The recent 30 month suspension upon consent of Damon K Roberts, Esquire (Former Philadelphia City Council candidate) is a cautionary tale for all attorneys regarding when representation begins. On August 7, 2009, Mr. Roberts signed a representation agreement with a client to represent her in negotiating a loan modification on a loan foreclosure action after the bank received default judgment on July 30, 2009. The client agreed to pay Mr. Roberts a $5,900 legal fee, and agreed to pay an initial $1,500 deposit. The written fee agreement stated “upon signing the agreement, you become my client.” Despite entering into the fee agreement, Mr. Roberts did not move to open the bank’s default judgment within 10 days, and did not inform the client that he would not file a motion until he received the $1,500 deposit. Mr. Roberts did not file a motion on behalf of his client until after he receives the $1,500 deposit in September of 2009. On September 24, 2009, Mr. Roberts filed a petition to open judgment and falsely alleged the default judgment was brought to his attention on September 4, 2009.
Despite the delay by Mr. Roberts, the court granted the petition to open and granted 20 days to file an answer to the bank’s complaint. Mr. Roberts filed a timely answer. On April 14, 2010, the bank filed a motion for summary judgment which Mr. Roberts received, but did not inform his client about. While the motion for summary judgment was pending the bank forwarded a loan modification package. Mr. Robert’s client completed the loan modification paperwork and gave it to him, but he did not submit the completed package to the bank. On May 24th 2010, the Court entered an order granting the bank’s summary judgment. On June 2, 2010, Mr. Roberts filed a memorandum of law in opposition to the motion for summary judgment. Due to Mr. Roberts’ lack of action on behalf of his client, the client was forced to enter into bankruptcy in order to save her home.
The disciplinary opinion also includes Mr. Roberts’ failure to comply with continuing legal education requirements, and his mishandling of an estate matter and other foreclosure matters. Mr. Roberts was criticized for instructing his paralegal not to inform a client that her home and been sold at sheriff sale until after the client had paid. Mr. Roberts did not take any action to set aside the sheriff sale and did not discuss with the client the options available to accomplish her objective to retain her home. The disciplinary opinion also relates anissue where Mr. Roberts took over representation from another attorney, contingency fee action, but did not inform the attorney when the matter had settled. Mr. Roberts was also guilty of commingling funds between his operating account and his IOLTA account.
The Disciplinary Board also listed as an aggravating factors, that Mr. Roberts was a defendant in “in a myriad of civil lawsuits and criminal actions.” The Disciplinary Board listed Mr. Roberts’ community action as a mitigating factor. The Disciplinary Board noted that “[t]he Supreme Court often imposes a suspension of one year and one day on attorneys, like Respondent, who have no record of discipline, but engage in serial neglect coupled with misrepresentation to clients.” The Disciplinary Board recommended that based upon the severity of Mr. Roberts’ disciplinary violations, a 30 month suspension was appropriate “to protect the public from this patently unfit practitioner.”
Most of the disciplinary violations by Mr. Roberts are self-evident. From a legal malpractice avoidance standpoint, the most interesting issue is perhaps the duty owed by Mr. Roberts after he had signed up his client, but before she paid her initial payment. Mr. Roberts had stated that he represented the client, and did not put any limiting language with respect to the necessity of the initial payment. Mr. Roberts did not take action within 10 days after the default judgment had been entered because he had not received the initial payment. Attorneys must be very careful of the duties they enter into prior to receiving payment, as well as the duties they owe even if clients do not pay them. Even though an attorney has not been paid, a duty may be owed.
