July 25, 2013
IN THE MATTER OF ROBERT G. McCARTHY An Attorney at Law, Respondent.
Shaun R. Thompson Chief Disciplinary Counsel
The Office of Disciplinary Counsel for the State of Montana ("ODC") hereby charges Robert G. McCarthy with professional misconduct as follows:
1. Robert G. McCarthy, hereinafter referred to as Respondent, was admitted to the practice of law in the State of Montana in 1990, at which time he took the oath required for admission, wherein he agreed to abide by the Rules of Professional Conduct, the Disciplinary Rules adopted by the Supreme Court, and the highest standards of honesty, justice, and morality, including, but not limited to, those outlined in parts 3 and 4 of Chapter 61, Title 37, Montana Code Annotated.
2. The Montana Supreme Court has approved and adopted the Montana Rules of Professional Conduct ("MRPC"), governing the ethical conduct of attorneys licensed to practice in the State of Montana, which Rules were in effect at all times mentioned in this Complaint.
3. ODC realleges and incorporates paragraphs 1 through 2 of the General Allegations as if fully restated in this Count One.
4. Dr. Jim Hash ("Hash") is a chiropractor who practices in Butte, Montana.
5. Hash was injured in a motor vehicle accident occurring February 24, 2003. Hash hired Respondent to pursue Hash's claims for damages. On February 9, 2006, Respondent filed a lawsuit on Hash's behalf. The case was settled and the lawsuit was dismissed on November 28, 2008. At the time the representation ended, Respondent believed that Hash still owed him fees totaling $1, 141.73.
6. On December 27, 2008, Ethan Rowling ("Rowling") was injured in a motor vehicle accident. Rowling hired Respondent to pursue any claims for damages on his behalf.
7. Hash provided Rowling chiropractic treatment for injuries Rowling received in the accident of December 27, 2008. Hash's office sent his bills to The Hartford, the insurer for the liable party. In June 2011, Hash received a check from The Hartford for the balance owed him—$ 1, 653.00. The check was made payable to Hash Chiropractic, McCarthy Law, and Ethan Rowling. Hash gave the check to Rowling and asked him to have Respondent endorse the check and return it to him.
8. A "Settlement Disbursement" signed by Rowling on June 26, 2011, reflects that Respondent withheld the $1, 653.00 check for Hash's services and that Respondent included that amount in calculating his one-third contingent fee.
9. In a letter to Hash dated June 27, 2011, Respondent advised Hash that he would endorse the check from The Hartford and give it to him upon receipt of a certified check for $1, 141.73. Hash did not respond.
10. At Respondent's request, The Hartford issued a replacement check on November 19, 2011, payable to only McCarthy Law, P.C., and Ethan Rowling. Respondent deposited the check into his trust account.
11. Upon receipt of Hash's complaint to ODC on March 15, 2013, McCarthy paid Hash the $1, 653.00.
12. In violation of Rule 1.15, MRPC, Respondent failed to promptly deliver funds to which Hash was entitled to receive.
13. ODC realleges and incorporates paragraphs 1 through 2 of the General Allegations and paragraphs 4 through 11 of Count One as if fully restated in this Count Two.
14. In violation of Rule 1.7, MRPC, there was a significant risk that Respondent's representation of Rowling would be materially limited by his personal interests.
15. In violation of Rule 2.1, MRPC, Respondent failed to exercise independent professional judgment and render candid advice.
1. That a Citation be issued to the Respondent, to which shall be attached a copy of the complaint, requiring Respondent, within twenty (20) days after service thereof, to file a written answer to the complaint;
2. That a formal hearing be had on the allegations of this complaint before an Adjudicatory Panel of the Commission;
3. That the Adjudicatory Panel of the Commission make a report of its findings and recommendations after a formal hearing to the Montana Supreme Court, and, in the event the Adjudicatory Panel finds the facts warrant disciplinary action and recommends discipline, that the Commission also recommend the nature and extent of appropriate disciplinary action; and,
4. For such other and further relief as deemed necessary and proper.