April 2004

Disciplinary Notices

These notices of imposition of disciplinary sanctions and actions are published pursuant to Rule 3.5(d) of the Washington State Supreme Court Rules for Enforcement of Lawyer Conduct, and pursuant to the February 18, 1995, policy statement of the WSBA Board of Governors.

For a complete copy of any disciplinary decision, call the Washington State Disciplinary Board at 206-733-5926, leaving the case name, and your name and address.

Disbarred
Bernard A. Clark (WSBA No. 25031, admitted 1995), of Tacoma, was disbarred effective May 14, 2003, by order of the Washington State Supreme Court following a hearing. This discipline was based on his conduct in 2001 and 2002 involving lack of diligence and communication in five client matters.

Matter 1: In early 1999, Mr. Clark agreed to represent a client in a personal injury matter. Mr. Clark filed the complaint, but then failed to timely exchange the required witness and exhibit lists. The court entered an order excluding the client's witnesses, and Mr. Clark filed a motion for reconsideration of this order. At the hearing, the court denied the request for reconsideration and dismissed the client's complaint with prejudice. Mr. Clark did not tell the client about the dismissal. Mr. Clark filed an appeal of the court's decision, but failed to timely file the brief. In November 2000, the court dismissed the appeal. In June 2001, the client retained substitute counsel and learned that her case had been dismissed.

Matter 2: In April 2000, Mr. Clark agreed to represent a client in an uncontested marital dissolution. Mr. Clark filed the petition in April 2000 and told the client the final hearing would be in June 2000, but did not set the case for hearing. The client was unable to contact Mr. Clark after June 2000, so he completed the case pro se in October 2001. Mr. Clark did not refund the client's advance fees.

Matter 3: In February 2001, Mr. Clark agreed to represent a client in an employment discrimination suit filed by the client's prior lawyer. Mr. Clark and the client agreed orally that after a $1,000 fee, Mr. Clark would be paid on a contingent basis. In March 2001, Mr. Clark received notice of the defendant's summary judgment motion, but did not file a response. The court granted summary judgment and dismissed the client's case with prejudice. The client learned of the dismissal in June 2001 when he personally checked his court file. Mr. Clark did not refund the client's advance fee payment.

Matter 4: In August 2000, Mr. Clark agreed to represent a client in an employment matter. Mr. Clark sent a draft complaint to the client, which the client returned. Mr. Clark took no further action, but told the client that the complaint had been filed. The client was not able to contact Mr. Clark. Mr. Clark did not refund the client's fees.

Matter 5: In January 2000, Mr. Clark agreed to represent a client in an employment matter. The client was not able to contact Mr. Clark until June 2000, when he told her that he had filed a complaint on her behalf and that a trial date was pending. After June 2000, the client was not able to contact Mr. Clark. In late 2001, the client retained new counsel and discovered that Mr. Clark had not filed a complaint. Mr. Clark did not refund the client's fees.

Mr. Clark did not cooperate with the disciplinary investigation of matters 1-5.

Mr. Clark's conduct violated RPCs 1.3 and 3.2, requiring lawyers to provide diligent representation and expedite litigation; 1.4, requiring lawyers to keep clients reasonably informed of the status of their matters and explain matters to the extent necessary for clients to make informed decisions; 1.5, requiring lawyers' fees to be reasonable and contingent fee agreements to be in writing; and 1.14(b)(3), requiring lawyers to keep complete records of client funds; and RLD 2.8, requiring lawyers to cooperate with disciplinary investigations.

Kevin Bank represented the Bar Association. Mr. Clark represented himself. Gayle T. McElroy was the hearing officer.

Disbarred
Dalwyn T. Dean (WSBA No. 7332, admitted 1977), of New Jersey, was disbarred effective May 29, 2003, by order of the Washington State Supreme Court, based on an order for discipline from the state of New Jersey. This discipline was based on her conduct between 1995 and 1998 involving misappropriation of client funds.

The Supreme Court of New Jersey found that Ms. Dean had committed 11 counts of knowing misappropriation. In 1995, Ms. Dean met Mr. S. Mr. S, a convicted felon, was the director of a program providing assistance to individuals recently released from prison. Over the next two years, Ms. Dean allowed Mr. S to become increasingly involved with her law practice. By 1996, Mr. S answered phones, met with clients, and handled trust-account transactions. Mr. S deposited several checks Ms. Dean had written to clients in his own business account. Clients complained, and the trust account did not balance, but Ms. Dean did not properly investigate the cause of these problems. Ms. Dean did not supervise or train Mr. S. Ms. Dean allowed Mr. S to take approximately $66,000 in client funds. The New Jersey court found that Ms. Dean's "willful blindness" equated to knowing misappropriation.

Ms. Dean's conduct violated New Jersey Rule of Professional Conduct 1.15, requiring lawyers to safeguard client property.

Felice Congalton represented the Bar Association. Ms. Dean represented herself.

Suspended
Michael T. Mullen (WSBA No. 23116, admitted 1993), of Oregon, was suspended for two years, effective June 20, 2003, by order of the Washington State Supreme Court approving a stipulation. This discipline was based on his lack of diligence and misrepresentation in a client matter in 2001.

In January 2001, Mr. Mullen agreed to assist a client with a petition to increase the client's summer child visitation and to modify child-support payments. By May 2001, Mr. Mullen had drafted the petition, but had not filed anything with the court. When the client called, Mr. Mullen explained that he had filed the pleadings and attended hearings. These statements were not true. Mr. Mullen also fabricated time entries on the billing statements he mailed to his client. He charged the client $168 for services he did not perform.

In September 2001, Mr. Mullen obtained two ex parte orders of child support without notice to the opposing party. Mr. Mullen had no legal basis for obtaining these orders. Mr. Mullen did not file either of the original orders with the court. In October 2001, the court vacated the second order. Mr. Mullen's lack of diligence prevented the client from increasing his summer visitation. Mr. Mullen did not charge his client, and paid the opposing party $330.

Mr. Mullen's conduct violated RPCs 1.3 and 3.2, requiring lawyers to diligently represent their clients and expedite litigation; 1.5, requiring lawyers' fees to be reasonable; 3.3, requiring lawyers to inform the court of all relevant facts in an ex parte proceeding; 3.5, requiring lawyers to avoid improper ex parte contact with the court; 8.4(c), prohibiting lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and 8.4(d), prohibiting lawyers from engaging in conduct prejudicial to the administration of justice

Jonathan Burke represented the Bar Association. Mr. Mullen represented himself.

Reprimanded
Kevin M. Healy (WSBA No. 21797, admitted 1992), of California, was reprimanded, effective June 9, 2003, by order of the Washington State Supreme Court, based on an order for identical discipline from the Supreme Court of the State of California. This discipline is based on his conduct in 2001 involving failure to promptly pay client funds to the client upon request. (Mr. Healy is to be distinguished from Kevin G. Healy of Seattle.)

In September 2000, Mr. Healy received a settlement check made payable to both Mr. Healy and the client. He mailed the check to the client, asking that she endorse the check and return it to him for processing in his trust account. The client disputed Mr. Healy's fees and retained new counsel instead of returning the check. The check was deposited into the new counsel's trust account. Mr. Healy refused to endorse the check unless the new counsel agreed to make no disbursements without Mr. Healy's agreement. The new counsel agreed, believing that the dispute would be resolved quickly. Mr. Healy never disputed that the client was entitled to at least $70,000 of the settlement funds. Mr. Healy refused to agree to release the undisputed funds until about January 2002.

Mr. Healy's conduct violated Rule 4-100 (B)(4) of the California Rules of Professional Conduct, requiring lawyers to promptly pay client funds to clients upon request.

Joanne Abelson represented the Bar Association. Mr. Healy represented himself.

Admonished
Thomas J. Atwood (WSBA No. 15186, admitted 1985), of Richland, was admonished by the WSBA Disciplinary Board following a stipulation. The admonition was based upon his conduct in 2001, involving failure to avoid a conflict of interest in a child-custody matter.

In 1998, Mr. Atwood represented a client in a criminal charge of failing to supervise a child. The client was the child's mother. The case was closed in 2000 without a criminal conviction. During this same time, the client divorced and was granted custody of the two children. In 2001, Mr. Atwood agreed to represent the children's paternal grandparents in a petition for temporary custody of the children. The grandparents' interests were adverse to the former client's interests. Mr. Atwood did not discuss the conflict of interest with his former client. The former client objected to the temporary custody petition and claimed that Mr. Atwood had a conflict of interest.

Mr. Atwood's conduct violated RPC 1.9, prohibiting lawyers from representing a person in a substantially related matter in which the person's interests are materially adverse to a former client, unless the former client consents in writing after full disclosure.

Kevin Bank represented the Bar Association. Mr. Atwood represented himself.

Admonished
Jack L. Burtch (WSBA No. 4161, admitted 1955), of Aberdeen, was admonished by the WSBA Disciplinary Board following a hearing. The admonition was based upon his allowing the court to enter an inaccurate order in a litigation matter.

In 1988, Mr. Burtch began representing a client in a lawsuit against a bank president alleging fraud. In May 1996, the court imposed terms against Mr. Burtch personally, based on his failure to comply with the judge's orders regarding voir dire questioning. At a subsequent hearing in November 1996, Mr. Burtch did not remind the court that the terms had been imposed against him personally instead of against the client. The court entered an order imposing the terms against the client, and Mr. Burtch used the client's funds to pay the terms. Mr. Burtch's billing statements did not provide the client with a clear accounting of her funds.

Mr. Burtch's conduct violated RPCs 1.3, requiring lawyers to provide diligent representation; 1.4(b), requiring lawyers to explain matters to the extent reasonably necessary to permit the client to make informed decisions; 1.5(a), requiring lawyers' fees to be reasonable; 1.14(b)(3), requiring lawyers to maintain complete records of client funds; and 8.4(d), prohibiting lawyers from engaging in conduct prejudicial to the administration of justice.

Kevin Bank represented the Bar Association. Mr. Burtch represented himself. Thomas Cena was the hearing officer.

Admonished
Jack W. Fiander (WSBA No. 13116, admitted 1983), of Yakima, was admonished by the WSBA Disciplinary Board, following a stipulation. The admonition was based upon his conduct in 1999, involving failure to avoid a conflict of interest in an employment matter.

In 1997, Mr. Fiander, while in private practice, agreed to represent a tribal court judge in seeking to obtain back wages from the employer. During the representation, Mr. Fiander was elected to the Tribal Council and then appointed to the committee overseeing the tribal courts. The client remained a tribal court judge and was elected to a committee with oversight authority over tribal officials. In 1999, Mr. Fiander wrote a letter on the client's behalf. The employer responded that Mr. Fiander had a conflict of interest. Mr. Fiander took no further action on the client's case. During the time this matter was pending, Mr. Fiander did not adequately communicate with the client.

Mr. Fiander's conduct violated RPC 1.7(b), prohibiting a lawyer from representing a client if the representation may be materially limited by the lawyer's own interests, unless the client consents in writing after full disclosure; 1.3 and 3.2, requiring lawyers to diligently represent their clients and expedite litigation; and 1.4, requiring lawyers to keep clients reasonably informed of the status of their matters.

Kevin Bank represented the Bar Association. Mr. Fiander represented himself.

Admonished
George R. Guinn (WSBA No. 19573, admitted 1990), of Spokane, was admonished by the WSBA Disciplinary Board following a hearing. The admonition was based upon his failing to deal properly with client funds in a collection matter in 1999.

In July 1999, Mr. Guinn settled a client's collection matter. In September 1999, Mr. Guinn sent the client a letter stating that he was withdrawing from the representation. Without the client's knowledge, Mr. Guinn continued to collect the client's funds. Mr. Guinn requested that opposing counsel reissue the settlement checks and then deposited them into his trust account. Mr. Guinn did not notify the client that he had received the reissued settlement checks. Mr. Guinn then garnished his trust account to collect an attorney's fee judgment he had obtained against the former client.

Mr. Guinn's conduct violated RPC 8.4(c), prohibiting conduct involving misrepresentation.

Rita Latsinova represented the Bar Association at hearing, and Becky Neal represented the Bar Association on appeal. Leland Ripley represented Mr. Guinn. Diehl R. Rettig was the hearing officer.

Admonished
John P. Junke Sr. (WSBA No. 10743, admitted 1980), of Walla Walla, was admonished by a review committee of the WSBA Disciplinary Board. The admonition was based upon his failure to avoid a conflict of interest in a family law matter.

Mr. Junke represented the husband and wife in a marital-dissolution action. The wife wanted maintenance to continue after her remarriage, but the husband disagreed. The two clients' interests were directly adverse on this issue. Mr. Junke did not obtain a written conflict waiver to continue the representation.

Mr. Junke's conduct violated RPC 1.7, prohibiting a lawyer from representing two clients in the same matter whose interests are directly adverse.

Anne I. Seidel represented the Bar Association. Mr. Junke represented himself.

Admonished
Jean M. Schiedler-Brown (WSBA No. 7753, admitted 1977), of Seattle, was admonished by the WSBA Disciplinary Board following a hearing. The admonition was based upon conduct in 1997 and 1998, involving failure to communicate with a client.

In April 1997, Ms. Schiedler-Brown's office began representing Mr. R. In August 1997, the associate who had primary responsibility for Mr. R's case left the firm. On December 27, 1997, the court dismissed Mr. R's case and sent notice to Ms. Schiedler-Brown, but she did not notify the client. In late February 1998, Ms. Schiedler-Brown's office told Mr. R's counselor that her office would file a certiorari petition. Ms. Schiedler-Brown assigned an associate the responsibility of filing Mr. R's certiorari petition, but he left the firm 21 days prior to the due date. Although Ms. Schiedler-Brown intended to file the petition, she could not timely do so. She filed a motion for an extension of time, which the court denied.

David Middaugh represented the Bar Association at hearing, and Becky Neal represented the Bar Association on appeal. Ms. Schiedler-Brown represented herself. Mary H. Wechsler was the hearing officer.

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