July 2006
Disciplinary Notices
These notices of imposition of disciplinary sanctions and actions are published pursuant to Rule 3.5(d) of the Washington State Supreme Court Rules for Enforcement of Lawyer Conduct, 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 name and address.
Note: Approximately 30,000 persons are eligible to practice law in Washington state. Some of them share the same or similar names. Bar News strives to include a clarification whenever an attorney listed in the Disciplinary Notices has the same name as another WSBA member; however, all discipline reports should be read carefully for names, cities, and bar numbers.
Resigned in Lieu of Disbarment
Mary Anne Betker (WSBA No. 30429, admitted 2000), of Washougal, resigned in lieu of disbarment, effective February 16, 2006. This resignation was based on her conduct between 2002 and 2005 in multiple matters.
Ms. Betker operated a law firm that focused on employment law and personal injury. Between 2002 and 2005, Ms. Betker had taken on more legal matters than she was capable of handling. Although she was aware that she had accepted too many matters and made some effort to decrease her caseload, Ms. Betker did not substantially decrease the number of legal matters she was handling. Ms. Betker's lack of legal experience and knowledge substantially contributed to her failure to diligently and competently represent clients in eight matters. Ms. Betker repeatedly missed filing deadlines, failed to perform sufficient review and research of legal matters, and failed to communicate with clients and opposing counsel regarding legal matters being handled by her. Ms. Betker's conduct establishing grounds for discipline included the following:
• Failing to commence a lawsuit on behalf of a client prior to the expiration of the statute of limitations, failing to effect timely service of process, failing to timely respond to a summary judgment motion, and failing to comply with court-ordered deadlines.
• Failing to be aware of or comply with a statutory pre-filing notice-of-claim requirement prior to filing a lawsuit in a personal injury claim against a local government.
• Advising a client to release all claims in an employment matter and later commencing a lawsuit against the employer without a legal basis to challenge the enforceability of the release.
• Failing to be aware of or comply with statutory exhaustion-of-remedies requirements before initiating a federal lawsuit alleging violations of the Americans with Disabilities Act.
• Depositing an advance payment of fees and costs into a general account instead of a trust account and using the funds to pay her business and personal expenses before providing legal services to the client.
• Representing a client in a bankruptcy proceeding while also being a creditor of the client, preparing a loan agreement that included provisions that favored the lender to the detriment of the client, and filing a UCC lien on behalf of a lender against the proceeds of the settlement of the client's claim.
• Commencing an unlawful termination claim on behalf of a client during the pendency of the client's bankruptcy proceeding without the knowledge, consent, or authority of the bankruptcy court or trustee.
• Assisting her nonlawyer assistant in the unauthorized practice of law and failing to supervise the nonlawyer assistant in the preparation of legal documents in a bankruptcy matter.
• Entering into a contingent fee agreement requiring the client to pay a contingent fee on any offer of settlement if the client terminated her services prior to resolution of the matter, which unfairly affected the client's right to terminate Ms. Betker's services, and charging a fee for reviewing a bankruptcy petition that was never reviewed.
• In three instances, failing to inform clients that their lawsuits had been dismissed.
• Failing to respond to client requests for information about the status of their cases, failing to comply with a former client's request to transmit the client file to a new lawyer, and providing a former client with an incomplete file (in which documents filed after a certain date indicating the case had been dismissed were missing).
Ms. Betker's conduct violated RPC 1.1, requiring a lawyer to provide competent representation to a client; RPC 1.2(a), requiring a lawyer to abide by a client's decisions concerning the objectives of representation; RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; RPC 1.4(a), requiring a lawyer to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information; RPC 1.4(b), requiring a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; RPC 1.5(a), requiring a lawyer's fee to be reasonable; RPC 5.5(b), prohibiting a lawyer from assisting a person who is not a member of the Bar in the performance of activity that constitutes the unauthorized practice of law; RPC 1.7(b), prohibiting a lawyer from representing a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or 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 of material facts; RPC 1.14(a), requiring all funds of clients paid to a lawyer or law firm be deposited in one or more identifiable interest-bearing trust accounts; RPC 3.4(c), prohibiting a lawyer from knowingly disobeying an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; RPC 5.3(b), requiring a lawyer with direct supervisory authority over a nonlawyer to make reasonable efforts to ensure that the nonlawyer's conduct is compatible with the professional obligations of the lawyer; RPC 5.3(c), holding a lawyer responsible for the conduct of a nonlawyer assistant that would be a violation of the RPCs if engaged in by a lawyer in circumstances where the lawyer orders or ratifies the conduct or fails to take reasonable remedial action; and RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
Jonathan H. Burke represented the Bar Association. Ms. Betker represented herself.
Disbarred
Bruce E. Hawkins (WSBA No. 25414, admitted 1995), of Gig Harbor, was disbarred, effective February 3, 2006, by order of the Washington State Supreme Court following a stipulation approved by the Disciplinary Board. This discipline was based on his conduct between 2003 and 2004 involving businesses that promised, but did not achieve, reduction or elimination of credit-card debt.
Mr. Hawkins became involved with three nonlawyer-operated website businesses that promoted the ability to reduce or eliminate consumer credit-card debt through private arbitrations. At the request of one of the nonlawyers, Mr. Hawkins reviewed materials connected to the debt-elimination program and suggested changes. Mr. Hawkins allowed his name to be used in promotional materials for the program, including a DVD presentation that claimed that Mr. Hawkins "literally has over 98 percent success rate when he goes to arbitration." In these materials, which were mailed to potential program customers, Mr. Hawkins represented that credit-card debtors were not bound to the arbitration services specified in their cardholder agreements and should not have to repay their debt on a national bank's credit card because national banks cannot lend credit. Mr. Hawkins knew, however, that arbitration can be required only if both parties agree in advance that a court is the proper forum to resolve issues about the applicability of arbitration or the appropriateness of an arbitrator, and that since 1996 the Department of the Treasury, Office of the Comptroller of the Currency had decided it is "well established" that national banks can issue credit cards. Relying on Mr. Hawkins's representations, numerous credit-card debtors paid a fee and applied to the program through these websites. The debtors were then referred to a private arbitration service organized to facilitate the program.
In 2003, Mr. Hawkins set up Commercial Arbitration Forum, Inc. (CAFI), a Washington not-for-profit corporation. Mr. Hawkins was CAFI's sole shareholder and sole arbitrator. CAFI arbitrated matters referred to it by the aforementioned website businesses, which at the time needed a new arbitration service because prior arbitration services used by them had either been enjoined from issuing any further awards or had closed. Mr. Hawkins knew that CAFI would receive cases to arbitrate, because he endorsed the theory that a national banking association could not lend credit. CAFI arbitrations were conducted based only on documents mailed, faxed, or e-mailed to Mr. Hawkins by debtors using paperwork and briefing materials Mr. Hawkins had previously reviewed and modified on behalf of the website businesses. In conducting CAFI proceedings, Mr. Hawkins did not disclose to the debtors that he had a business relationship with the referring businesses. The first paragraph of each award signed by Mr. Hawkins stated, "no known conflict of interest exists between the Commercial Arbitration Forum . . . and the Claimant or Respondent," though Mr. Hawkins paid substantial sums to the referring businesses. As CAFI's arbitrator, Mr. Hawkins found for the debtor 90 percent of the time. In all of those cases, the creditor defaulted. Mr. Hawkins did not disclose to debtors his role in developing the program materials that were submitted to him as arbitrator.
In December 2003, Mr. Hawkins signed a CAFI arbitration award in favor of a claimant whose "claim" against a national bank was based on a debt owed under a line-of-credit agreement that did not contain an arbitration clause. In the arbitration award, Mr. Hawkins stated that "Claimant alleges an agreement was entered into between the Parties to resolve disputes through arbitration." Mr. Hawkins awarded the claimant $1,500 in attorney's fees and costs, even though the claimant appeared pro se, and he directed the bank to notify the three major credit bureaus that "there is a zero balance owed" by the claimant to the bank. As in all CAFI arbitrations, Mr. Hawkins relied on the sworn pleadings of the claimants, without either requiring additional proof of proper service of the arbitration demand on the national bank or reviewing the debtor's agreement with the bank to confirm it included an arbitration clause. He knew of no legal authority to support his position that one may go unilaterally to an arbitrator outside those specified in the credit-card agreement. The bank subsequently successfully sued the debtor on the debt.
In an August 2003 letter, another national bank provided "formal notice" to Mr. Hawkins that they "will not agree to arbitrate disputes before CAFI." Nevertheless, after August 2003, Mr. Hawkins entered 177 "awards" in favor of the bank's debtors.
After a debtor received an arbitration "award," the program materials advised the debtor to confirm the award in court. "Awards" issued by Mr. Hawkins and CAFI were rejected by courts in several instances, and, in at least one case in which a debtor attempted to confirm such an award, the court awarded attorney's fees and costs to the bank. By the end of 2003, Mr. Hawkins stopped taking new cases for arbitration, although he continued to arbitrate cases already filed. In the end, he arbitrated over a thousand CAFI arbitrations, charging $139 per matter. Mr. Hawkins collected over $100,000 for issuing CAFI arbitration awards.
In November 2003, a financial-services corporation obtained a temporary restraining order against CAFI and one of the corporation's debtors prohibiting them from conducting any more arbitrations in that debtor's case. Shortly thereafter, Mr. Hawkins sold the CAFI business and software to a non-lawyer friend, with payments to Mr. Hawkins tied to a percentage of income generated by the business (subsequently renamed "SAG") for as long as it maintained operations. In September 2004, a national bank filed for injunctive and declaratory relief in a Los Angeles County Superior Court against CAFI, SAG, and other so-called mailbox arbitration forums. CAFI defaulted. Eventually, the bank obtained a permanent injunction against CAFI, SAG, and other mailbox arbitration forums prohibiting any further arbitrations involving that bank's California customers.
When an Idaho corporation attempted to confirm SAG arbitration awards that it had received through an assignment, a national bank counterclaimed for injunctive relief. In December 2004, SAG and its owner stipulated to and the court entered a permanent injunction in the Idaho case. Among other things, the order enjoined SAG from "attempting in any manner to engage in arbitration or debt avoidance involving [the bank's] credit card customers through or in conjunction with any other entity or person . . . ."
In 2004, Mr. Hawkins began accepting cases referred to him by the aforementioned website businesses for the purpose of preparing materials for "pro se" debtors from various states. After a debtor submitted the application with a $200 "advance retainer," he or she would be referred to Mr. Hawkins, who would then enter into a separate fee agreement with the debtor based on a percentage of the debt to be "eliminated" and the number of credit cards. The usual fee was about 10 percent of the amount of the debt. Mr. Hawkins would pay 10 percent of the fee to the referring website business. During 2003 and 2004, Mr. Hawkins collected about $200,000 under such fee agreements.
In one instance, after assuring a debtor in Washington that the program was legal and (according to the debtor) that it was easy to get the awards confirmed in court, a debtor paid Mr. Hawkins over $5,700. Mr. Hawkins did not disclose his financial interest in SAG to the debtor. After receiving a number of SAG arbitration awards, the debtor was unable to confirm the awards in court and did not eliminate any credit-card debt. In at least two other cases in Washington, Mr. Hawkins appeared as the debtors' lawyer in superior court, attempting to rely on mailbox arbitration awards issued by SAG. Neither client in these two cases succeeded.
Mr. Hawkins did not disclose to program participants his financial interest in SAG. Nor did he disclose that it was very rare for anyone following his program to achieve a zero balance or any reduction on their credit-card debt. Mr. Hawkins did not disclose to program participants that only about five percent of cases achieved the goal of having their accounts closed with a "paid as agreed" notation (and that he considered such cases "a mistake on the part of the bank"). Mr. Hawkins did not disclose to program participants that program arbitrations produced favorable awards only by default, that as an arbitrator he did not review materials to ensure his jurisdiction over matters, or that he knew of no case decided in favor of a debtor when banks challenged the arbitration awards in court.
Mr. Hawkins's conduct violated RPC 5.4(a), prohibiting a lawyer from sharing legal fees with a nonlawyer; RPC 7.1(a) and (b), prohibiting a lawyer from making a false or misleading communication about the lawyer or the lawyer's services; RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and RPC 8.4(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice.
Linda B. Eide and M. Craig Bray represented the Bar Association. Mr. Hawkins represented himself. Charles K. Wiggins was the hearing officer.
Suspended
George J. Fair (WSBA No. 2967, admitted 1954), of Bellevue, was suspended for six months, effective December 23, 2004, by order of the Washington State Supreme Court following a stipulation approved by the Disciplinary Board. This discipline was based on his violation of a temporary restraining order in 2003.
In 2003, Mr. Fair's spouse commenced a dissolution-of-marriage proceeding in King County Superior Court. In August 2003, the court issued a restraining order prohibiting Mr. Fair from, inter alia, "molesting or disturbing the peace" of his spouse. Despite his knowledge of the order, Mr. Fair had contact with his spouse in violation of the restraining order. During the incident, Mr. Fair threatened his spouse verbally and punched her in the face. As a result, in June 2004, Mr. Fair was convicted of felony violation of a domestic-violence court order in violation of RCW 26.50.110.
Mr. Fair's conduct violated RPC 8.4(b), prohibiting a lawyer from committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects; and RPC 8.4(i), which prohibits a lawyer from committing any act of unjustified assault, whether committed in the course of his or her conduct as a lawyer or otherwise, and whether the act constitutes a felony or a misdemeanor or not.
Joanne S. Abelson represented the Bar Association. Mr. Fair represented himself.
Suspended
Todd A. Peterson (WSBA No. 23756, admitted 1994), of Portland, Oregon, was suspended for 30 days, effective February 2, 2006, by order of the Washington State Supreme Court imposing reciprocal discipline in accordance with an order of the Supreme Court of the State of Oregon following a stipulation. This discipline was based on Mr. Peterson's conduct involving communication with a person represented by counsel. Mr. Peterson is to be distinguished from Todd L. Peterson of San Francisco.
In August 2004, a client terminated Mr. Peterson's employment as his lawyer in a personal-injury matter and hired new counsel. In September 2004, a dispute arose between Mr. Peterson and the former client over the amount of Mr. Peterson's fee and his entitlement to a lien against any proceeds from the settlement of the personal-injury matter. The new lawyer undertook to represent Mr. Peterson's former client in the fee dispute. Although he knew that his former client was represented by counsel in this dispute, Mr. Peterson communicated directly with the former client by letter on the subject of the personal-injury matter, the amount of the fee, and his entitlement to recover his fee from the proceeds of the personal-injury matter.
Mr. Peterson's conduct violated Oregon RPC 4.2, which prohibits a lawyer, when representing a client or the lawyer's own interests, from communicating or causing another to communicate on the subject of the representation with a person the lawyer knows to be represented by a lawyer on that subject unless (a) the lawyer has prior consent of the lawyer representing such other person, (b) the lawyer is authorized by law or by court order to do so, or (c) a written agreement requires a written notice or demand to be sent to such other person, in which case a copy of such notice or demand shall also be sent to such other person's lawyer.
Felice P. Congalton represented the Bar Association. Mr. Peterson represented himself.
Reprimanded
Eric C. Hoort (WSBA No. 29360, admitted 1999), of Seattle, was ordered to receive a reprimand on September 2, 2005, following a hearing. This discipline was based on his conduct in 2002 involving failure to commence an action prior to expiration of the statute of limitations.
At a meeting on June 15, 2002, a client hired Mr. Hoort to represent him in a wrongful termination matter. The client's employment had been terminated for being absent without leave after his arrest and incarceration for attempted murder. The client was ultimately acquitted of the attempted murder charge and released from custody. While still incarcerated, the client had sent a letter to his union explaining that the termination was not justified and requesting that the union file a grievance on his behalf. By letter dated January 15, 2002, the union replied that it would not pursue a grievance relating to the termination. At the June 15 meeting, the client paid Mr. Hoort $200 and gave him a file containing documents relating to the dispute, including a copy of the January 15 letter from the union.
Mr. Hoort knew that the statute of limitations for a "hybrid" action brought against an employer and a union is six months, beginning from when the employee first knew or should have known the union would not grieve the termination. At the latest, the six-month limitation period on the client's claim would run no later than mid-July 2002. Mr. Hoort neither clearly advised the client of the date on which the statute would run nor calendared a date for the expiration of the limitation period. Mr. Hoort did not write any letters to the client's former employer or the union, and he did not file a lawsuit on the client's behalf. In August 2002, the client sent to Mr. Hoort $500. In September 2002, the client wrote a letter to Mr. Hoort inquiring about the status of the case. By letter dated October 4, 2002, Mr. Hoort replied that, after extensive research, he had determined that the limitation period had lapsed some four months prior to the client contacting his office and, as a result, he would not be able to pursue a wrongful termination action on the client's behalf. Enclosed with the letter were file materials and a money order for $500. Mr. Hoort's statement in the October 4 letter about the timing of the expiration of the statute of limitations was incorrect.
Mr. Hoort's conduct violated RPC 1.1, requiring a lawyer to provide competent representation to a client; RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; and RPC 3.2, requiring a lawyer to make reasonable efforts to expedite litigation consistent with the interests of the client.
Nancy B. Miller represented the Bar Association. Kurt M. Bulmer represented Mr. Hoort. Teena M. Killian was the hearing officer.
Reprimanded
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.
Reprimanded
David E. Vis (WSBA No. 20599, admitted 1991), of Bellingham, was ordered to receive a reprimand following a stipulation approved by a hearing officer. This discipline was based on his conduct in 2003 and 2004 involving lack of diligence and failure to communicate with clients.
In August 2003, Mr. Vis was hired by a couple who had defaulted on payments to a bank holding a second-position deed of trust on their home. At the clients' request, Mr. Vis agreed to write to the bank to request that it forebear on foreclosing its interest in the property until the couple could sell some real property to satisfy the obligation. Mr. Vis never wrote to the bank. In August 2003, the couple received a summons and complaint in a separate collection action. Mr. Vis agreed to represent the clients and gather more information about the matter. Although he filed a notice of appearance on behalf of the clients in the proceeding, Mr. Vis never filed an answer to the complaint. In October 2003, Mr. Vis spoke with the counsel for the creditor to ask for verification of the debt, which was provided to him in May 2004. Mr. Vis did not provide this information to his clients. In June 2004, the counsel for the creditor filed a motion seeking an order of default and default judgment. The motion was scheduled for July. Mr. Vis was served with these documents, but he did not notify his clients about the motion or the hearing. Neither Mr. Vis nor his clients appeared for the hearing or otherwise responded to the motion. The creditor obtained a default judgment in the amount of $22,436.58 against Mr. Vis's clients.
Mr. Vis's conduct violated RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; and RPC 1.4, requiring a lawyer to keep a client reasonably informed about the status of a matter, promptly comply with reasonable requests for information, and explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
Sachia Stonefeld Powell represented the Bar Association. Mr. Vis represented himself. Scott M. Ellerby was the hearing officer.
Reprimanded
Michael J. Wicks (WSBA No. 16950, admitted 1987), of Phoenix, Arizona, was ordered to receive a reprimand, effective January 31, 2005, by order of the Washington State Supreme Court imposing reciprocal discipline in accordance with an order of the Supreme Court of the State of Arizona. This discipline was based on his conduct in 2003 involving trust account irregularities.
In August 2003, the State Bar of Arizona received an insufficient-funds notice from Wells Fargo Bank regarding Mr. Wicks's client trust account. The notice indicated that a check in the amount of $190 had attempted to clear when the balance in Mr. Wicks's client trust account was only $169.55. Wells Fargo paid the check and charged a $29 overdraft fee, thereby overdrafting the trust account by $49.45. The State Bar of Arizona sent to Mr. Wicks a copy of the insufficient-funds notice with a letter requesting that he submit an explanation. Mr. Wicks explained that the overdraft was a result of a combination of bookkeeping and deposit errors. His explanation disclosed the following:
• Believing that there was a possibility that he could be required to refund fees in three client matters, Mr. Wicks deposited "earned-upon-receipt" fees into his client trust account;
• In one instance, Mr. Wicks erroneously deposited a $1,300 fee into his operating account instead of his client trust account. Mr. Wicks subsequently refunded $300 from the trust account to the client, not realizing that the offsetting funds were not on deposit in the client trust account, resulting in a $300 shortage;
• In one instance, after accepting a $3,000 fee from a client, Mr. Wicks issued a trust-account check in the amount of $140 in payment of costs, but failed to record the disbursement in a check register. Mr. Wicks subsequently issued a partial refund of $1,000 to the client and a check to himself in the amount of $2,000. Mr. Wicks did not remember that he had previously issued a trust-account check for costs, resulting in a shortage of $140.
In October 2003, the State Bar of Arizona requested additional information from Mr. Wicks. Mr. Wicks's response was incomplete, because his bookkeeping system was not properly maintained. Mr. Wicks was unable to completely account for the total balance of funds in the trust account and unclear as to the balance of any personal funds being maintained in the trust account to cover bank service charges. Available records reflected a total balance below what should have been in the account for three clients.
Mr. Wick's conduct violated ER 1.15 of the Arizona Rules of Professional Conduct, requiring a lawyer to properly safeguard client funds, to keep the lawyer's funds separate from client funds on deposit in the trust account, and to maintain complete trust account records for a period of five years; Rule 43 of the Rules of the Supreme Court of Arizona (Ariz. R. S. Ct.), requiring a lawyer to properly maintain complete trust account records for a period of five years, exercise due professional care and proper internal controls in the maintenance of client trust accounts, to record all transactions to the trust account promptly and completely, and to conduct a monthly reconciliation of the trust account as required by the rule; and Ariz. R. S. Ct. 44, requiring that client funds be held in a trust account as regulated by the rule.
Felice P. Congalton represented the Bar Association. Mr. Wicks represented himself.
Non-Disciplinary Notice
Suspended Pending Outcome of Disciplinary Proceedings
William Dean Adams (WSBA No. 7565, admitted 1977), of Oak Harbor, was suspended pending the outcome of disciplinary proceedings, pursuant to ELC 7.1, effective April 27, 2006, by an order of the Washington State Supreme Court. This is not a disciplinary action. Mr. Adams is to be distinguished from William Douglas Adams of New Berlin, Wisconsin, and William G. Adams of Carnation.
