March 2009

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

Theresa M. Sowinski (WSBA No. 32549, admitted 2002), of Everett, was disbarred, effective September 10, 2008, by order of the Washington State Supreme Court following approval of a stipulation. Ms. Sowinski affirmatively admitted that the WSBA could prove by a clear preponderance of the evidence sufficient violations of the Rules of Professional Conduct supporting disbarment, including use of client funds for her personal benefit, but did not affirmatively admit all the facts and misconduct herein. This discipline is based on conduct in three matters involving failure to communicate, trust-account irregularities, the commission of criminal acts, and engaging in dishonest conduct that shows disregard for the rule of law and demonstrates unfitness to practice law.

Matter No. 1: In 2002, client A retained the law firm where Ms. Sowinski was employed to represent her in a real estate partition matter. The firm filed a lawsuit on behalf of client A. In October 2003, Ms. Sowinski left the firm to start her own firm and continued to handle client A’s case with client A’s agreement. In April 2004, a Stipulation and Decree for Partition was filed, which stated, in part, that Ms. Sowinki’s “fees and costs shall be charged against the share to be received by [client A]….” The opposing party was represented by Lawyer B.

In June 2004, the property was sold and the net proceeds from the sale, totaling $293,081.09, were transferred into Lawyer B’s trust account by agreement of the parties. Ms. Sowinski sent Lawyer B a fax indicating that her client had an outstanding balance of $12,564.06 for attorney’s fees, a portion of which was owed to Ms. Sowinki’s former firm. Lawyer B issued a check in the amount of $105,000 directly to client A. This payment constituted an advance to be deducted from client A’s total share of the proceeds. That same day, Lawyer B issued a separate check in the amount of $12,564.06 to Ms. Sowinski’s firm for client A’s legal fees. This amount was to be charged against client A’s total share of the proceeds.  Ms. Sowinski deposited the $12,564.06 check into her business account, which was not a trust account, and issued a check in the amount of $2,795.20 to her former firm for client A’s legal fees. On July 12, 2004, Ms. Sowinski issued a billing statement indicating that client A owed $540 in outstanding legal fees. On August 12, 2004, Ms. Sowinski called client A and requested $5,000 for legal fees. Client A gave Ms. Sowinski a check in the amount of $5,000, which she deposited into her business account even though Ms. Sowinski had not yet billed the client for fees beyond $540.

In October 2004, Lawyer B wrote a letter to Ms. Sowinski stating that, after calculating legal fees and additional expenses related to the property, client A would receive a final settlement of $112,010.14, which was in addition to any funds previously disbursed to client A (directly or to her counsel). Lawyer B issued a cashier’s check in the amount of $112,010.14 payable to “Theresa Sowinski — Attorney for [client A].” Ms. Sowinski deposited the check into her business account and told client A that she would issue a check to her in the amount of $102,010.14. Client A did not receive such a check. In November 2004, Ms. Sowinski and Lawyer B filed a Stipulation and Order for Dismissal with Prejudice and Without Costs. In December 2004, Ms. Sowinski gave Client A a check for $50,000 and informed client A that there was still some money to disburse, but that she had to keep some of it for “outstanding bills.”

Client A attempted to obtain an accounting and the rest of her money, which Ms. Sowinski agreed to provide but never did. In March 2005, client A hired a new lawyer to assist her in obtaining an accounting from Ms. Sowinski and recover any monies due. Ms. Sowinski never provided client A with a complete accounting or delivered the funds, totaling at least $62,010.14, which client A was entitled to receive. On June 12, 2006, Ms. Sowinski was charged with first degree theft (major economic offense) under RCW 9A.56.030(1)(a), based on Ms. Sowinski’s theft of client A’s funds. Ms. Sowinski entered an Alford plea to the charge and, on March 30, 2007, was sentenced to 12 months and one day with credit for time served. In April 2007, Ms. Sowinski was ordered to pay $67,000 in restitution to client A.

Matter No. 2: In early 2005, client B hired Ms. Sowinski to represent her in the sale of her home and an adjoining lot. A few days before closing, Ms. Sowinski had her assistant take papers to client B’s home for her signature, one of which was a document authorizing the closing agent to wire the proceeds from the sale of the property to Ms. Sowinski’s trust account. Client B refused to sign the document. The following day, Ms. Sowinski went to client B’s home. She advised client B that the sale proceeds should be deposited into her trust account because she would assist client B in settling her outstanding debts, including $21,000 owed to credit-card companies, by negotiating lower payoffs and remitting the funds to client B’s creditors. Ms. Sowinski also warned that, if client B deposited the sale proceeds into her personal account, she risked having creditors attach her account. Based on Ms. Sowinski’s advice, client B agreed to have the sale proceeds deposited into Ms. Sowinski’s trust account.

On June 1, 2005, the sale of client B’s property closed. The sale proceeds of $357,101.12 were wired to Ms. Sowinski’s trust account. On June 1, 2005, Ms. Sowinski disbursed $10,000 to herself for legal fees. She did not notify client B that she intended to disburse the $10,000. As of June 1, 2005, Ms. Sowinski had sent client B only one billing statement setting forth an unpaid balance of $7,442.50. Ms. Sowinski did not issue any billing statements to client B after that statement. Between June 17, 2005, and July 13, 2005, Ms. Sowinski disbursed additional sums of $5,000 and $916.50 to herself.  Ms. Sowinski knew that she had not earned these additional fees, had not billed client B for the fees, and was not entitled to the funds. On June 3, 2005, client B e-mailed to Ms. Sowinski a list of five friends and family members to whom she owed money and asked her to pay these individuals as soon as possible. Between June 29, 2005, and July 6, 2005, Ms. Sowinski disbursed $10,925 to four individuals on the list. She failed to pay the fifth person, who was owed $500. In August 2005, client B paid the fifth person $500 from her personal account. In June 2005, Ms. Sowinski disbursed $8,250 to the escrow company for closing costs related to the sale of client B’s property. In October 2005, Ms. Sowinski disbursed $9,000 to satisfy client B’s credit-card debt to a bank. Ms. Sowinski did not negotiate a payoff of client B’s department-store debt, nor did she disburse any funds to pay the debt. Client B settled the department-store matter herself and paid the debt from her personal account. In December 2005, client B received a notice from a collection agency requesting payment of another department-store credit-card debt. Client B forwarded the notice to Ms. Sowinski. In January 2006, client B received another notice from a collection agency requesting payment of the same department-store credit-card debt. The collection agency offered to settle her debt of $8,866.94 for $3,990.12 if client B made payment within 10 days. Client B forwarded the notice to Ms. Sowinski and asked her to pay the debt. Ms. Sowinski falsely told client B that she had paid the department-store credit-card debt in October 2005. In May 2006, client B ordered her credit report and learned that Ms. Sowinski never paid the department-store credit-card debt.

Between June 9, 2005, and March 27, 2006, Ms. Sowinski disbursed $80,000 to client B. In January 2006, client B asked Ms. Sowinski to transfer all remaining funds from her trust account to client B’s personal account. Ms. Sowinski agreed, but did not transfer the funds. Over the ensuing months, client B called, wrote, and e-mailed Ms. Sowinski requesting delivery of her funds. Ms. Sowinski falsely assured client B that the funds were in her trust account and that she would deliver them to her. Ms. Sowinski did not deliver any additional funds to client B. She should have maintained $248,926.12 of client B’s funds in her trust account, but did not. During the period June 2005 to March 2006, Ms. Sowinski issued checks totaling $212,868 to herself or her law firm. During the same period, Ms. Sowinski disbursed an additional $29,345 by counter withdrawal. She used client B’s $248,926.12 for her personal benefit and never provided client B with a complete accounting. Ms. Sowinski was charged with first-degree theft (major economic offense) under RCW 9A56.030, based on her theft of client B’s funds. On February 28, 2007, Ms. Sowinski entered a guilty plea. She was sentenced to 12 months and one day with credit for time served and ordered to pay $258,000 in restitution to client B.

Matter No. 3: In August 2001, an individual (client C) underwent a total knee replacement. Subsequently, client C developed a serious infection, which resulted in amputation. Client C retained a law firm (Law Firm) to review her claims against the doctor(s) and hospital. On August 26, 2004, Law Firm filed a medical malpractice lawsuit on client C’s behalf to prevent the statute of limitations from running. In October 2004, Law Firm advised client C that the firm did not believe there was a basis for pursuing the lawsuit.

Facing a deadline to serve the lawsuit within 90 days after it was filed, client C hired Ms. Sowinski to take over her case. On November 1, 2004, client C and Ms. Sowinski signed a Letter of Engagement providing for a flat fee of $20,000 covering the period November 1, 2004, to November 26, 2004. The Letter of Engagement stated that the “scope of this agreement is limited to the comprehensive investigation regarding the feasibility of [client C] bringing forth suit for medical malpractice,” that Ms. Sowinski agreed “to investigate client’s possible and potential claims involving multiple possible defendants, including but not limited to medical providers, care facilities, hospitals, and transportation services,” and that “should [client C] decide to file an action ... she acknowledges that another attorney/fee agreement must be entered into.” Based on her discussions with Ms. Sowinski, client C paid Ms. Sowinski $20,000 with the understanding that Ms. Sowinski’s plan was to develop new litigation strategies, not to repeat the work of Law Firm or to make a threshold decision about whether or not to take the case. Client C also understood that she would not have to pay more than $20,000, because Ms. Sowinski would present her case to a “panel” that could finance the balance of her lawsuit and that Ms. Sowinski would assist her in an unrelated matter involving two companies.

Client C’s case was Ms. Sowinski’s first medical malpractice case. Client C was not aware that Ms. Sowinski had never handled a medical malpractice case. In November 2004, Ms. Sowinski contacted a medical expert headhunter, ordered two volumes of medical records, provided the new medical records and client C’s existing documents to an infectious-disease expert, and held telephone conferences with the  expert. Ms. Sowinski states that she did research and consulted other lawyers regarding client C’s case. However, a portion of Ms. Sowinski’s work was to educate herself in an unfamiliar area of law and science. On or about November 22, 2004, Ms. Sowinski called client C and advised that, after obtaining the expert’s opinion, she would not go forward with her case. On December 1, 2004, Ms. Sowinski filed a Notice of Appearance and plaintiff’s Motion and (Proposed) Order to Dismiss Without Prejudice. Client C’s lawsuit was dismissed. Although Ms. Sowinski advised client C that her case was “over,” client C did not clearly understand that Ms. Sowinski intended to dismiss client C’s lawsuit. Ms. Sowinski did not inform her that she could have the lawsuit served to give herself an opportunity to consult another lawyer and did not do any work on client C’s other, unrelated matter. In January 2005, client C discharged Ms. Sowinski, who did not refund any money to client C.

Ms. Sowinski’s conduct violated 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 all funds of clients paid to a lawyer be deposited into a trust account; former 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; RPC 8.4(b), prohibiting a lawyer from committing a criminal act (here, first-degree 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(i), prohibiting a lawyer from committing any act involving moral turpitude, or corruption, or any unjustified act of assault or other act which reflects disregard for the rule of law; and RPC 8.4(n), prohibiting a lawyer from engaging in conduct demonstrating unfitness to practice law.

Marsha A. Matsumoto represented the Bar Association. Ms. Sowinski represented herself.

Suspended

Stephen D. Cramer (WSBA No. 9085, admitted 1979), of Federal Way, was suspended for eight months and received a reprimand, effective December 11, 2008, by order of the Washington State Supreme Court following an appeal. This discipline is based on conduct involving trust-account irregularities, misrepresentations, conduct prejudicial to the administration of justice, and violations of the Rules for Enforcement of Lawyer Conduct. Stephen D. Cramer is to be distinguished from Steven A. Kraemer of Portland, Oregon.

In May 2001, client G hired Mr. Cramer to defend him against a lawsuit. Client G made a $1,000 payment to Mr. Cramer on June 1, 2001, which Mr. Cramer deposited into his business account. Mr. Cramer gave client G a form agreement containing a provision that the initial funds paid were nonrefundable. Client G never signed nor returned the fee agreement to Mr. Cramer. There was, therefore, no agreement that the initial $1,000 payment would be nonrefundable. Client G’s case was set for trial on April 15, 2002. Within a week before the trial was scheduled to commence, Mr. Cramer told client G that he would withdraw as counsel unless he was paid $2,500 by April 12, 2002. Client G made a payment of $1,500 on April 9, 2002, and a second payment of $1,000 three days later on April 12, 2002. Both payments were deposited into Mr. Cramer’s business account. Mr. Cramer knew on April 12, 2002, that client G’s case would not go to trial on April 15. Testimony at trial showed that Mr. Cramer did not earn the $2,500 advance fees until November 2002. Though Mr. Cramer had not earned the $2,500, and had knowledge that the trial would not commence on April 15, Mr. Cramer deposited the funds into his business account instead of trust account.

During this time, Mr. Cramer was experiencing financial difficulties, as evidenced by a number of overdrafts in his business account. He also owed back employment taxes and had a payment agreement with the Internal Revenue Service (IRS). The business account was overdrawn more than once during the month of April 2002. There would not have been sufficient funds in Mr. Cramer’s business account to clear the April IRS check if the client’s funds had been deposited correctly in the trust account. Additionally, Mr. Cramer “needed time” to pay the settlement of another grievance filed against him.

Client G and his wife filed a complaint with the Bar Association against Mr. Cramer in February 2004. The complaint alleged, among other things, that Mr. Cramer misused client G’s funds and never discussed a fee agreement. The Bar Association requested that Mr. Cramer provide “billing and trust records (including canceled checks, ledger cards, disbursal statement, and monthly billings) for [client G].” In January 2004, prior to client G’s complaint, Mr. Cramer’s office was burglarized. The burglary resulted in the loss of a majority of his financial records. Accordingly, Mr. Cramer had a difficult time locating relevant documents to give to the Bar Association. However, he was able to produce a bank statement for his trust account that showed a $2,500 deposit on April 16, 2002. Mr. Cramer asserted to the Bar Association that the deposit consisted of funds received from client G. Mr. Cramer should have known that the deposit in the trust account was not client G’s funds, which Mr. Cramer had paid into his business account. Mr. Cramer knew from his billing statement that client G’s funds “were paid” on April 12, 2002, and not on April 16, 2002.

Mr. Cramer’s conduct violated former RPC 1.14(a), requiring that all funds of clients paid to a lawyer or law firm, including advances for costs and expenses, be deposited in one or more identifiable interest-bearing trust accounts maintained as set forth in the rules, and no funds belonging to the lawyer or law firm be deposited therein; 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; 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 (here, ELC 5.3(e)) in connection with a disciplinary matter.

Leslie C. Allen and M. Craig Bray represented the Bar Association. Leland G. Ripley represented Mr. Cramer. Edward L. Dunkerly was the hearing officer.

Reprimanded

Gregory D. Esau (WSBA No. 22404, admitted 1993), of Seattle, was ordered to receive a reprimand on October 14, 2008, by order of the Washington State Supreme Court imposing reciprocal discipline in accordance with an order of the Supreme Court of the State of California. This discipline is based on conduct involving failure to comply with a notice of suspension. For more information, see the California Bar Journal, Discipline (January 2009), available at http://calbar.ca.gov.

Mr. Esau’s conduct violated California Rules of Court, rule 9.20 (formerly rule 955), requiring that within such time as the order may prescribe after the effective date of the member’s disbarment, suspension, or resignation, the member must file with the clerk of the State Bar Court an affidavit showing that he or she has fully complied with those provisions of the order entered under this rule.

Joanne S. Abelson represented the Bar Association. Patrick C. Sheldon represented Mr. Esau.

Reprimanded

Catherine S. Willmore (WSBA No. 33459, admitted 2003), of Seattle, was ordered to receive a reprimand on July 11, 2008, by order of a hearing officer following a hearing. This discipline resulted from conduct in three matters involving failure to provide competent representation, lack of diligence, failure to communicate, and trust-fund irregularities.

Between 2004 and 2006, Ms. Willmore was hired in three immigration matters to represent clients before both the Board of Immigration Appeals (BIA) and the Ninth Circuit Court of Appeals (Ninth Circuit). In two matters, Ms. Willmore failed to notify clients of adverse BIA decisions. The clients had 30 days to file appeals to the Ninth Circuit or to agree to voluntary departure; however, as she failed to inform her clients, they were unable to pursue a timely appeal or voluntary departure and became subject to immediate removal. One client was eventually arrested and detained for nine months by immigration officials because he had not voluntarily left the United States or filed an appeal.

In the third matter, Ms. Willmore failed to file a client’s appeal of an adverse immigration judge’s decision to the BIA within the 30-day deadline, which made the client subject to immediate removal from the United States. Ms. Willmore accepted a $610 check from the client, which was meant in part to pay the $110 filing fee for the appeal. The client’s check was not deposited into Ms. Willmore’s trust account, and Ms. Willmore did not pay the $110 filing fee for the BIA appeal. Ms. Willmore finally returned the funds to the client more than a year after receiving them.

Ms. Willmore’s conduct violated RPC 1.1, requiring a lawyer to provide competent representation to a client; 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, 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; and 1.14(a), requiring all funds of clients paid to a lawyer or law firm, including advances for costs and expenses, to be deposited in one or more identifiable interest-bearing trust accounts maintained as set forth in the rules and no funds belonging to the lawyer or law firm to be deposited therein.

Kevin M. Bank represented the Bar Association. Kurt M. Bulmer represented Ms. Willmore. Margarita V. Latsinova was the hearing officer.

Admonished

Kaaren L. Barr (WSBA No. 22092, admitted 1992), of Seattle, was ordered by a review committee of the Disciplinary Board to receive an admonition on August 7, 2008. This discipline was based on conduct involving failure to diligently represent clients.

During 2005, Ms. Barr represented four children in immigration proceedings. Ms. Barr filed I-485 applications for all four children. One application was denied because of a missing signature on an earlier pleading. The other three were denied because the priority dates were not current. Ms. Barr did not read the denials carefully and believed that all four applications were denied because of the missing signature.

In 2006, the children were placed in removal proceedings, and Ms. Barr’s defense centered on the missing signature. She did not advise her clients to renew their I-485 applications, even though their priority dates had become current. The family was ordered to leave the country. In 2007, Ms. Barr agreed to represent the same children in an appeal. The Court issued an Order to Show Cause. Ms. Barr did not respond and the case was dismissed. The family retained new counsel, who filed a motion to reopen the case to allow the children to renew their I-485 applications. The motion was granted.

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

Marsha A. Matsumoto represented the Bar Association. Ms. Barr represented herself.

Non-Disciplinary Notices

Suspended Pending the Outcome of Disciplinary Proceedings

John P. Brownlee Jr. (WSBA No. 36432, admitted 2005), formerly of Oldtown, Idaho, was suspended pending the outcome of disciplinary proceedings, pursuant to ELC 7.1 (Interim Suspension for Conviction of a Crime), effective December 31, 2008, by order of the Washington State Supreme Court. This is not a disciplinary action.

Suspended Pending the Outcome of Disciplinary Proceedings

Paul H. King (WSBA No. 7370, admitted 1977), formerly of Seattle, was suspended pending the outcome of disciplinary proceedings, pursuant to ELC 7.1 (Interim Suspension for Conviction of a Crime), effective January 6, 2009, by order of the Washington State Supreme Court. This is not a disciplinary action.

Suspended Pending the Outcome of Disciplinary Proceedings

Gary E. Randall (WSBA No. 15020, admitted 1985), of Woodinville, was suspended pending the outcome of disciplinary proceedings, pursuant to ELC 7.2(a)(3), effective January 22, 2009, by order of the Washington State Supreme Court. This is not a disciplinary action. Gary E. Randall is to be distinguished from Gary C. Randall of Spokane.