December 2005

Disciplinary Notices

Disbarred

Phillip E. Miller (WSBA No. 7703, admitted 1977), of Bellevue, was disbarred, effective April 8, 2005, by order of the Washington State Supreme Court following a hearing. This discipline was based on his conduct in 2001 involving commission of a criminal act; conduct involving dishonesty, fraud, deceit, and misrepresentation; and failure to secure a written contingent fee agreement; and his conduct in 2002 and 2003 involving failure to cooperate with a disciplinary investigation. Phillip E. Miller is to be distinguished from Phillip S. Miller of Seattle.

Matter 1: Mr. Miller was employed by a licensed collection agency (hereinafter Corporation A) to pursue collection actions on claims assigned by Corporation A’s clients. Mr. Miller’s compensation was based on receiving a percentage of the 33 percent fee that Corporation A charged for collecting assigned claims. The fee arrangement between Mr. Miller and Corporation A was never reduced to writing. In early 2001, Mr. Miller assisted certain owners and employees of Corporation A in forming a new corporation (hereinafter Corporation B) in order to avoid some of Corporation A’s liabilities. Mr. Miller became Corporation B’s president, sole corporate officer, sole director, and the only shareholder. Corporation B operated a lien-filing and collection business comparable to that of Corporation A, but Corporation B was never licensed as a collection agency. Mr. Miller continued to handle collection claims for Corporation B for a percentage of the collection fee charged by the corporation. The fee arrangement between Mr. Miller and Corporation B was not reduced to writing.

In mid-2001, a client assigned a $150,000 claim to Corporation A for collection. Corporation B subsequently assumed the assignment of the collection claim. Mr. Miller filed suit to collect the claim. Mr. Miller subsequently negotiated with the debtor regarding payment of the claim. The lawsuit settled in August 2001, and the debtor paid $130,699.63 in full satisfaction of the settlement agreement. The sum was deposited into Corporation B’s bank account and Mr. Miller obtained an order of dismissal of the lawsuit. Mr. Miller was paid a fee of $19,059, constituting 40 percent of Corporation B’s 33 percent share of the collected sum. Neither Mr. Miller nor anyone else at Corporation B notified the client of the settlement or the dismissal. The general manager of Corporation B instructed Mr. Miller to attempt to cut a better deal with the client in order to increase Corporation B’s share of the settlement.

Later in August 2001, a representative of the client contacted Mr. Miller to ascertain the status of the matter. Although Mr. Miller knew that the full amount owing had already been collected, he did not reveal this information to the client. Instead, he misled the client into believing that Corporation B had received an offer from the debtor to settle the matter for 85 percent of the amount due. The client indicated that it was not interested in such an offer, pointed out that the amount of the claim should have been greater, and insisted that a lien should be filed for the full amount. Despite the settlement agreement and dismissal of the lawsuit, the lien was filed and Mr. Miller received additional payments from the debtor. The total amount received on the claim was $149,777.67, of which the client was entitled to receive $100,351.04.

In October 2001, Mr. Miller became aware of a shortage in Corporation B’s bank account balance resulting in an inability to pay the client what was due from the settlement funds. On October 15, 2001, the client again contacted Mr. Miller about the claim. Mr. Miller did not disclose that he had received the full sum owed by the debtor, but instead misled the client into believing that the debtor was offering to pay 85 percent of the total or to make periodic payments of 100 percent of the amount due. Mr. Miller confirmed these “payment options” in an October 16, 2001, letter to the client. The client did not agree to either of these proposals.

In December 2001, the client learned from the debtor that the claim had been paid in full several months earlier. The client subsequently filed suit against Corporation B and Mr. Miller for moneys owed from the settlement. Judgment was confessed for $150,000. A settlement agreement required an initial payment of $50,000 followed by $2,000 monthly payments commencing in March 2002. Payments ceased in July 2003, with an unpaid balance of $70,000 remaining.

Matter 2: In July 2002, during the Bar Association’s investigation of Matter 1, Mr. Miller appeared at a deposition in response to a subpoena duces tecum requiring him to bring all financial records relating to the handling of funds received in connection with the collection claim. Mr. Miller did not bring those records to the deposition. He testified that this was an oversight and agreed to provide the records. Mr. Miller never provided all of the records. As a result, it was necessary for a Bar Association auditor’s examination to be based on microfiche copies of canceled checks and deposit items obtained from the bank. The need to reconstruct records greatly complicated the examination of the account.

Mr. Miller’s conduct violated RPC 1.5(c)(1), requiring contingent fee agreements to be in writing; RPC 8.4(b), prohibiting commission of a criminal act (here, theft in the first degree) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; RPC 8.4(c), prohibiting conduct involving dishonesty, deceit, fraud, or misrepresentation; RPC 8.4(d), prohibiting conduct prejudicial to the administration of justice; former RLD 2.8(a), requiring a lawyer to promptly respond to any inquiry or request for information relevant to grievances; and RPC 8.4(l), prohibiting a lawyer from violating a duty imposed by or under the Rules for Enforcement of Lawyer Conduct (here, ELC 5.3(e), requiring a lawyer to promptly respond to any inquiry or request for information relevant to grievances).

Randy Beitel represented the Bar Association. Kurt M. Bulmer represented Mr. Miller. Lish Whitson was the hearing officer.

Suspended

Theresa A. Olson (WSBA No. 16402, admitted 1986) was suspended for two years, effective April 5, 2005, by order of the Washington State Supreme Court following a hearing. This discipline was based on her conduct in 2002 involving sexual relations with a client.

In October 1999, Ms. Olson’s employer, a public defense provider, was appointed to represent an individual charged with three counts of aggravated first-degree murder in King County Superior Court. Ms. Olson and another lawyer in the office were assigned to represent the client. During the course of her representation of the client, Ms. Olson developed romantic and/or sexual feelings for the client. An inappropriate personal relationship, with sexual overtones, ensued, as confirmed in a three-page handwritten letter that Ms. Olson sent from her home to the client at the King County Jail. In August 2002, Ms. Olson met privately, in person, with the client in a conference room of the King County Jail for the stated purpose of providing legal representation to the client. During the meeting, Ms. Olson knowingly and intentionally engaged in inappropriate intimate physical contact, including sexual relations, with the client. Ms. Olson made no disclosures to the client regarding any conflict of interest or the possible effects of an inappropriate personal and/or sexual relationship on him or his case, and obtained no written waivers.

Ms. Olson’s conduct violated RPC 1.7(b), prohibiting a lawyer from representing a client if the representation may be materially limited by the lawyer’s own interests, unless the lawyer reasonably believes the representation will not be adversely affected and the client consents in writing after a full disclosure; RPC 1.8(k), prohibiting a lawyer from having sexual relations with a current client; RPC 2.1, requiring a lawyer to exercise independent professional judgment and render candid advice in representing a client; and RPC 8.4(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice.

Joanne S. Abelson and Scott G. Busby represented the Bar Association. David Allen represented Ms. Olson. David A. Thorner was the hearing officer.

Admonished

Alisa D. Maples (WSBA No. 25735, admitted 1996), of Seattle, was admonished following a stipulation approved by a hearing officer. The admonition was based on her conduct in 2004 involving communication with a party represented by counsel.

Ms. Maples represented the respondent in a dissolution action pending in Snohomish County Superior Court. In March 2004, Ms. Maples met with her client to discuss interrogatories. The client told Ms. Maples that his wife had contacted his boss to inform him that one of the parties’ children was in the hospital. In Ms. Maples’s presence and with her knowledge, the client used Ms. Maples’s speakerphone to call his wife about the child. The condition and well-being of the children were relevant to the dissolution action when the conversation took place. At the time of the telephone conversation, Ms. Maples was aware that the wife was represented by counsel, who had not consented to Ms. Maples’s communication with the wife. Ms. Maples listened to the conversation and, at one point, interposed a question directed to the wife.

Ms. Maples’s conduct violated RPC 4.2, prohibiting a lawyer, in representing a client, from communicating about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

Natalea Skvir represented the Bar Association. Ms. Maples represented herself. Charles K. Wiggins was the hearing officer.

Admonished

Michael B. Roff (WSBA No. 31356, admitted 2001), of Spokane, was admonished following a stipulation approved by a hearing officer. The admonition was based on his conduct in 2003 involving failure to promptly refund unearned fees.

After being charged with multiple counts of first-degree child molestation and first-degree rape of a child in Spokane County Superior Court, a client hired Mr. Roff to represent him. The client signed a fee agreement with Mr. Roff on June 18, 2003. The fee agreement provided that the client would pay “a non-refundable retainer of $15,000 to start work” on the case, and further specified that the “non-refundable retainer” was deemed earned upon receipt. The client paid Mr. Roff $15,000. On June 19, 2003, the client was arraigned, at which point the court set the trial date and entered an order setting conditions of release. There were no further proceedings in the case.

On July 6, 2003, the client was killed in an automobile accident. On July 9, 2003, the client’s father informed Mr. Roff of the client’s death and requested the return of the $15,000 fee. Mr. Roff refused to return any of the fee.

The Association and Mr. Roff stipulated that Mr. Roff had earned $5,000 of the $15,000 fee. In January 2005, Mr. Roff offered to refund a portion of the fee to the client’s father.

Mr. Roff’s conduct violated RPC 1.5(a), requiring that a lawyer’s fee be reasonable; and RPC 1.15(d), requiring that a lawyer take steps to the extent reasonably practicable to protect a client’s interests upon termination of representation, including refunding any advance fee payment that has not been earned.

Sachia Stonefeld Powell represented the Bar Association. Mr. Roff represented himself. James M. Danielson was the hearing officer.