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March 2007Disciplinary NoticesThese 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. Suspended A. Graham Greenlee (WSBA No. 890, admitted 1968), of Seattle, was suspended for six months, effective October 15, 2006, by order of the Washington State Supreme Court following a hearing. This discipline was based on his conduct in 2004 involving a conflict of interest. For additional information, see In re Disciplinary of Greenlee, 158 Wn.2d 259, 143 P.3d 807 (2006). Mr. Greenlee represented a client in a personal-injury matter against multiple defendants arising from an automobile collision. The client was unsophisticated, partially disabled, and had a limited level of understanding. She had not progressed beyond the 10th grade and had never graduated from high school. Mr. Greenlee was aware that the client had memory problems and limited understanding. She was a difficult client who incessantly repeated questions, which Mr. Greenlee and his staff were forced to answer for her. Mr. Greenlee eventually withdrew from her case. The client settled the case on her own with the liability insurers, ultimately receiving a settlement check in her and Mr. Greenlee’s name. Because of his withdrawal, Mr. Greenlee waived any fee in the case but sought reimbursement of $1,595 in costs he had advanced on the client’s behalf. When the client went to Mr. Greenlee’s office to obtain his endorsement on the settlement check, Mr. Greenlee and the client agreed that the costs advanced to the client would be paid from the settlement funds. The client requested written confirmation from Mr. Greenlee that she owed him no money other than the $1,595 in costs. Mr. Greenlee would agree to do so only if the client released him from any claims she might have against him. Accordingly, Mr. Greenlee prepared a settlement agreement and mutual release between himself and the client. The release, a six-page document written in highly technical language, provided that the client agreed to reimburse Mr. Greenlee the $1,595 in costs, that he disclaimed any further financial obligations owing from her to him, and that she agreed to waive any claims she might have against him. The release states the agreement is a final settlement of “mutual claims and causes of action against one another” and that the client agreed to the extinguishment of “any and all claims she may have against A. Graham Greenlee arising out of the services he provided in his representation.” The client signed the release in Mr. Greenlee’s reception area. She had no independent counsel review it with her before signing it and was not advised by Mr. Greenlee in writing that it was appropriate to do so. Mr. Greenlee’s conduct violated RPC 1.8(h), which prohibits an attorney from making an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement, or settling a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith. Suspended Jeffrey T. Haley (WSBA No. 9526, admitted 1979), of Bellevue, was suspended for one year, effective July 27, 2006, by order of the Washington State Supreme Court following a hearing. This discipline was based on his conduct in 1993 involving conflicts of interest. For additional information, see In re Discipline of Haley, 157 Wn.2d 398, 138 P.3d 1044 (2006). Mr. Haley provided no evidence at the disciplinary hearing. Testimonial evidence was submitted through affidavits and declarations proffered by the Bar Association. Mr. Haley declined to submit any affidavits or declarations supporting his case. In 1992, Mr. Haley was hired by the owner of a corporation to file a trade-secret lawsuit against a former employee. The former employee counterclaimed, and the client hired Mr. Haley to represent him personally in defending the counterclaim. In August 1993, Mr. Haley filed a notice of intent to withdraw from representation of both the individual client and the corporation on grounds that there had been a falling out between Mr. Haley and the client. Mr. Haley asked another lawyer to take over the case for him; the new lawyer signed and filed a substitution of counsel. Meanwhile, Mr. Haley obtained from the client a security agreement to secure past, present, and future fees owed to Mr. Haley’s firm. The client asked another lawyer, who represented him on an unrelated matter, to review the security agreement. The other lawyer reviewed and revised the agreement, and also advised the client that the agreement to pay fees could be set forth in a letter and that it was not necessary to have a promissory note. Mr. Haley subsequently obtained from the client a letter agreement that provided, in pertinent part: “[New lawyer] will be substituted as counsel of record in the case . . . . [New lawyer] will send to me bills for his time . . . . We will pay [new lawyer], at a discounted rate, to reflect our risk and advancing of cash, and you will pay us . . . . Interest will accrue at 12% per annum and you may prepay at any time.” The letter did not contain the suggestion that the client should seek independent counsel and, according to the client, Mr. Haley never advised him of the consequences of signing the letter agreement, did not advise him of any conflict of interest, and did not give him time or opportunity to consult with independent counsel. Except for the above-described communications with his lawyer in the other matter, the client did not in fact consult another lawyer regarding the letter agreement. Mr. Haley also discussed with the client how the corporation could finance a settlement agreement for the pending litigation. Mr. Haley said that his firm would finance the settlement in return for a waiver of any malpractice claims against Mr. Haley and his firm. On September 24, 1993, Mr. Haley and the client entered into a settlement-financing agreement, which included a release of potential claims against Mr. Haley and his firm for improper or inadequate services. Mr. Haley neither disclosed any potential conflict of interest to the client nor did he advise the client that independent representation was appropriate. The client did not in fact consult with another lawyer regarding the agreement. The client’s new lawyer was unaware that Mr. Haley’s law firm had financed the litigation settlement. The former client made payments pursuant to the September 24 agreement until May 1998. After payments ceased, the former client received a collection letter. As a result, the client filed a grievance against Mr. Haley. Mr. Haley’s conduct violated 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 1.8(e), prohibiting a lawyer, while representing a client in connection with contemplated or pending litigation, from advancing or guaranteeing financial assistance to his or her client; and RPC 1.8(h), prohibiting a lawyer who is representing a client in a matter from making an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement. Leslie C. Allen represented the Bar Association. Mr. Haley represented himself. Moses F. Garcia was the hearing officer. Suspended Karim Hamir (WSBA No. 34296, admitted 2003), of Vancouver, British Columbia, Canada, was suspended from the practice of law for six months, effective September 18, 2006, by order of the Washington State Supreme Court following a stipulation. This discipline was based on conduct in 2004 involving misrepresentations to potential employers and false and misleading statements in advertising materials. In 2004, Mr. Hamir was seeking employment as a lawyer in the Seattle area. In e-mails sent to two unaffiliated solo practitioners, Mr. Hamir provided information regarding his background and credentials. This information included copies of his résumé, in which he represented that he had graduated from “Michigan Law,” implying that he had attended the University of Michigan Law School. Mr. Hamir’s résumé also represented that he had graduated “with honors,” was in the “top five percent” of his law school class, and had been “Law Review Chief Editor.” In fact, Mr. Hamir had attended Thomas M. Cooley Law School in Lansing, Michigan, held a class rank of 142 out of 189, graduated from law school with no academic honors, and was not selected for the Law Review. Mr. Hamir also represented that he had obtained a “B.A. Honours Business Administration” degree from York University and that he had graduated from York with a grade point average of 3.96 out of 4.00. In fact, he had obtained a Bachelor of Arts in Sociology at York University and had been an average student. In an e-mail message to one potential employer in June 2004, and in marketing materials he later disseminated to the public, Mr. Hamir represented that he was licensed to practice law in Canada “through the Upper Law Society of Canada.” In fact, Mr. Hamir was not licensed to practice law in Canada through any attorney-licensing entity. In 2005, Mr. Hamir entered into a partnership with another Washington lawyer for the purposes of practicing law. In advertising materials and on the firm’s public website, Mr. Hamir represented that he had received a “Bachelor’s of Business Administration from New York University, summa cum laude” and had also obtained a Master’s degree. In truth, Mr. Hamir had never attended New York University, had not obtained a degree in business administration, never graduated with the academic distinction of summa cum laude, and never obtained a Master’s degree from any educational institution. Mr. Hamir’s conduct violated RPC 7.1(a), prohibiting a lawyer from making a false or misleading communication about the lawyer or the lawyer’s services; and RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Kevin M. Bank represented the Bar Association. Kenneth S. Kagan represented Mr. Hamir. Suspended Clayton E. Longacre (WSBA No. 21821, admitted 1992), of Port Orchard, was suspended for 60 days, effective November 10, 2005, by order of the Washington State Supreme Court following a hearing. This discipline was based on his conduct in 2000 involving failure to provide competent representation to a client, failure to communicate, failure to act with reasonable diligence, and conduct prejudicial to the administration of justice. For additional information, see In re Discipline of Longacre, 155 Wn.2d 723, 122 P.3d 710 (2005). In May 2000, Mr. Longacre was hired to represent a client charged with drive-by shooting. Because the client planned to pursue a military career, he wanted to avoid a felony conviction. During their first meeting, Mr. Longacre did not go over the contents of the information or advise the client of the sentencing range for the pending charges. The prosecuting attorney subsequently amended the information to include charges of drive-by shooting, assault in the second degree, and a firearm enhancement. The prosecuting attorney faxed Mr. Longacre the amended information and a plea agreement, which specified a sentencing range of 74-84 months and included a 36-month enhancement for the firearm allegation. In exchange for a guilty plea, the prosecuting attorney offered a sentencing recommendation of 62 months and an agreement not to file additional charges. Mr. Longacre did not discuss the proffered plea agreement with the client. By letter dated May 26, 2000, the prosecuting attorney reiterated the standard range sentence for the pending charges, warned Mr. Longacre that he would amend the information to include four counts of assault in the first or second degree (all to include firearm enhancements), along with the drive-by shooting, and urged Mr. Longacre to thoroughly consider the 62-month offer. According to the prosecuting attorney, if the information were to be amended as described, the low-end standard-range sentence for the crimes charged would be nearly 51 years. Mr. Longacre did not convey this information to the client. In June 2000, the prosecuting attorney advised Mr. Longacre by letter that he would be making a 57-month plea offer to a co-defendant, and would extend the same offer to Mr. Longacre’s client. Mr. -Longacre never communicated this offer to the client. During a psychological evaluation in June 2000, the client told an evaluator that he believed he could be facing up to 46 months. In July 2000, the prosecuting attorney advised Mr. Longacre by letter that based on the client’s apparent choice to go to trial he would arraign the client on a second amended information as described in the May 26 letter. Mr. Longacre did not share this information with the client. Mr. Longacre’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 and consult with the client as to the means by which they are to be pursued; 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, 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 regarding the representation; and RPC 8.4(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice. Sachia Stonefeld Powell represented the Bar Association. Mr. Longacre represented himself. David B. Condon was the hearing officer. Suspended Eric R. Vargas (WSBA No. 20364, admitted 1991), of Yakima, was suspended from the practice of law for two years, effective January 4, 2006, by order of the Washington State Supreme Court following a stipulation. This discipline was based on his conduct in 2004 and 2005 involving violations of the Uniform Controlled Substances Act. In December 2005, Mr. Vargas pleaded guilty in Benton County Superior Court to two felony counts of unlawful possession of controlled substances in violation of RCW 69.50.4013(1). In 2004, Mr. Vargas purchased morphine from a woman he met after giving an elder law talk at the Kennewick Senior Center. In 2005, he purchased Percocet from the same woman while assisting her with a bankruptcy petition. She contacted the police, who tape-recorded the second transaction. Mr. Vargas’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. Linda B. Eide represented the Bar Association. Kenneth S. Kagan represented Mr. Vargas. Reprimanded Gerald L. Casey (WSBA No. 2587, admitted 1965), of Port Orchard, was ordered to receive a reprimand, effective August 5, 2005, following a stipulation approved by a hearing officer. This discipline was based on his conduct in 2001 and 2002 involving contacting parties known to be represented by counsel. Mr. Casey represented an injured client in a workers’ compensation claim. In November 2001, Mr. Casey received a letter from a lawyer advising Mr. Casey that he represented the client’s employer and its workers’ compensation claims administrator (Company A), and directing Mr. Casey to send all correspondence regarding the matter to him. Upon receipt of the letter, Mr. Casey sent the lawyer a letter acknowledging the lawyer’s appearance. Although he disagreed with the assertion that he was precluded from contacting Company A, stating that it was common practice for the employee’s lawyer to communicate with the workers’ compensation plan administrator, Mr. Casey agreed to limit his communications regarding the matter to Company A’s lawyer. In December 2001 and February 2002, having become frustrated with the manner in which the claim was being administered by Company A and its lawyer, Mr. Casey sent letters to a claims representative at Company A complaining about how the matter was being handled. Mr. Casey received a letter from Company A’s lawyer demanding that he cease communicating directly with his client. By letter, Mr. Casey agreed not to contact Company A directly and again advised the lawyer that he disagreed that RPC 4.2 prohibited him from contacting Company A. In August 2002, still frustrated with administration of the claim, Mr. Casey again wrote directly to Company A and sent a copy of the letter directly to the represented employer. Mr. Casey’s conduct violated RPC 4.2, prohibiting a lawyer, in representing a client, from communicating about the subject of the representation with a party that the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. Leslie C. Allen represented the Bar Association. Gerald L. Casey represented himself. Charles K. Wiggins was the hearing officer. Reprimanded Kenyon P. Kellogg Jr. (WSBA No. 1482, admitted 1971), of Bainbridge Island, was ordered to receive two reprimands on June 28, 2005, following a hearing. This discipline was based on his conduct between 2001 and 2004 involving failure to adequately communicate the factors involved in determining the charges for legal services at the outset of the representation, attempting to charge an unreasonable fee, and failure to surrender papers belonging to the client upon termination of the representation. In 2001, Mr. Kellogg was hired by a client to represent him in the anticipated sale of his company. Before being hired, Mr. Kellogg told the client that he could do the work on an hourly basis at a rate of $200 per hour. Mr. Kellogg did not prepare a written fee agreement for his work on the sale of the client’s company. Mr. Kellogg had previously performed work for this client but had never employed a written fee agreement for that work, basing fees on time spent times an hourly rate. For prior legal work, Mr. Kellogg had occasionally reduced the amount of the original billing, but had never increased a bill over the hourly charges. In October 2001, Mr. Kellogg’s invoice to the client totaled $10,160, charged at the $200 per hour rate, which the client promptly paid in full. Mr. Kellogg then told the client that the hourly rate would increase to $300 per hour, to which the client agreed. In November and December 2001, invoices sent to the client totaled $6,420 and $26,970 respectively, charged at $300 per hour. The client promptly paid each invoice in full. A buyer made a nearly full-price offer for the company, and the sale closed in December 2001. Mr. Kellogg worked long hours in connection with the matter, frequently at night. Mr. Kellogg served as the escrow agent, which required that he hold the purchaser’s and seller’s respective documents until he received confirmation that the wire transfer had been accomplished. On December 31, the client’s comptroller e-mailed Mr. Kellogg seeking an estimate of Mr. Kellogg’s December fees by January 4 in order to complete the client’s 2001 accounting. Mr. Kellogg responded that the sales price achieved included what he termed “a pot of ‘found money’…classic ‘value added’ out of which hopefully to be paid a fair fee,” and that “trying to figure out what is ‘fair’ in such circumstances is a unique experience, and may take a bit longer than January 4th.” Mr. Kellogg’s next invoice, dated March 25, 2002, covered December 1, 2001, through February 22, 2002. It totaled $89,730, computed at a $300 per hour rate, and contained a blank following the line “Plus a fair fee” for what Mr. Kellogg characterized as the “value added.” The client added $10,270 to the hourly charges of $89,730 for a total of $100,000. In an April 2002 letter transmitting “payment in full,” the client explained why he thought the $100,000 was a fair amount and requested copies of his documents. Mr. Kellogg cashed the check. In May 2002, Mr. Kellogg wrote to his client that he was “very angry” and “your apparent concept of fairness and mine are hundreds of thousands of dollars apart.” Mr. Kellogg promised to “finish my invoice” and asked for final exhibit documents and for reconciliation to the final price “so that I can finish binding your agreement materials.” In August, Mr. Kellogg reissued his last invoice and filled in the blank following “Plus a fair fee” with $700,000. He noted that $100,000 had been paid and the balance due was $689,730. In September 2002, the client expressed sorrow “that our relationship must apparently end on this note” and requested that all documents pertaining to his company and to himself be sent to him by September 15. The client offered to pay delivery costs. Nothing was delivered by the September 15 deadline. The client renewed his request for the documents in letters sent in October and December 2002. Mr. Kellogg did not respond until February 2003 in an e-mail to his client referencing “two, probably unrelated, pieces of ‘unfinished business’: I need to finish and redeliver our closing documents,” and “You owe me nearly $700K.” The client responded by indicating he would file a complaint with the Bar Association if he did not receive the requested documents by April. Mr. Kellogg did not comply with the deadline, and in May, he e-mailed the client suggesting a meeting in June. Mr. Kellogg added that “he would be happy to interplead or otherwise escrow whatever you believe is properly yours pending a thoughtful final decision on the differences between us.” In June 2003, the client filed a grievance with the Bar Association. In October 2003, the client wrote to Mr. Kellogg, noting the “formal termination of our professional relationship,” and again requested the documents. In January 2004, Mr. Kellogg delivered the documents to his client’s former comptroller. Mr. Kellogg’s conduct violated 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 that a lawyer’s fee be reasonable; RPC 1.5(b), requiring that when the lawyer has not regularly represented the client, or if the fee agreement is substantially different than that previously used by the parties, the basis or rate of the fee or factors involved in determining the charges for legal services and the lawyer’s billing practices shall be communicated to the client, before or within a reasonable time after commencing the representation; RPC 1.15(d), requiring a lawyer to take steps to protect clients’ interests when withdrawing from representation, such as, inter alia, surrendering papers and property to which the client is entitled; and RPC 8.4(a), prohibiting a lawyer from attempting to violate the Rules of Professional Conduct. Linda B. Eide represented the Bar Association. R. Bruce Johnson represented Mr. Kellogg. Waldo F. Stone was the hearing officer. Reprimanded Calvin P. Vance (WSBA No. 29520, admitted 1999), of Spokane, was ordered to receive a reprimand by the Washington State Supreme Court imposing reciprocal discipline in accordance with an order of the Supreme Court of the State of Oregon following approval of a no contest plea. This discipline was based on his conduct involving the collection of excessive fees, failure to promptly refund unearned fees, and failure to deposit client funds into a trust account. For more information, see Oregon State Bar Bulletin, Discipline (June 2006), available at www.osbar.org/-publications/bulletin/06jun/discipline.html. Mr. Vance’s conduct violated Oregon DR 2-106(A), prohibiting a lawyer from entering into an agreement for, charging, or collecting an illegal or clearly excessive fee; DR 2-110(A)(3), requiring a lawyer who withdraws from employment to refund promptly any part of a fee paid in advance that has not been earned; and DR 9-101(A), requiring that all funds of clients paid to a lawyer or law firm, including advances for costs and expenses, and escrow and other funds held by a lawyer or law firm for another in the course of work as lawyers, are deposited and maintained in one or more identifiable trust accounts in the state in which the law office is situated. Linda B. Eide represented the Bar Association. Mr. Vance represented himself. Admonished Young Suk Oh (WSBA No. 29692, admitted 1999), of Mountlake Terrace, was admonished by a review committee of the Disciplinary Board. This discipline was based on his conduct in 2003 involving lack of competence and lack of diligence. In early 2003, Mr. Oh agreed to assist a client with a change of immigrant status for the client’s sister. He filed an I-130 petition and an I-485 for the client’s sister. The sister did not know that Mr. Oh had filed the I-485. At the time, the sister was in the United States on an E-2 visa that required her to establish that she did not intend to stay in the United States permanently. The I-485 form is used to change from temporary to permanent resident status. On account of the inconsistent information, U.S. Citizenship and Immigration Services (CIS) scheduled an interview for the sister. Mr. Oh advised her not to attend the interview. When the client’s sister failed to appear for the interview, CIS placed her in removal proceedings. Mr. Oh received a notice for the sister to appear at a removal hearing, but did not provide the notice to her. In August 2003, CIS found the client’s sister subject to removal in absentia. Mr. Oh’s conduct violated RPC 1.1, requiring a lawyer to provide competent representation to a client; and RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client. Kevin M. Bank represented the Bar Association. Mr. Oh represented himself. Admonished Samuel C. Rutherford (WSBA No. 2216, admitted 1950), of Tucson, AZ, was admonished following a stipulation approved by a hearing officer. This discipline was based on his conduct in 2001 involving the use of a non-judicial foreclosure procedure to pressure a debtor into paying fees that the debtor was not obligated to pay. In February 2000, an individual (hereinafter “obligor”) borrowed money from Mr. Rutherford. The obligor executed a promissory note memorializing the sum owed, which was secured by a deed of trust against the obligor’s interest in certain real property. Mr. Rutherford drafted the deed of trust and designated himself as the beneficiary. Under the terms of the deed, the obligor was obligated to pay fees actually incurred by the trustee, including the trustee’s fees and the trustee’s attorney fees. During 2000, the obligor borrowed additional funds from Mr. Rutherford, which were also secured by the deed of trust. The obligor failed to make payments as required under the terms of the promissory note. In January 2001, Mr. Rutherford sent a notice of default declaring that the obligor was in default. The trustee’s foreclosure sale on the property was scheduled for June 2001. In early June, Mr. Rutherford provided the obligor’s lawyer with a breakdown of the fees and costs owed, which included $750 in trustee’s fees and $2,500 in attorney fees. Mr. Rutherford’s demand for $750 was based on his estimate, not on actual fees incurred, which amounted to $450. The $2,500 charged by Mr. Rutherford was his attempt to recover expenses he incurred and time he spent relating to the foreclosure. Mr. Rutherford knew that the trustee did not incur $2,500 in attorney’s fees. Furthermore, the demand for $2,500 was unreasonable because Mr. Rutherford did not provide $2,500 of legal services to the trustee and Mr. Rutherford was never formally hired to represent the trustee. Mr. Rutherford required the obligor to pay the entire balance demanded, including the trustee fees and attorney fees, as a condition of canceling the trustee’s sale. Mr. Rutherford received payment of the entire balance demanded from the obligor. In July 2001, the obligor sued Mr. Rutherford. The trial court determined, among other things, that Mr. Rutherford unreasonably charged the obligor $350 in trustee fees and $2,500 in attorney fees not actually incurred. Mr. Rutherford unsuccessfully appealed the decision. Ultimately, Mr. Rutherford paid the obligors $14,787, in damages, including the $2,500 and $350 in excessive fees, plus $30,750 in attorney fees. Mr. Rutherford’s conduct violated RPC 8.4(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice. Jonathan H. Burke represented the Bar Association. Patrick C. Sheldon represented Mr. Rutherford. David A. Summers was the hearing officer. Admonished D. Michael Tomkins (WSBA No. 4979, admitted 1973), of Seattle, was admonished following a hearing. This discipline was based on his conduct in 2002 involving knowingly disobeying an obligation under the rules of a tribunal. In February 2002, Mr. Tomkins was representing the plaintiff in a civil trial in superior court. During the testimony of one of plaintiff’s experts, opposing counsel requested a recess in the proceedings in order to make a site visit. The court declared a recess and opposing counsel left for the site visit. During the recess, the expert witness asked Mr. Tomkins to provide him with a copy of the transcripts of his previous deposition, because he had left his own copy at his office. After searching his own trial table, Mr. Tomkins looked around the courtroom and noticed deposition transcripts on opposing counsel’s trial table. Mr. Tomkins identified the top deposition transcript as being a copy of one of the expert witness’s deposition transcripts. He picked up the deposition transcript, hesitated, leafed through it, and asked his assistant to make copies. Although Mr. Tomkins did not know it, the deposition transcript contained opposing counsel’s work product, such as highlighted and bracketed provisions of the witness’s testimony. Mr. Tomkins did not have opposing counsel’s express permission to take the deposition transcript and copy it. The court’s bailiff was in the courtroom and observed Mr. Tomkins remove the deposition transcripts. The bailiff communicated to the judge what she had witnessed, and the judge asked the bailiff to inform opposing counsel of the circumstances. Neither Mr. Tomkins, his assistant, nor the expert witness had read the contents of the copied transcript. At the court’s request, the copies were returned to opposing counsel. Subsequently, opposing counsel filed a motion for disqualification and sanctions, and moved for a mistrial. The court denied the disqualification motion, granted $250 in sanctions, awarded the defendant its attorney fees, and declared a mistrial. Mr. Tomkins thereafter continued to represent the plaintiff. The case was later resolved at trial with a judgment entered in favor of the plaintiff. Mr. Tomkins’s conduct violated RPC 3.4(c), prohibiting a lawyer from knowingly disobeying an obligation under the rules of a tribunal (here, CR 26(b)(4)) except for an open refusal based on an assertion that no valid obligation exists. Jonathan H. Burke represented the Bar Association. Kurt M. Bulmer represented Mr. Tomkins. John A. Bender Jr. was the hearing officer. Transferred to Disability Inactive Status Lowell V. Ruen (WSBA No. 11407, admitted 1981), of Spokane, was, by stipulation, transferred to disability inactive status, effective August 7, 2006. This is not a disciplinary action.
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