March 2001

Disciplinary Notices

F. McNamara Jardine (WSBA No. 21677, admitted 1992), of Tacoma, was suspended for 90 days following a hearing, by order of the Supreme Court dated May 5, 2000. The discipline is based upon her failure to disclose potentially exculpatory evidence to the defense in a felony vehicular homicide prosecution in 1996. The suspension became effective May 13, 2000.

In December 1995, Ms. Jardine, who had handled three or four adult felony trials prior to this one, was assigned to prosecute Mr. D. He was charged with vehicular homicide after hitting and killing the victim as she walked across the street. Both the defense and the prosecution had been told that the victim had a briefcase, but the police did not recover it at the scene. One defense theory was that the victim wore a dark jacket and carried a dark briefcase, obscuring her brightly colored dress from Mr. D's view.

In November 1995, the defense specifically requested production and identification of the briefcase. The trial was set for January 22, 1996. On January 18, 1996, Ms. Jardine received a photographic reconstruction of the crime scene by a defense expert, showing a mannequin in a red dress wearing a dark jacket and carrying a large dark-colored briefcase. On this same day, the prosecutor's office located the person who removed the briefcase from the scene, Mr. S.

On January 19, 1996, Mr. S brought the briefcase to a meeting with Ms. Jardine. Ms. Jardine told Mr. S that she would not need him as a witness, and he left with the briefcase. Ms. Jardine did not mention the briefcase to defense counsel, but discussed the briefcase with her supervisor. The supervisor instructed Ms. Jardine to disclose the briefcase information to defense counsel, but Ms. Jardine did not do so. During the trial, Ms. Jardine objected to the admission of the defense reconstruction photographs, stating that the briefcase was not accurately portrayed and the depiction was not supported by the evidence. In her closing argument, Ms. Jardine told the jury, "we don't even have the briefcase to determine its color." On January 29, 1996, Mr. D was acquitted by jury verdict. On February 6, 1996, defense counsel learned that Ms. Jardine had the briefcase during the trial.

By failing to disclose potentially exculpatory evidence to the defense in a felony prosecution, Ms. Jardine's conduct violated RPCs 3.4(a) and 3.8(d).

Sachia Stonefeld represented the Bar Association. Kurt Bulmer represented Ms. Jardine. The hearing officer was Stephen Bean.

Gregory S. Wilson (WSBA No. 12012, admitted 1981), of Tacoma, was suspended for 30 days following a stipulation by order of the Supreme Court dated May 5, 2000. The suspension began June 15, 2000, and Mr. Wilson has been returned to active status. The discipline is based upon his failure to diligently represent and communicate adequately and truthfully with a client.

On February 10, 1992, Ms. T retained Mr. Wilson to represent her in a personal injury claim. On December 7, 1992, Ms. T wrote Mr. Wilson a letter complaining about the lack of progress in her case and that he did not return her phone calls. On August 2, 1993, Ms. T wrote Mr. Wilson another letter asking him to provide an accounting of the work he had performed and to explain whether a lawsuit had been filed. Mr. Wilson met with her and promised to work on the case.

On August 31, 1993, Mr. Wilson filed a lawsuit against the driver of a car that hit Ms. T. Mr. Wilson's nonlawyer assistant told Ms. T that the driver had been served with the lawsuit and that he had hired a lawyer in Seattle. A few days later, Mr. Wilson filed a confirmation of service indicating that the driver had not been served because he had moved to England and had not left an address. The weekend before the statute of limitations ran out, Mr. Wilson realized that the complaint had not been served. He dictated pleadings to serve the secretary of state, but these were not prepared because of computer problems in his office. Because Mr. Wilson served the complaint two days after the statute of limitations expired, the driver successfully moved to have the lawsuit dismissed.

Ms. T retained another lawyer to represent her. Mr. Wilson told the new lawyer that he was responsible for the loss of Ms. T's case and that he wanted to settle her malpractice claim, but he did not have malpractice insurance. In June 1994, Mr. Wilson filed bankruptcy and did not list Ms. T as a creditor. In March 1999, Mr. Wilson agreed to pay Ms. T $125,000 over four years, and agreed that the debt would be nondischargeable. Mr. Wilson has made some payments to Ms. T.

Mr. Wilson's conduct violated RPCs 1.3, requiring lawyers to diligently represent their clients; 1.4, requiring lawyers to keep their clients reasonably informed about the status of their matters; 8.4(c), prohibiting lawyers from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; 8.4(a), prohibiting violating the RPCs through the acts of another; 5.3, requiring lawyers to make reasonable efforts to ensure that nonlawyer assistants' conduct is compatible with the RPCs; and 3.3, prohibiting a lawyer from making a false statement of material fact or law to a tribunal.

Anne Seidel represented the Bar Association. Brett A. Purtzer represented Mr. Wilson.

LeAnne Koliha (WSBA No. 18366, admitted 1988), of Bothell, was ordered censured pursuant to a stipulation approved by the Disciplinary Board on May 15, 2000. This discipline is based on her practicing law while her license was suspended.

Matter 1: On June 18, 1996, a client went to Ms. Koliha's home office and requested that she appear at a hearing for her the next day. Ms. Koliha prepared pleadings that evening and appeared in court the next day to represent the client. In August 1996, opposing counsel filed a motion requesting an order requiring Ms. Koliha's client to produce discovery. Ms. Koliha delivered the discovery answers and documents to opposing counsel's office before the date of the hearing. Opposing counsel did not strike the hearing, because counsel believed that the discovery was incomplete, nor did she tell Ms. Koliha that she had not stricken the motion.

The arbitrator entered an order finding Ms. Koliha's absence "unexcused," imposing sanctions of $150 each against Ms. Koliha and the client, and rescheduling the arbitration. Opposing counsel filed a motion in superior court to have Ms. Koliha and her client held in contempt for failing to provide complete discovery and failing to appear at the prior hearing. Ms. Koliha did not inform her client of this motion. Between September 16 and September 24, 1996, the client was not able to reach Ms. Koliha. On September 26, 1996, the client asked Ms. Koliha to return the client's original financial documents. Ms. Koliha told the client that she had produced the original documents to opposing counsel.

Matter 2: Client X divorced two abusive husbands and then changed her name and the names of her children to prevent her former husbands from locating her. Although the client's Office of Support Enforcement (OSE) file was marked confidential, the office twice disclosed her new identity to her former husbands.

The Northwest Women's Law Center referred client X to Ms. Koliha regarding her claim that OSE wrongfully revealed her identity. In April 1995, Ms. Koliha agreed to investigate the case, pro bono, and possibly file a negligence action. On August 30, 1995, the client signed a contingent fee agreement with Ms. Koliha. From June through November 1996, the client was not able to reach Ms. Koliha. In November or December 1996, shortly after discovering that Ms. Koliha had never filed suit against OSE, client X retained another lawyer.

Ms. Koliha's conduct violated RPC 1.3, requiring lawyers to diligently represent their clients; and 1.4, requiring lawyers to keep their clients informed about the status of their cases and promptly comply with reasonable requests for information.

Leslie Allen represented the Bar Association. Ms. Koliha represented herself.

Censured

Grace Wagner (WSBA No. 16129, admitted 1986), of Snohomish County, was ordered censured following a hearing. This discipline is based on Ms. Wagner's failure to perform and communicate with a client, and failure to disclose a material fact to a third party.

In 1990, Ms. Wagner finalized a client's (Mr. T) dissolution action. In December 1991, she entered a real estate transaction with this client. On December 24, 1991, Ms. Wagner signed a real estate purchase and sale agreement for a house (the Lombard house). She paid the $1,000 earnest money deposit with a promissory note signed "for Mr. T." Mr. T was denied the bank loan for the purchase.

In February 1992, a second dissolution client (Mr. S) invested in the Lombard house with Mr. T. Together the two clients obtained a HUD loan and signed closing papers on April 14, 1992. Just prior to the transfer of funds, Mr. S. had second thoughts, and Ms. Wagner advised him of several ways to get out of the deal. Mr. T also spoke to Ms. Wagner about getting out of the deal.

Upon Ms. Wagner's suggestion, Mr. T donated the house to an Everett charity. Ms. Wagner paid the bank $7,444.69 to close the transaction and considered this a donation to the charity. Mr. T and Mr. S signed quit-claim deeds transferring their interests to the charity. Ms. Wagner did not advise either client of their continuing liability for the mortgage, and took no steps to advise the bank of the transfer. HUD, which allows acceleration of the mortgage if the debtor transfers the property without prior HUD approval, will not normally approve a transfer if the successor will not occupy the property as a primary or secondary residence.

On June 4, 1992, Mr. T's former spouse filed a petition for modification of spousal support. Ms. Wagner represented Mr. T in this matter. At his deposition on September 23, 1992, Mr. T testified about his real property in Gold Bar. Opposing counsel asked him if he owned other property or had purchased and sold any real estate since July 1990. Mr. T responded that he had not, because he did not believe he had sold the Lombard house. Ms. Wagner took no steps to correct Mr. T's deposition testimony. In early December 1992, the former spouse learned of Mr. T's involvement in the Lombard house. The arbitrator increased the spousal maintenance, based in part on Mr. T's failure to disclose the Lombard house transaction.

Ms. Wagner's conduct violated RPC 1.1, requiring lawyers to competently represent their clients; RPC 1.4(b), requiring lawyers to explain matters to clients to the extent necessary to allow the client to make an informed decision; RPC 3.4(c), requiring lawyers to comply with lawful discovery requests; and RPC 4.1(b), requiring lawyers to disclose material facts to third parties.

Joanne Abelson represented the Bar Association. Kurt Bulmer represented Ms. Wagner.

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