OLR Compendium > Public Reprimand of Terrence J. Woods

Public Reprimand of Terrence J. Woods

2003-11

A woman was fired from her employment in June, 1993. The woman was denied unemployment compensation, and she appealed that decision. While the appeal was pending in August, 1993, the woman met with Atty. Terrence J. Woods, Respondent.

Respondent agreed to represent the woman at a telephonic hearing in the unemployment compensation appeal case. Respondent and the woman did not sign a fee agreement. The woman told Respondent that she believed that she was also entitled to vacation pay, but Respondent replied that he would resolve the unemployment benefits case first before he would do anything about her vacation pay.

On November 11, 1993, an administrative law judge reversed the initial decision and awarded unemployment benefits to the woman.

The woman alleges that Respondent never discussed with her the basis on which he would bill her other than his indicating that they would talk about fees after the unemployment compensation decision was issued. The woman alleges there was no discussion regarding a statute limiting attorney fees in unemployment compensation cases. (Sec. 108.09(8)(b), Stats., limits attorneys from charging the claimant more than ten percent (10%) of the benefits at issue in the proceeding without prior approval from the Unemployment Compensation Division.)

Respondent states that he told the woman that he would help her on a contingent fee basis, namely, he would be paid if she won, and he would not be paid if she lost. Respondent acknowledged that he did not reduce a fee agreement to writing. Respondent never billed the woman in the unemployment compensation case, and he received no fees. Respondent asserts that he and the woman discussed fees at their initial meeting and that she told him that she was out of work and had no money.

Respondent believes that his total fee was between $150 and $200, but he acknowledges that he never communicated that fee to the woman. Nonetheless, Respondent asserts that he had an agreement with the woman that he was not going to pursue the vacation pay issue unless he was paid on the first matter.

The woman and her husband met again with Respondent in late November or early December, 1993, after the unemployment compensation decision was issued. The woman’s husband offered to pay Respondent, but Respondent told him that they would resolve that after the outcome of the case against the former employer for vacation pay.

The woman alleges that during the second meeting with Respondent, he never discussed the basis on which he would bill her for representation in the vacation pay case. The woman never received a bill from Respondent, and she alleges that he never requested that she advance any filing fees or court costs. The woman also alleges that Respondent never discussed a statute of limitations in the vacation pay matter.

Respondent asserts that he and the woman discussed fees at the second meeting and that he told her that he should be paid now that the first case was won. Respondent does not remember specifically asking her for a fee of $150 or $200.

Respondent never filed a law suit in the vacation pay case, and the time period for filing the law suit has expired. Between December, 1993 and June, 1995, the woman called Respondent’s office approximately twenty times regarding the vacation pay case. The woman believes that she spoke with Respondent on one occasion. On another occasion, Respondent’s paralegal told her that Respondent was working on the case. During another call, one of Respondent’s employees told the woman that they were going to file a small claims action regarding the vacation pay issue. The woman checked with court officials and learned that Respondent had not filed suit. The woman called Respondent’s office again, and Respondent’s employee told her that the court staff did not know what they were talking about and that Respondent’s office had filed something.

Respondent states that the woman called his office on May 17, 1994 and discussed the issue of payment with one of his employees. Respondent states that when his employee inquired about payment before doing additional work, the woman stated that she did not have to pay for the unemployment compensation case prior to any additional work being done for her.

Respondent asserts that he did not have an attorney/client relationship with the woman in the vacation pay case. Respondent acknowledges that he never communicated in writing to the woman that he was not going to proceed on the vacation pay case without payment on the first case. Respondent states that he wanted the woman to pay the filing and service fees in advance in the vacation pay case, but he acknowledged that he did not communicate that to the woman.

On June 14, 1995, Respondent wrote to the woman’s former employer regarding the vacation pay matter. Respondent stated that he had been retained to represent the woman in a claim for non-payment of vacation pay and that the former employer should promptly deliver the vacation pay or Respondent would institute legal action. Respondent sent a copy of the letter to the woman. Respondent did not receive a reply from the former employer.

On June 15, 1995, Respondent provided the woman with a Claim for Wages form under sec. 109.09, Stats. Respondent advised her to complete, execute and submit the form to the Wisconsin Department of Industry, Labor and Human Relations.

In mid-October, 1995, Respondent drafted a summons and complaint for small claims court for the vacation pay case. Respondent requested judgment in the amount of $615.40. He signed the summons and complaint on October 19, 1995, but it was never filed. Respondent does not recall doing anything more on the vacation pay case after October, 1995.

In August, 2000, the woman and her husband encountered Respondent by chance. The woman’s husband states that he asked Respondent if he was going to take care of the vacation pay issue and that Respondent replied that he was working on it and that they had lots of time to file the claim. The woman’s husband alleges that Respondent told him that he would get back to them, but Respondent never did. The conversation in August, 2000 was the last conversation that the woman had with Respondent.

In failing to file and prosecute a small claims case from November, 1993 to the present on behalf of the woman who sought to recover vacation pay from a former employer, during which time the applicable statute of limitations in which to bring such an action expired, Respondent violated SCR 20:1.3, which requires a lawyer to act with reasonable diligence and promptness in representing a client.

In failing to return any of approximately twenty phone calls that the woman made to his office from December, 1993 through June, 1995, in which she attempted to learn the status of the small claims case regarding her vacation pay, and in failing to inform the woman that he had not filed a small claims lawsuit on her behalf and that he had allowed the applicable statute of limitations to expire without having filed suit, Respondent violated SCR 20:1.4(a), which requires a lawyer to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

In failing to inform the woman that the applicable statute of limitations was going to expire in the vacation pay matter without his having filed a lawsuit on her behalf, in order to give the woman an opportunity to pursue the matter on her own or through other counsel if she chose to do so, Respondent violated SCR 20:1.4(b), which requires a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

In failing to communicate to the woman the basis or rate of his fee in the unemployment compensation appeal case, Respondent violated SCR 20:1.5(b), which states that when a lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. Respondent further violated SCR 20:1.5(b) when he failed to communicate to the woman the basis or rate of his fee in the vacation pay matter from November, 1993 to the present, including the fact that he wanted her to pay filing and service fees in advance before he would file the lawsuit.

In failing to reduce a contingent fee agreement in writing in the unemployment compensation appeal case, Respondent violated SCR 20:1.5(c), which requires contingent fee agreements to be in writing.

In an unrelated matter, a woman was injured in October, 1994 when she inhaled fumes from cleaning chemicals while working at her place of employment. She experienced breathing problems and was taken by ambulance to a medical facility. She continued to receive periodic medical care thereafter.

In November, 1996, the woman contacted Respondent regarding potential representation for a workers compensation claim relating to that injury. The woman and Respondent did not sign a retainer agreement for a workers compensation claim. The woman, however, signed a medical authorization form on November 8, 1996. During November and December, 1996, Respondent sent a notice of retainer to the former employer and also requested medical records from the woman’s health care providers. The workers compensation carrier for the former employer subsequently paid medical bills relating to care that the woman received on October 4, 1994 and October 6, 1994.

In June and July, 1997, Respondent again requested copies of medical records from some of the health care providers. At Respondent’s instruction, on June 27, 1997, the woman signed an “Application for Hearing” with the Department of Workforce Development, but the form was never filed. Respondent continued to engage in correspondence regarding the woman’s records through July 15, 1997.

Respondent states that sometime late in 1997, he determined that he had collected the information that was necessary to analyze the workers compensation claim. Respondent states that he concluded that he would not pursue the matter, due to the woman’s pre-existing health conditions and because Respondent did not believe that she had missed a sufficient period of work to make the case meritorious. Respondent states that he did not file the Application for Hearing that was signed earlier by the woman because the claim could not be supported. Respondent did not bill the woman for the case.

The woman alleges that she had no idea that Respondent had decided not to pursue her case. Respondent did not communicate his conclusion to the woman in writing. The woman alleges that Respondent did not communicate with her for four years regarding her workers compensation claim.

Respondent does not claim to have personally communicated his conclusion to the woman in any conversations. Respondent asserts, however, that two of his former employees orally told the woman that Respondent would not be pursuing her claim. There is nothing in the file to document any conversations between the woman and the former employees. The woman denies having such conversations with Respondent’s employees.

Notwithstanding Respondent’s statement that he had concluded that the woman had no claim late in 1997, Respondent wrote to the woman’s former employer on December 28, 1998 and requested information on the woman’s employment. Also on December 28, 1998, Respondent wrote to the health care providers and requested copies of medical records and information on the outstanding balances of the woman’s accounts. There is nothing in Respondent’s correspondence to show that the woman was given copies of any of the cover letters or of any the information when it was received. The woman heard nothing from Respondent during this time period.

The most recent activity in the worker compensation file occurred on April 8, 1999, when Respondent wrote to a third party regarding creditor information. The woman was unaware of the correspondence or of any activity in the matter.

When asked why he began working on the file again in December, 1998, Respondent’s only explanation was that the woman must have called and talked to one of his new staff people, and the new staff person again sent out authorizations so that they could reinvestigate the matter. Respondent asserts that he concluded there was no case and communicated that to the woman. However, there is no evidence of such communication in Respondent’s file. The woman heard nothing from Respondent during that time frame.

In October, 2001, a third party involved in the case incorrectly told the woman that her worker’s compensation claim had been settled out of court in June or July, 1997. The woman allegedly telephoned Respondent twice after receiving the call, but he failed to return her calls. The woman alleges that she had absolutely no contact with Respondent from late 1997 until she began attempting to contact him in late 2001. There was nothing in Respondent’s file to show that he had any contact with the woman during that time period.

Respondent states that he had contact with the woman in July, 1999, while he was representing her daughter in an unrelated matter. Respondent asserts that the woman never asked him about the workers compensation case. Respondent acknowledges it was probably an error not to have informed the woman in writing that he was declining to advance a workers compensation claim on her behalf.

Respondent assisted the woman in some other legal matters during 1997-1998. In 1997, Respondent submitted a request for reconsideration on the woman’s behalf after she was denied Social Security disability insurance benefits. Respondent also provided limited representation to the woman in a post-divorce child support matter during the early months of 1998.

By failing to inform the woman that he had decided not to pursue a workers compensation claim on her behalf, Respondent violated SCR 20:1.4(b), which requires a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

By failing to notify the woman that he was not going to pursue the workers compensation claim on her behalf, Respondent also violated SCR 20:1.16(d), which provides that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client.

In accordance with SCR 22.09(3), Attorney Terrence J. Woods is hereby publicly reprimanded.