October 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.

Pursuant to Rule for Enforcement of Lawyer Conduct 3.6(b), file materials relating to a matter concluded with an admonition may be destroyed five years after the admonition was issued. In admonition matters, it is the WSBA's policy to remove the disciplinary notice from the Washington State Bar News website archive five years after the admonition was issued, regardless of whether the WSBA's file materials are destroyed.

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.

Patricia A. Toy (WSBA No. 20178, admitted 1990), of Tacoma, was suspended for 60 days by order of the Supreme Court effective May 8, 2002, following a stipulation. This discipline is based on her failure to properly maintain her IOLTA account from 1998 through 2000.

The WSBA audit manager examined Ms. Toy's trust-account records for the period December 1998 through November 2000. During this period, Ms. Toy did not maintain contemporaneous balances of the funds in the trust account or prepare individual client ledgers. For some of the months during the audit period, Ms. Toy did not retain bank statements or cancelled checks. Ms. Toy did not have sufficient records for the audit manager to reconstruct the account activity. The audit manager obtained microfiche records from the bank, and reconstructed a check register and client ledgers.

Prior to February 2000, Ms. Toy was not able to obtain a personal checking account. During this period, Ms. Toy used her IOLTA account as her personal checking account. Ms. Toy retained earned fees in the trust account and deposited earned fees into the trust account to cover her personal disbursements. In February 2000, She obtained a personal checking account and made no further personal disbursements from her IOLTA account. No clients lost funds or were denied access to their funds during this period of time.

Ms. Toy's conduct violated RPCs 1.14(b) (3), requiring lawyers to maintain complete records of all funds in their possession and render appropriate accounts to clients; and 1.14(a), prohibiting lawyers from maintaining personal funds in their trust accounts, except for amounts to pay bank charges or amounts in dispute.

Randy Beitel represented the Bar Association. Ms. Toy represented herself.

Robert N. Getz (WSBA No. 17926, admitted 1980), of Everett, has been suspended for six months by order of the Supreme Court approving a stipulation, effective May 1, 2002. This discipline is based on his ex parte contact with one of the parties of a mandatory arbitration and the abuse of his position as arbitrator in 2000.

Mr. Z, former husband of Ms. S, moved for lowered child support and the court ordered mandatory arbitration. Mr. Getz was the court-appointed arbitrator. At the conclusion of the hearing, Mr. Getz asked Ms. S to remain behind in his office. Once alone, Mr. Getz described matters of a sexual nature, and at one point began to rub or massage Ms. S's shoulders. Ms. S told him she had to leave and he walked her to her vehicle. Mr. Getz then told her he wanted to take her to dinner.

On June 8, 2000, Mr. Getz left a message for Ms. S at her home asking her to return his call, leaving his personal cell phone number. On June 9, Ms. S called his office and left a message instructing Mr. Getz to leave a message for her if he needed more information to make his decision. Mr. Getz did not call Ms. S again. On June 8, Mr. Getz mailed his award and filed his decision with the court. Mr. Getz's decision reduced the child support as requested by Mr. Z. Ms. S subsequently filed for a trial de novo. The trial court upheld Mr. Getz's decision.

Mr. Getz's conduct violated RPC 8.4(d), prohibiting lawyers from engaging in conduct prejudicial to the administration of justice.

Christopher E. Young and Jean McElroy represented the Bar Association. Leland Ripley represented Mr. Getz.

Yukio Morikubo (WSBA No. 21608, admitted 1992), of Redmond, has been suspended for 60 days by order of the Supreme Court approving a stipulation, effective May 30, 2002. This discipline is based on his practice of law while suspended, and failure to file an affidavit of compliance from 1997 to 2000.

By order on December 26, 1997, the Supreme Court suspended Mr. Morikubo from the active practice of law in Washington for failure to comply with mandatory continuing legal education (MCLE) requirements. Notice of this suspension was sent the same day, by letter, to Mr. Morikubo. Following his suspension, Mr. Morikubo failed to file an affidavit establishing compliance with the provisions of RLD Title 8.

In March 1999, Mr. Morikubo requested information regarding the amount of license fees, late fees and CLE credits required for him to be reinstated to active practice. By March 2001, Mr. Morikubo had obtained sufficient credits to satisfy the CLE requirement, and had paid the applicable fees and penalties. He submitted an application for change in membership status which stated that he had engaged in "direct or continuing active legal experience since [he] became suspended." Specifically, Mr. Morikubo disclosed that he had been employed as corporate counsel for two companies and as an associate in a Seattle law firm during his suspension. During this period of time, Mr. Morikubo did not appear in court.

On April 24, 2001, the MCLE Board sent a declaration of compliance to the Supreme Court. By order of the Supreme Court, entered April 27, 2001, Mr. Morikubo was reinstated to the active practice of law.

Mr. Morikubo's conduct violated 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; RLD 8.2, which states a disbarred or suspended lawyer shall not accept any new retainer, give any legal advice, or act as the lawyer for another in a pending case or legal matter of any nature after the effective date of his or her disbarment or suspension; and RLD 8.3, which states a lawyer shall, within 25 days after the effective date of his or her disbarment, suspension or transfer to disability inactive status, file an affidavit with the Bar Association stating that he or she has fully complied with the provisions of these rules.

Douglas Ende represented the Bar Association. Kurt Bulmer represented Mr. Morikubo.

Suspended

Paul White aka Krishan Kumar (WSBA No. 26511, admitted 1996), of Tukwila, was suspended for 30 days by order of the Supreme Court approving a stipulation, effective December 20, 2001. This discipline is based on his failure to represent a client diligently and competently, and on making a false statement of material fact to a tribunal. (Note: Mr. White is to be distinguished from Paul J. White of Golden, Colorado; WSBA No. 11585.)

In March 1997, Mr. White agreed to represent two clients who were plaintiffs in a personal-injury lawsuit. Prior to Mr. White's involvement, the clients filed a lawsuit in King County Superior Court and each received a $10,298 arbitration award. The defendant's counsel appealed the arbitration award and trial was set for May 24, 1997. The order setting the trial date indicated that no further continuances would be granted for plaintiffs' lack of counsel.

At this time, Mr. White had been admitted to the Washington State Bar Association for four months, had never tried a case in King County Superior Court, and was not familiar with superior court practice. Mr. White did not conduct any additional discovery prior to the trial date. He did not know that the clients had received the earlier arbitration award or that the defendants had appealed that award. Mr. White did not investigate the client's history of numerous prior automobile accidents. Mr. White did not subpoena any witnesses for trial, including the client's treating physician, nor did he interview any of the defense's 65 witnesses. He did not file a trial brief, prepare jury instructions, or review the local court rules.

When the parties arrived for trial, the clerk told them that the case would not go to trial that day. Mr. White told opposing counsel that he needed to continue the case because he had a criminal matter in California on June 3 and 4, 1997. In reality, Mr. White and a client had an INS appointment regarding a business matter. As part of the business matter, Mr. White's client would undergo a criminal background check. On June 3, the clerk informed Mr. White that the trial would be heard on June 4. Mr. White filed a motion for continuance of the trial date.

In the supporting affidavit, Mr. White stated that he would be in California for a "criminal investigation related to a federal matter." Mr. White also stated that he had been in Chicago on May 28 to attend a criminal matter. Although he planned to go to Chicago, he advised his client to find another lawyer, because he needed to stay in Seattle to wait for the trial to start. Mr. White did not appear for trial on June 4. The client appeared with a paralegal, and the judge ordered that the case go forward. The jury returned a verdict in favor of the defendants.

Mr. White's conduct violated RPCs 4.1 and 3.3, prohibiting lawyers from making false statements of material fact; 1.3, requiring lawyers to diligently represent their clients; and 1.1, requiring lawyers to competently represent their clients.

Sachia Stonefeld Powell represented the Bar Association. Joseph J. Ganz represented Mr. White.

Andrew G. Burnfield (WSBA No. 4271, admitted 1964), of Seattle, received a reprimand on May 10, 2002, based on a stipulation approved by the Disciplinary Board in January 2002. This discipline is based on his sharing of legal fees with a nonlawyer, assisting in the unauthorized practice of law, and conflict of interest from 1999 to 2000.

On January 7, 2000, Mr. M, an insurance agent for an estate-planning group, met with Mr. D and his wife and provided them with information to complete an estate-planning application and a revocable living-trust package. Mr. M collected $1,495 from the Ds, and contacted Mr. Burnfield, who did not have a prior relationship with the Ds.

On January 11, 2000, Mr. Burnfield contacted Mr. D to discuss the revocable living-trust package. On January 18, Mr. Burnfield received a $600 check from Mr. M. Shortly thereafter, Mr. Burnfield drafted two wills, a trust, and two medical power-of-attorney forms, based on the information given to him by Mr. M. Mr. Burnfield had several telephone contacts with Mr. D in late January and February, and during this time Mr. D expressed doubts about his and his wife's need for a revocable living trust.

On February 25, during a phone call, Mr. Burnfield informed Mr. M that the Ds were ready to sign the living-trust documents. On February 28, Mr. Burnfield and Mr. M visited the Ds, who signed the documents. In late March, the Ds' daughter contacted Mr. Burnfield to request a refund of the money her parents paid for the estate-planning documents. Mr. Burnfield refused, and directed the daughter to Mr. M.

Between April and June 2000, Mr. Burnfield continued to work on the trust, twice visiting the Ds' home to discuss the transfer of assets. On July 10, Mr. D wrote to Mr. Burnfield stating he did not want to have any further dealings with him, and requesting a refund. Mr. Burnfield wrote back that he would not further contact Mr. D, but would assist him in transferring assets if he changed his mind

On September 2, 2000, Mr. M refunded $895 to Mr. D and informed him the remaining $600 was paid to Mr. Burnfield as a retainer. On March 9, 2001, Mr. Burnfield returned $100 of the payment, stating he had held the $100 to cover filing costs for the trust. The Ds had not requested his services to transfer the assets for the trusts.

Between April 1999 and July 2000, Mr. M sent 12 applications from purchasers of estate-planning packages to Mr. Burnfield. In each case, Mr. M collected the fee from the purchaser, Mr. Burnfield drafted the trust documents, and Mr. M sent Mr. Burnfield a check for providing these services. Mr. Burnfield did not disclose to any of the clients that he had a continuing business relationship with Mr. M. Mr. Burnfield did not obtain written consent from the clients indicating they were informed of his continuing business relationship with Mr. M and still wished to be represented by Mr. Burnfield.

Mr. Burnfield's conduct violated RPCs 5.4(a), stating that lawyers shall not share legal fees with nonlawyers; 5.5(b), stating that lawyers shall not assist persons who are not members of the Bar in the performance of activity that constitutes the unauthorized practice of law; 1.7(b), stating that lawyers shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to a third person; and 1.8(f), stating that a lawyer shall not accept compensation for representing a client from someone other than the client.

Mark F. Rising and Kevin Bank represented the Bar Association. Mr. Burnfield represented himself.

Richard T. Hoss (WSBA No. 12976, admitted 1982), of Shelton, received two reprimands based on a stipulation approved by the Disciplinary Board on March 8, 2002. The discipline is based on his directing a family member to assist a client in signing a will.

In the 1980s, Mr. Hoss regularly advised the Js regarding personal matters and their residential development, golf course and resort. Prior to 1990, Mr. Hoss performed estate-planning work for the Js. Sometime after this, Ms. J contacted another lawyer and executed a new will. On January 25, 1990, Ms. J was in the hospital in deteriorating condition. Mr. Hoss met with Ms. J with one of her three daughters present. Following this meeting, Mr. Hoss prepared a new will for Ms. J.

On January 29, Mr. Hoss, his secretary, two of the daughters, Ms. J's doctor and a nurse entered Ms. J's room for the purpose of executing the new will. The witnesses dispute whether or not Ms. J was comatose. After reading the will to Ms. J, Mr. Hoss directed one of the daughters to take Ms. J's hand and make an "X." Mr. Hoss asked the doctor and nurse to sign witness statements without explaining the legal effect of these statements. Ms. J died within four hours of her signature being placed on the new will. Although the new will was admitted to probate, Mr. J refused to honor the bequests made to the daughters.

Mr. Hoss's conduct violated RPCs 1.1, requiring lawyers to competently represent their clients; 1.3, requiring lawyers to diligently represent their clients; and 8.4(d), prohibiting lawyers from engaging in conduct prejudicial to the administration of justice.

Maria Regimbal and Jean McElroy represented the Bar Association. Kurt Bulmer represented Mr. Hoss. The hearing officer was J.C. Becker.

Craig E. Kastner (WSBA No. 8141, admitted 1978), of Poulsbo, received a reprimand on May 10, 2002, based on a stipulation approved by the Disciplinary Board in January 2002. This discipline is based on his failure to disclose to the tribunal all relevant facts in an ex parte proceeding.

Mr. C, a former tenant at an Issaquah building property, retained Mr. Kastner in May 2000 to represent him in a pending suit against the property owner and the roofing company that installed a new roof at the property. Mr. C sought damages based on exposure to roofing materials. Attorney Ms. S represented the property owner until her dismissal in June 2000.

On or before March 2001, Mr. Kastner contacted Mr. S about removing a sample of the roof for testing. Mr. S told Mr. Kastner he did not see a problem in permitting him to obtain a sample of the roof, and that he would seek the new building owner's approval. Mr. Kastner prepared and filed a motion for taking a sample of roofing material, and declaration in support of a motion dated March 23, 2001.

The March 23 declaration stated: "I have contacted the attorney who represented the owner of the building before being dismissed … and he did not believe there would be a problem in obtaining a sample of the roof." Mr. S called Mr. Kastner before April 3 to notify him that the property owner would not voluntarily agree to the removal of the roof sample. On April 3, Mr. Kastner obtained a judge's signature on the proposed order permitting the sample. Mr. Kastner did not advise the court that Mr. S told him that the property owner would not voluntarily agree to the sample removal. On April 19, the sample was removed from the property.

Mr. Kastner's conduct violated RPC 3.3, requiring a lawyer, in an ex parte proceeding, to inform the tribunal of all relevant 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.

Nancy Miller represented the Bar Association. Patrick C. Sheldon represented Mr. Kastner.

Dennis G. Ott (WSBA No. 12172, admitted 1981), of Kelso, received a reprimand on May 10, 2002, based on a stipulation approved by the Disciplinary Board in January 2002. This discipline is based on his failure to abide by a client's decisions, failure to act with reasonable diligence, and failure to keep clients reasonably informed about the status of their matters from 1999 to 2000.

The Fs hired Mr. Ott on April 22, 1999 to initiate a nonjudicial foreclosure sale on real property in Pacific County. The clients instructed Mr. Ott to proceed with the sale immediately. On April 23, Mr. Ott sent the buyers a letter informing them that the Fs had retained him to initiate a foreclosure of their interests on the property. Mr. Ott did not cause a notice of default to be issued and posted on the property until June 10. Mr. Ott executed a notice of trustee sale on July 14, and set the date of the trustee's sale for October 14. The notice was legally deficient because Mr. Ott had not been appointed successor trustee of the deed of trust and he set the sale in Cowlitz County, though no part of the property is in that county.

On August 26, the buyers filed bankruptcy, Mr. Ott received notice, and the bankruptcy court set the meeting of creditors for October 6, 1999. The Fs did not learn of the bankruptcy proceeding until October 8, when they called Mr. Ott's office and spoke to his secretary. On the same day, they wrote Mr. Ott a letter shortly after inquiring about the bankruptcy. Mr. Ott did not respond to either the call or the letter. Although Mr. Ott was notified, he did not attend the meeting. Mr. Ott did not advise the Fs that through the bankruptcy they might have a right to the money the buyers collected as rent and/or to the personal property the buyers removed from the property.

On December 20, 1999, Mr. Ott obtained a second notice of resignation and appointment of successor trustee, but he failed to record the notice. Even though Mr. Ott lacked the statutory authority to act, he initiated a second foreclosure proceeding on December 28 by mailing and serving a second notice of default on the buyers. By letters dated January 10 and 28, 2000, Mr. Ott erroneously informed the Fs that the notice of resignation and appointment of successor trustee was in effect and the foreclosure was progressing on schedule.

On January 28, Mr. Ott signed and processed a second notice of trustee sale. The notice contained a typographical error setting the trustee's sale for Sunday rather than Friday as required by RCW 61.24.040. The notice of trustee sale was deficient because Mr. Ott failed to follow the time requirements in the statute and failed to publish the notice in a newspaper. In April, Mr. Ott billed the Fs $1,320 in additional attorney's fees. Mr. Ott voluntarily refunded the original retainer and wrote off the additional bill.

Mr. Ott's conduct violated RPCs 1.2, requiring lawyers to abide by clients' decisions concerning the objectives of representation; 1.3, requiring lawyers to act with reasonable diligence and promptness in representing clients; and 1.4, requiring lawyers to keep clients reasonably informed about the status of their matters and promptly comply with any reasonable requests for information.

William D. Robison and Anthony Butler represented the Bar Association. Leland G. Ripley represented Mr. Ott.

Mark C. Prothero (WSBA No. 18702, admitted 1989), of Spokane, received a reprimand on April 5, 2002, following a stipulation approved by the Disciplinary Board in November 2001. This discipline is based on his failure to properly manage his trust account from 1998 to 2000. (Note: Mr. Prothero is to be distinguished from Mark W. Prothero of Kent; WSBA No. 12400.)

As a result of overdrafts on Mr. Prothero's trust account, the WSBA audit manager examined his account and records for the period January 1998 to November 2000. The examination revealed that Mr. Prothero did not maintain a contemporaneous running balance of the funds in his trust account and did not maintain client ledgers. Mr. Prothero did not reconcile trust-account statements received from the bank with individual client ledgers. During the same period, Mr. Prothero transferred funds from the trust account to his general checking account without any client identification or purpose stated for the transfer. Mr. Prothero deposited funds into the trust account without any client identification, and disbursed funds from the account in excess of the amount individual clients had on deposit. He also disbursed funds on behalf of some clients from the funds of other clients and failed to reimburse the account for bank charges that were his responsibility.

Mr. Prothero was not aware of the shortages until the overdrafts and the subsequent examination by the WSBA audit manager. By October 4, 2001, Mr. Prothero had deposited his own funds into the trust account to correct the shortage.

Mr. Prothero's conduct violated RPCs 1.14(b)(3), requiring lawyers to maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer, and render appropriate accounts to his or her client regarding them; and 1.14(a), requiring that all funds of clients paid to a lawyer or law firm, including advances for costs and expenses, shall be deposited in one or more identifiable interest-bearing trust accounts, and no funds belonging to the lawyer shall be deposited therein.

Randy Beitel represented the Bar Association. Mr. Prothero represented himself.

Virginia Coop-Ullman (WSBA No. 19378, admitted 1990), of Kent, received a censure following a hearing in 2001. This discipline was based on her failure to diligently represent and adequately communicate with a client from 1997 though 1999.

In August 1997, Ms. Coop-Ullman agreed to represent the husband in a marital-dissolution action. In September 1999, Ms. Coop-Ullman failed to appear for a contempt hearing against her client. She also failed to attend the settlement conference and timely file required witness and exhibit lists. On the original trial date, Ms. Coop-Ullman requested a continuance. The court granted a 15-day continuance and imposed $100 in sanctions.

On November 16, 1999, the court informed Ms. Coop-Ullman that the trial would be held on November 22. Ms. Coop-Ullman did not inform her client of this continuance. Neither Ms. Coop-Ullman nor her client appeared for the trial date. The court entered an order of default and signed the final orders prepared by the wife's lawyer. Ms. Coop-Ullman received copies of the final orders in late November, but did not contact her client until December 1999. She took no steps to cure or revise the orders. The sanction imposed in this matter considered significant mitigating factors.

Ms. Coop-Ullman's conduct violated RPCs 1.3, requiring lawyers to diligently represent their clients; and 1.4, requiring lawyers to keep clients reasonably informed of the status of their matters.

Jonathan Burke represented the Bar Association. Kurt Bulmer represented Ms. Coop-Ullman. The hearing officer was Lish Whitson.