March 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.
Suspended
James E. Keech (WSBA No. 29972, admitted 2000), of Omak, was suspended for one year, effective August 17, 2005, by order of the Washington State Supreme Court following a default hearing. This discipline was based on his conduct in 2001, 2002, and 2003 involving failure to act with reasonable diligence and promptness, failure to keep a client reasonably informed, failure to protect a client's interests upon termination of the representation, failure to return client property, and failure to make reasonable efforts to expedite litigation.
Matter 1: In January 2003, Mr. Keech was hired to represent a client in a worker's compensation matter. On two occasions Mr. Keech informed the client he would forward information to the Department of Labor and Industries but failed to do so. In April and/or May 2003, the client tried unsuccessfully to reach Mr. Keech by telephone. Mr. Keech did not answer the telephone and his messaging system was typically full and unable to take messages. In June 2003, Mr. Keech moved from Olympia to Okanogan to work for another law office and did not inform his client of the move. The client tried unsuccessfully to reach Mr. Keech by telephone. On one occasion, the client was connected to Mr. Keech's new law office, but was unaware that the office was located in Okanogan. The client left a message for Mr. Keech but did not receive a return call. In July 2003, the client went to Mr. Keech's former office in Olympia and learned that he had moved. The client telephoned Mr. Keech, who informed the client that he was withdrawing from the case and would deliver the client file the following weekend. Mr. Keech did not deliver the client file until three months later.
Matter 2: In August 2001, Mr. Keech was hired to represent a client in a worker's compensation matter. Prior to the hearing, Mr. Keech and the opposing counsel agreed that medical testimony would be taken by perpetuation deposition. Mr. Keech did not interview or communicate directly with his client's medical expert before the deposition. Prior to the deposition of the opposing side's medical expert, Mr. Keech read the medical expert's report and identified specific areas for cross-examination, but he failed to examine the medical expert on these areas during the deposition.
In November 2001, a hearing was held before an industrial appeals judge. Mr. Keech intended to offer exhibits to support his client's claim for time loss compensation, but did not do so. At the conclusion of the hearing, Mr. Keech offered to file a post-hearing brief, but did not do so. In March 2002, the industrial appeals judge issued a decision denying the claim, which was affirmed by the Board of Industrial Appeals (BIA) in May 2002. Mr. Keech filed an appeal of the BIA's decision in the wrong county, and, consequently, the appeal was dismissed. In November 2002, Mr. Keech filed a notice of appeal to the Court of Appeals, but did little or no work on his client's case thereafter. In February 2003, owing to Mr. Keech's failure to file a timely statement of arrangements or designation of clerk's papers, the Court of Appeals commissioner notified Mr. Keech that the appeal would be dismissed without further notice unless the documents were promptly filed. Mr. Keech did not respond, nor did he inform his client of the ruling. In April 2003, the appeal was dismissed. Mr. Keech did not inform his client that his appeal was dismissed. In June 2003, Mr. Keech moved from Olympia to Okanogan to work for another law office and did not inform his client of the move.
Mr. Keech's conduct violated RPC 1.3, requiring that a lawyer act with reasonable diligence and promptness in representing a client; RPC 1.4(a), requiring that a lawyer keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information; RPC 1.4(b), requiring that a lawyer explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; RPC 1.15(d), requiring that a lawyer 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; RPC 1.14(b)(4), requiring that a lawyer 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; and RPC 3.2, requiring that a lawyer make reasonable efforts to expedite litigation consistent with the interests of the client.
Marsha A. Matsumoto represented the Bar Association. Mr. Keech did not appear in the proceeding either personally or through counsel. Erik S. Bakke Sr. was the hearing officer.
Suspended
Mark G. Obert (WSBA No. 27299, admitted 1997), of Salem, Oregon, was suspended for 30 days, effective May 27, 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 Oregon. This discipline was based on his conduct in 1999 and 2000 in three matters involving representation of clients with conflicting interests, neglect of a legal matter, misrepresentation, and failure to return client property promptly.
Matter 1: Mr. Obert was hired in September 1999 to represent a married couple in the husband's adoption of his wife's child from a prior relationship. The couple did not have contact with the child's biological father and were unsure of his residence or mailing address. During the time between the signing of the adoption petition in November 1999 and its filing in January 2000, Mr. Obert's assistant made several unsuccessful telephone calls to locate the biological father's residence and mailing address. Mr. Obert did little else to advance the adoption and eventually stopped returning the couple's phone calls. In July 2000, Mr. Obert was appointed to represent the child's biological father in three criminal matters. Mr. Obert did not recognize the appointed client as the biological father, and his office lacked any mechanism to identify conflicts of interest. Mr. Obert did not realize there was a conflict until September 2003, when the couple informed him that the child's biological father was in prison. He subsequently withdrew as the couple's lawyer, refunded their money, and referred them to another lawyer.
Matter 2: In December 1999, Mr. Obert was appointed to represent a client in a proceeding for post-conviction relief. After a petition for relief was denied, the client instructed Mr. Obert to commence an appeal. Mr. Obert failed to file the notice of appeal within 30 days as required by court rule. As a result, the court dismissed the appeal as untimely. Upon learning of the dismissal, Mr. Obert failed to relay that information promptly to his client and, eventually, cut off all contact with the client. Mr. Obert did not inform the client of the dismissal until five months after its entry.
Matter 3: In March 1999, Mr. Obert was appointed to represent a client on appeal after the court had denied the client's petition for post-conviction relief. At the beginning of the representation, the client gave Mr. Obert documents relating to his case. In 2001, after the state appellate court had issued a final judgment, the client wrote to Mr. Obert asking him to return those documents in order to pursue federal habeas corpus relief. Despite telephone calls from the client reiterating his need for the documents, Mr. Obert did not return his client's messages and did not take action to return the files to the client until approximately five months later.
Mr. Obert's conduct violated Oregon DR 6-101(B), prohibiting a lawyer from neglecting a legal matter entrusted to the lawyer; DR 5-105(E), prohibiting a lawyer from representing multiple current clients in any matters when such representation would result in an actual or likely conflict; DR 1-102(A)(3), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and DR 9-101(C)(4), requiring a lawyer to promptly deliver to a client as requested by the client the properties in the possession of the lawyer which the client is entitled to receive.
Felice P. Congalton represented the Bar Association. Mark G. Obert represented himself.
Suspended
Steven R. Scharfstein (WSBA No. 24992, admitted 1995), of Lake Oswego, Oregon, was suspended from the practice of law for 30 days, effective August 30, 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 three matters involving failure to pursue client matters diligently and failure to cooperate with a disciplinary investigation.
Matter 1: In June 1998, Mr. Scharfstein was hired by an insurance company to file suit against an uninsured motorist who had caused damage to a vehicle owned by an insured person. Between June 1998 and November 2002, when the insurance company terminated his employment, Mr. Scharfstein failed to file suit, failed to respond to the insurance company's attempts to contact him, and failed to keep the insurance company informed about the status of its case. During an ensuing disciplinary investigation, Mr. Scharfstein failed to provide information concerning his conduct in response to requests of the Oregon State Bar Disciplinary Counsel's Office.
Matter 2: In May 1999, Mr. Scharfstein was hired to represent a company in collection litigation. Between May 1999 and April 2002, Mr. Scharfstein failed to file a lawsuit, failed to respond to the company's attempts to contact him, and failed to keep the company informed about the status of its case. During an ensuing disciplinary investigation, Mr. Scharfstein failed to provide information concerning his conduct in response to requests of the Oregon State Bar Disciplinary Counsel's Office.
Matter 3: In March 2001, Mr. Scharfstein was hired by a married couple to represent them in a stepparent adoption. Between March 2001 and October 2003, Mr. Scharfstein failed to complete the adoption, failed to respond to his clients' attempts to contact him, and failed to keep his clients adequately informed about the status of their case. In August 2003, the court dismissed the adoption proceeding for want of prosecution. Thereafter, until October 2003, Mr. Scharfstein failed to take any steps to set aside the order of dismissal. In August 2001, the same clients hired Mr. Scharfstein to represent them in a medical malpractice claim. Between November 2002 and October 2003, Mr. Scharfstein took no substantial action on their medical malpractice claim, failed to respond to attempts to contact him, and failed to keep the clients informed about the status of the case.
Mr. Scharfstein's conduct violated Oregon DR 1-103(C), requiring a lawyer who is the subject of a disciplinary investigation 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; and DR 6-101(B), prohibiting a lawyer from neglecting a legal matter entrusted to the lawyer.
Joanne S. Abelson represented the Bar Association. Mr. Scharfstein represented himself.
Admonished
John Henry Browne (Bar No. 4677, admitted 1972), of Seattle, was admonished following a stipulation approved by a hearing officer. The discipline was based on his conduct in 2000 and 2001 involving charging an unreasonable fee. Mr. Browne is to be distinguished from John Huynh Brown of Springfield, Virginia.
In September 2000, Mr. Browne was hired to represent a client in a criminal matter involving charges of murder in the second degree and assault in the second degree. The written fee agreement between Mr. Browne and the client stated, in pertinent part:
I. Retainers. The Client shall pay the Attorneys a retainer in the amount of $5000, all of which shall be non-refundable and considered earned upon receipt. Attorneys hereby acknowledge receipt of $5000.00 for said retainer.
II. Fees. In the event the Client is charged, Client shall pay the Attorney an additional $5000.00 for representation until trial. If Client elects to proceed to trial, the Client shall pay the Attorneys an additional $10,000.00 prior to the Omnibus Hearing . . . .
Mr. Browne and the client also agreed that the client would be charged $50,000 for representation through trial; however, this agreement was not put in writing. Between September and December 2000, Mr. Browne requested and received a total of $25,000 in fees from the client's mother. In March 2001, on the advice of both Mr. Browne and another lawyer, the client entered a guilty plea to manslaughter, and the assault charge was dismissed. The plea was entered before either a trial date was set or an omnibus hearing occurred.
In light of the guilty plea and under the terms of the written fee agreement, Mr. Browne was entitled to total fees of at least $10,000 and no more than $20,000. Given the oral understanding between the parties about the $50,000 in fees for representation through trial, it was unclear as to when and how Mr. Browne was to earn the "additional $10,000 prior to the Omnibus Hearing."
Mr. Browne's conduct violated RPC 1.5(a), requiring a lawyer's fee to be reasonable (and specifying that one of the factors considered in determining the reasonableness of a fee is whether the fee agreement or confirming writing demonstrates that the client had received a reasonable and fair disclosure of material elements of the fee agreement and of the lawyer's billing practices).
Christine Gray represented the Bar Association. Carolyn Cairns represented Mr. Browne. Veronica Alicea-Galvan was the hearing officer.
Admonished
Aaron C. Masser (WSBA No. 32692, admitted 2002), of Longview, was admonished on April 15, 2005, by order of a review committee of the Disciplinary Board. The admonition is based upon his conduct in 2004 involving lack of diligence.
In 2002, Mr. Masser agreed to collect a $1,387.99 small claims court judgment for a client. Mr. Masser initiated garnishment proceedings. In February 2004, Mr. Masser closed his office without completing the client's garnishment or providing the client with a new address or telephone number. The client contacted a new lawyer, who completed the garnishment. Mr. Masser did not respond to telephone calls from the client's new lawyer.
Mr. Masser's conduct violated RPC 1.3, requiring that a lawyer act with reasonable diligence and promptness in representing a client.
Nancy Bickford Miller represented the Bar Association. Mr. Masser represented himself.
Admonished
Elizabeth S. Pearson (WSBA No. 29073, admitted 1999), of Bellevue, was admonished on April 15, 2005, by order of a review committee of the Disciplinary Board. The admonition is based upon her conduct in 2003 and 2004 involving the practice of law while suspended.
In 2002, Ms. Pearson left a law firm to work as an in-house counsel. The Bar Association was not notified of her new mailing address. Consequently, she did not receive notices relating to the payment of her 2003 license fees and failed to pay these fees. As a result, the Washington State Supreme Court suspended Ms. Pearson's license on August 12, 2003. Ms. Pearson continued to practice law until September 2004, when she discovered that her license was suspended. Ms. Pearson took immediate steps to update her address and resolve the suspension. She also removed herself from the practice of law until her license was reinstated in October 2004.
Ms. Pearson's conduct violated RPC 5.5(e), prohibiting a lawyer from engaging in the practice of law while on inactive status or while suspended from the practice of law for any cause.
Scott G. Busby represented the Bar Association. Leland G. Ripley represented Ms. Pearson.
Admonished
Leslie O. Stomsvik (WSBA No. 3071, admitted 1970), of Tacoma, was admonished on May 6, 2005, by a review committee of the Disciplinary Board. This discipline was based on his conduct in 2002 involving retention of an unreasonable fee, failure to explain the basis for a fee, failure to deposit client funds into a trust account, and failure to render an appropriate accounting to the client.
On May 13, 2002, Mr. Stomsvik agreed to represent a client on a child-visitation matter. The client signed a written fee agreement requiring payment of a $500 "retainer." The fee agreement did not state that the $500 was nonrefundable or explain how the fee would be calculated. Mr. Stomsvik deposited the money into his general account, believing that the client's funds were paid as a nonrefundable retainer that was earned when received. On May 15, 2002, the client requested that work on the matter cease because he had begun negotiations with the other parent. After the matter was resolved, the client asked for a refund. Mr. Stomsvik did not refund the money or provide the client with an accounting.
Mr. Stomsvik's conduct violated RPC 1.5(a), requiring that a lawyer's fees be reasonable; RPC 1.5(b), requiring that a lawyer who has not regularly represented a client communicate to the client the basis or rate of the fee or factors involved in determining the charges for legal services and the lawyer's billing practices; RPC 1.14(a), requiring all funds of clients paid to a lawyer be deposited into a trust account; and RPC 1.14(b)(3), requiring that a lawyer 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.
Randy V. Beitel represented the Bar Association. Mr. Stomsvik represented himself.
Admonished
Leslie O. Stomsvik (WSBA No. 3071, admitted 1970), of Tacoma, was admonished on July 6, 2005, by a review committee of the Disciplinary Board. This discipline was based on his conduct in 2002 involving failure to communicate with a client.
In 2001, Mr. Stomsvik agreed to represent a client in a federal habeas corpus matter. The petition was dismissed in 2002. Mr. Stomsvik did not send a copy of the dismissal order to her client, tell him that the petition had been dismissed, or explain his right to appeal the decision.
Mr. Stomsvik's conduct violated RPC 1.4(a), requiring a lawyer to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information; and 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.
Randy V. Beitel represented the Bar Association. Mr. Stomsvik represented himself.
Non-Disciplinary Notices
Suspended Pending Outcome of Disciplinary Proceedings
William R. Joice (WSBA No. 19944, admitted 1990), of Seattle, was suspended pending the outcome of disciplinary proceedings, pursuant to ELC 7.1, effective January 4, 2006, by an order of the Washington State Supreme Court. This is not a disciplinary action. Mr. Joice is to be distinguished from William F. Joyce of Seattle.
Suspended Pending Outcome of Disciplinary Proceedings
Eric R. Vargas (WSBA No. 20364, admitted 1991), of Yakima, was suspended pending the outcome of disciplinary proceedings, pursuant to ELC 7.1, effective January 4, 2006, by an order of the Washington State Supreme Court. This is not a disciplinary action.
Corrections
The January 2006 Disciplinary Notices incorrectly indicated that Allen C. Jorgensen (WSBA No. 23671, admitted 1994) was disbarred effective May 11, 2005. The notice should have reported an effective date of May 17, 2005.
The January 2006 Disciplinary Notices incorrectly indicated that Kevin M. Myles (WSBA No. 24987, admitted 1995) was suspended for 60 days effective July 22, 2005. The notice should have reported an effective date of July 29, 2005.
