February 2002

Disciplinary Notices

These notices of imposition of disciplinary sanctions and actions are published pursuant to Rule 11.2(c)(4) of the Supreme Court's Rules for Lawyer Discipline, 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 address, or electronically submit your requests at http://pro.wsba.org/forms/publicrequest.asp. A list of recent disciplinary notices is available on the WSBA Website.

Reprimand

Gary H. Branfeld (WSBA No. 6537, admitted 1976), of University Place, received a reprimand based on a stipulation approved by the Disciplinary Board on May 18, 2001. The discipline is based upon his failure to diligently represent a client and making misrepresentations to the same client between 1997 and 1999.

In 1997, Mr. Branfeld agreed to represent a real estate development group in a dispute with a property-management company and an insurance company, involving possible fraud and embezzlement. Between February and July 1997, Mr. Branfeld worked on the client's case. Later in 1997, Mr. Branfeld met with the client a second time and stated that he had drafted a couple of complaints. In late 1997, Mr. Branfeld stopped communicating with his client.

On October 9, 1998, Mr. Branfeld wrote a letter to the client implying that he had filed two lawsuits on the client's behalf; however, he had not done so. The client asked Mr. Branfeld to return his files, which he did not do. In 1998, the client retained another lawyer to help obtain his files. Mr. Branfeld told this lawyer that he had filed two lawsuits on the client's behalf. Mr. Branfeld did not return the client's files even though the new lawyer and disciplinary counsel requested that he do so. Mr. Branfeld also failed to cooperate with the disciplinary investigation.

Mr. Branfeld's conduct violated RPCs 1.2, requiring lawyers to competently represent their clients; 1.3, requiring lawyers to diligently represent their clients; 1.4, requiring lawyers to keep clients reasonably informed about the status of their matters; and 8.4(c), prohibiting lawyers from making misrepresentations.

Jean K. McElroy represented the Bar Association. Mr. Branfeld represented himself.

Reprimand

Richard Llewelyn Jones (WSBA No. 12904, admitted 1982), of Bellevue, received a reprimand based on a stipulation approved by the Disciplinary Board on March 29, 2001. The discipline is based upon his filing a frivolous claim and failing to promptly comply with lawful discovery requests in 1996. (Note: Richard L. Jones is to be distinguished from Richard A. Jones of Seattle; Richard B. Jones of Port Orchard; and Richard F. Jones of Olympia.)

In 1996, Mr. Jones represented a client in a civil lawsuit. The suit alleged that the client had stolen an exotic sports car from the plaintiff. The court set trial for April 29, 1996. At the client's request, Mr. Jones asked that his client's deposition be postponed until April 1. After business hours on March 29, the client notified Mr. Jones that he had been injured and could not appear for the deposition. Mr. Jones did not notify opposing counsel until counsel appeared for the deposition, and did not bring any of the subpoenaed documents.

On April 10, 1996, opposing counsel obtained a court order compelling the client to make himself available for deposition immediately. Opposing counsel then rescheduled the deposition for April 15. The client appeared for the deposition and testified that a lawyer in Oregon had additional documents. Opposing counsel did not receive these additional documents until April 25. During the deposition, Mr. Jones instructed his client not to answer several questions and left the room to confer with his client while a question was pending, in violation of Civil Rules 30 (h)(3) and 30 (h)(5).

On April 15, 1996, at the client's request, Mr. Jones filed an answer, counterclaim and third-party complaint naming opposing counsel and his wife. The third-party complaint alleged abuse of process and Consumer Protection Act violations. The court dismissed the complaint and sanctioned Mr. Jones and the client for filing frivolous claims and failing to comply with discovery rules. Mr. Jones appealed the sanctions. The court of appeals affirmed the sanctions and further sanctioned him for filing a frivolous appeal.

Mr. Jones' conduct violated RPCs 3.1, prohibiting lawyers from asserting frivolous claims; 3.4(a), prohibiting obstructing another party's access to evidence; 3.4(d), requiring lawyers to make reasonably diligent efforts to comply with legally proper discovery requests; and 4.4, prohibiting using means with no substantial purpose other than to embarrass or burden a third party.

Linda Eide represented the Bar Association. Kurt M. Bulmer represented Mr. Jones.

Reprimand

Richard C. Kimberly (WSBA No. 10666, admitted 1980), of Bellingham, received a reprimand based on a stipulation approved by the Disciplinary Board on March 29, 2001. The discipline is based upon his failure to comply with his criminal defendant client's request to testify at a jury trial in 1995.

In 1995, Mr. Kimberly defended a client against charges of rape in the second degree and unlawful imprisonment. Prior to trial, Mr. Kimberly suggested, and the client agreed, that the client would not testify in his own defense. During the trial, the court twice sanctioned and fined Mr. Kimberly for disrespect outside the presence of the jury.

Initially, Mr. Kimberly decided to send an associate to present closing argument in the client's case, but he appeared personally after the court ordered him to complete the case. When Mr. Kimberly returned to the courthouse, his client indicated that the client wanted to testify. The defense had rested, but closing argument had not yet been presented. Mr. Kimberly still believed that it would not be in his client's best interest to testify, so did not move to re-open the evidence to allow the testimony. Mr. Kimberly then proceeded with closing argument.

The jury found the client guilty as charged. The client obtained new counsel, who filed a motion for a new trial based on ineffective assistance of counsel. Mr. Kimberly signed a supporting declaration admitting that the client had asked to testify, and that Mr. Kimberly had not presented the testimony; the court denied the motion. The court of appeals indicated that Mr. Kimberly's conduct had fallen below the standard of care, but denied the client's motion. In August 1999, the Washington Supreme Court granted the client an evidentiary hearing on the sufficiency of his defense at trial. After the hearing, the motion was denied.

Mr. Kimberly's conduct violated RPC 1.2(a), requiring lawyers to abide by a client's decision whether to testify in a criminal case.

Leslie Allen represented the Bar Association. Richard Kimberly represented himself.

Reprimand

Mark D. Mestel (WSBA No. 8350, admitted 1978), of Everett, received a reprimand based on a stipulation approved by the Disciplinary Board on July 25, 2001. The discipline is based upon his failure to avoid conflicts of interest between several criminal defendants in one matter from 1993 through 1997.

In 1993, four people jointly purchased land for a marijuana grow operation. Only one name was placed on the title, to limit risk to the others. The group established a small grow operation in the house, and began construction of a barn to house a larger grow operation.

In February 1994, one of the original four dismantled the operation and moved off the property. Later, a new person was recruited to move into the house and tend the in-house operation. The new operation was set up in the barn. In May 1994, when fire broke out at the property, law enforcement learned of the grow operations.

One of the original four, (client A), whose business truck was on the property at the time of the fire, contacted Mr. Mestel to represent him in any criminal investigation into the grow operation. Mr. Mestel met with all five people involved in the operation as a group, not knowing that the property had been jointly purchased. He believed that the last person living in the house was singularly responsible for the grow operation, and that the others were concerned about forfeiture of the property.

After the first meeting, Mr. Mestel referred the property title-holder (client B) to another lawyer to handle state forfeiture and civil matters related to the property. Mr. Mestel indicated that his reputation as a criminal defense attorney who handled drug cases would send an undesirable signal to law enforcement.

In October 1994, the federal government filed a civil forfeiture action regarding the property. At client A's request, Mr. Mestel agreed to represent client B in this matter. Mr. Mestel did not discuss conflicts of interest with clients A and B, or obtain written conflict waivers. Client A was present for most of client B's meetings with Mr. Mestel and paid some of client B's attorney's fees.

In 1995, the federal government noted the depositions of both clients A and B in the civil forfeiture action. Client B discussed with Mr. Mestel whether to assert his Fifth Amendment right at the deposition. Mr. Mestel advised that if client B did this, the government would likely succeed in its forfeiture action. At the deposition in July 1995, Mr. Mestel represented Client B, who testified falsely at his deposition. At the time of the deposition, Mr. Mestal did not know that the testimony was false.

When the government noted client A's deposition, Mr. Mestel referred him to other counsel, but continued to provide some legal advice and representation until January 1996. Following the depositions, Mr. Mestel negotiated a settlement of the forfeiture action with the government. During settlement negotiations, Mr. Mestel had discussions with client A. In July 1997, the federal government filed indictments against clients A and B, and others involved in the grow operation. Client B pleaded guilty in October 1997, and client A in March 2001.

Mr. Mestel's conduct violated RPC 1.7(b), prohibiting lawyers from representing a client if the representation may be materially limited by the lawyer's responsibilities to another client, unless the lawyer reasonably believes that the representation will not be adversely affected, and the client consents in writing after consultation.

Joanne Abelson represented the Bar Association. David Allen represented Mr. Mestel.

Reprimand

Jeffrey M. Werthan (WSBA No. 20099, admitted 1990), of Issaquah, received a reprimand, following a hearing July 17, 2001. The discipline is based upon his failure to represent a client competently and diligently in 1998. Jeffrey M. Werthan of Issaquah is to be distinguished from Jeffrey M. Werthan of Washington, D.C.

In May 1998, Mr. Werthan agreed to represent the personal representative of the estate of DH. The personal representative was one of DH's two brothers. At this same time, Mr. Werthan received a copy of the last will and testament, with handwritten changes. On June 11, 1998, Mr. Werthan filed a petition for appointment of the personal representative, stating that no will had been found. RCW 11.20.010 requires anyone having possession of a will to deliver the will to the court or the executor within a specified time. Mr. Werthan did not comply with this statute.

If there had been no will, DH's father would have been the sole heir. Mr. Werthan's petition listed DH's two brothers as the sole heirs, with no mention of the father. Mr. Werthan did not obtain the personal representative's verification of the petition, as required by RCW 11.28. 110. Mr. Werthan obtained a waiver of notice of nonintervention powers from one heir, but not all heirs, as required by RCW 11.68.041. Mr. Werthan also failed to provide the required notice of the appointment of the personal representative or publish required notices to creditors.

A company that locates missing heirs contacted DH's father and told him he stood to inherit from an unnamed deceased relative. After the father contacted Mr. Werthan's client, Mr. Werthan wrote to his client that the handwritten changes invalidated the will, and there was no alternative but to proceed to open a probate without a will. DH's father refused to accept his share of the estate so that the brothers could inherit the estate; DH's estate paid $2,000 to the father's attorney. The court removed the personal representative and Mr. Werthan as the personal representative's attorney, and admitted the will to probate. The court made a specific finding that Mr. Werthan's negligent and reckless actions in the handling of the estate were a substantial factor in the suspicions and mistrust among family members.

Mr. Werthan's conduct violated RPCs 1.1, requiring lawyers to provide competent representation; 1.3, requiring lawyers to diligently represent their clients; 1.4, requiring lawyers to keep clients reasonably informed of the status of their matters; and 8.4(c), prohibiting lawyers from engaging in misrepresentation.

Patricia H. Char represented the Bar Association. Kurt M. Bulmer represented Mr. Werthan. The hearing officer was Bert W. Markovich.

Censure

Lori S. Haskell (WSBA No. 15779, admitted 1986), of Seattle, received a censure pursuant to a stipulation approved by the Disciplinary Board on May 18, 2001. This discipline is based on her failure to comply with lawyer trust account requirements between 1996 and 2000.

In May 2000, when disciplinary counsel discovered that Ms. Haskell had withdrawn more funds from her trust account than she had deposited on behalf of her clients, the WSBA conducted an audit of Ms. Haskell's trust account. The audit found that Ms. Haskell did not keep client ledgers or track individual client balances. She did maintain settlement sheets for each client, but they did not always accurately reflect the transactions. This lack of recordkeeping prevented Ms. Haskell from performing meaningful reconciliation of her trust account.

The audit manager discovered that Ms. Haskell had distributed more to one client than the client had deposited, creating a shortage in the trust account. Ms. Haskell used other client funds when she made this mistakenly large distribution, creating several negative client balances in her trust account. Ms. Haskell commingled her own funds in the trust account and failed to properly pay her clients; several had a positive balance that should have been returned to them. Ms. Haskell also failed to withdraw her fees from the trust account.

In December 2000, the audit manager returned to Ms. Haskell's office. Although not all suggestions had been implemented, Ms. Haskell had deposited funds to cover the shortage, and was waiting for advice of counsel to fully comply with other recommendations.

Ms. Haskell's conduct violated RPC 1.14, requiring lawyers to maintain adequate records of receipt, deposit and disbursement of client funds; promptly pay client funds that are owed; and promptly remove the lawyer's funds from the trust account.

Becky Neal represented the Bar Association. Kurt M. Bulmer represented Ms. Haskell.

Censure

Antonio Salazar (WSBA No. 6273, admitted 1975), of Seattle, received a censure on September 26, 2001 following a hearing. This discipline is based on his failure to represent a client competently and diligently in 1997 and 1998.

In 1997, the Salazar firm agreed to represent Mr. S in deportation proceedings. On November 4, 1997, following a hearing, the immigration judge denied Mr. S's application for asylum and granted a voluntary departure. Mr. S. asked the firm to appeal the decision to the Board of Immigration Appeals (BIA). Mr. S paid the firm $110 for the filing fee and $1,155.80 toward attorney's fees. Ms. Salazar filed the notice of appeal and paid the filing fee. The BIA issued a briefing schedule, informing Mr. Salazar that his client's brief was due on June 11, 1998. The notice indicated that briefs must be received by the due date and that requests for extension must be received prior to the due date.

On June 10, 1998, Mr. Salazar sent by FedEx a motion for an extension to the BIA in Falls Church, VA. The hearing officer found that because FedEx service takes one day between Seattle and Falls Church, Mr. Salazar could not reasonably have expected his motion to be resolved prior to the June 11 due date. The BIA granted the motion and extended the due date to July 2, Mr. Salazar did not file the client's brief on or before the due date.

On October 19, 1998, the BIA summarily dismissed the client's appeal for failure to file a brief. As a result of the summary dismissal, the client received a letter from the INS indicating that he had lost the right to work lawfully in the United States and that the deportation order would be enforced. In 1999, the client retained another lawyer to re-open the appeal based on ineffective assistance of counsel. In July 2001, Mr. Salazar agreed to return $1,155.80 to the client.

Mr. Salazar's conduct violated RPCs 1.1, requiring lawyers to competently represent their clients; and 1.3, requiring lawyers to diligently represent their clients.

Joanne Abelson represented the Bar Association. Mr. Salazar represented himself. The hearing officer was Philip J. VanDerhoef.

Censure

Joveliano C. Trinidad (WSBA No. 27144, admitted 1997), of Seattle, received a censure on May 9, 2001, following a stipulation approved by the Disciplinary Board on April 13, 2001. This discipline is based on his failing to diligently represent two clients between 1998 and 2000.

Matter 1: In September 1999, Mr. Trinidad agreed to represent a client regarding an outstanding bench warrant. Although the client paid Mr. Trinidad $900, he did not start a file for the client. The client called Mr. Trinidad from October 1999 through January 2000, but never heard from him. On January 28, 2000, the client sent a certified letter to Mr. Trinidad requesting that his fee be refunded so he could retain another lawyer. Mr. Trinidad did not return the fee.

Matter 2: On February 12, 1998, Mr. Trinidad agreed to represent a client in a Department of Labor and Industries (L&I) claim. On February 24, Mr. Trinidad sent a letter to L&I asking that they re-open the client's claim; however, he took no further action on the claim. Between September 1998 and March 1999, the client tried unsuccessfully to contact Mr. Trinidad.

On March 11, 1999, Mr. Trinidad met with the client, assuring her he would work on her case. Mr. Trinidad also told the client that he had received some papers from L&I that required a timely response. On January 6, 2000, the client called L&I and learned that her case had been closed because Mr. Trinidad had not turned in the necessary paperwork. In March 2000, the client picked up her filed from Mr. Trinidad's office.

Mr. Trinidad's conduct violated RPCs 1.3, requiring lawyers to diligently represent their clients; 1.4, requiring lawyers to keep clients reasonably informed about the status of their matters; 1.5(a), requiring lawyers' fees to be reasonable; and 1.15, requiring lawyers to take reasonable steps to protect clients' interests upon withdrawal.

Linda Eide represented the Bar Association. Mr. Trinidad represented himself.