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Keene attorney disbarred in $2 million fee dispute

New Hampshire Union Leader

September 18. 2012 12:54PM

CONCORD - The state Supreme Court has disbarred a Keene personal injury lawyer for trying to force a paralyzed woman and her family to agree to an $11 million insurance settlement so he could collect a $2 million fee.

The Professional Conduct Committee recommended attorney Timothy O'Meara be barred from practicing law for three years, but the Supreme Court called his actions 'egregious conduct' and ordered his disbarment.

'Disbarment is necessary to protect the public and preserve the integrity of the legal profession when, as in this case, an attorney not only selfishly allows his own personal interests to take precedence over his duty of loyalty to his clients, but also lies to a tribunal. No lesser sanction will suffice,' the justices said in the opinion issued Tuesday.

According to the order, Anita and James Conant of Hampton retained O'Meara after she was paralyzed in a traffic accident in Pennsylvania on May 25, 2005. Mrs. Conant, then 47 and the postmaster in New Castle, was stopped at a red light when her car was rear-ended by a Lyons & Hohl Paving truck. She suffered a severe spinal cord injury and is now a ventilator-dependent quadriplegic.

She was hospitalized for 23 days in critical condition and underwent several surgeries to stabilize her condition, including a cervical spinal fusion to insert steel rods into her spine, a tracheotomy to insert a permanent tracheal ventilator which she depends on to breathe, and the installation of a feeding tube.

The Conants hired O'Meara for a personal injury lawsuit, and Mr. Conant signed a one-page contingent fee agreement giving O'Meara 33.33 percent of the gross amount recovered. The Conants were responsible for all expenses.

On June 3, 2004, 10 days after he was hired, O'Meara learned the paving company had $11 million in insurance coverage. He sued on behalf of the Conants on Nov. 3, 2005, in federal court in Philadelphia. On Dec. 1, 2005, the lawyer representing the insurance company told O'Meara the insurer would not contest liability.

A week later, O'Meara wrote the attorney saying the case was a policy limits case and if the $11 million was not paid, the Conant family had instructed him to go to trial. The Conants, according to the court ruling, never authorized O'Meara to settle the case for $11 million.

Despite not having their approval, O'Meara discussed settlement with the insurance company lawyer the following month and told him the Conants would release the paving company and its employee from liability in exchange for the $11 million policy limit. That same day O'Meara spoke to Mr. Conant, who told him he did not have the authority to settle the case for $11 million.

On Jan. 24, 2006, O'Meara again discussed settlement with the other attorney and only then did he tell him the Conants would not settle for $11 million. The other lawyer believed they had an enforceable settlement agreement and sent O'Meara a letter saying so.

O'Meara, according to the court, sent his own letter to the attorney that same day - but pre-dated it by four days - saying the Conants had withdrawn their settlement demand. Mr. Conant wanted O'Meara to explain how they could withdraw a settlement demand they never made, and O'Meara told him the attorney had simply misconstrued their conversations. At that point, O'Meara agreed to reduce his fee by $166,000.

The next day, a certified life planner estimated it would cost more than $23 million for Mrs. Conant's lifetime care. A prior estimate, given in December, had set the cost at $15 million.

Five days later, the insurer filed a motion to enforce the alleged settlement. O'Meara objected, arguing the demand was not an 'offer' to be 'accepted' by the insurer but rather a solicitation of an offer and that the Conants had rejected their offer. At that time, however, O'Meara conceded the Conants had not authorized him to settle for $11 million.

O'Meara met with Mr. Conant and other family members on Feb. 25, 2006, two days before mediation was slated and only days before Mrs. Conant was scheduled for surgery, a procedure other family members feared she would not survive. The family believed $12.5 million was needed to be placed in an annuity to take care of Mrs. Conant's needs.

Mr. Conant asked O'Meara what he thought his fee should be if the case settled for $11 million, and O'Meara said he would be willing to reduce his $3.67 million potential fee by $500,000, angering Mr. Conant. Conant's brother, Craig, said he was told $2 million was reasonable in such a case. None of the other Conants responded to Craig's comment.

The exchange between O'Meara and the Conant family became heated and, at one point, Mrs. Conant mouthed to the lawyer: 'Tell me why I should not fire you now?' When asked what would happen if they fired him, O'Meara told them litigation 'gets ugly' and he would sue them for his one-third contingency fee and 'would win.'

Ultimately, the Conants agreed to modify the original contingent fee agreement to say the fee was 'to be negotiated.' But when O'Meara faxed Mr. Conant the modified agreement, it said he was to be paid no less than $2 million if the final settlement was $11 million or less. Mr. Conant refused to sign it.

Two days later, the day of the scheduled mediation, O'Meara met the family at the Philadelphia courthouse and just before the session was to begin, threatened to quit unless they agreed to a $2 million fee. He gave Mr. Conant a new document to sign which said attorney's fees and costs would be $2 million for all settlements up to $14.5 million, and then 20 percent for all amounts over it.

Mr. Conant believed he had no choice but to sign the document because he feared if he did not, O'Meara would refuse to represent the family at the mediation, which took place as scheduled. The final offer was $11 million from the insurance company and $500,000 from the paving company, which said it would file bankruptcy if it was any more than that.

The Conants fired O'Meara on March 5, 2006, and the next day settled the lawsuit for $11.5 million.

They agreed to pay O'Meara $750,000 and put $1.25 million in escrow to arbitrate how that was to be divided. Ultimately, the arbitrator awarded O'Meara $837,0000 of the $1.25 million and the Conants received the remaining $413,000. O'Meara earned $1,587,000 for the case.

O'Meara, the court said, allowed his interest in securing a $2 million fee to take precedence over his primary obligation to further the Conants' interests. The court said the lawyer also lied during an arbitration hearing concerning his fee, maintaining that the Conants had agreed to the $2 million fee.

'O'Meara did more than just lie to the arbitration panel. He demanded to settle his client's case for $11 million without any authority to do so. Most significantly, he pressured his clients into agreeing to pay him a $2 million fee because, as the Professional Conduct Committee found, he 'did not want a significant fee to slip away,' the court said.

O'Meara was unavailable Tuesday for comment, according to a woman who answered his office telephone.

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