Opinion

In Re Bailey

  • 883 A.2d 106
  • 2005 D.C. App. LEXIS 485
  • 2005 WL 2319782
Court
District of Columbia Court of Appeals
Filed
Sep 15, 2005
Status
Published
Author
Schwelb
On the bench
Schwelb, Reid, Ferren
Cited by
41 cases

explaining that if a contract “has more than one reasonable interpretation and therefore is ambiguous, then the court — after admitting probative extrinsic evidence — must determine what a reasonable person in the position of the parties would have thought the disputed language meant”

How later courts described this case

  • explaining that if a contract “has more than one reasonable interpretation and therefore is ambiguous, then the court — after admitting probative extrinsic evidence — must determine what a reasonable person in the position of the parties would have thought the disputed language meant”
  • lawyer borrowed proceeds of client’s personal injury settlement suit and violated Rule 1.8(a) by failing to advise client, who “had difficulty fully comprehending spoken English,” to seek the advice of independent counsel to review promissory note prepared by lawyer; no finding that the transaction was unfair or unreasonable to the client even though lawyer did not provide client with the prevailing interest rate
  • distinguishing claims of a client from “third party claims”
  • nine-month suspension imposed for negligent misappropriation and other violations

Written by the judges who cited it.

The opinion

SCHWELB, Associate Judge,

concurring:

I agree with the sanction that the court imposes and with much of my colleagues’ analysis, including the conclusion that Mr. Bailey engaged in negligent misappropriation. I do not join the opinion, however, because in my view, much that the court has written is dictum addressing two questions the resolution of which, in the final analysis, can have no effect on the outcome of the case.

The court focuses at some length on whether the authorization executed by the client effected an assignment of settlement proceeds to Dr. Garmon and whether Dr. Garmon was an expert witness and therefore had a lien on the recovery. These are not easy questions, and the court answers each of them in the negative, or favorably to Mr. Bailey. Any encouragement that this may have brought Mr. Bailey was short-lived, however, for my colleagues then proceed to hold — and I agree — that Mr. Bailey’s conduct constituted misappropriation, albeit negligent misappropriation.

Obviously, the court’s resolution of the “assignment” and “expert witness” issues makes no difference to its disposition of the case. If the authorization had effected an assignment, and if Dr. Garmon were entitled to a lien as an expert witness, the court would still conclude, perhaps a forti-ori, that misappropriation occurred. In *124 my opinion, we should not ordinarily undertake to resolve difficult issues which do not affect the end result. Regardless of how diligently counsel have argued these issues and crossed rhetorical swords on them, the court’s resolution of them is still dictum. Perhaps the court’s discussion will provide “guidance” to the Board and to counsel, but in my view, we should resist the temptation to provide guidance by dictum.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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