January 2006

Disciplinary Notices

Disbarred

Allen C. Jorgensen (WSBA No. 23671, admitted 1994), of Redlands, CA, was disbarred effective May 11, 2005, by order of the Washington State Supreme Court imposing reciprocal discipline in accordance with an order of the Supreme Court of California. This discipline was based on his conduct in 2004 involving willful violation of an order directing his compliance with the California Rules of Court.

In 2003, Mr. Jorgensen was disciplined by order of the Supreme Court of California. The order required, inter alia, Mr. Jorgensen’s compliance with Rule 955(c) of the California Rules of Court (CRC) (requiring the filing of an affidavit of compliance with the duties of disbarred, resigned, or suspended attorneys) no later than April 12, 2004. In December 2003 and March 2004, a deputy from the State Bar of California’s Office of Probation sent Mr. Jorgensen letters reminding him that a CRC 955(c) affidavit was due in April. Mr. Jorgensen did not file the affidavit required by CRC 955(c) and, subsequent to the filing of a notice of disciplinary charges, offered no explanation to the State Bar Court of his failure to do so.

Mr. Jorgensen’s conduct violated California Business and Professions Code § 6103, prohibiting willful disobedience or violation of an order of the court requiring a lawyer to do or forbear an act connected, with or in, the course of the lawyer’s profession, which the lawyer ought in good faith to do or forbear.

Felice P. Congalton represented the Bar Association. Mr. Jorgensen did not appear in the proceeding either personally or through counsel.

Suspended

Kevin M. Myles (WSBA No. 24987, admitted 1995), of Portland, OR, was suspended from the practice of law for 60 days effective July 22, 2005, by order of the Washington State Supreme Court imposing reciprocal discipline based on an order of the Supreme Court of the State of Oregon approving a stipulation for discipline. This discipline was based on his conduct in 1999 involving a misrepresentation to a tribunal.

In April 1999, Mr. Myles represented a client in an administrative appeal of the denial of unemployment insurance benefits. At issue in the proceeding was whether the client had wrongfully failed to return to his employment after his employer had determined that his work-related injuries had resolved. In connection with the claim, a physician had rendered an opinion that the client’s injury had been resolved, after which the physician had released the client to return to his employment. Expecting the employer to introduce the physician’s records at the hearing, Mr. Myles executed and submitted as a potential exhibit an affidavit stating that he had personal knowledge of the physician’s reputation for untruthfulness. Mr. Myles did not in fact have information supporting his representation concerning the physician’s reputation for untruthfulness.

Mr. Myles’s conduct violated Oregon DR 1-102(A)(3), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Felice P. Congalton represented the Bar Association. Mr. Myles did not appear in the proceeding either personally or through counsel.

Reprimanded

Jerry K. Brown (WSBA No. 14946, admitted 1985), of McMinnville, OR, was ordered to receive a reprimand effective July 1, 2005, by order of the Washington State Supreme Court imposing reciprocal discipline based on an order of the Supreme Court of the State of Oregon approving a stipulation for discipline. This discipline was based on his conduct in 1999 through 2003 involving the failure to act with reasonable diligence in representing the personal representative of an estate.

Commencing in May 1998, Mr. Brown represented the personal representative in the probate of an estate. Between March 1999 and February 2001, Mr. Brown took no substantial action to administer or close the estate. Between February 2001 and March 2003, when he terminated the representation, Mr. Brown engaged in a course of neglectful conduct that included the following: failing to timely provide sufficient information to the estate’s accountant; mailing documents to the personal representative at an address Mr. Brown knew was not current; failing to promptly effect the transfer of property in another state or initiate an ancillary probate; misplacing the estate’s tax refund checks; and failing to close the estate.

Mr. Brown’s conduct violated Oregon DR 6-101(B), prohibiting a lawyer from neglecting a legal matter entrusted to him or her.

Felice P. Congalton represented the Bar Association. Mr. Brown did not appear in the proceeding either personally or through counsel.

Reprimanded

John Luke McKean (WSBA No. 13294, admitted 1983), of Moses Lake, was ordered to receive a reprimand on May 25, 2005, following a stipulation approved by a hearing officer. This discipline was based on his conduct between 1998 and 2001 involving failure to keep a client informed about the status of a matter, failure to render appropriate accounts to the client regarding distribution of client funds, and failure to supervise nonlawyer assistants.

A client hired Mr. McKean to represent him in reopening an industrial insurance claim before the Washington State Department of Labor and Industries (L&I). The client agreed to pay Mr. McKean attorney fees in the amount of 30 percent of any recovery. The fee agreement, however, was inconsistent with the initial agreement, specifying an amount of 33 1/3 percent of any recovery.

The application to reopen the claim resulted in the client receiving $34,856.69 in back time-loss compensation. Mr. McKean retained 33 1/3 percent of that award as attorney fees. The client thereafter received biweekly time-loss compensation benefits. Between September 1998 and September 1999, Mr. McKean withheld 33 1/3 percent from each of the client’s biweekly payments. The calculation of the fee paid to Mr. McKean was performed by Mr. McKean’s office staff; Mr. McKean was not aware that the client was being overcharged, but he did not make reasonable efforts to ensure that the work of his office staff was correct. In September or October 1999, Mr. McKean began charging the client 30 percent rather than 33 1/3 percent. At that point, the client had already been overcharged $1,576.18. Mr. McKean did not inform the client that he had been overcharged and that he was entitled to a refund, nor did Mr. McKean refund the difference between the fee charged and the correct amount.

In June 2001, L&I issued an order denying responsibility for the client’s injury. The client’s time-loss payments terminated, and his L&I claim was closed. Mr. McKean sought reconsideration of that decision, but it was affirmed in December 2001. Mr. McKean appealed the decision to the Board of Industrial Insurance Appeals, but after a hearing it was determined that the client had not suffered a compensable injury. In March 2003, Mr. McKean’s office staff filed a notice of appeal of the Board’s order in Grant County Superior Court. That filing did not comply with a statute requiring a petition for review to be filed with the Board of Industrial Insurance Appeals. As a result, the client’s claim became final and unappealable.

Mr. McKean’s conduct violated RPC 1.4, requiring a lawyer to keep a client reasonably informed about the status of a matter; RPC 1.14(b)(3), requiring a lawyer to maintain complete records of all funds coming into the lawyer’s possession and to render appropriate accounts to the client regarding them; 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; and RPC 5.3(c)(1), 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, with the knowledge of the specific conduct, ratifies the conduct involved.

Debra Slater represented the Bar Association. Mr. McKean represented himself. Lewis W. Card was the hearing officer.

Reprimanded

John A. McKerricher (WSBA No. 8488, admitted 1978), of Chehalis, was ordered to receive a reprimand on May 23, 2005, following a stipulation approved by a hearing officer. This discipline was based on his conduct in 1992 and 1993 involving conflicts of interest.

In 1992, one of Mr. McKerricher’s existing clients received a summons and complaint arising out of a California lawsuit. Mr. McKerricher incorrectly advised the client that there were 60 days to answer the complaint when, in California, only 30 days were allowed. The plaintiff in the case obtained a judgment against Mr. McKerricher’s client and filed a lien against the client’s property in Mossyrock, Washington. In September 1992, while still representing the client, Mr. McKerricher purchased 17 acres of the Mossyrock property from the client. The client subsequently sold additional acres, which satisfied some of the lien, leaving a lien of approximately $10,000 on the property now owned by Mr. McKerricher.

In June 1993, the client signed an agreement with Mr. McKerricher and his firm releasing all claims that the client had against Mr. McKerricher and his firm arising out of the California lawsuit in exchange for the firm’s payment to the client of $2,500, satisfaction of all of the client’s accounts receivable with the firm, and a credit for future legal services in the amount of $2,294.83, for a total settlement of $7,500. The agreement was negotiated by another member of Mr. McKerricher’s firm. The client was not represented by independent counsel in connection with the release, and Mr. McKerricher and his firm did not advise the client that independent representation was appropriate. In April 1995, Mr. McKerricher notified the client that the firm would no longer represent him and that the client would have to pay off the $10,000 lien on Mr. McKerricher’s Mossyrock property to avoid Mr. McKerricher’s purchase of the lien and execution against another parcel of property owned by the client.

Mr. McKerricher did not obtain the client’s written consent to any potential conflict of interest with respect to any of these transactions.

Mr. McKerricher’s conduct violated 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 of material facts; and RPC 1.8(h), prohibiting a lawyer from settling a claim for malpractice liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.

Sachia Stonefeld Powell represented the Bar Association. Mr. McKerricher represented himself. Moses F. Garcia was the hearing officer.

Admonished

Robert R. Cossey (WSBA No. 16481, admitted 1986), of Spokane, was admonished following a stipulation approved by a hearing officer. The admonition was based on his conduct in 2003 in two matters involving failure to act with reasonable diligence and promptness in representing a client and failure to adequately supervise a nonlawyer assistant.

Matter 1: On September 2, 2003, Client A hired Mr. Cossey to represent her in a dissolution matter that was set for trial on September 16, 2003, in Idaho. The client informed Mr. Cossey that she would be unavailable to attend the September 16 trial because she was pregnant with a due date of September 13. Not being licensed to practice in Idaho, Mr. Cossey informed the client that he could represent her by associating with his former law partner, who was admitted to practice in Idaho. Mr. Cossey knew that a continuance would be necessary. He delegated the task to his legal assistant, who had little experience with family law matters and no experience with the Idaho court system. Owing to his legal assistant’s representations, Mr. Cossey assured Client A that he was obtaining a continuance of the trial date. Mr. Cossey did not diligently obtain a continuance, did not provide his former law partner with information relating to the matter, and did not promptly file and serve a notice of appearance in the case. On September 16, 2003, the court found Client A in default and orally awarded sole custody of Client A’s child to her ex-spouse. Client A learned about the court’s action from her ex-spouse.

On September 24, 2003, Mr. Cossey referred the matter to an Idaho lawyer and sent the $1,000 fee paid by Client A to the Idaho lawyer, believing that the Idaho lawyer could assist Client A in taking corrective measures regarding the default. On October 8, 2003, the court entered a decree of dissolution granting Client A’s ex-spouse all the relief requested, including child custody with no visitation rights, child support, and the marital property. The Idaho lawyer entered an appearance on October 15, 2003, and moved to set aside the default and decree. The lawyer requested a supporting declaration for the motion. Mr. Cossey’s legal assistant provided a declaration that contained, unbeknownst to Mr. Cossey, false and misleading statements.

In December 2003, the court set aside and modified the decree provisions regarding child custody, visitation, and child support, but Client A remained responsible for the monetary obligations imposed in the October 8 decree and was required to pay $1,567.50 in attorney fees to opposing counsel. When Client A was unable to satisfy these monetary obligations, a motion for contempt was filed. Client A incurred $3,581 in attorney fees in vacating the default and defending the contempt motion. Mr. Cossey voluntarily paid $2,600 to Client A to cover back child support owed as a consequence of the default and paid $3,581 (plus interest) in restitution to Client A.

Matter 2: In October 2003, Client B hired Mr. Cossey to represent him in a dissolution proceeding and paid Mr. Cossey $1,000. The fee agreement, which was prepared and signed by Mr. Cossey’s nonlawyer assistant, was contradictory and ambiguous about the nature of the fee. Mr. Cossey assigned nonlawyer staff to perform a substantial amount of the work in the case. Under the terms of the fee agreement, the hourly rate for legal assistants was $45.00. Unbeknownst to Mr. Cossey or Client B, Client B was incorrectly billed at an hourly rate of $65.00 for work performed by legal assistants, and Client B was billed for work that was unnecessary, for services that were not performed, for nonlegal services, and for services that provided no benefit to Client B.

Eventually, Client B became dissatisfied with Mr. Cossey’s representation. Client B terminated Mr. Cossey and hired another lawyer. Mr. Cossey charged Client B a total of $1,566.40 for legal services and costs advanced. Client B paid Mr. Cossey a total of $1,286.15. The actual value of the legal services and costs advanced was $636.45. Mr. Cossey refunded $649.70 to Client B.

Mr. Cossey’s conduct violated RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; 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; and 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.

Jonathan H. Burke represented the Bar Association. Mr. Cossey represented himself. Dennis W. Morgan was the hearing officer.