Nebraska Ex Rel. Counsel For Discipline Of The Nebraska Supreme Court v. Orr

759 N.W.2d 702 (2009)


D was engaged in private practice, and his experience with franchising was limited. D had read franchise agreements on behalf of clients who either were or were interested in becoming franchisees, but had never represented a franchisor. D had not reviewed state or federal law governing franchising. Steve Sickler and Cathy Mettenbrink had opened their first coffee shop together, Barista's Daily Grind (Barista's). Sickler met with D and asked whether D could help Sickler and Mettenbrink franchise their business. D believed he could 'handle' the franchising of Barista's. D completed a first draft franchise agreement in October 2002. D had recently reviewed a restaurant franchise agreement and then utilized that document when drafting the Barista's document. D believed it was simply 'a matter of contract drafting,' which he believed he was competent to do. D contacted an attorney in Washington, D.C., for assistance with the trademark and copyright portions of franchising. That attorney warned D that franchising was a specialized field. D then drafted a disclosure statement, which he created from a recently reviewed agreement for a franchisee as well as 'FTC documents.' Barista's sold 21 franchises. In July 2004, Sickler was contacted by a banker in Colorado, inquiring on behalf of a prospective franchisee. The banker requested the 'UFOC' of Barista's, and, unaware of what a UFOC was, D determined that the then-current disclosure statement of Barista's was 'compliant and valid' and could be used anywhere. D revised the franchise agreement, and disclosure statement at Sickler's request due to problems Barista's was having with a franchisee in Iowa. The Iowa franchisee had been provided with copies of the initial franchise agreement and disclosure statement. The Iowa franchisee's attorney sent a letter to Sickler suggesting that Barista's had not complied with federal disclosure requirements. D did not advise Sickler to seek input from local counsel in those states Sickler has expanded into. Sickler and Mettenbrink sued the Colorado franchisees to terminate the franchises. A counterclaim was filed alleging deceptive and unfair trade practices, violation of FTC rules, and violation of Nebraska's Seller-Assisted Marketing Plan Act. Meanwhile, the Iowa franchisee's attorney demanded that Sickler return the franchise fee and pay attorney fees and other damages, and informed Sickler that he and Mettenbrink could be held personally liable under certain provisions of Iowa law. A Nebraska, attorney, advised by D not to sell any more franchises without considerable changes to the disclosure statement. A third version of the disclosure statement was created, and Sickler stated he was told that the disclosure statement was now 'compliant with every state.' D advised Sickler to obtain local counsel because he had become aware that state law could be more stringent than federal requirements. The Iowa franchisee filed suit in Iowa and obtained personal judgments against Sickler and  Mettenbrink. Barista's sold seven more franchises using the third disclosure statement, but the FTC notified Barista's that it was under investigation. An attorney specializing in franchise law reviewed the franchise documents and concluded those documents--including the third disclosure statement--did not comply with FTC rules. The attorney characterized the deficiencies as 'major.' D's law firm withdrew from representing Sickler and Mettenbrink. The FTC civil penalty has been suspended indefinitely, and will not have to be paid so long as the disclosures of Barista's are truthful. The franchising of Barista's had 'virtually been shut down.' D's law firm has paid for the revision of the franchising documents, as well as the research and second opinion obtained regarding the original franchising document. Charges were filed against D. The referee found that D violated Canon 1, DR 1-102(A)(1), and Canon 6, DR 6-101(A)(1) and (2), of the Code of Professional Responsibility, as well as §§ 1.1 and 8.4(a) of the Nebraska Rules of Professional Conduct (now codified at Neb. Ct. R. of Prof. Cond. §§ 3-501.1 and 3-508.4(a)). DR 1-102(A)(1) and § 3-508.4(a) prohibit an attorney from violating the relevant rules of conduct. Competent representation requires the legal knowledge, skill, thoroughness, preparation, and judgment reasonably necessary for the representation. A lawyer shall not handle a legal matter 'which the lawyer knows or should know that he or she is not competent to handle, without associating with a lawyer who is competent to handle it,' or 'without preparation adequate in the circumstances.' The referee recommended that a public reprimand be issued.