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In re Best

Supreme Court of Montana

August 10, 2017

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 Disciplinary Counsel.

          COMPLAINT

         Upon 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:

         1. 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.

         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. In 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.

         4. 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.

         5. GCP 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.[1]

         7. 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.

         8. Respondent also represented Abbey/Land from as early May 2, 2013 to the present.

         9. 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.[2]Therefore, Abbey/Land had a cause of action and claim for damages against GCP.

         10. On March 1, 2011, U.S. District Judge Donald Molloy issued an order affirming the IMI v GCP arbitration award.

         11. On 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.

         12. On 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.

         13. GCP 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 James River.

         14. On May 6, 2013, Abbey/Land retained Respondent on a contingent fee contract in the Oregon, Flathead County and Lake County cases.[3]

         15. On 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 property ....
Charter Oak v. IMI,

         The 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.

         16. 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:[4]

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.

         17. On 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.[5] 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.

         18. 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.

         19. On 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, respectively.)

         20. The 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 following times:
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 court order).
b. In the Lake County case, between 2013 and 2017 Respondent represented both Abbey/Land and GCP during the following times:
Abbey/Land: May 7, 2013 to the present
GCP: May 19, 2013 to the present.

         21. 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.

         WHEREFORE, the Office of Disciplinary Counsel hereby prays:

         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 ...


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