IN THE MATTER OF GEORGE B. BEST, An Attorney at Law, Respondent. ODC File No. 15-111
Michael W. Cotter Chief Disciplinary Counsel Office of
leave of the Commission on Practice granted on July 19, 2017,
the Office of Disciplinary Counsel for the State of Montana
("ODC") hereby charges George B. Best with
professional misconduct as follows:
George B. Best, hereinafter referred to as "Respondent,
" was admitted to the practice of law in the State of
Montana in 1974, at which time he took the oath required for
admission agreeing 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 those outlined in parts 3 and 4 of Chapter 61,
Title 37, Montana Code Annotated.
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.
2001, Donald Abbey, a real-estate developer from Southern
California, purchased Shelter Island, a small island in
Flathead Lake, to build a personal residence. Mr. Abbey
bought the island through Abbey/Land, LLC
("Abbey/Land"). Abbey/Land is wholly owned by Mr.
Abbey/Land began construction of a large residence on the
island, but fell into disputes with the original general
contractor. In 2003, Mr. Abbey formed Glacier Construction
Partners ("GCP") to act as a new general contractor
for the project. GCP was also solely owned by Mr. Abbey.
GCP's only construction project was the residence on
Shelter Island. Mr. Abbey signed the Abbey/Land-GCP
construction contract on behalf of each entity.
entered a $1.4 million contract with Interstate Mechanical,
Inc. ("IMF') for the design and installation of the
plumbing and heating-cooling system (HVAC) for the house.
Subsequent change orders increased the value of that contract
by approximately SI million. In 2009, disputes arose between
IMI and GCP and other sub-contractors and insurers.
6. As a
result of these disputes, multiple lawsuits were initiated in
state and federal courts between 2009 and 2011, and
arbitration was also conducted and concluded.
Respondent represented GCP from as early as September 27,
2011 to August 20, 2012. He then represented GCP again from
as early as May 2, 2013 to the present.
Respondent also represented Abbey/Land from as early May 2,
2013 to the present.
Respondent appeared in several court cases in state and
federal court on behalf of Abbey/Land while representing both
Abbey/Land and GCP. Abbey/Land's and GCP's interests
were considered adverse because in the IMI v. GCP
Arbitration, the arbitrator found that GCP "was in
control of the construction project'" when, on
December 8, 2009, the HVAC failed.Therefore, Abbey/Land had a
cause of action and claim for damages against GCP.
March 1, 2011, U.S. District Judge Donald Molloy issued an
order affirming the IMI v GCP arbitration award.
September 23, 2009, in Flathead County District Court,
Abbey/Land and GCP as co-plaintiffs filed a lawsuit against
multiple defendants, including IMI. The matter was styled:
Abbey/Land LLC and Glacier Construction Partners, LLC v.
Interstate Mechanical, Inc., et al.
April 2, 2011, following the Arbitrator's Award and Judge
Molloy's Order affirming that award, GCP dismissed its
claims in the Flathead County case against all defendants
without prejudice. On August 29, 2011, Abbey/Land filed its
Second Amended Complaint dismissing GCP as a plaintiff. Then,
Abbey/Land turned around and sued GCP for damages, naming it
as a defendant. GCP then tendered Abbey/Land's claims to
James River Insurance Company ("James River"),
which refused to defend or indemnify. Thus, in the Flathead
County case, the parties were realigned with the caption
styled: Abbey/Land, LLC v. Glacier Construction Partners,
LLC v. IMI.
and Abbey/Land settled the Flathead County case while both
entities were represented by Respondent and Jon E. Cushman.
As part of the settlement, GCP confessed to a $12 million
judgment in favor of Abbey/Land and then assigned to
Abbey/Land all its rights against various insurers, including
May 6, 2013, Abbey/Land retained Respondent on a contingent
fee contract in the Oregon, Flathead County and Lake County
March 29, 2012, in the Charter Oak v. IMI Oregon
federal court case, the Court stated:
There is no real factual dispute that Glacier worked directly
with Abbey/Land in the Flathead County case.... First,
Glacier allowed itself to be made a defendant in the Flathead
County case for the benefit of Abbey/Land, a related entity.
* * *
Second, and more importantly, Glacier worked directly with
Abbey/Land, its attorneys, and it experts to create evidence
favorable to Abbey/Land and to increase Abbey/Lands damages,
all in a manner that was harmful to Glacier's litigation
position ... .In sum, Glacier participated in a joint
conference with Abbey/Land's attorney and damages expert
to create Abbey/Land's damages claims, then drafted a
declaration for Abbey/Land's expert to help substantiate
those damage estimates.
Glacier's collusion with Abbey/Land did not end there.
Subsequently, Pederson (Abbey/Land's damages expert)
received a call from Glacier's coverage counsel John
Cushman and Glacier's project manager Nate Steinbeck,
asking Pederson to "look at" whether Abbey/Land
might also claim damages against Glacier and other Flathead
County defendants for increased future electricity costs
necessitated by the failure of heat pumps installed at the
Charter Oak v. IMI,
Court also noted that GCP put forth no evidence contesting
these facts. Respondent represented Abbey/Land's
interests in this matter until the case termination on
January 6, 2017.
James River challenged the confessed judgment and appealed to
the Montana Supreme Court. On March 10, 2015, the Montana
Supreme Court issued its decision in Abbey/Land,
vacating the $12 million judgment in favor of Abbey/Land and
holding in pertinent part:
We reverse the District Court's judgment dated March 17,
2014, in favor of Abbey/Land LLC and against Glacier
Construction Partners, LLC, in the amount of $12 million. We
remand and direct the District Court to enter an order
allowing James River Insurance Company to intervene in order
to raise the issue of the reasonableness of the confessed
judgment and whether it was the product of collusion. The
District Court may set the reasonable parameters of the
proceeding to determine these issues, and may determine
whether there should be discovery and to what extent.
March 1, 2017, in the Flathead County case, Judge Amy Eddy
issued an Order granting James River Insurance Company's
Combined Motions to Revoke Pro Hac Vice
Admission of Jon E. Cushman and Disqualify Counsel
(Respondent) and Motion for Injunction
Prohibiting Continued Representation. This oral
Order was followed by a written Order dated April 12,
2017. In disqualifying Respondent, the Court
entered the following findings:
On May 2, 2013, Abbey/Land and GCP entered into a
Settlement Agreement, Assignment of Rights, Mutual
Release, and Covenant Not to Execute in this matter. The
Settlement Agreement was executed by Robert Jenkins,
Vice President of Abbey/Land, and Don Abbey, on behalf of
GCP. The Settlement Agreement provided that upon
execution of it and related documents, including a Waiver
of Conflict of Interest, Abbey/Land would have full
access to all lawyers previously retained by GCP, with GCP
waiving all privileges as to communications with them. (Doc.
439, Ex.). This allowed the GCP attorneys (Best and Cushman)
to go to work for Abbey/Land.
On May 3, 2013, Best executed a Notice of Appearance
on behalf of Abbey/Land after Terry Trieweiler withdrew.
On May 7, 2013, Glacier Construction Partners, LLC's
Confession of Judgment in favor of Abbey/Land in the
amount of S12 million was signed and notarized by Don Abbey.
Cushman appeared on the document as counsel for GCP.
On July 19, 2013, Best on behalf of Abbey/Land filed a
Petition to Enter Judgment (Doc. 298).
On July 31, 2013, Cushman and Best filed a Notice of
Appearance on Behalf of Abbey/Land (Doc. 307),
representing that Cushman had been the attorney for
Abbey/Land since May 7, 2013, when GCP confessed judgment to
Abbey/Land, under the supervision of Best.
Respondent and Cushman filed a request for reconsideration of
the disqualification order. This request was denied by the
court on April 12, 2017. The Court said:
A review of the . . . facts demonstrates that at any given
time Cushman and Best were either formally appearing in court
on behalf one or (sic) both of these parties, were
making representations on behalf of one or both of these
parties, or were otherwise making decisions on behalf of one
or both of these parties. This conduct was occurring in this
litigation, as well as related coverage litigation in Oregon
and Lake County. Based on all of the above, the Court finds
both Abbey/Land and GCP were clients of Best and Cushman at
relevant times during the course of these proceedings, and
therefore considered concurrent clients for purposes of
applying the Montana Rules of Professional Conduct.
Order, pp. 8-9.
April 14, 2017, in the Flathead County case, Judge Eddy
referred Respondent and Jon E. Cushman, pro hac
vice, to the Office of Disciplinary Counsel for
investigation for violation of Rule 1.7 of the Montana Rules
of Professional Conduct. (See, J. Eddy letter, dated
April 14, 2017, and Order dated April 12, 2017, pp. 5-7, and
¶¶1-18, submitted herewith as Exhibits A and B,
pleadings in the Flathead County case and the Lake County
case establish the following:
a. In the Flathead County case, between 2011 and 2017, the
Respondent represented both Abbey/Land and GCP during the
GCP: September 27, 2011 - August 20, 2012 May 21, 2013 -
March 1, 2017 (disqualified by court order)
Abbey/Land: May 3, 2013 - March 1, 2017 (disqualified by
b. In the Lake County case, between 2013 and 2017 Respondent
represented both Abbey/Land and GCP during the following
Abbey/Land: May 7, 2013 to the present
GCP: May 19, 2013 to the present.
Respondent's dual representations in these cases
constitute a concurrent conflict of interest involving the
assertion of adverse claims by one party against the other,
in violation of Rule 1.7, MRPC.
the Office of Disciplinary Counsel hereby prays:
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;
a formal hearing be had on the allegations of this complaint