IN THE MATTER OF GEORGE B. BEST, An Attorney at Law, Respondent.
Michael W. Cotter Chief Disciplinary Counsel Office of
leave of the Commission on Practice granted on January 10,
2018, the Office of Disciplinary Counsel for the State of
Montana ("ODC") hereby amends its
complaint and 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. ("IMI") 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 S1 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
GCP and Abbey/Land while representing both
Abbey/Land and GCP. At any given time, Respondent was
either formally appearing in court on behalf of Abbey/Land or
GCP, or both. 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.
On May 7, 2012, on behalf of GCP, Respondent and
co-counsel, Cushman, answered Abbey/Land's Second Amended
Complaint admitting all the allegations in the complaint and
raising no defenses.
and Abbey/Land settled the Flathead County case while both
entities were represented by Respondent and Jon E. Cushman
("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.
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, 958 F.Supp.2d. at 1204-1205 (D.
Or., Mar 29, 2012).
Court also noted that GCP put forth no evidence contesting
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
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.
3, 2013, Best executed a Notice of Appearance on
behalf of Abbey/Land ...