August 2005
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: More than 29,000 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.
Disbarred
R. Stuart Phillips (WSBA No. 29701, admitted 1999), of Indianola, was disbarred, effective February 23, 2005, by order of the Washington State Supreme Court following a stipulation approved by the Disciplinary Board. This discipline was based on his conduct between 2001 and 2003 involving forgery and the filing of false documents, failure to keep a client informed about the status of a matter, and failure to cooperate with a disciplinary investigation.
In August 2001, a client hired Mr. Phillips to represent her in seeking modification of a child support obligation of her former spouse. In December 2001, Mr. Phillips prepared and signed the client’s name under penalty of perjury on two declarations and on a child support worksheet, without indicating that he had signed the client’s name and without the client’s authorization. The declarations contained inaccurate information. At the time, Mr. Phillips knew the documents required the client’s original signature. Mr. Phillips filed the documents with the superior court without disclosing to the court or the adverse party that the client had not signed them. One of the declarations contained provocative and demeaning language, and the client would not have signed it.
Mr. Phillips failed to keep the client informed about the status of the modification hearing. Mr. Phillips failed to notify the client that he had obtained an order continuing the hearing date; as a result, the client did not attend the hearing and was unable to assist Mr. Phillips in drafting the language of the final order. The court denied the client’s petition for modification of child support.
During its investigation of the matter, the Bar Association obtained information indicating that Mr. Phillips may have signed another client’s name on a document. Although the Bar Association requested that Mr. Phillips provide that client’s file as part of its investigation, Mr. Phillips intentionally failed to produce the complete client file.
Mr. Phillips’s conduct violated RPC 1.4(a), which requires a lawyer to keep a client reasonably informed about the status of a matter; RPC 3.3(a), which prohibits a lawyer from knowingly making a false statement of material fact or law to a tribunal; RPC 3.4(b), which prohibits a lawyer from falsifying evidence; RPC 3.4(c), which prohibits 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 8.4(b), which prohibits a lawyer from committing a criminal act (here, forgery) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; RPC 8.4(c), which prohibits a lawyer from engaging in conduct involving dishonesty, deceit, fraud, or misrepresentation; RPC 8.4(d), which prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice; and RPC 8.4(l), which prohibits a lawyer from violating a duty imposed by or under the Rules for Enforcement of Lawyer Conduct (here, ELC 5.3(f), the duty to respond to inquiries or requests about matters under investigation).
Debra Slater represented the Bar Association. Mr. Phillips represented himself.
Disbarred
Alec M. Schwimmer (WSBA No. 22588, admitted 1993), of Jacksonville, OR, was disbarred, effective March 17, 2005, by order of the Washington State Supreme Court following a hearing. This discipline was based on his conduct between 1998 and 2001 involving failure to communicate with and diligently represent a client; misrepresentations to a court; multiple acts of misconduct relating to client funds and trust account matters (including misappropriation of client funds); failure to cooperate with disciplinary investigations; and testifying falsely during disciplinary depositions. For additional information please see In re Discipline of Schwimmer, 153 Wn.2d 752, 108 P.3d 761 (2005).
Matter 1: In late 2000, Mr. Schwimmer commenced representing a client in connection with several criminal matters pending in superior court. Mr. Schwimmer signed a scheduling conference order setting an omnibus hearing in all the cases for February 2001. At the omnibus hearing, three of the matters were set for a May 15, 2001, change of plea hearing or for trial on May 30 in the event guilty pleas were not entered. Respondent failed to contact his client following the February hearing. Although he knew of the court dates, Mr. Schwimmer did not appear in court for the May 15 hearing or the May 30 trial date. He did not inform the court or the prosecutor that he would not be appearing on the trial date. The judge set the case over for May 31, 2001, and asked the prosecutor to attempt to contact Mr. Schwimmer. The prosecutor was unable to contact him. On May 31, the judge ordered the trial dates continued, appointed a public defender to represent the client, and set a hearing for June 5. At the June 5 hearing, Mr. Schwimmer appeared and agreed to withdraw. During the hearing, Mr. Schwimmer intentionally made false or misleading representations to the court about his physical and mental condition and about efforts he had made to obtain treatment for alcohol and/or drug abuse. Subsequently, during the course of an ensuing disciplinary investigation, Mr. Schwimmer made false or misleading representations in a deposition about his physical and mental condition and about efforts he had made to obtain treatment for alcohol and/or drug abuse.
Matter 2: Between August 1998 and June 2001, Mr. Schwimmer engaged in the following conduct that established grounds for discipline:
• Knowingly failing to maintain complete records regarding client funds in his possession, including the failure to maintain any running trust account ledger or balance or any individual client ledgers.
• In two instances, disbursing sums that had been deposited into his trust account on behalf of clients without creating any records to establish what was done with the money or whether it was paid to or for the benefit of the clients.
• In one instance, depositing settlement funds into his trust account without any accompanying information identifying a client, and disbursing those funds without creating any records to establish what was done with the money.
• Failing to notify a client of receipt and deposit into his trust account of a $5,505.16 settlement check.
• Intentionally misappropriating over $2,500 of funds belonging to a client and using the funds for the benefit of himself and others.
• Causing his trust account to have a negative balance of $760.16.
Subsequently, during the course of a disciplinary investigation commenced following the Bar Association’s receipt of notice of an overdraft on Mr. Schwimmer’s trust account, Mr. Schwimmer failed to respond to requests for information, testified falsely regarding the source of trust account deposits and the disposition of client funds, and failed to provide a client file and a release for medical/treatment records as requested by disciplinary counsel.
Mr. Schwimmer’s conduct violated RPC 1.3, requiring a lawyer to act with reasonable diligence in representing a client; RPC 1.4, requiring a lawyer to keep a client reasonably informed about the status of a matter, to promptly comply with reasonable requests for information, and to explain a matter to the extent reasonably necessary to permit the client to make informed decisions; 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 permitted by rule; RPC 1.14(b)(2), requiring that a lawyer identify and label client property on receipt and put it in a safe deposit box or other place of safekeeping as soon as possible; RPC 1.14(b)(3), requiring a lawyer to maintain complete records of all funds, securities, and other properties of a client and to render appropriate accounts regarding them; RPC 1.14(b)(4), requiring a lawyer to promptly pay or deliver to the client as requested by the client the funds, securities, or other property in the possession of the lawyer that the client is entitled to receive; RPC 3.2, requiring a lawyer to make reasonable efforts to expedite litigation; RPC 3.3(a)(1), prohibiting a lawyer from making a false statement of material fact or law to a tribunal; RPC 8.4(b), prohibiting a lawyer from committing a criminal act (here, theft) 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; RPC 8.4(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice; former Rule for Lawyer Discipline (RLD) 1.1(a), subjecting a lawyer to discipline for any act involving moral turpitude, dishonesty, or corruption, or other act which reflects a disregard for the law; and former RLD 2.8(a), requiring a lawyer to promptly respond to any inquiry or request for information relevant to grievances.
David A. Middaugh and Jean K. McElroy represented the Bar Association. Mr. Schwimmer represented himself. Dennis W. Lane was the hearing officer.
Disbarred
Randall St. Mary (WSBA No. 4331, admitted 1971), of Everett, was disbarred, effective February 23, 2005, by order of the Washington State Supreme Court following a stipulation approved by the Disciplinary Board. This discipline was based on his conduct between 1994 and 2001 involving unauthorized use of the funds of an estate.
In 1993, Mr. St. Mary prepared a will for a client. The will authorized the creation of a testamentary trust for the benefit of the client’s children, devised all estate assets to the trust, and directed that Mr. St. Mary be the personal representative and trustee. The will directed Mr. St. Mary to hold the estate’s income and assets in the trust until the client’s youngest child reached the age of 25, and authorized disbursements to be made for the benefit of the children. The will further directed that if the client were to die before the youngest child graduated from college, then the personal representative was to establish a separate trust for the youngest child’s education.
The client died in October 1994, and the will was admitted to probate in November 1994. Mr. St. Mary was appointed personal representative. The client’s youngest child turned 25 in November 1999.
Mr. St. Mary did not establish a separate trust for the benefit of the youngest child’s education or to hold the assets of the estate. Mr. St. Mary did not invest liquid assets of the estate so as to maximize the value of the estate. Mr. St. Mary kept the estate’s assets in a checking and savings account over which he had sole control. Between 1995 and 1999, Mr. St. Mary disbursed more that $50,000 to the client’s youngest child, the majority of which was for her college education.
Between November 1994 and October 2001, Mr. St. Mary billed the estate $103,369.89 for legal fees and costs and paid himself $99,553.42 in legal fees without sending any billing statements to the beneficiaries or notifying them of the amounts paid or their basis. Mr. St. Mary sent the estate’s billing statement to himself and then authorized payment out of the estate’s account. Beginning in January 1998, Mr. St. Mary began to disburse to himself from the estate’s account more in fees and costs than he had billed. Between February 1998 and April 2000, in a series of transactions, Mr. St. Mary removed an additional $134,146.00 from the estate for his personal use, without disclosure to, or the consent of, the beneficiaries. Mr. St. Mary used the funds to purchase publicly traded stocks in his name and to pay his debts. Although Mr. St. Mary characterized these disbursals as “loans” memorialized by unsecured promissory notes, Mr. St. Mary did not contemporaneously provide the unsecured promissory notes to any of the beneficiaries.
Between April 2000 and August 2001, Mr. St. Mary replaced $87,819.37 of the previously disbursed $134,146.00 into the estate’s bank account. In October 2001, the Bar Association advised Mr. St. Mary that it had opened a disciplinary investigation into his handling of the estate, and disciplinary counsel took Mr. St. Mary’s deposition in the matter. Between October 2001 and August 2003, Mr. St. Mary deposited an additional $51,788.29 of his personal funds into the estate’s account.
Mr. St. Mary’s conduct violated RPC 1.5(a), requiring that a lawyer’s fee be reasonable; 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(a), prohibiting a lawyer from entering into a business transaction with a client or knowingly acquiring an ownership, possessory, security, or other pecuniary interest adverse to a client unless the transaction and its terms are fair and reasonable and fully disclosed and transmitted in writing to the client, the client is given opportunity to seek the advice of independent counsel, and the client consents; RPC 8.4(b), prohibiting commission of a criminal act (here, theft) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; and RPC 8.4(c), which prohibits a lawyer from engaging in conduct involving dishonesty, deceit, fraud, or misrepresentation.
Leslie Ching Allen represented the Bar Association. Mr. St. Mary represented himself. Kimberly A. Boyce was the hearing officer.
Suspended
Andrea M. Kester (WSBA No. 23386, admitted 1993), of Seattle, was suspended for two years, effective February 23, 2005, by order of the Washington State Supreme Court following a stipulation approved by the Disciplinary Board. This discipline was based on her conduct between 1999 and 2004 involving the practice of law while suspended for MCLE noncompliance.
Ms. Kester was admitted to practice law in Washington state in 1993, and commenced work for her family’s business in 1996. In February 1999, Ms. Kester was suspended from the practice of law for non-compliance in reporting of mandatory continuing legal education (MCLE) requirements. Following her suspension, Ms. Kester continued to work as a lawyer for her family’s business. Between February 1999 and January 2004, on behalf of various business entities, Ms. Kester signed and submitted papers, motions, and pleadings as “Attorney,” “Counsel,” and “General Counsel” in a number of administrative and judicial matters.
Ms. Kester’s conduct violated RPC 1.15(d), which requires a lawyer to terminate representation if it will result in violation of the Rules of Professional Conduct; RPC 5.5(a), which prohibits a lawyer from practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; RPC 5.5(e) and former RLD 1.1(l), which prohibit a lawyer from engaging in the practice of law while suspended from the practice of law; and ELC 14.2 and former RLD 8.2, which require that a suspended lawyer discontinue the practice of law after the effective date of the suspension.
Sachia Stonefeld Powell represented the Bar Association. Patrick C. Sheldon represented Ms. Kester.
Reprimanded
Dean D. Nguyen (WSBA No. 30148, admitted 2000), of Seattle, was ordered to receive a reprimand on February 17, 2005, following a stipulation approved by a hearing officer. This discipline was based on his conduct in 2003 involving the charging of an unreasonable fee and a conflict of interest.
Commencing in June 2003, Mr. Nguyen and a lawyer in another firm represented a client in a federal criminal matter. Mr. Nguyen and the client entered into a fee agreement drafted by Mr. Nguyen and characterized as a “flat fee agreement.” The agreement stated that the client agreed to hire Mr. Nguyen and co-counsel for a flat fee that was “earned upon receipt.” The specified fee was $5,000 for services up to trial, and an additional $10,000 for services for a bench trial and sentencing, or an additional $15,000 for services for a jury trial and sentencing. The client paid Mr. Nguyen $5,000.
In July 2003, the client rejected a plea offer negotiated with the prosecutor. Subsequently, Mr. Nguyen and co-counsel presented the client with a second fee agreement, which required a $15,000 “nonrefundable” fee and stated that the fee was nonrefundable “in the event the matter is resolved prior to, on the date of, or during trial.” A handwritten notation on the agreement indicated that it modified the earlier fee agreement. Mr. Nguyen did not consult with the client regarding a potential conflict of interest, did not obtain the client’s consent in writing to a potential conflict of interest, did not fully disclose in writing all the terms of the transaction (including the fact that he was already contractually obligated to provide all pretrial services for $5,000), and did not provide the client with a reasonable opportunity to seek the advice of independent counsel prior to signing the second fee agreement. The client received no additional consideration in the second fee agreement, and the terms of the second fee agreement were not fair or reasonable to the client in light of Mr. Nguyen’s obligations under the first agreement.
The client signed the second fee agreement and subsequently paid Mr. Nguyen and co-counsel an additional $15,000. In September 2003, the client fired Mr. Nguyen and co-counsel and hired another lawyer, who assisted the client in resolving the case by plea agreement. After the filing of a formal disciplinary complaint against him, Mr. Nguyen refunded his proportionate share of the excessive fee as restitution.
Mr. Nguyen’s conduct violated RPC 1.5(a), requiring that a lawyer’s fee be reasonable; 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 own interests, unless the lawyer reasonably believes the representation will not be adversely affected and the client consents in writing after a full disclosure; and RPC 1.8(a), prohibiting a lawyer from entering into a business transaction with a client or knowingly acquiring an ownership, possessory, security, or other pecuniary interest adverse to a client unless the transaction and its terms are fair and reasonable and fully disclosed and transmitted in writing to the client, the client is given opportunity to seek the advice of independent counsel, and the client consents.
Anne I. Seidel represented the Bar Association. Leland G. Ripley represented Mr. Nguyen. Susan H. Amini was the hearing officer.
Nondisciplinary Notices
Suspended Pending Outcome of Disciplinary Proceedings
Terry O. Forbes (WSBA No. 5626, admitted 1974), of Everett, was suspended pending the outcome of disciplinary proceedings, pursuant to ELC 7.2(a)(1), effective May 13, 2005, by an order of the Washington State Supreme Court. This is not a disciplinary action.
Suspended Pending Outcome of Disciplinary Proceedings
James E. Freeley (WSBA No. 11251, admitted 1980), of Olympia, was suspended pending the outcome of disciplinary proceedings, pursuant to ELC 7.2(a)(3), effective May 11, 2005, by an order of the Washington State Supreme Court. This is not a disciplinary action.
Suspended Pending Conclusion of Supplemental Proceedings
Robert W. Huffhines Jr. (WSBA No. 11279, admitted 1980), of Kelso, was suspended pending the conclusion of supplemental proceedings, pursuant to ELC 7.3 and 8.3(e), effective March 25, 2005, by an order of the Washington State Supreme Court. This is not a disciplinary action.
