Plaintiffs in a legal malpractice suit seek to disqualify Alton attorney Lee Barron from representing himself in the suit alleging he wrongfully retained additional attorneys’ fees and has refused to provide information on the funds he received.
On July 9, St. Louis attorney Peter Fiore III of Summers Compton Wells LLC filed a motion to disqualify Barron from representing himself on behalf of plaintiffs Kathleen Levy, formerly known as Kathleen Bone, and Melissa Favier.
They argue that the lawsuit is not simply a fee dispute and Barron is a necessary witness who will be called upon to testify regarding the retained funds at issue, alleged delays in payment and his alleged failure to pay promised interest.
The plaintiffs also argue that lawyers are forbidden from acting as an advocate and a witness in the same proceeding, because “the attorney-witness may not be a fully objective witness or may be perceived as distorting the truth for the sake of his client.”
“Defendant is a material and necessary witness on every required element of plaintiffs’ causes of action and to the defense of the claims at issue in the case sub judice. Defendant is therefore a necessary witness on contested issues in the case at bar,” Fiore wrote.
Fiore wrote that if the court were to permit an advocate to testify as a witness, it could unfairly prejudice the case “and may erode confidence in the administration of justice.”
He adds that it could confuse the roles of the attorney as witness or attorney as advocate.
“If the trier, especially a jury, grants undue weight to the attorney’s testimony, the opponent of the attorney witness may be unfairly disadvantaged. An attorney-witness will also be in a position to vouch for his own credibility in summing up to the jury, which is also unfair to the opponent,” Fiore wrote.
Fiore also argues that disqualifying Barron would not cause any hardship as he has not filed any responsive pleadings to the lawsuit.
“The impropriety of defendant’s dual role is further influenced by defendant’s failure to file responsive pleadings with this court,” he wrote.
“Defendant claimed to have filed a responsive pleading with this court, but in fact did not,” he added. “Defendant further included his Missouri Bar number of the unfiled responsive pleading, and not his Illinois Bar number. Defendants’ failure to file any responsive pleading with this court, despite his representations to the contrary, only further support the need for defendant to seek representation in the case at bar.”
The plaintiffs also filed a motion for default judgment.
They argue that their complaint was filed March 31 but Barron has failed to file an answer or respond after he was served with the suit on April 6. The plaintiffs allegedly agreed to extend Barron’s deadline to respond to the complaint from May 10 to May 31 “in a good faith effort to facilitate settlement negotiations and avoid additional time and costs associated with further litigation of this claim.”
On May 31, Barron allegedly emailed a courtesy copy of a meritless motion to dismiss. However, on June 22, Fiore realized that the motion to dismiss was never filed with the court, the motion states.
Fiore requested that Barron file a responsive pleading with the court by July 2.
“In the interest of judicial economy, plaintiffs waited until now to move for a default judgment against defendant, nonetheless, it appears defendant still has yet to file any responsive pleading or otherwise enter his appearance in the case at bar,” the motion states.
“As of the date of this motion, defendant has failed to officially file an answer, enter his appearance, or otherwise file any responsive pleading to plaintiffs’ complaint, and is therefore in default.”
According to the plaintiffs’ complaint, Levy and Favier retained Barron in 2008 to represent them in a lawsuit against Coyle Mechanical Supply Inc. and its stockholders, officers and directors. The underlying suit was filed March 30, 2009 in Madison County Circuit Court (09-CH-416). The case was tried in a bench trial over the course of several days in 2013. The court allegedly entered “a substantial monetary judgment in plaintiffs’ favor” and awarded them attorneys’ fees and expenses in April 2014.
Then on June 1, 2017, the Fifth District Appellate Court entered a decision affirming in part and reversing in part the judgment.
The appellate court awarded each plaintiff $297,000 for the purchase of their interests in the corporate defendant and $250,000 as a divided payment. The appellate court also upheld an award of $139,292.64 for attorneys’ fees and court costs.
The trial court then entered an order on May 11, 2018, affirming the awards with an interest to accrue at 9 percent from Feb. 26, 2015, through the date of payment.
The plaintiffs claim that at some point in 2017 or 2018, one or more of the defendants paid the attorney’s fees and expenses directly to Barron, who allegedly retained all of those funds.
Throughout the litigation, Levy, Favier and Barron allegedly had an agreement which stated that Barron would represent them for a fixed hourly billing rate. They claim that when Barron received the underlying defendants’ payment for attorneys’ fees, they had already paid him at least $98,400 for his services from March 10, 2009, to March 25, 2014.
“Thus, defendant Barron received and retained a total of more than $237,690 in fees and expenses for the period from March 10, 2009 through March 25, 2014,” the suit states.
Levy and Favier further allege that at some point in 2018, one of the underlying defendants paid Barron $37,609 the computation of interest due on the attorneys’ fees and costs.
The plaintiffs allege Barron retained the interest payment and has not offered to return the amount to them.
“Said $37,609 interest payment was never entered or disclosed in the Madison County Circuit Court minutes or docket sheet. Plaintiffs first learned of defendant’s receipt and retention of the $37,609 interest payment in late November 2020,” the suit states.
Fiore wrote that Barron knew he had been overpaid but fraudulently concealed that he received more compensation for his services than he earned under his billable hour agreement with the plaintiffs.
The plaintiffs met with Barron in October 2018, and he “indicated he thought the attorneys’ fees were probably ‘a wash’ - meaning plaintiffs were not entitled to any monies.” From 2018-2020, the plaintiffs allegedly requested Barron’s billing records to determine if he had been overpaid.
Levy and Favier sought the assistance of new counsel, who wrote a letter to Barron in February 2020 asking for their case file and accounting. Barron send the file on Oct. 13, 2020 after the plaintiffs filed a complaint with the Illinois Registration and Disciplinary Commission of the Illinois Supreme Court. However, Barron allegedly failed to include any billing statements, invoices or other time records documenting his services.
As for their award and interest, Levy and Favier claim Barron did not deliver their funds in a timely manner. They claim the underlying defendants began making partial payments by delivering checks separately payable to each plaintiff. For example, checks for $69,407 and another for $297,000 were made in June 2018. The plaintiffs claim they didn’t receive those checks from Barron until October 2018.
When he delivered the checks, Barron allegedly took responsibility for the delay and promised to pay interest for the time period. The plaintiffs claim he never paid the promised interest.
The plaintiffs allege that none of the payments received by Barron were reported to the Madison County Circuit Court or indicated in the docket sheet.
Madison County Circuit Court case number 21-L-401