March 2008
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.
Disbarred
Jeffrey K. Day (WSBA No. 22867, admitted 1993), of Puyallup, was disbarred, effective December 20, 2007, by order of the Washington State Supreme Court following an appeal. This discipline resulted from conduct involving the commission of a felony.
In early 2002, Mr. Day began representing a minor client (minor) in a criminal matter. During the representation, Mr. Day learned that the minor was being raised by a single mother and that the family had limited means. After the criminal matter was dismissed, Mr. Day became friendly with the minor and the minor’s mother. Over time, the mother began to trust Mr. Day because he was an attorney and also had served as a judge pro tem. The mother allowed her son to spend time with Mr. Day and to stay overnight at Mr. Day’s house. Mr. Day testified that he instructed the minor to sleep in another room of the house when spending the night. Mr. Day also testified that during one night, the minor came into Mr. Day’s room and got into bed with him. Mr. Day stated he was uncomfortable about having him in his bed, but did not confront the minor about it at the time or inform the minor’s mother.
On February 14–15, 2004, the minor was 11 years old. Mr. Day and the minor were watching a movie at Mr. Day’s house and the minor fell asleep. While the minor was asleep, Mr. Day removed the minor’s pants, leaving him in his boxer shorts, and Mr. Day went to his own bedroom to go to sleep. The minor woke later in the night and again went to find Mr. Day’s bedroom and got into bed with Mr. Day. The minor claimed he woke during the night to Mr. Day touching his genitals. The Pierce County Prosecuting Attorney charged Mr. Day with first-degree child molestation under RCW 9A.44.083, a Class-A felony. A jury convicted Mr. Day and sentenced him to a minimum term of confinement of 60 months and a maximum term of life.
Mr. Day’s conduct violated RPC 8.4(b), prohibiting a lawyer from committing a criminal act (here, child molestation in the first degree) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; and RPC 8.4(i), prohibiting a lawyer from committing any act involving moral turpitude, or any 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.
Joanne S. Abelson represented the Bar Association. Brett A. Purtzer represented Mr. Day. Gregory J. Rosen was the hearing officer.
Disbarred
Roger D. Ost Jr. (WSBA No. 22141, admitted 1992), of Seattle, was disbarred, effective December 7, 2007, by order of the Washington State Supreme Court. This discipline was based on conduct involving failure to act with reasonable diligence; lack of communication; withholding client funds and property; failure to withdraw from representation; failure to expedite litigation; failure to comply with a discovery request; conduct involving dishonesty, fraud, deceit, or misrepresentation; and conduct that is prejudicial to the administration of justice.
In August 2002, a client hired Mr. Ost to represent her in her marriage dissolution. The client paid Mr. Ost an advanced attorney’s fee of $2,000 and provided him with documents supporting her claim that she invested money in her husband’s home. Mr. Ost agreed to represent the client in the dissolution and also suggested that he draft estate-planning documents for her. The documents that Mr. Ost drafted prematurely contained the client’s maiden name, which prevented her from getting them notarized.
In September 2002, the client was served with a petition for dissolution of marriage. Although the client immediately gave the petition to Mr. Ost, he did not file a written notice of appearance until February 2003. Throughout 2002 and 2003, the client telephoned and mailed letters to Mr. Ost asking for information about her case. Mr. Ost did not return her telephone calls or answer her letters. The attorney representing the client’s husband filed a default motion, serving it on Mr. Ost on March 17, 2003. Mr. Ost filed an answer to the petition on March 27, 2003, but did not give a copy of the answer to his client or communicate with her about it. In April, the husband’s attorney served Mr. Ost with interrogatories, to which Mr. Ost did not respond or request an extension for a response. In June, Mr. Ost told the client that he had filed for and received a court date, which was false. The client discharged Mr. Ost and demanded an accounting of his time, a refund of any unearned fees, and the return of the documents she gave to him. Mr. Ost did not respond to the client and did not immediately withdraw from the representation.
Through the efforts of the client and her husband’s lawyer, the decree dissolving the marriage was filed in August 2003. As a result of Mr. Ost’s lack of action in the case, the client was unable to prove her total claim that she had invested money into her husband’s home and the husband’s legal fees were higher. Mr. Ost filed a notice of withdrawal in September 2003. The client filed a grievance against Mr. Ost in May 2003.
In 2005, Mr. Ost misrepresented to Bar Association disciplinary counsel that he had paid restitution to the client, when in fact he had not paid restitution. He sent to disciplinary counsel a copy of a cashier’s check as proof, which he later admitted to having altered in order to make it appear that he had paid restitution to the client. His failure to promptly pay restitution to the client caused the client serious injury.
Mr. Ost’s conduct violated RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; former 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; former 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; former RPC 1.15(a)(3), prohibiting a lawyer from representing a client if the lawyer is discharged; former RPC 1.15(d), requiring a lawyer to take steps to the extent reasonably practicable to protect a client’s interests, such as surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned; RPC 3.2, requiring a lawyer to make reasonable efforts to expedite litigation consistent with the interests of the client; RPC 3.4(d), prohibiting a lawyer, in a pretrial procedure, from failing to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party; RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and RPC 8.4(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice.
M. Craig Bray represented the Bar Association. Kurt M. Bulmer represented Mr. Ost. Charles K. Wiggins was the hearing officer.
Disbarred
George Thomas Ryan (WSBA No. 9634, admitted 1979), of Puyallup, was disbarred, effective December 28, 2007, by order of the Washington State Supreme Court following approval of a stipulation by the Disciplinary Board. In entering into the stipulation, Mr. Ryan agreed that if the matter were to proceed to a public hearing, there was a substantial likelihood that the Association would be able to prove by a clear preponderance of the evidence the facts and misconduct summarized herein. This discipline is based on conduct involving failure to act diligently, lack of communication, trust-account irregularities, theft of client funds, dishonest conduct, conduct prejudicial to the administration of justice, and violations of duties imposed under the Rules for Enforcement of Lawyer Conduct.
Between December 2002 and January 2003, Mr. Ryan transferred a total of $10,150 from his trust account into his business and personal bank accounts, without entitlement or authority to the funds. Mr. Ryan used some or all of the converted funds to gamble at a local casino.
Between December 2004 and July 2006, in four separate client matters, Mr. Ryan:
• Failed to deposit advance fees and funds paid by clients into his trust account in three matters and used client funds in one matter on expenses unrelated to that client’s case;
• Failed to maintain complete records of client’s funds coming into his possession in one matter;
• Failed to keep clients in two matters reasonably informed as to the status of their cases and failed to promptly respond to their reasonable requests for information; and
• Failed to prepare draft wills for clients in one matter, failed to resolve a client’s case with reasonable diligence in a second matter, and failed to prepare and file a client’s petition to modify child support with reasonable diligence in a third matter.
Mr. Ryan failed to provide written responses to grievances filed by clients in three of the four preceding matters, resulting in the Association subpoenaing Mr. Ryan to appear in two non-cooperation depositions. At the second deposition, Mr. Ryan failed to testify truthfully. In addition, Mr. Ryan agreed to provide the Association with certain files and documents by October 27, 2006, which he did not provide until December 2006 and January 2007.
In March 2006, Mr. Ryan stipulated to a reprimand (stipulation) in order to resolve a 2005 client grievance filed against him. The hearing officer approved the stipulation on March 16, 2006. Pursuant to the stipulation, Mr. Ryan agreed to pay the client restitution of $3,510.50. Pursuant to ELC 13.7, payment of the restitution was due within 30 days after the stipulation was approved “unless the respondent enters into a periodic payment plan with disciplinary counsel.” Mr. Ryan did not enter into a payment plan to pay the restitution and did not pay the client any restitution until January 2007, when he sent the client a check for $150. In October 2006, the client filed a new grievance against Mr. Ryan for his failure to pay the agreed restitution.
Mr. Ryan’s conduct violated RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; RPC 1.4(a), requiring a lawyer to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information; former RPC 1.14(a), requiring that all funds of clients paid to a lawyer or law firm be deposited in one or more identifiable interest-bearing trust accounts maintained as set forth in the rules; former 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 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; RPC 8.4(i), prohibiting a lawyer from committing any act involving moral turpitude, or corruption, or any other act which reflects disregard for the rule of law; and RPC 8.4(l), prohibiting a lawyer from violating a duty or sanction imposed by or under the Rules for Enforcement of Lawyer Conduct in connection with a disciplinary matter (here, ELC 5.3(e)).
Leslie C. Allen represented the Bar Association. Mr. Ryan represented himself.
Disbarred
Robert M. Storwick (WSBA No. 17328, admitted 1987), of Mercer Island, was disbarred, effective December 6, 2007, by order of the Washington State Supreme Court following a default hearing. This discipline resulted from conduct involving trust-account irregularities; commission of a criminal act; and conduct involving dishonesty, fraud, deceit, or misrepresentation.
In late 2004 or early 2005, a client contacted Mr. Storwick regarding a European patent filing. The client had a provisional patent filing in the United States with a priority date of September 4, 2002. The client paid Mr. Storwick a $3,000 advance fee deposit as requested, which Mr. Storwick deposited into his client trust account. Mr. Storwick contacted a German lawyer about handling the European patent application for the client. Mr. Storwick told the client he would need an additional $4,325 to pay the German lawyer for services regarding the patent filing, which the client paid to Mr. Storwick in April. Mr. Storwick deposited the client’s check into his client trust account. Mr. Storwick paid none of the funds to the German lawyer, instead converting the $4,325 to his own use.
In June 2005, the client received a letter from the German lawyer indicating that Mr. Storwick had not paid the fees and costs for the European patent application. The German lawyer had not been able to reach Mr. Storwick nor had any contact with him since early April. The client tried numerous times to contact Mr. Storwick by e-mail, telephone, fax, and mail without success. The client found that Mr. Storwick’s office telephone and fax number had been disconnected. The client paid approximately $7,500 directly to the German lawyer in fees to pursue the European patent application and an additional €2,333.50 to the European patent office in penalties for late payment of patent fees. The client hired another U.S. patent attorney to revive his pending U.S. patent application, for which the client incurred $1,587 in fees and costs.
Mr. Storwick did not respond to the client’s grievance or to attempts by the Bar Association to contact him. The Bar Association subpoenaed Mr. Storwick’s bank records, which revealed that he had withdrawn most if not all of the client’s funds by May 2005. Bank records also revealed numerous telephone transfers between Mr. Storwick’s personal or business accounts, including his IOLTA account, and that the majority of the funds in the IOLTA account had been transferred into his business and personal accounts. Mr. Storwick also issued checks from his client trust account to pay for his 2006 Bar Association dues and to the postmaster for post office box rental. Mr. Storwick deposited several checks designated as payment of invoices for earned client fees into his client trust account. Between January 2005 and June 2006, Mr. Storwick’s business and personal accounts incurred approximately 20 NSF or overdraft charges.
Mr. Storwick’s conduct violated former 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; former RPC 1.14(a), requiring that all funds of clients paid to a lawyer or law firm be deposited into one or more identifiable interest-bearing trust accounts and no funds of the lawyer be deposited therein; former 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; and RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Nancy B. Miller represented the Bar Association. Mr. Storwick did not appear either in person or through counsel. Anthony A. Russo was the hearing officer.
Suspended
Fernando Perez-Pena (WSBA No. 4858, admitted 1973), of Seattle, was suspended for 60 days, effective October 4, 2007, by order of the Washington State Supreme Court following an appeal. This discipline was based on conduct involving an unjustified act of assault and failure to return an unearned fee. For further information, see In re Disciplinary Proceeding Against Perez-Pena, 161 Wash.2d 820, 168 P.3d 408 (2007).
In March 2001, a married couple (clients) hired Mr. Perez-Pena to help them in an immigration matter. The clients agreed to a $2,000 fee, which they paid via check. There was no written fee agreement. Due to a number of concerns, the clients decided not to proceed with the matter and asked for a refund. Mr. Perez-Pena agreed to return $1,500, charging a flat fee of $500 for the work he had done, and gave the clients a check in that amount. However, they were unable to deposit the check because the bank account had only the client wife’s maiden name on it. Mr. Perez-Pena had possession of the clients’ marriage certificate, so they went back to his office to obtain the certificate. Their demeanor was hostile and, after obtaining the certificate, they threatened lawsuits and WSBA complaints. Based on the threats and what he perceived as a lack of appreciation for his agreement to refund the money, Mr. Perez-Pena stopped payment on the check. He did not notify the clients, and the check bounced.
After a series of hostile dealings, letters, and phone conversations, Mr. Perez-Pena agreed to give the clients a refund of $1,600 if they agreed to sign releases of liability (note: this arrangement potentially violates RPC 1.8(h)(1), but was not included in the formal complaint). The clients agreed and went to Mr. Perez-Pena’s office with the releases and the bounced check. The client husband went into the office, where he was disruptive. Mr. Perez-Pena called the police and the client husband left.
Mr. Perez-Pena ultimately agreed to go to his bank to obtain a cashier’s check for the clients, and the parties met to exchange the documents. During the exchange, the client wife tried to keep the check and grab the releases back from Mr. Perez-Pena. Mr. Perez-Pena pushed or hit the client wife, who ended up with the check but tore the release document in half. Mr. Perez-Pena thereafter reported the check stolen, and it bounced. The city of Seattle charged Mr. Perez-Pena with misdemeanor assault, and a jury convicted him on January 30, 2002. In February, the court granted Mr. Perez-Pena a deferred sentence. Mr. Perez-Pena completed the conditions of his deferred sentence and, in July 2003, the court vacated his judgment and sentence and dismissed the complaint. In May 2005, in anticipation of his disciplinary proceedings, Mr. Perez-Pena filed a motion to clarify the docket entries of July 2003 asking, inter alia, for the court to vacate the jury sentence. The court clarified that it had vacated the judgment and sentence and dismissed the complaint but, notably, it would not vacate the jury verdict. In May 2002, the clients filed a claim against Mr. Perez-Pena in small claims court for the unearned portion of the fee they paid to Mr. Perez-Pena. The court awarded the clients $1,431.45, which Mr. Perez-Pena has not paid.
Mr. Perez-Pena’s conduct violated RPC 8.4(b), prohibiting a lawyer from committing a criminal act (here, assault) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; RPC 8.4(i), prohibiting a lawyer from committing any unjustified act of assault or other act which reflects disregard for the rule of law; and former RPC 1.15(d), requiring a lawyer to take steps to the extent reasonably practicable to protect a client’s interests upon termination of representation, such as refunding any advance payment of fee that has not been earned.
M. Craig Bray represented the Bar Association. Anthony Savage represented Mr. Perez-Pena. James C. Lawrie was the hearing officer.
Non-Disciplinary Notices
Suspended Pending the Outcome of Disciplinary Proceedings
Tolan S. Furusho (WSBA No. 25055, admitted 1995), of Bellevue, was suspended pending the outcome of disciplinary proceedings, pursuant to ELC 7.1, effective December 28, 2007, by order of the Washington State Supreme Court. This is not a disciplinary action.
Transferred to Disability Inactive Status
Richard E. Dullanty (WSBA No. 1936, admitted 1957), of Rockford, was by stipulation transferred to disability inactive status, effective December 4, 2007. This is not a disciplinary action. Richard E. Dullanty is to by distinguished from Richard Charles Dullanty of Spokane.
Transferred to Disability Inactive Status
John F. Warner (WSBA No. 14571, admitted 1984), of Kent, was by stipulation transferred to disability inactive status, effective December 4, 2007. This is not a disciplinary action.
