April 2008

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.

Note: Approximately 30,000 persons are eligible to practice law in Washington state. Some of them share the same or similar names. Bar News strives to include a clarification whenever an attorney listed in the Disciplinary Notices has the same name as another WSBA member; however, all discipline reports should be read carefully for names, cities, and bar numbers.

Suspended

Hyon Chun Pak (WSBA No. 24238, admitted 1994), of Tukwila, was suspended for one year, effective January 4, 2008, by order of the Washington State Supreme Court following approval of a stipulation. This discipline is based on conduct in two matters involving representing clients in a court where he was not admitted, failing to monitor clients’ cases and failing to act with reasonable diligence, failing to communicate, charging unreasonable fees, and failing to protect clients’ interests.

Matter 1: In May 2003, a client hired Mr. Pak to file an appeal with the Ninth Circuit Court of Appeals in an immigration matter. The client did not speak English and communicated with Mr. Pak through an interpreter. The client paid Mr. Pak $2,000 when she hired him and later paid Mr. Pak’s interpreter $3,000, which the interpreter turned over to Mr. Pak. Mr. Pak considered the funds he received from the client earned upon receipt and did not place them in a trust account. The client, however, did not understand or agree that Mr. Pak would treat the funds she provided him as earned upon receipt.

Mr. Pak filed a petition for review on the client’s behalf with the Ninth Circuit in May 2003. He paid the filing fee of $250. Mr. Pak was not admitted to practice before the Ninth Circuit when he filed the petition. Shortly thereafter, the Ninth Circuit Clerk’s office advised Mr. Pak that he needed to become admitted to that court or withdraw from representation. Mr. Pak began the process of becoming admitted to the Ninth Circuit but did not complete it, and did not withdraw from representing the client before the Ninth Circuit. The administrative record was filed in the client’s case in August 2003. Mr. Pak filed two motions for extension of time to file his appellate brief, which were granted, but he never filed the brief. The court dismissed the appeal in January 2004 for lack of prosecution. Mr. Pak did not monitor the status of the client’s case and never advised the client that her case had been dismissed. The client tried to contact Mr. Pak many times about the status of her case but generally was unable to reach him. The dismissal of the client’s case made her immediately eligible for deportation.

In November 2005, the client hired a new lawyer to represent her in her appeal. The new lawyer contacted the Ninth Circuit and learned that the client’s case had been dismissed. He then tried repeatedly to contact Mr. Pak to obtain the client’s file and sent him a notice of withdrawal and substitution. Mr. Pak received the notice, but did not sign it or otherwise respond to the new lawyer because he was angry at the new lawyer for stealing his client. The new lawyer filed a motion to reopen the client’s appeal with the Ninth Circuit on grounds that Mr. Pak had provided ineffective assistance of counsel. The Ninth Circuit granted the motion and reinstated the appeal.

Matter 2: In early 2004, a client hired Mr. Pak to file an appeal with Ninth Circuit in an immigration matter. The client did not speak English and communicated with Mr. Pak through an interpreter. The client paid Mr. Pak $3,000 to assist her in filing a brief with the Ninth Circuit. Mr. Pak considered the funds he received from the client earned upon receipt and did not place them in a trust account. The client, however, did not understand or agree that Mr. Pak would treat the funds she provided him as earned upon receipt. Mr. Pak filed a petition for review on the client’s behalf in April 2004 and paid the $250 filing fee. The petition indicated that it was filed by the client pro se, but listed Mr. Pak’s address instead of hers so that the record and other correspondence would come to him. The administrative record was filed in July 2004. Mr. Pak took no action in the case. The court dismissed the appeal in September 2005 for lack of prosecution. Mr. Pak did not monitor the status of the client’s case. The client tried to contact him many times about the status of her case, but generally was unable to reach him. Mr. Pak never advised the client that her case had been dismissed. According to Mr. Pak, he did not realize that the case had been dismissed. The dismissal of the client’s case made her immediately eligible for deportation. In December 2005, the client hired a new lawyer to represent her in her appeal. The new lawyer contacted the Ninth Circuit and learned that the client’s case had been dismissed. The new lawyer tried repeatedly to contact Mr. Pak to obtain the client’s file and sent to him a notice of withdrawal and substitution. Mr. Pak received the notice of withdrawal and substitution but did not sign it or otherwise respond to the new lawyer because he was angry at him for stealing his client. The new lawyer filed a motion to reopen the client’s appeal with the Ninth Circuit on grounds that Mr. Pak had provided ineffective assistance of counsel. The Ninth Circuit granted the motion and ordered the case remanded to the Bureau of Immigration Appeals.

Mr. Pak’s conduct violated RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; former RPC 1.4, requiring a lawyer to keep a client reasonably informed about the status of a matter, to promptly comply with reasonable requests for information, and to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; RPC 1.5(a), requiring a lawyer’s fee to be reasonable; former RPC 1.15(a)(1), prohibiting a lawyer from representing a client if the representation will result in a violation of the Rules of Professional Conduct or other law; former RPC 1.15(d), requiring a lawyer to take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned; RPC 5.5(a), which prohibits lawyers from practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; and RPC 8.4(d), prohibiting conduct prejudicial to the administration of justice.

Joanne S. Abelson represented the Bar Association. Mr. Pak represented himself.

Suspended

Todd W. Wetsel (WSBA No. 20720, admitted 1991), of Portland, Oregon, was suspended for 18 months, effective September 13, 2007, by order of the Washington State Supreme Court in accordance with an order of the Supreme Court of the State of Oregon following a hearing. This discipline was based on conduct involving lack of competence, neglect of a legal matter, lack of communication, failure to deposit funds into trust, failure to return client property, failure to respond to the Bar, and conduct involving dishonesty or misrepresentation. For more information, see Oregon State Bar Bulletin (July 2007), available at www.osbar.org/publications/bulletin/07jul/discipline.html.

Mr. Wetsel’s conduct violated Oregon Code of Professional Responsibility (DR) 6-101(A) and RPC 1.1, requiring a lawyer to provide competent representation to a client; Oregon (DR) 6-101(B), prohibiting a lawyer from neglecting a legal matter entrusted to the lawyer; Oregon (DR) 9-101(A), requiring that all funds of clients paid to a lawyer or law firm be deposited and maintained in one or more identifiable trust accounts in the state in which the law office is situated; Oregon RPC 1.4(a), requiring a lawyer to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information; Oregon RPC 1.7(a)(2), prohibiting a lawyer from representing a client if the representation involves a current conflict of interest; Oregon RPC 1.15-1(d), stating that a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive; Oregon RPC 8.1(a)(2), prohibiting a lawyer, in connection with a disciplinary matter, from knowingly failing to respond to a lawful demand for information from disciplinary authority; and Oregon RPC 8.4(a)(3), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely on the lawyer’s fitness to practice law.

Felice P. Congalton represented the Bar Association. Mr. Wetsel represented himself.

Reprimanded

Howard K. Michaelsen (WSBA No. 3928, admitted 1959), of Spokane, received a reprimand on December 4, 2007, following approval of a stipulation by the hearing officer. This discipline was based on conduct involving failure to maintain complete trust account records, disbursement of funds in excess of funds clients had on deposit in his trust account, and disbursement of funds from the trust account before corresponding deposits had cleared the bank.

Between July 2002 and July 2005, Mr. Michaelsen maintained an IOLTA client trust account, for which he failed to keep a check register with a running balance. During this time period, Mr. Michaelsen also failed to reconcile his trust account bank statements to his own records on a regular basis, failed to maintain ledgers for individual client matters, made deposits totaling $4,770.44 without identifying the client, and made withdrawals totaling $5,784.89 without identifying the client. During this time period, Mr. Michaelsen disbursed funds in excess of funds that the clients had on deposit in his trust account and before corresponding deposits had cleared the bank, resulting in a $5,559.28 shortage in his trust account. Upon being notified of the shortage by the Bar Association in November 2005, Mr. Michaelsen reimbursed his trust account; however, in some instances, he was unable to identify clients who had positive balances in his trust account. After Mr. Michaelsen and the Bar Association auditor were able to identify the clients who had positive balances in the trust account, Mr. Michaelsen refunded the positive balances to these clients in October and November 2007.

Mr. Michaelsen’s conduct violated former RPC 1.14(a), requiring all funds of clients paid to a lawyer or law firm be deposited in one or more identifiable interest-bearing trust accounts maintained as set forth in the rules; and former RPC 1.14(b)(3), requiring a lawyer to maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and to render appropriate accountings to his or her clients regarding those funds.

Kevin M. Bank represented the Bar Association. Mr. Michaelsen represented himself. Richard B. Geissler was the hearing officer.

Reprimanded

Dean E. White (WSBA No. 27282, admitted 1997), of Spokane, was ordered to receive a reprimand on October 9, 2007, following approval of a stipulation by the hearing officer. This discipline was based on conduct in two matters involving failure to timely file bankruptcies, filing incomplete and inaccurate information, and failure to protect clients’ interests.

Matter 1: In October 2004, Mr. White was hired to represent a client in a Chapter 7 bankruptcy. The client paid Mr. White a $350 flat fee and $210 for advance costs. In 2004, the client provided Mr. White with financial information, including client information worksheets. Mr. White delayed filing the bankruptcy for over six months. In May 2005, Mr. White filed the bankruptcy, but the petition, schedules, and other documents were incomplete and inaccurate. The petition did not include the client’s complete address. Mr. White was later informed that the client did not receive notices sent to him by the bankruptcy court because the court did not have a correct mailing address for the client. Mr. White never informed the court of the client’s correct mailing address, which was readily accessible from the materials he received. The 341 meeting of creditors was scheduled for June 2005. Mr. White did not inform the client about the meeting and, not having received notice from Mr. White or the court, the client did not appear at the meeting. The 341 meeting was rescheduled for August. Mr. White did not inform the client about the rescheduled meeting and, not having received notice from Mr. White or the court, the client did not appear at the August meeting. The trustee filed a motion to dismiss the client’s bankruptcy for failure to attend the 341 meeting. Mr. White did not respond to the motion and did not contact the client to inform him about the pending motion. The court entered an order dismissing the client’s bankruptcy. Mr. White did not attempt to inform his client about the dismissal and did not return the client’s phone messages. The client finally contacted Mr. White after he discovered his bankruptcy was dismissed and requested a refund. Mr. White did not refund any fees.

Matter 2: In December 2004, Mr. White was hired to represent a client in her bankruptcy and received $350 in attorney’s fees from the client. The client provided Mr. White with sufficient information to file the bankruptcy at the time he was hired. Between May and July 2005, the client sent Mr. White 10 e-mails expressing concern that he had not yet filed her bankruptcy and complaining about a creditor who was garnishing her wages. Mr. White did not respond to her until July 28, 2005. The next day, Mr. White filed her bankruptcy petition and schedules. The petition did not include her signature, as required by the Bankruptcy Code, and the schedules did not include some of her debts. Between August and October 2005, Mr. White received several pleadings from the U.S. Trustee regarding information that was not included in the client’s petition and bankruptcy schedules, including a complaint commencing an adversary proceeding seeking to deny the client’s discharge. Mr. White did not timely respond to the pleadings. In mid-December 2005, the client called and left several messages asking to discuss the U.S. Trustee’s Notice to Deny Discharge. The client then sent an e-mail demanding Mr. White contact her no later than the next day. Mr. White eventually spoke to the client in late December and told her he would promptly file an amendment to her bankruptcy petition, but did not do so. The client terminated Mr. White’s services in January 2006 and filed the amended schedules herself, paying an additional $30 to amend the schedules. The U.S. Trustee’s adversary proceedings were dismissed and the client discharged her debts.

Mr. White’s conduct violated RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; former RPC 1.4, requiring a lawyer to keep a client reasonably informed about the status of a matter, to promptly comply with reasonable requests for information, and to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; and RPC 3.2, requiring a lawyer to make reasonable efforts to expedite litigation consistent with the interests of the client.

Jonathan H. Burke represented the Bar Association. Mr. White represented himself. John H. Loeffler was the hearing officer.

Admonished

Gerald G. Burke (WSBA No. 17773, admitted 1988), of Tacoma, was ordered to receive an admonition on September 7, 2007, by order of a Review Committee. This discipline was based on conduct involving lack of candor toward a tribunal. Gerald G. Burke is to be distinguished from Jerry L. Burk of Yakima.

In March 2001, Mr. Burke agreed to represent his daughter in a marriage dissolution action. In June 2002, the opposing party in the action appeared in front of Commissioner A in the morning for a return hearing on an ex parte temporary restraining order. Commissioner A vacated the restraining order because Mr. Burke did not appear. In the afternoon of that same day, Mr. Burke appeared in front of Commissioner B for the same return hearing on the same ex parte temporary restraining order. Commissioner B indicated that Commissioner A would have to deal with this order and that either party could re-note this matter for hearing on a date agreeable to the parties. The next day, Mr. Burke filed a motion and declaration for an ex parte stay of Commissioner A’s order, alleging the vacation order was improperly obtained. Mr. Burke’s motion did not mention the order entered by Commissioner B. Mr. Burke presented his motion to Commissioner C, who reinstated the restraining order.

Mr. Burke’s conduct violated RPC 3.3(f), requiring a lawyer in an ex parte proceeding to inform the tribunal of all material facts known to the lawyer that should be disclosed to permit the tribunal to make an informed decision, whether or not the facts are adverse. Randy Beitel represented the Bar Association. Mr. Burke represented himself.