Lawyers’ Fund for Client Protection Committee Report

The Lawyers’ Fund for Client Protection Committee meets quarterly to review applications for gifts from the fund. The committee is authorized to make gifts of up to $25,000 to eligible applicants. On applications for more than $25,000, the committee makes recommendations to the Board of Governors, who are the fund’s trustees. At their meetings on November 11, 2004, and February 4, 2005, the committee took the following action:

Dan P. Danilov (WSBA #170) (Suspended pending determination of capacity to defend himself) — Applicant paid Danilov $4,000 to take over representation of him on an application for Adjustment to Status to become a lawful permanent resident that had been filed by a previous attorney. Before the Adjustment to Status could be allowed, Applicant needed to submit a Motion to Reopen a 1996 order of deportation. During the next year, Danilov became ill and was unable to continue to practice, and no motion was filed. One of Danilov’s associates determined that $2,000 would be a fair refund. The committee approved that amount.

Thomas J. Earl (WSBA #10902) (Disbarred) — Earl was a contract public defender for Grant County. He was disbarred because he repeatedly solicited and accepted fee payments from court-appointed clients.

Applicant A: Earl was appointed to represent client on a felony charge, for which he was convicted. Earl met with client to discuss an appeal and told client that he could hire Earl to represent him on appeal for a fee of $5,000. Applicant, client’s mother, paid the fee. At that time, client had not been sentenced and Earl was still his court-appointed counsel. The hearing officer found that by accepting $5,000 while still serving as client’s court-appointed counsel, Earl had a conflict of interest. He also found that Earl had failed to make full and fair disclosure to applicant and client regarding client’s right to appointed counsel on appeal when soliciting payment from them. Another lawyer wrote the appeal brief and argued the appeal, for which Earl instructed client to pay an additional $750 as a “cost.” Restitution of $5,000 was ordered, and the committee approved payment of that amount.

Applicant B: Earl was appointed to represent applicant on a criminal charge. When applicant was released from jail he went to Earl’s office and “as soon as I walked in the room he said I was looking at 3-8 months. So I asked him if I would get the same amount of jail time if I hired him as my attorney and he guaranteed me no jail time and no felony.” Applicant paid Earl $3,000. The hearing officer found that “the initial receipt of the flat fee, while Thomas Earl was under an obligation to represent [applicant] as appointed counsel, was unreasonable.” Restitution of $3,000 was ordered, and the committee approved payment of that amount.

Applicant C: Applicant’s brother had been previously represented by Earl as appointed counsel. He was charged with violating the conditions of his sentence, and he was also charged with a new felony offense. The hearing officer found that Earl had been appointed as counsel for applicant’s brother in both of these new matters. Applicant called Earl and asked what it would cost to represent her brother. Earl did not tell applicant that he was already appointed counsel for her brother. She paid him $3,000. The hearing officer found that “there was no proper reason for the payment, and that had full and fair disclosure of [Earl’s] obligations under his appointment been made to [his client] and his sister, no money should have been offered or accepted.” Restitution of $3,000 was ordered, and the committee approved payment of that amount.

Michael R. Hutton (WSBA #5673) (Hutton was disbarred based on his conduct in these matters, and restitution was ordered in both.)

Applicant A: Applicant paid Hutton $500 to seek reinstatement of his right to own a firearm. For the next year, Hutton regularly and repeatedly told applicant he was working on his case, but the hearing officer found that Hutton did not perform any work on applicant’s matter. The Committee approved payment of $500.

Applicant B: Applicant hired Hutton to represent her in a marriage dissolution. Because she had no funds, Hutton accepted a 30-06 rifle in lieu of a fee deposit. Hutton agreed to seek an order for temporary maintenance. When Hutton would not respond to her calls, applicant tried to get a temporary maintenance order on her own, but was unsuccessful. She called Hutton to ask his help in appealing that decision. Hutton agreed to meet her at a Denny’s restaurant. She paid Hutton $1,000. She says that she subsequently spoke with her husband’s attorney, who told her that he never received responses to interrogatories that applicant had provided to Hutton, and that Hutton had never spoken with him. The committee approved payment of $1,100 to applicant.

Michael T. Johnson-Ortiz (WSBA #23580) (Disbarred after he abandoned his practice leaving more than 300 open files; the committee previously reviewed 101 applications regarding Johnson-Ortiz and approved 62. For more information regarding Johnson-Ortiz, see the fund report in the November 2004 issue of Bar News, p. 44.)

Applicant A: Applicant paid Johnson-Ortiz $2,000 to seek Adjustment to Status in removal proceedings. Before it was filed, Johnson-Ortiz abandoned the case. The committee approved payment of $2,000 to applicant.

Applicant B: Applicant paid Johnson-Ortiz $350 to file a Petition for Alien Relative. Johnson-Ortiz forwarded to her blank forms, which she completed and returned. Johnson-Ortiz requested additional documents (marriage certificate, birth certificate, photos, etc.), which applicant sent. She never heard from him again. She was advised that Johnson-Ortiz was on vacation and that she could not submit the petition until he came back, because his signature was necessary on the form. He never returned. The committee approved payment of $350.

Applicant C: Applicant paid Johnson-Ortiz $5,000 (he was only able to document payment of $4,500) to petition for permanent residency status for himself, his wife, and his daughter. Despite the fact that applicant is a Mexican citizen, Johnson-Ortiz persuaded him to claim to be a citizen of El Salvador so that they could apply under the Nicaraguan Adjustment and Central American Relief Act (NACARA). Johnson-Ortiz also advised applicant to apply for temporary protected status, which is not available to Mexican citizens. Applicant’s current lawyer confirmed that there was no basis for doing this, and that essentially Johnson-Ortiz advised his clients to engage in fraudulent conduct. As a result, applicant and his family face deportation. The committee approved payment of $4,500 to applicant.

Applicant D: Applicant is a U.S. citizen, and her husband is a Mexican citizen who was illegally in the United States when they were married. They hired Johnson-Ortiz, who advised the husband to seek permanent resident alien status by means of a Petition for Alien Relative, which he filed on September 7, 1999. In May 2000, Johnson-Ortiz was advised the petition had been approved, and that the file had been sent to the National Visa Center for processing.

In September 2000, Johnson-Ortiz advised the husband to return to Mexico, because he would need to be there for at least 90 days prior to his anticipated interview at the U.S. Consulate in Mexico City, which he did. On December 21, 2000, President Clinton extended the Legal Immigration Family Act (LIFE), which allowed illegal immigrants with a sponsor — such as a spouse who was a U.S. citizen — to apply for legal residency without leaving the country. Among the requirements was that the alien had to have been in the United States on December 21, 2000.

Johnson-Ortiz advised the husband on December 27, 2000, that he should return to the United States so that he could qualify under LIFE. On January 18, 2001, the husband re-entered the United States illegally. Johnson-Ortiz filed a petition for change of status under LIFE. During a subsequent INS interview, the husband was informed that he did not qualify for permanent resident status because he had not been in the United States on December 21, 2000. The INS then initiated removal proceedings. He was deported. Subsequently, applicant and her husband learned that by having been in the United States for more than one year, and entering the United States illegally twice, he is permanently barred from the United States.

He can apply for a waiver of this ban after 10 years. Applicant is in the United States and cannot join her husband in Mexico, as she has a daughter, and “her natural father would never let her leave.”

Based on Johnson-Ortiz’s dishonesty in advising his client to commit an illegal act, which rendered valueless any service Johnson-Ortiz performed, the committee approved payment to applicant of $2,500.

Glenn E. Reed (WSBA #5328) (Disbarred) — Reed was hired by applicant for representation in an auto accident claim on a one-third contingent-fee basis. The claim was settled for $12,500. Reed provided an accounting for disbursement of settlement funds that included payment of a medical lien and an insurance lien. Reed said he would pay the medical lien of $275, and would hold $6,216.40 in trust. He wrote, “I propose that we hold on to the $6,216.40 claimed by [the insurer]. We’ll see if we can recover the whole amount for us.” Applicant stayed in touch with Reed, who said he continued to hold the funds in trust. Neither lien was paid, and Reed did not account for the funds. The committee approved payment of $4,927.82, which was the amount owed to applicant after Reed was credited for his fees.

Curtis A. Shelton (WSBA #9629) (Disbarred) — Applicant paid Shelton $750 for representation on charges of driving under the influence and driving with a suspended license. Shelton entered a notice of appearance, and a hearing was scheduled for October 28, 2003. Shelton had the hearing continued to November 14, 2003. Applicant went to court, but Shelton did not appear. It was continued to January 26, 2004. Shelton was suspended from practice on November 18, 2003. The committee approved payment of $750.

David S. Teske (WSBA #14823) (Disbarred) — Two applicants hired Teske on a contingent-fee basis to file a lawsuit against their former employer, alleging wrongful termination. Teske filed and served a complaint against the employer. The attorney for the defendant and Teske entered into settlement negotiations. According to the hearing officer’s findings, Teske discussed settlement with applicants but one never authorized any specific settlement amount. The other authorized settlement of his claim in the $15,000 to $20,000 range.

Without the knowledge and consent of applicants, Teske agreed to settle their claims for $7,500 each. He instructed the defendant’s attorney to make the settlement checks payable to him in trust for his clients, which he sent to Teske along with acknowledgements and receipts to be signed by Teske and applicants. Teske deposited the checks into his law firm business account rather than his trust account. Teske signed an “Attorney’s Acknowledgement” stating he had reviewed the settlement with applicants even though they were unaware of it. Someone forged the applicants’ signatures to the settlement documents, and Teske “tricked” a notary into signing the documents, apparently by having her notarize his own signature and then affixing that notarization to the forged signatures of his clients. (The notary kept a photocopy of the documents she notarized, which showed this when compared with the documents Teske returned to the defendant’s attorney.) Teske never paid any of the settlement proceeds to applicants. The committee approved payment of $7,500 to each of the applicants.

Phillip L. Weinberg (WSBA #18622) (Weinberg stipulated to a two-year suspension) — In the Stipulation, Weinberg stated that he has been chemically dependent for many years. He acknowledged that he had missed court dates, that his phone was disconnected for days at a time, and that his ability to practice law had been impaired.

Applicant A: Applicant’s brother was convicted by a jury of a felony and incarcerated. Through his court-appointed attorney, he filed a notice of appeal. Applicant contacted Weinberg about obtaining an appeal bond and possibly taking over the representation of his brother on appeal. Weinberg agreed to attempt to get the appeal bond. Weinberg instructed applicant to wire $5,000 to Weinberg’s wife’s bank account.

A week later, applicant called Weinberg to check on the status of his brother’s case. Weinberg told him he had been busy and had not started on it. A few weeks later, Weinberg told applicant that he needed an additional $5,000. Applicant wired the funds, again to Weinberg’s wife’s account. Weinberg told applicant that the appeal bond hearing would be held March 12, 2004, and then told him the hearing was postponed to April. When applicant did not hear back from Weinberg, he asked his sister, who lives in Olympia, to check on the status of the case. She contacted the court and learned that Weinberg had filed no pleadings and that no hearing had been set. The Office of Disciplinary Counsel investigation concluded that Weinberg had performed some minimal services. In his stipulation, Weinberg agreed to pay restitution of $9,000. The committee approved payment from the fund in that amount.

Applicant B: Applicant paid $1,000 to Weinberg for representation on a DUI charge. Weinberg failed to appear for the first court date. When applicant called him, Weinberg said he had forgotten about it. Weinberg said he would pay back the $1,000, but later was rude and told applicant to go to the WSBA. In a letter to the Office of Disciplinary Counsel, Weinberg wrote that he was sorry “for my atrocious failures to represent [applicant] and for then not being able to refund his money as I intended to do and should have done.” The committee approved payment of $1,000.

Applicant C: Applicant paid Weinberg $500 toward a total fee of $2,000 to represent her son on a second-degree-assault charge. They never heard from him again. Weinberg wrote, “I believe that Applicant [is] entitled to full refund.” The committee approved payment of $500.

Applicant D: Applicant paid Weinberg $2,500 for representation on a DUI charge. After that, Weinberg never called him. When applicant called Weinberg, his voice mail was always full, and his fax number was disconnected. On the day he was to be in court for a pre-trial hearing, applicant called Weinberg, who told him, “My wife kicked me out of the house and my car won’t start.” He told applicant he could pay for a taxi to pick Weinberg up and take him to court. Instead, applicant’s wife picked him up and took him to court. When Weinberg arrived, he had no paperwork and used the documents applicant had. That was the last that applicant heard from Weinberg until the night before his driver’s-license-suspension hearing. He reached Weinberg, who said, “I have a drug problem and can no longer be your counsel. Sorry dude, I can’t help you anymore.” The committee approved payment of $2,500.

Applicant E: Applicant paid Weinberg $2,500 to handle an eviction of a tenant. According to applicant, when she could reach him by phone, he would tell her of problems he was having contacting the tenant. He also told her he was having personal problems but would get her case done. Later, she discovered that both his office and cell phones were disconnected. She contacted the WSBA and learned that he was suspended. The committee approved payment of $2,500.

Applicant F: Applicants’ son was charged with second-degree murder. A public defender was appointed to represent him. One of Weinberg’s other clients in jail recommended that applicants’ son hire Weinberg. Applicants paid Weinberg $12,000. Weinberg never filed a Notice of Appearance, and the appointed public defender continued the representation. When Weinberg asked for an additional $8,000, applicants’ son fired him and demanded return of any unearned portion of the $12,000. Weinberg never provided any accounting for any fee charges. He initially returned no money. When he was deposed during the disciplinary investigation, he testified that he had visited the crime scene, had seen applicants’ son in jail several times, and had reviewed the voluminous discovery materials he had borrowed from the public defender assigned to the case. Weinberg stipulated to refund $9,000 to applicants. To date he has repaid $3,250. The committee approved payment of $5,750.

Applicant G: Applicant paid Weinberg $3,500 to represent her on a DUI. Weinberg endorsed the check over to his wife. Arraignment was set for April 1, 2004. Fifteen minutes before the arraignment, Weinberg called applicant to say his wife had thrown him out of his house, and she should get a new arraignment date. A new arraignment date was set, and Weinberg appeared. Trial was set for June 4, 2004. Weinberg never filed a notice of appearance and, as a consequence, never got any discovery from the prosecution. Weinberg failed to appear on the trial date. Applicant later spoke to Weinberg and told him she was getting a new lawyer. The committee approved payment of $3,500.

Applicant H: Applicant paid Weinberg $800 to represent him on a DUI. Weinberg appeared at arraignment, but Weinberg did not appear at a subsequent hearing until after the matter had been heard. Applicant wrote Weinberg, discharging him and requesting a refund of unearned fees. Weinberg called him and asked him to let Weinberg continue to represent him for a reduced fee. Weinberg agreed to meet applicant at a Denny’s restaurant the next day. He did not show up. He also did not appear for a pre-trial conference. Applicant fired Weinberg. In his Stipulation, Weinberg agreed to refund $800. He has paid $50. The committee approved payment of $750.

Gregory S. Wilson (WSBA #12012) (Resigned in lieu of disbarment) (Mr. Wilson is to be distinguished from Gregory M. Wilson of Greenacres.) — Wilson signed an affidavit pursuant to ELC 9.3(b) affirming that the WSBA would be able to prove the misconduct alleged in the disciplinary complaint filed against him.

Applicant A: Applicant hired Wilson on a contingent-fee basis. She paid him $1,000 as an advance fee deposit. No lawsuit was filed. Applicant called him regularly and repeatedly, “and he always told me he gonna do it the next day and the next day.” In May 2004, applicant contacted the WSBA and learned Wilson was suspended from practice. The committee approved payment of $1,000.

Applicant B: Applicant’s grandson filed an appeal to the Court of Appeals from a criminal conviction for which he had appointed counsel. Unbeknownst to the appointed counsel, applicant paid Wilson $1,500 to represent her grandson. Appointed counsel was advised by the court clerk that Wilson had filed a Notice of Appearance. Appointed counsel prepared a Notice of Withdrawal and Substitution of Attorney, which she sent to Wilson for his signature. Wilson never filed the Notice of Withdrawal and Substitution of Attorney. Appointed counsel made numerous attempts to contact Wilson, but he would not return phone calls or reply to correspondence. She concluded that Wilson did not intend to represent applicant’s grandson, so she continued to do so. The committee approved payment of $1,500.

Other Business: The committee reviewed 38 additional applications that were denied for lack of evidence of dishonest conduct, or as fee disputes or claims for malpractice. Four applications were dismissed because full restitution had been made.

Restitution: Before payment is made to an applicant, the applicant must sign a subrogation agreement with the fund, and the fund seeks restitution from the lawyers. Because in most cases those lawyers have no assets, the chief avenue of restitution is through court-ordered restitution in criminal cases. Prosecuting attorneys cooperate with the fund in getting the fund listed in restitution orders. As of February 2005, seven lawyers were making regular restitution payments to the fund.

Thank Yous: The purpose of the Lawyers’ Fund for Client Protection is to assist persons who have been the victims of dishonest lawyers. Although the fund cannot fully compensate a person for the harm done by a dishonest lawyer, the fund recently received these notes of appreciation to the lawyers of the state of Washington:

• “To all of you who have helped me out on this problem, you have given me back some faith in people. Thank you so very much.”

• “Thank you very much with this problem. I am infinitely thankful for your help. I received the amount of $1,650 which I received at the most needed moment, so I am doubly grateful.”

• “Thank you very much for your attention to this matter. [My clients] are very pleased with the manner in which the Bar has resolved this matter.”

And we received this phone message from an applicant who speaks only Spanish; he called “to express my gratitude for all the help in getting my money back. We were referred to the WSBA by the Mexican Consulate in Seattle. I wanted to wish the WSBA a happy new year and express my appreciation for the help the organization provides to the Hispanic Community.”

The committee chair is Olympia attorney James A. Connolly. WSBA General Counsel Robert Welden is staff liaison to the committee.

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