August 2001

Disciplinary Notices

In the July issue of Bar News (p. 49-50), Rita Bender was identified as the attorney representing Donald B. Kronenberg. Mr. Kronenberg was represented by Leland Ripley. We apologize for the error.

Byron D. Haley (WSBA No. 19913, admitted 1990), of Seattle, has been disbarred by order of the Supreme Court effective December 12, 2000, following a default hearing. The discipline is based on his practicing while his license to practice law was suspended from 1998 through 2000.

On June 17, 1998, the Supreme Court suspended Mr. Haley's license to practice law for failure to pay his annual licensing fee to the Washington State Bar Association. On September 3, 1998, the Court suspended Mr. Haley for failure to complete his continuing legal education requirements. Mr. Haley remained suspended at the time of the June 2000 hearing.

Matter 1: On May 1, 1998, Mr. Haley agreed to represent a client in post-conviction matters. The client had been convicted of first-degree assault. On May 29, 1998, Mr. Haley appeared in court on a motion and obtained a continuance of the client's sentencing hearing. Mr. Haley took no further action on the client's case. He did not notify his client of his suspension.

Matter 2: In March 1998, Mr. Haley agreed to represent a client on a charge of driving under the influence. Mr. Haley filed a notice of appearance on March 26, 1998 and continued as counsel of record until May 1999. While his license was suspended, Mr. Haley represented the client in a jury trial and sentencing hearing. Mr. Haley also filed a notice of appeal on the client's behalf, but did not file an appellate brief. The client paid $2,000 and Mr. Haley did not refund any of this fee.

Matter 3: On November 24, 1998, Mr. Haley filed a notice of appearance and order substituting counsel in Fife Municipal Court. Mr. Haley appeared on December 15, 1998, and entered a pretrial order for the client. Following a third appearance in January 1999, court personnel informed Mr. Haley that he could not appear in court while on suspended status; however, Mr. Haley appeared again in March for the client's sentencing hearing. Again, court personnel indicated that he could not appear while his license was suspended.

Matter 4: On September 10, 1998, while his license was suspended, Mr. Haley represented a client in a criminal trial in King County Superior Court.

Mr. Haley's conduct violated RLD 1.1(l), prohibiting practicing law while on suspended status; RPCs 8.4(d), prohibiting conduct prejudicial to the administration of justice; 1.15(a) and (d), requiring lawyers to withdraw from representation if that representation results in a violation of the RPCs and to take reasonable steps to protect clients' interests at the time of withdrawal; 8.2, requiring lawyers to discontinue practicing when their licenses have been suspended; and 8.1 and 8.3, requiring lawyers to notify their clients of their inability to act, and file an affidavit of compliance with this notice requirement.

Sherry Williams represented the Bar Association. Mr. Haley did not appear. The hearing officer was Randolph I. Gordon.

Kevin M. Moran (WSBA No. 20234, admitted 1990), of Spokane, has been suspended for one year effective September 1, 2000, by order of the Supreme Court, approving a stipulation. The discipline is based on his temporarily abandoning his practice without proper notice to his clients and failing to diligently represent several clients. (Note: Mr. Moran is to be distinguished from Kevin Patrick Moran of Silverdale.)

Matter 1: On December 16, 1992, Mr. Moran filed a notice of appearance on behalf of a client charged with driving under the influence. At the time, Mr. Moran was employed by the Seattle Public Defender's Office. He obtained a continuance of the client's pretrial hearing and told the client to wait to hear from him. Although standard procedure for the Public Defender's Office is to notify defendants of all mandatory court dates, the client's file contained no evidence that Mr. Moran had notified him of the hearing date. Neither Mr. Moran nor the client appeared for the hearing. Subsequently, the court issued a bench warrant for the client's arrest. The client's file does not indicate that Mr. Moran had notified the client of the bench warrant.

Mr. Moran resigned from the Public Defender's Office effective August 31, 1993. On September 3, 1993, the office administratively closed the client's file for lack of contact. The client contacted Mr. Moran at his new office several times, but Mr. Moran did not respond. In May 1996, the client was stopped for a nonworking headlight and then booked into jail on the outstanding warrant.

Matter 2: In February or March 1994, Mr. Moran opened a law office as a solo practitioner. In March 1995, a court commissioner appointed Mr. Moran to represent a client on a contempt motion for failure to pay child support. On this same day, the commissioner continued the client's hearing from March 27 until May 1, 1995. Mr. Moran spoke to his client on April 19, 1995, and then arranged for several continuances, the last to June 3, 1996. Neither Mr. Moran nor his client appeared at the contempt hearing. The deputy prosecuting attorney called Mr. Moran about the missed court date, but he did not return her call.

On June 7, the deputy prosecutor sent Mr. Moran a letter enclosing a civil bench warrant. The letter explained that the warrant would be forwarded to the sheriff if Mr. Moran did not contact her and arrange for the client to pay the past-due child support and explain his failure to attend the hearing. Mr. Moran did not respond to the letter, and the prosecutor forwarded the bench warrant to the sheriff. On September 12, 1996, the client was arrested. During a hearing on September 13 the court discharged Mr. Moran.

Matter 3: On May 2, 1995, Mr. Moran agreed to represent a client in a Department of Licensing (DOL) hearing. The hearing officer ruled against the client. The May 3 decision included a notice that the client could appeal the decision in the county of his arrest within 14 days of the decision. The notice specified that a $40 cover fee must be submitted with the notice of appeal, to cover the cost to prepare the administrative record. On May 9, 1995, the client requested that Mr. Moran appeal the DOL hearing decision.

The client told Mr. Moran that he was going to Arizona for the summer, but he called Mr. Moran several times between May 12 and August 12, 1995. Mr. Moran did not return the client's calls. On one occasion, the client found Mr. Moran in the office, and Mr. Moran assured him that he was working on the appeal.

Mr. Moran filed the notice of appeal on June 7, 1995, with a notation that he would file the brief at a later date. Mr. Moran never filed a brief. Mr. Moran did not notify DOL of the appeal within the 14-day period, nor did he submit the $40 to cover the costs of the record.

In August 1995, the client returned to Washington and left several messages for Mr. Moran. Mr. Moran did not return his calls. The client finally reached Mr. Moran and scheduled an appointment for November 24, 1995, but Mr. Moran cancelled this meeting. On January 13, 1996, the client discharged Mr. Moran and requested a refund. Mr. Moran did not respond until December 1999, when he refunded the client's fees.

Matter 4: Mr. Moran did not respond to the Bar Association's written requests for information regarding these matters. On January 24, 1997, the lawyer representing Mr. Moran's landlord contacted the Bar Association. Mr. Moran's landlord was attempting to evict him from his office space for nonpayment of rent, and intended to place Mr. Moran's office furniture and files in storage. After several attempts to contact Mr. Moran, the Bar Association filed a motion for the appointment of a custodian for Mr. Moran's trust account, client files and client records. The Disciplinary Board chairman granted the motion, and a custodian took possession of Mr. Moran's files, records and trust account.

Mr. Moran appeared for a deposition on June 25, 1997. He agreed that he was willing and able to take responsibility for his files. On October 14, 1997, the custodian was discharged. Mr. Moran took responsibility for his files on March 11, 2000.

Mr. Moran's conduct violated RPCs 1.4, requiring lawyers to keep clients reasonably informed of the status of their matters and to promptly comply with reasonable requests for information; 1.3, requiring lawyers to diligently represent their clients; 3.4(c), prohibiting lawyers from knowingly disobeying obligations under the rules of the tribunal, except for an open refusal based on an assertion that no valid obligation exists; and RLD 2.8, requiring lawyers to promptly comply with requests for information relevant to grievances.

Henry Haas represented the Bar Association. Mr. Moran represented himself.

Sharon Bartu (WSBA No. 17080, admitted 1987), of Vancouver, has been suspended for six months effective March 12, 2001, by order of the Supreme Court approving a stipulation. This discipline is based on her failing to adequately supervise a nonlawyer assistant, contacting a represented party directly, and failing to comply with a deposition subpoena from 1996 through 2000.

Matter 1: In November 1996, Ms. Bartu agreed to represent the husband in a marriage dissolution action. In February 1997, opposing counsel sent a proposed final decree to Ms. Bartu. The wife mistakenly believed that the divorce was final and married again. In April 1997, Ms. Bartu referred her client to her contract legal assistant regarding possible bigamy charges against his former wife. Ms. Bartu attended the conference in which the client and the legal assistant discussed the work to be performed. Ms. Bartu knew that the legal assistant intended to contact the wife directly about the bigamy allegation and the potential for criminal prosecution. The legal assistant contacted the wife on April 14, 1997, and suggested to her that if she would give her interest in the marital home to the husband, the legal assistant would not report the bigamy. On July 2, the husband called the wife from Ms. Bartu's office to discuss terms of the settlement, and asked her to sign final documents at Ms. Bartu's office, but she refused.

Matter 2: In May 1997, Ms. Bartu agreed to represent the husband in a marriage dissolution matter. On August 19, Ms. Bartu sent opposing counsel a letter indicating that he could talk to her client directly. Opposing counsel responded, declining to contact Ms. Bartu's client. After receiving opposing counsel's letter, her client sent a letter to his wife, which Ms. Bartu edited and typed. The letter proposed a property distribution and suggested that opposing counsel did not have the wife's best interests in mind.

Matter 3: Ms. Bartu failed to respond to written requests for information from the Bar Association. After receiving a subpoena and notice for deposition, Ms. Bartu sent a letter to the Bar Association refusing to attend the deposition in Seattle, as required by the Rules for Lawyer Discipline. Ms. Bartu failed to appear for the deposition.

Ms. Bartu's conduct violated RPCs 5.3(b) and (c), requiring lawyers to supervise nonlawyer assistants and make reasonable efforts to ensure an assistant's conduct is compatible with the lawyer's professional obligations; 4.2, prohibiting communicating about the subject matter of the representation with a party the lawyer knows is represented, without opposing counsel's consent; 8.4(a), prohibiting attempting to violate the RPCs through the acts of another; and RLD 2.8, requiring lawyers to promptly comply with requests for information relevant to grievances.

Becky Neal represented the Bar Association. Ms. Bartu represented herself.

Alfredo Lopez (WSBA No. 17502, admitted 1987), of Seattle, has received a reprimand based on a stipulation approved by the Disciplinary Board on July 14, 2000. The discipline is based upon his failure to diligently represent a client, and willful disobedience of a court order.

In January 1993, Mr. Lopez agreed to represent a client who had been injured on a Metro bus in 1991. Mr. Lopez determined that the settlement offered by Metro was insufficient and filed a notice of claim with King County on November 17, 1994. Mr. Lopez failed to commence the action within the three-year statute of limitations. Mr. Lopez met with the client after the statute expired and explained that the claim was lost because he had not filed the lawsuit. Mr. Lopez also advised the client that she could seek independent counsel to consider her options.

On September 7, 1995, the client filed a malpractice action against Mr. Lopez. On November 15, 1996, the parties put the terms of a $15,000 settlement on the record. The terms required Mr. Lopez to pay $5,000 initially, and then make month-ly payments. Mr. Lopez also agreed to satisfy all medical liens, and the settlement was secured by a deed of trust on Mr. Lopez's real property and an interest in his 1986 Porsche. Mr. Lopez made the initial $5,000 payment, but failed to make any monthly payments or provide evidence that the medical liens were satisfied. When the client's malpractice lawyer investigated collecting the judgment, she determined that Mr. Lopez had sold the Porsche.

On June 24, 1999, the court found Mr. Lopez in contempt for failing to comply with the court order regarding payments and for selling the Porsche. The court ordered Mr. Lopez to purge the contempt by paying the client the $2,500 he made on the Porsche, in three monthly installments. Mr. Lopez failed to make these payments, and on October 22, 1999, the court issued a bench warrant for his arrest. In March 2000, Mr. Lopez satisfied the judgment in full.

Mr. Lopez's conduct violated RPCs 1.4, requiring lawyers to keep their clients reasonably informed of the status of their matters; 1.3, requiring lawyers to diligently represent clients; 1.1, requiring lawyers to provide competent representation to clients; and RLD 1.1(b), prohibiting lawyers from willfully disobeying court orders.

Andrew Becker represented the Bar Association. Kurt Bulmer represented Mr. Lopez.

Jeffrey B. Ranes (WSBA No. 7732, admitted 1977), of Montesano, received a reprimand based on a stipulation approved by the Disciplinary Board on November 17, 2000. The discipline is based upon his failure to diligently represent and adequately communicate with a client from 1992 through 1997.

In 1992, a hospital rehabilitation center resident fractured her shoulder. On February 26, 1993, the resident's daughter contacted Mr. Ranes regarding a personal injury claim against the hospital and treating physicians. The daughter, who had been appointed attorney-in-fact for her mother, paid Mr. Ranes $750 for the representation. In December 1993, the daughter sent a letter requesting a refund because Mr. Ranes had not worked on the case. When Mr. Ranes told the daughter he was working on the case, she withdrew the request for a refund.

On January 28, 1994, Mr. Ranes demanded that the physician turn the claim over to his malpractice carrier. The insurance adjuster wrote Mr. Ranes two letters, but he did not respond. The mother died in 1994 and her son was named executor of her estate. On October 19, 1995, Mr. Ranes filed a summons and complaint against the hospital and the treating physician, but did not complete service on the defendants until the 91st day after the filing.

On April 5, 1996, the court entered an order dismissing the claim against the doctor for failure to serve the complaint within the statutory period. However, Mr. Ranes did not have his client's authority to dismiss the claim. When the daughter called about the status of the lawsuit, Mr. Ranes failed to return her calls, and did not inform her or the son that the lawsuit had been dismissed.

In March 1997, Mr. Ranes told the son's wife that he had retained a doctor in Bellevue as an expert witness. On November 10, 1998, the daughter filed a grievance against Mr. Ranes, not knowing that the lawsuit had been dismissed. Mr. Ranes left a telephone message for the daughter indicating he would return her $750, but had not done so as of the date of the stipulation.

Mr. Ranes's conduct violated RPCs 1.3, requiring lawyers to diligently represent their clients; 1.2(a), requiring lawyers to abide by their clients' directions regarding the objectives of their representation; 1.4(a), requiring lawyers to keep clients reasonably informed of the status of their matters; and 8.4(c), prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation.

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

Thomas F. Miller (WSBA No. 20264, admitted 1990), of Olympia, has been ordered censured pursuant to a stipulation to censure approved by the Disciplinary Board on November 17, 2001. This discipline is based on his failure to diligently represent and communicate with a client. (Note: Mr. Miller is to be distinguished from Thomas J. Miller of Spokane.)

On January 31, 1996, Mr. Miller agreed to represent two clients in a timber conversion case. Large cedar trees had been cut from the clients' property without their permission. Mr. Miller filed a lawsuit against the adjacent property owners (the Ms), alleging they converted his clients' timber. During discovery, Mr. Miller learned that the Ms hired a logger to cut timber along the boundary of their property. The logger allegedly converted timber from both the Ms and Mr. Miller's clients. The logger was subsequently indicted for other counts of timber theft, but not for the Ms' or the clients' timber. After deposing the Ms, Mr. Miller told his clients he did not believe their lawsuit would survive a summary judgment. The clients then instructed Mr. Miller to settle the lawsuit if the Ms would grant them an easement over their property. Mr. Miller notified opposing counsel of the settlement offer.

On September 17, 1996, the Ms agreed to the settlement proposal. After several drafts and negotiations, opposing counsel sent the final documents to Mr. Miller on April 28, 1997. Opposing counsel contacted Mr. Miller several times during May regarding the documents. On May 14, 1997, Mr. Miller's clients executed the settlement and easement documents.

During May, Mr. Miller was being treat-ed for depression. The treatment medication interfered with his ability to function in his law practice. In June, Mr. Miller stopped taking his medication and changed doctors. Also during June, opposing counsel contacted Mr. Miller several times regarding the settlement. Mr. Miller did not return his calls.

On July 11, 1997, the Ms authorized their lawyer to draft a summary judgment motion seeking dismissal of all claims. He completed the motion on August 1 and received the executed settlement documents on August 5. The Ms decided not to accept the settlement, and filed the summary judgment motion.

On November 13, 1997, Mr. Miller signed a stipulation to dismiss the Ms from the lawsuit. Mr. Miller did not tell his clients that the Ms had been dismissed, and continued to represent them in claims against the logger. Later, the clients learned that the logger did not have substantial assets and decided to stop pursuing him. The clients did not recover any damages from the conversion of their timber.

Mr. Miller's conduct violated RPCs 1.3, requiring lawyers to diligently represent their clients; and 1.4, requiring lawyers to keep their clients informed of the status of their matters and to promptly comply with reasonable requests for information.

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

Censured

Ivan D. Johnson (WSBA No. 8824, admitted 1979), of Tacoma, has been censured and ordered to pay restitution following a hearing. This discipline is based on his failure to diligently represent a client in a bankruptcy matter from 1991 to 1993.

In August 1991, Mr. Johnson agreed to represent clients in a judgment lien. Mr. Johnson recommended that the clients file Chapter 7 bankruptcy, assuring them that the bankruptcy would avoid the imminent supplemental proceedings and prevent them from losing their home. Mr. Johnson filed the clients' bankruptcy petition in August. He did not explain to the clients that a bankruptcy discharge relieves the debtor of the debt, and that a motion and brief hearing are necessary to avoid a judgment lien on exempt property. On December 2, 1991, the court entered the order discharging the client's bankruptcy. Because no motion to avoid the judgment lien was filed, the lien remained against the client's home.

On May 11, 1992, the clients sold their home, with the purchaser assuming the clients' mortgage. As part of the sale, the clients agreed to pay all liens or encumbrances against the property. Several months later, when the purchaser attempted to refinance, she learned that the home was encumbered by the judgment lien.

On January 22, 1993, Mr. Johnson filed a motion to avoid the judgment, without disclosing that the home had been sold. On April 4, the court indicated it would grant the motion to avoid the lien, but that the clients would have to pay the judgment debtor's attorney's fees incurred in responding to the late motion. In June, the clients informed Mr. Johnson that they believed he should pay the $2,521.96 attorney's fee. Mr. Johnson withdrew from the clients' case and sent them a bill for $515. The order to avoid the lien was approved by the judgment debtor, but never entered by the court. In September 1993, a friend of the purchaser paid the attorney's fee to clear the judgment lien.

Mr. Johnson's conduct violated RPC 1.4, requiring lawyers to explain matters to the extent reasonably necessary to permit clients to make informed decisions regarding their representation.

Jonathan Burke represented the Bar Association. Kurt Bulmer represented Mr. Johnson. The hearing officer was Thomas J. Greenan.

Frederick H. Merrill (WSBA No. 21088, admitted 1991), of Everett, has been censured pursuant to a stipulation approved by the Disciplinary Board on November 17, 2000. This discipline is based on his placing misleading advertisements during 1997 and 1998.

Matter 1: Mr. Merrill graduated from law school in May 1990 and was sworn into practice in November 1991. Prior to being admitted to the Bar, Mr. Merrill held several positions in the criminal justice system, including juvenile and adult counselor, prison guard, parole officer and community corrections officer. In these positions, Mr. Merrill had extensive contact with courts and testified in many proceedings.

In 1997, Mr. Merrill's yellow pages advertisement stated "17 years' court experience." His 1998 advertisement claimed "over 20 years' court experience." In 1997, Mr. Merrill had been practicing law for six years. Originally, Mr. Merrill drafted his ad to include his prison and probation experience. Another lawyer told Mr. Merrill that the ad was too complicated and suggested that he only include the number of years of law practice. Mr. Merrill believed that the statements were true, combining his years as a lawyer with his prior experience, and did not intend to mislead the public. When the Bar Association contacted Mr. Merrill, he immediately asked the yellow page advertisers to delete the misleading language.

Matter 2: In October 1997, Mr. Merrill agreed to represent a client charged with child molestation. The client found Mr. Merrill through the yellow pages, and relied on the statement that he had 17 years' court experience. Following a jury trial, the court convicted the client. Mr. Merrill declined to represent the client on appeal or in a motion for a new trial, and subsequently a public defender was appointed to represent the client. This new lawyer discovered that Mr. Merrill was admitted in 1991 and discussed this with the client. The client indicated that he would not have retained Mr. Merrill if he had not believed that he had been a lawyer for 17 years. The court denied the client's motion for a new trial, and his appeal.

In October 1997, Mr. Merrill agreed to represent a second client who had also been charged with child molestation. The client's civil lawyer recommended several criminal lawyers, but none were available to take the case. The client saw Mr. Merrill's yellow pages ad and contacted him, assuming that Mr. Merrill had been practicing law for 17 years. Mr. Merrill charged the client a $12,000 nonrefundable fee.

In March 1998, based on Mr. Merrill's recommendation, the client pleaded guilty as charged and enrolled in the Sexual Offender Special Sentencing Alternative program. During this time, Mr. Merrill's clients met in jail. The second client learned from the first that Mr. Merrill was licensed to practice law in 1991. The second client stated that he would not have retained Mr. Merrill had he known Mr. Merrill had not practiced law for 17 years.

Mr Merrill's conduct violated RPCs 7.1(a), prohibiting lawyer communications about their services from containing misrepresented facts or omitted facts necessary to prevent the statements considered as a whole from being materially misleading; and 7.1(b), prohibiting lawyer communications about their services from containing statements likely to create an unjustified expectation about results the lawyer can achieve.

Leslie Allen represented the Bar Association. Kurt Bulmer represented Mr. Merrill.

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