BEFORE THE DISTRICT SUBCOMMITTEE
OF THE VIRGINIA STATE BAR
IN THE MATTER OF
KRISTINA MARIE K. FITZGERALD
VSB Docket No. 03-032-0801
On October 2, 2003, a meeting in this matter was held before a duly convened Third District Subcommittee consisting of Richard Newman, John Daly and William Viverette, Chair.
Pursuant to Part 6, Section IV, Paragraph 13.G.4. of the Rules of the Virginia Supreme Court, the Third District, Section II, Subcommittee of the Virginia State Bar hereby serves upon the Respondent the following Public Reprimand:
I. FINDINGS OF FACT
1. Kristina Marie K. Fitzgerald (Ms. Fitzgerald) was licensed to practice law in the Commonwealth Virginia on May 18, 1988, and at all times relevant to these proceedings, Ms. Fitzgerald was and attorney in good standing to practice law in the Commonwealth of Virginia.
2. Robert J. Merritt (Mr. Merritt) fell on September 12, 2000, at Auditorium Auto Parts, which is insured by CNA Insurance Company. Mr. Merritt suffered long bone fractures of his left femur and right humerus.
3. In October 2000, Mr. Merritt and Kristina Marie K. Fitzgerald (Ms. Fitzgerald) met about his personal injury case, and Ms. Fitzgerald agreed to represent Mr. Merritt on a contingency fee basis.
4. Mr. Merritt signed a retainer agreement with Ms. Fitzgerald and medical release forms for the VA and MCV Hospitals records for her.
5. In the early spring of 2001, Mr. Merritt told Ms. Fitzgerald to contact CNA Insurance to get the $5000.00 med-pay funds, but Ms. Fitzgerald did not do so at that time. Ms. Fitzgerald told Mr. Merritt that she felt that accepting money from the insurance company would show fault on Mr. Merrittís part.
6. From the early spring of 2001 until August 2002, Mr. Merritt called Ms. Fitzgeraldís office to speak with her but was unable to do so. He estimates the number of calls during this time at 30 to 50 calls.
7. Ms. Fitzgerald admits that from the time she was retained in October 2000, until the time she filed the demand letter on November 12, 2001, most of Mr. Merrittís communication with her office was with her legal assistant, Renee Hardy.
8. On November 12, 2001, Ms. Fitzgerald sent the demand letter for the $5000.00 med-pay funds. According to that demand letter, the case had a settlement value of $300,000.00, and Mr. Merrittís medical specials total $69,769.38
9. By letter of February 15, 2002, CNA Insurance Company wrote to Ms. Fitzgerald acknowledging receipt of her demand letter and declining payment. According to CNA Insurance Company, the insuring agreement stated clearly that the medical expenses would be paid ìprovided that the expenses are incurred and reported to us within one year of the date of the accidentÖ.î The demand for the med-pay funds by Ms. Fitzgerald was made on November 12, 2001, over one year from Mr. Merrittís September 2000, fall at Auditorium Auto Parts.
10. Ms. Fitzgerald told the VSB Investigator that she thought there was a five-year contract on the med-pay and not the one-year statute of limitations that was stated in the insurance contract.
11. By letter of February 15, 2002, CNA Insurance Company wrote to Ms. Fitzgerald acknowledging receipt of her demand letter and declining payment. On February 20, 2002, Mr. Fitzgeraldís legal assistant, Renee Hardy, wrote to Mr. Merritt advising that CNA denied the claim.
12. This letter to Mr. Merritt also stated that, if he wanted Ms. Fitzgerald to file suit, Mr. Merritt would have to pay expenses and filing fees in advance. According to a handwritten note on a copy of that letter provided to the bar, Mr. Merritt agreed to provide Ms. Fitzgerald with ì1/2 of everythingî.
13. Ms. Fitzgerald asserts that she also told Mr. Merritt that, in order to prevail, he would need a different statement from the doctor in order to proceed. No record of a letter to that effect has been provided by Ms. Fitzgerald.
14. On May 13, 2002, Ms. Fitzgerald told Ms. Ardy Kidd (Ms. Kidd), legal assistant to Benjamin H. Hansel II (Mr. Hansel), Regional Counsel for the Department of Veterans Affairs, that it was no longer cost effective for Ms. Fitzgerald to pursue Mr. Merrittís claim. During the telephone call of May 13, 2002, Ms. Fitzgerald also provided the med-pay information to the Department of Veterans Affairs even though the claim had been denied, and she had been notified that any demand after September 12, 2001, was not timely.
15. The Department of Veterans Affairs verified the med-pay information with Ms. Fitzgerald on July 2, 2002, and then filed a claim for the med-pay funds. By letter of July 18, 2002, CNA notified the Department of Veterans Affairs by letter to Ms. Kidd of their previous denial of Mr. Merrittís claim and the reason for that denial.
16. On June 14, 2002, Ms. Fitzgerald wrote to Mr. Hansel and stated that her office no longer represented Mr. Merritt; however, she did not send Mr. Merritt a letter to that effect until August 25, 2002. On September 4, 2002, Ms. Fitzgerald wrote the Department of Veterans Affairs that her office no longer represented Mr. Merritt.
17. Ms. Fitzgerald admits that she did not visit the scene of the accident nor did she interview any witnesses.
II. NATURE OF MISCONDUCT
Assistant Bar Counsel, Linda Mallory Berry, and the Respondent, Kristina Marie K. Fitzgerald, agree that the above factual stipulations could give rise to findings of violations of the following Disciplinary Rules.
Rule 1.3 Diligence
(a) A lawyer shall act with reasonable diligence and promptness in representing a client.
Rule 1.4 Communication
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
Rule 1.16 Declining or Terminating Representation
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
(1) the client persists in a course of action involving the lawyer's servicesthat the lawyer reasonably believes is illegal or unjust;(2) the client has used the lawyer's services to perpetrate a crime or Fraud;(3) a client insists upon pursuing an objective that the lawyer considersrepugnant or imprudent;(4) the client fails substantially to fulfill an obligation to the lawyerregarding the lawyer's services and has been given reasonable warningthat the lawyer will withdraw unless the obligation is fulfilled;(5) representation will result in an unreasonable financial burden on thelawyer or has been rendered unreasonably difficult by the client; or(6) other good cause for withdrawal exists.(c) In any court proceeding, counsel of record shall not withdraw except by leave ofcourt after compliance with notice requirements pursuant to applicable rules of court. In any other matter, a lawyer shall continue representation notwithstanding good cause for terminating the representation, when ordered to do so by a tribunal.
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of fact or law;
III. PUBLIC REPRIMAND
Accordingly, it is the decision of the subcommittee to impose a PUBLIC REPRIMAND and the Respondent is hereby so reprimanded.
Pursuant to Part Six, Section IV, Paragraph 13.B.8.c.(1) of the Rules of the Virginia Supreme Court, the Clerk of the Disciplinary Committee shall assess costs.
THIRD DISTRICT, SECTION II, SUBCOMMITTEE
OF THE VIRGINIA STATE BAR
William Viverette, Subcommittee Chair
CERTIFICATE OF SERVICE
I certify that I have this _____ day of October, mailed by Certified Mail, Return Receipt Requested, No. 7106 4575 1294 4678 1331, a true and correct copy of the Subcommittee Determination (PUBLIC REPRIMAND) to Kristina Marie K. Fitzgerald, One Capital Square, 830 East Main Street, Suite 2000, her last address of record with the Virginia State Bar. .
Linda Mallory Berry, Assistant Bar Counsel