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In 2023, the owner of an entity that was sued hired Michael Davis, the entity’s registered agent, to represent the entity in the case. Davis, who had handled other legal matters for the owner, didn’t communicate in writing his fees or the scope of the representation. Davis signed a waiver and acceptance of service on Sept. 28, 2023, but he didn’t enter his appearance or answer the complaint on behalf of his client before the answer was due.
On Oct. 19, 2023, the owner asked Davis whether he had filed an answer. Davis responded via text, “[o]h yeah. I will send you a copy.” He never sent the owner a copy of an answer, as he never filed one. Nor did he correct his misstatement or advise the owner at the time that he had not answered the complaint.
On Nov. 3, 2023, the plaintiff moved for entry of clerk’s default, which the clerk entered three days later. On Dec. 14, 2023, counsel for a co-defendant contacted Davis, who then checked the case docket and learned of the entry of default. But Davis didn’t inform the entity’s owner about the entry of default until, at the earliest, Dec. 29, 2023.
In January 2024, Davis moved to set aside default, including an affidavit from the entity’s owner. The affidavit, which Davis drafted, stated that the owner instructed Davis to “wait and see what [the plaintiff] did next before doing anything.” The owner later disputed that these were his instructions despite electronically signing the affidavit. Davis notarized the electronically signed affidavit, even though his notary license didn’t authorize him to notarize electronic signatures.
In drafting the owner’s affidavit, Davis didn’t advise the owner that such a statement could be contrary to the interests of the entity or could materially limit his ability to represent the entity based on his personal interest in establishing he didn’t neglect the litigation.
The court held a hearing on the motion to set aside default, and Davis argued that the entity’s owner had instructed him not to answer the complaint. The court denied the motion. The day after the hearing, Davis emailed the owner but didn’t mention that the court had denied the motion. The owner later obtained the order from the court and terminated the representation.
The presiding disciplinary judge approved Davis’ stipulation to discipline and suspended him from the practice of law for one year and one day, with three months to be served and the remainder to be stayed pending Davis’ successful completion of a two-year probation with conditions. The suspension takes effect May 15.