 2013 (hereinafter "Paralegal JP"). Attorney Shusta's receptionist, Tammy Gray, testified that she overheard Mr. Belanger telling Paralegal JP that he "almost died" in the accident "twenty times" during the meeting. She testified that he was "quite excited" and "wound up" during his meeting with Paralegal JP.

Paralegal JP completed a Personal Injury/Auto Accident Intake Sheet. She asked Mr. Belanger to sign documents, including two Contingency Fee Agreements that apparently did not contain the name of the client, did not describe the claim in paragraph 1, and did not list any additional legal fees in paragraph 3. Mr. Belanger testified that Paralegal JP did not explain the Contingency Fee Agreement to him and did not read it with him. He testified that Paralegal JP told him to "just sign it" and that he would "be in good hands." Mr. Belanger did not read the Contingency Fee Agreement. He signed one or more documents. Paralegal JP photocopied the Contingency Fee Agreement with his signature and no handwritten entries and gave it to Mr. Belanger for his records.

Mr. Belanger and Attorney Shusta met in person for the first time on February 4, 2015, after Attorney Shusta had negotiated a settlement with Progressive Insurance Company. Mr. Belanger testified that he was shocked when Attorney Shusta presented him with a Disbursement Sheet because he did not understand that Attorney Shusta would be entitled to take one third of any judgment or settlement before medical bills were deducted. In other words, Mr. Belanger thought that Attorney Shusta would be entitled to one third of the net amount collected after medical expenses were paid and not the gross amount collected. Mr. Belanger testified that this was never explained to him and Attorney Shusta testified that this was a misunderstanding.

Medical Bills

Throughout the course of their attorney-client relationship, Mr. Belanger and Attorney Shusta and/or Paralegal JP had several communications regarding medical bills (including November 18, 2013, December 27, 2013, May 14, 2014, and October 21, 2014). Mr. Belanger testified that Attorney Shusta had told him to send the medical bills to him and that he would "take care of them." He testified that Attorney Shusta did not tell him that he would be responsible to pay the medical bills out of his portion of any settlement. Mr. Belanger testified that he expected that when bills came in, Attorney Shusta would thereafter contact the insurance company and make sure that they were paid. Mr. Belanger testified that he emphasized to Attorney Shusta that it was "extremely important" to him that his bills be paid because collection agencies were coming after him. This was another misunderstanding.

Attorney Shusta testified that he explained to Mr. Belanger that the medical providers should not be paid until after a settlement or verdict had been reached because it is possible to negotiate with medical providers on the amounts of their bills. Although Attorney Shusta testified that it is not possible to negotiate with Mr. Belanger's own “med pay” carrier, the expert witness called by Attorney Shusta, Michael Welch, an attorney from Hardy, Wolf and Downing in Lewiston, testified that “med pay” is negotiable and not necessarily dollar for dollar.

Mr. Belanger was also surprised when he saw the Disbursement Sheet on February 4, 2015, not only because he thought the medical bills had already been paid, but also because the monies Attorney Shusta had received from Mr. Belanger's own “med pay” policy were not reflected. Attorney Shusta testified that this was an oversight.

Affidavit

Mr. Belanger filed a grievance complaint against Attorney Shusta with the Board of Overseers of the Bar on March 3, 2015. In his March 24, 2015, response to the grievance complaint, Attorney Shusta enclosed a copy of the Contingency Fee Agreement from his file. That version of the Contingency Fee Agreement had a client name and entries in paragraph 1 and paragraph 3 which had not been present when Mr. Belanger signed the document. In response to an inquiry from Bar Counsel about whether a document had been modified after his client had signed it, Attorney Shusta submitted two different sworn Affidavits from Paralegal JP. Attorney Shusta testified that he had dictated the May 29, 2015 Affidavit in which Paralegal JP states that the handwritten information had "somehow been deleted from the agreement Mr. Belanger submitted..."

Four months later in September of 2015 when leaving Attorney Shusta's employ, Paralegal JP made a passing remark to Attorney Shusta regarding having modified the Contingency Fee Agreement after Mr. Belanger had signed it and after she had given him a copy. At no time between September of 2015 and the hearing date of September 26, 2016, did Attorney Shusta notify the Board that he had submitted an Affidavit which he had discovered to be untrue. In fact, paragraph 23 of the Formal Disciplinary Petition alleges:

23. Attorney Shusta and his paralegal, Ms. *, have continuously claimed that no additional language was added or any changes ever made to the CFA after Mr. Belanger signed it on October 31, 2013.

In his Response to Disciplinary Petition in May of 2016, Attorney Shusta responds as follows:

23. Respondent admits that based on his representations from his paralegal, he was advised that the document provided in his response of March 24, 2015 had been executed by Mr. Belanger before Ms. *.

Attorney Shusta made no mention of the fact that Paralegal JP's Affidavit was untrue.

CONCLUSION AND SANCTION

It was difficult for the panel to comprehend fully the pattern of communication between Mr. Belanger and Attorney Shusta, in part because Attorney Shusta does not routinely memorialize conversations with his clients or keep all phone message slips. Attorney Shusta testified that he has changed his practice such that he now returns client calls in the evening if he has not been able to return the client calls during the day. Attorney Shusta's telephone records were not introduced as an exhibit and so only Attorney Shusta's itemized bill, Mr. Shusta's file memos, and Mr. Belanger's telephone records could be examined for evidence of calls between Attorney Shusta's office and Mr. Belanger. Neither witness could recall dates and times of conversations. The Panel finds that there is insufficient evidence of a lack of communication between Mr. Belanger and Attorney Shusta and his office. Except for a period surrounding Thanksgiving of 2014, the evidence shows that Attorney Shusta and his office were in regular contact with Mr. Belanger.

Likewise, the Panel does not find that Attorney Shusta violated any of the Maine Rules of Professional Conduct as it relates to the settlement offer he negotiated with Progressive Insurance. The evidence shows that Attorney Shusta did what was necessary to obtain an offer which was in a reasonable settlement range.

The Panel does have three areas of concern about Attorney Shusta's conduct that raise questions under the Rules of Professional Conduct:

  1. The Panel finds that Attorney Shusta's failure to explain adequately the Contingency Fee Agreement to Mr. Belanger was a violation of Rule 1.4(b). Attorney Shusta had a duty to communicate with Mr. Belanger to the extent reasonably necessary to permit him to make informed decisions regarding the representation. Attorney Shusta decided to have Paralegal JP (who was new in his office and new to personal injury claims) obtain Mr. Belanger's signature on the Contingency Fee Agreement. Attorney Shusta testified that he trained Paralegal JP to be thorough and to let him know if clients had questions about documents, but the record is clear that no one explained the Agreement to Mr. Belanger and that he did not understand the Contingency Fee Agreement. Although Attorney Shusta testified that "everyone knows" that personal injury contingency fee agreements are for one third of the gross amount, it is clear that his client, Mr. Belanger, did not understand that important fact and it is clear that it was not explained to him by Attorney Shusta or Paralegal JP. Attorney Shusta testified that some clients have different needs and that not all clients are the same. Further explanation was clearly necessary for Mr. Belanger.

    Mr. Belanger testified that the attorney who is currently representing him on his personal injury claim sat down with him and explained each section of the Contingency Fee Agreement he signed. Likewise, Michael Welch, the expert witness called by Attorney Shusta, testified that he explains Contingency Fee Agreements paragraph by paragraph with his clients, giving examples to help them understand. He testified that paralegals in his office have over 20 years of experience but do not routinely explain Contingency Fee Agreements to clients. He testified that he would reschedule an appointment rather than have a paralegal have the initial meeting with a client at which a Contingency Fee Agreement would be explained.

    Attorney Shusta testified that he now meets personally with prospective clients, completes the intake form himself, completes all lines on the Contingency Fee Agreement, and gives a much more in depth explanation of Contingency Fee Agreements, making sure that clients understand the gross amount concept. He testified that he wants to make sure that there is not going to be a misunderstanding. The Panel finds that it was a violation to fail to explain the terms of the Agreement so that Mr. Belanger could make informed decisions.

  2. The Panel also finds that Attorney Shusta's communication with Mr. Belanger regarding the payment of medical bills and the amount of the medical bills was in violation of Rule 1.4. Having his medical bills paid was a very important objective for Mr. Belanger. He clearly believed that his medical bills were being “taken care of” by Attorney Shusta. Mr. Belanger testified that Attorney Shusta did not provide him with a comprehensive list of his medical bills so that he had no idea that they totaled over $12,000 at the time of their meeting to effectuate the settlement. Although medical bills were referenced in the letter demanding $105,000 from Progressive Insurance (a copy of which was sent to Mr. Belanger), he did not have the Medical Bill Index which was enclosed in the letter to the insurance company. This information was necessary for him to be able to evaluate the settlement offer. Attorney Shusta testified that Mr. Belanger could have asked for a breakdown of medical expenses. When Attorney Shusta and Mr. Belanger met to sign a release, Mr. Belanger was unaware that his medical bills had not been paid, unaware that he would be responsible to pay those bills from his share of the settlement and unaware of what he would actually receive from the settlement (if anything). The evidence does not indicate that Attorney Shusta explained to Mr. Belanger how much he could reasonably expect to reduce the medical bills through negotiation. The Panel finds it was a Rule violation to fail to keep Mr. Belanger informed about these issues.
  3. The Panel also finds that Attorney Shusta submitted an Affidavit to the Board of Overseers of the Bar that he later learned to be untrue and that he failed to notify the Board that he had submitted a false Affidavit in violation of Rule 8.1(b). Attorney Shusta testified that it became apparent to him in September of 2015 that Paralegal JP had altered the contingency fee agreement after it was signed by their client. In May of 2015, he had dictated and submitted an Affidavit signed under oath by Paralegal JP indicating that what she had written on the agreement must “have somehow been deleted from the agreement Mr. Belanger submitted…”

The Panel acknowledges that the alterations to the contingency fee agreement made by Paralegal JP do not pertain to the net vs. gross point of contention, but this Affidavit and Attorney Shusta's submission to the Board cast doubt on the veracity of Mr. Belanger's claims with respect to the contingency fee agreement he actually received. Attorney Shusta became aware that Mr. Belanger's claims with respect to the contingency fee agreement he received were true a full 12 months before the hearing in this matter at which he informed the Board that he had submitted an Affidavit that was false. Attorney Shusta testified that he did not share the fact that Paralegal JP's Affidavit was false because he “didn't really think about it.” The Panel finds that Attorney Shusta is responsible for the conduct of Paralegal JP (which would be a violation of the Rules of Professional Conduct if engaged in by a lawyer) because his failure to correct the false submission and his inaccurate filings with the Board amount to a ratification of the conduct involved pursuant to Rule 5.3(c)(1).

The Panel also finds that Attorney Shusta had a duty pursuant to Rule 8.1(b) to disclose a fact necessary to correct the misapprehension caused by his paralegal's false Affidavit and his submissions to the Board. Because Attorney Shusta failed to do so, he caused the initial Grievance Panel to review false evidence, Mr. Belanger stood unfairly accused of having altered a signed contract, and the Board had to prepare to prove an element of its case unnecessarily. All of this could have been prevented if Attorney Shusta had come forward when he learned that he had submitted false testimony.

The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. The Board established by a preponderance of the evidence that Attorney Shusta has violated those rules. The panel finds that Attorney Shusta’s misconduct subject to sanction was not minor and that there clearly was injury to his client, the legal system and the profession. A majority of the panel concludes that the appropriate sanction in this matter is the issuance of a public Reprimand, which is now hereby issued and imposed upon Anthony P. Shusta II, Esq., pursuant to Maine Bar Rule 13(e)(10)(C).

Date: November 10, 2016


Sarah McPartland-Good, Esq., Acting Panel Chair
Catherine L. Haynes, Esq., Panel Member


Dissent

I agree with the Panel in all respects, except that I believe that Attorney Shusta’s conduct warrants a period of probation. I base this upon the manner in which he treated his client and conducted himself in these proceedings. He did not take the time to explain the Contingency Fee Agreement or payment of medical bills to the extent that was reasonably necessary to permit Mr. Belanger to make informed judgments regarding the representation. He was reprimanded by the Board of Overseers of the Bar for an issue relating to a fee agreement in 2013, just six months before he instructed a paralegal who had been with his office a very short time to meet with a client and obtain a signature on a Contingency Fee Agreement. I find this prior disciplinary record to be an aggravating factor. Attorney Shusta allowed his own client to stand unfairly accused of altering a contract after it was signed when he could have corrected the record a full year prior to the hearing in this matter. His submissions to the Board contain matters that are untrue. I did not find him to be a credible witness. His misconduct harmed his client, but also the public and the legal profession. At the hearing, Attorney Shusta showed no recognition of this misconduct and harm, and certainly no remorse. I believe that probation would protect the public and that is the sanction I find most suitable.



Milton R. Wright, Public Member