October 2006
Disicplinary 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
William R. Joice (WSBA No. 19944, admitted 1990), of Seattle, resigned in lieu of disbarment, effective February 24, 2006. This resignation was based on his 2005 conviction of first-degree attempted murder.
On November 8, 2005, Mr. Joice was charged in King County Superior Court with the crime of first-degree attempted murder for attempting, with premeditated intent, to cause the death of lawyer Kevin Jung. At the time of the incident, Mr. Jung represented parties in litigation with Mr. Joice’s clients. On December 20, 2005, a jury convicted Mr. Joice of the charged offense.
Mr. Joice’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; RPC 8.4(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice; and RPC 8.4(i), prohibiting a lawyer from committing any act involving moral turpitude, or corruption, or any unjustified act of assault or other act which reflects disregard for the rule of law, whether the same be committed in the course of his or her conduct as a lawyer, or otherwise, and whether the same constitutes a felony or misdemeanor or not.
Randy V. Beitel represented the Bar Association. Mr. Joice represented himself. Lewis W. Card was the hearing officer.
Resigned in Lieu of Disbarment
William R. Reseburg (WSBA No. 5794, admitted 1974), of Seattle, resigned in lieu of disbarment, effective April 3, 2006. This resignation was based on ongoing conduct involving trust-account irregularities.
Commencing in the mid-1980s, Mr. Reseburg’s solo practice involved representing insurance companies in collection suits against at-fault uninsured motorists. Mr. Reseburg would obtain default judgments against the at-fault motorists and enforce the judgments by having the Department of Licensing revoke the motorists’ driver licenses until the motorists satisfied the judgments against them. Motorists who satisfied the judgments against them, either by making a one-time payment or entering into installment agreements with Mr. Reseburg’s office, could be eligible to get their drivers licenses reinstated. Mr. Reseburg generally had hundreds of cases open.
In late 2002, while searching for a missing file, Mr. Reseburg’s legal assistant discovered about 20 files in Mr. Reseburg’s desk drawers. The legal assistant was unaware that Mr. Reseburg stored any files in his desk drawers. Review of one of the files revealed that there was no record of payment of settlement proceeds to the client. After additional investigation, the legal assistant became aware of a number of other files in which a satisfaction of judgment had been entered but there was no evidence of settlement proceeds being disbursed to the client. After confronting Mr. Reseburg, who denied knowledge of the files, the legal assistant filed a grievance with the Bar Association. The Bar Association conducted an audit of Mr. Reseburg’s trust account for the period of December 1998 through August 2004. The audit disclosed the following conduct, which constituted grounds for discipline:
• Mr. Reseburg failed to maintain adequate records and render appropriate accounts to clients. This included depositing over $66,000 of unidentified funds into the trust account, recording $26,000 of funds in his check register that were never deposited into the trust account, and failing to note in the check register two check disbursements to himself totaling $7,500. At the time of the auditor’s report in November 2005, a number of checks written on the trust account remained outstanding, including two written in October 2003 that were unaccompanied by any records of the settlements. When accounting for installment payments, Mr. Reseburg did not reconcile receipts reported to clients with sums deposited into his trust account, resulting in failure to pay his clients almost $19,000 in settlement proceeds.
• Mr. Reseburg deposited earned fees into his trust account and made inappropriate disbursements of fees from the trust account. This included depositing over $100,000 of earned fees into the trust account, 24 instances in a three-year period where Mr. Reseburg issued checks to himself with no client identification other than “attorney’s fees,” several instances where settlement checks had bounced after Mr. Reseburg had disbursed his one-third fee to himself, and incurring over $5,000 of unreimbursed bank charges to the trust account.
• On at least 13 occasions, Mr. Reseburg failed to deposit settlement funds into his trust account, although he continued to pay himself his one-third fee in each of these cases. A total of $104,831 was deposited in this fashion. As of the date of the audit, Mr. Reseburg owed these clients $62,518.68.
• At the time the audit commenced, Mr. Reseburg had a shortfall of $85,547 in his trust account, which he tried to ameliorate in late 2003 by depositing a check for $35,000. Mr. Reseburg did not wait for this check to clear before disbursing amounts owed to his clients. When Mr. Reseburg’s check did not clear, there was an interim period where he used other clients’ funds to cover his disbursements before depositing a second check.
Mr. Reseburg’s conduct violated RPC 1.14(a), requiring that all funds of a client paid to a lawyer be deposited into an identifiable interest-bearing trust account and that no funds belonging to the lawyer be deposited therein except as expressly permitted by rule; RPC 1.14(b)(3), requiring a lawyer 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; RPC 1.14(b)(4), requiring a lawyer to promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive; 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; RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and RPC 8.4(i), prohibiting a lawyer from committing any act involving moral turpitude or corruption, or any unjustified act of assault or other act which reflects disregard for the rule of law.
Kevin M. Bank represented the Bar Association. Joseph J. Ganz represented Mr. Reseburg.
Suspended
Nicholas I. Goyak (WSBA No. 15289, admitted 1985), of McMinnville, Oregon, was suspended for six months, effective April 5, 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. This discipline is based on his conduct between 1998 and 2000 involving the crime of negotiating a bad check, trust-account irregularities, and failure to cooperate with a disciplinary investigation.
In July 1998, after experiencing financial difficulties, Mr. Goyak, a solo practitioner, stopped practicing law regularly. His income became irregular, and he would often meet his obligations with loans from family members and business associates. Between April 1998 and April 1999 Mr. Goyak wrote four checks payable to the City of Portland on his business and personal accounts. Mr. Goyak knew that he had insufficient funds in these accounts to cover the checks. City employees contacted Mr. Goyak about his delinquent account several times, both by telephone and by personally delivering bills. Each time, Mr. Goyak promised to pay, but failed to keep his promises. Thereafter, Mr. Goyak failed to respond to several attempts by the city to contact him, and his account was sent to the City Attorney’s Office for formal collection. It was not until after the City Attorney’s Office complained to the Oregon State Bar and threatened litigation that Mr. Goyak settled his account.
When the Oregon State Bar received the complaint from the City Attorney’s Office, disciplinary counsel attempted unsuccessfully to make contact with Mr. Goyak six times between March and August 2000. During the investigation of the complaint, Mr. Goyak did not produce requested records for over a year, and disciplinary counsel was ultimately required to subpoena them from Mr. Goyak’s bank. Mr. Goyak admitted that, between 1998 and 2000, he deposited his personal funds into his trust account, used the account as a personal bank account, and failed to keep or maintain adequate records of his trust account transactions.
Mr. Goyak’s conduct violated Oregon DR 1-102(A)(2), prohibiting a lawyer from committing a criminal act (here, negotiating bad checks) that reflects adversely on a lawyer’s honesty, trustworthiness, or fitness to practice law; DR 1-103(C), requiring a lawyer who is the subject of a disciplinary hearing to respond fully and truthfully to inquiries from and comply with reasonable requests of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers; DR 9-101(A), requiring all funds of clients paid to a lawyer or law firm be deposited or maintained in one or more identifiable trust accounts and that no funds belonging to the lawyer or law firm be deposited therein; DR 9-101(C)(3), requiring a lawyer to promptly notify a client of the receipt of the client funds, securities, or other properties; identify and label securities or other properties of a client coming into the possession of the lawyer and place them in a safe deposit box or other place of safe keeping as soon as is practicable; 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 the lawyer’s client regarding them; and promptly pay or deliver to a client as requested by the client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.
Felice P. Congalton represented the Bar Association. Mr. Goyak represented himself.
Suspended
William R. Joice (WSBA No. 19944, admitted 1990), of Seattle, was suspended for one year, effective April 10, 2006, by the Washington State Supreme Court following a stipulation approved by the Disciplinary Board. This discipline was based on his conduct in three matters involving failure to abide by a client’s decisions concerning the objectives of representation, failure to keep a client advised about the status of a matter, failure to return unearned fees, failure to inform clients that he could no longer represent them, and failure to withdraw from representation when he could no longer represent clients. [Prior to the entry of the suspension order, Mr. Joice had resigned in lieu of disbarment, effective February 24, 2006.]
Matter 1: Mr. Joice represented a client with a claim against a contractor. Mr. Joice obtained a judgment against the contractor and the contractor’s bonding company in Snohomish County Superior Court. In the meantime, Mr. Joice learned that other claims had been filed against the contractor’s bond in King County Superior Court, and that the bonding company had surrendered the bond to the King County Superior Court. Mr. Joice and his client disagreed as to the best strategy for collecting the judgment. Mr. Joice advised the client he would have to share the bond proceeds with the other claimants on some pro rata basis, while the client insisted that Mr. Joice negotiate for a full recovery of his judgment from the bonding company because he had filed his claim first. The negotiations with the bonding company were not successful, and the other claimants filed a motion to King County Superior Court for disbursement of the bond proceeds. Because Mr. Joice disagreed with his client as to the strategy to best pursue the claim, he failed to represent his client with respect to the motion. Subsequently, the client contacted the King County Clerk’s office and learned that the entire amount of the proceeds had been disbursed to the other claimants.
Matter 2: In September 2004, Mr. Joice was hired by a client to represent him in a criminal matter. The client signed a written fee agreement providing for a $2,500 “Non-Refundable” flat fee for all services and paid Mr. Joice in full. Prior to November 2004, Mr. Joice’s representation consisted of only advice to the client and obtaining two hearing continuances. Mr. Joice was arrested in November 2004. After the arrest, Mr. Joice was unable to provide further representation. Mr. Joice did not advise the client that he no longer represented him, did not arrange for other counsel to represent him, and made no accounting or refund to the client of the unearned fees.
Matter 3: In September 2004, Mr. Joice was hired by a client to represent him on a domestic-violence charge. The client signed a written fee agreement providing for a $1,200 “Non-Refundable” flat fee for all services and paid Mr. Joice $600 of the fee. Prior to Mr. Joice’s arrest in November 2004, his representation of the client consisted only of obtaining a continuance of a hearing. Mr. Joice did not advise the client that he no longer represented him, did not arrange for the client to obtain other counsel, and made no accounting or refund to the client of the unearned fees.
Mr. Joice’s conduct violated RPC 1.2(a), requiring that a lawyer 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, 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; RPC 1.5(a), requiring a lawyer’s fee to be reasonable; RPC 1.15(a), requiring that a lawyer withdraw from representation if the lawyer’s physical or mental condition materially impairs his ability to represent the client; and RPC 1.15(d), requiring a lawyer to take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned.
Randy V. Beitel represented the Bar Association. Mr. Joice represented himself.
Suspended
Victoria N. Smith (WSBA No. 26569, admitted 1996), of Kirkland, was suspended for one year, effective March 16, 2006, by order of the Washington State Supreme Court following a stipulation approved by the Disciplinary Board. This discipline was based on her conduct between 2000 and 2004 in four matters involving, inter alia, lack of communication, lack of diligence, failure to communicate the basis or rate of her fee, trust-account irregularities, failure to comply with local court rules, and failure to cooperate with disciplinary investigations.
Matter 1: Ms. Smith represented a client in connection with the dissolution of his marriage, which was finalized in August 2000. At the conclusion of the case, Ms. Smith did not file a notice of intent to withdraw. After the dissolution was finalized, the client’s ex-wife was involved in an accident while driving an automobile awarded to her under the terms of the dissolution. As a result, an insurance company attempted to collect from Ms. Smith’s client. For approximately 16 months following the accident, the client tried to contact Ms. Smith to discuss the insurance problem, but Ms. Smith did not return his phone calls or respond to his efforts to contact her. Eventually, the client hired another lawyer to resolve the matter.
Matter 2: In June 2001, Ms. Smith began representing a client in a dissolution proceeding. She had not previously represented the client in other matters. The fee agreement between Ms. Smith and the client provided that Ms. Smith would represent the client until entry of temporary orders for a flat fee of $2,500, which the client paid in early June. It also provided that Ms. Smith and the client would discuss further action and additional fees after the temporary orders were entered. After the court entered temporary orders in March 2002, Ms. Smith never discussed with the client how her fees would be calculated, but she continued to represent the client until a decree of dissolution was entered in May 2003. Also, in March 2002, the court awarded Ms. Smith’s client $3,000 in legal fees, to be paid by the client’s husband. Without advising her client, Ms. Smith deposited the $3,000 into her trust account and disbursed $2,000 to herself as earned fees for the month of March, even though according to her own records she had earned less than $1,600 for her work during that month. During the nearly two years that she represented the client, Ms. Smith did not, prior to disbursing fees to herself from the trust account, provide the client with any accounting of time spent on the case or of fees earned.
Matter 3: Ms. Smith represented a client whose dissolution decree was entered in February 2002. As part of the decree, the client’s wife was awarded a monetary judgment, of which $30,000 was to be paid from the client’s pension account. The decree required that Ms. Smith prepare and have her client execute a Qualified Domestic Relations Order (QDRO) for the pension portion of the judgment within 10 days after entry of the decree, which Ms. Smith failed to do until six months later. In October 2002, Ms. Smith sent the wife a Release of Lien for her to sign. The release stated that the wife had received the full monetary judgment due her under the terms of the dissolution decree, even though Ms. Smith knew that the QDRO had not yet been entered in court and that the wife had not received the $30,000 payment from her client’s pension account. Ms. Smith failed to understand that if the wife signed the release, it could have prejudiced her ability to collect the money that had been awarded under the terms of the dissolution decree. The QDRO was ultimately entered by the court in October 2002, though the delay cost the wife an estimated $2,000 in interest.
Matter 4: In 2002, Ms. Smith was hired to represent a client in a dissolution action that involved custody of the client’s seven-year-old son. In addition to paying Ms. Smith’s fee, the client also paid to Ms. Smith $2,000 to hire a second parenting evaluator in addition to the one the court had appointed. The second evaluator was never hired, and Ms. Smith never gave the client an accounting of the money the client paid for the costs of the second evaluator, or any accounting for the work done or fees earned in representing the client. After a continuance had been granted due to Ms. Smith’s discovery violations, a bench trial was conducted in August 2002, to decide the custody issues. At trial, Ms. Smith was precluded from calling any witnesses to testify on her client’s behalf because Ms. Smith had “willfully violated court rules by disregarding four previous deadlines to disclose her witnesses.” As a result, Ms. Smith’s client was the only witness allowed to testify on her behalf. At the conclusion of the trial, the court followed the recommendations of the court-appointed parenting evaluator, giving primary custody to the father and awarding Ms. Smith’s client visitation rights. After the trial, the client made an effort to retain primary custody of her son by hiring new counsel and filing a motion to reopen the judgment and take additional testimony, but her motion was denied.
Matter 5: Ms. Smith failed to cooperate in the investigation of the grievances filed in Matters 1, 2, and 3. Specifically, she failed to appear for her deposition on more than one occasion after being subpoenaed, failed to produce documents in a timely manner as she had agreed to do under oath, and failed to answer written questions propounded to her. Ms. Smith did not cooperate in the investigation of two of the grievances until a petition for interim suspension based upon her noncooperation was filed by disciplinary counsel.
Ms. Smith’s conduct violated RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; 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; RPC 1.5(b), requiring a lawyer who has not regularly represented a client to communicate to the client the basis or rate of the fee or factors involved in determining the charges for services and the lawyer’s billing practices; RPC 1.14(a), requiring all funds of clients be deposited in one or more identifiable interest-bearing trust accounts and no funds belonging to the lawyer or law firm be deposited therein; RPC 1.14(b)(3), requiring a lawyer to render appropriate accounts to his or her client regarding all client funds and other properties; RPC 3.2, requiring a lawyer to make reasonable efforts to expedite litigation consistent with the interests of the client; RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; RPC 8.4(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice; and 8.4(l), prohibiting a lawyer from violating a duty or sanction imposed by or under the Rules for Enforcement of Lawyer Conduct (here, ELC 1.5 and 5.3(e)) in connection with a disciplinary matter.
Natalea Skvir represented the Bar Association. Leland G. Ripley represented Ms. Smith. James M. Danielson was the hearing officer.
