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May 2008 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. Resigned in Lieu of Disbarment Anthony Z. Szabo (WSBA No. 23210, admitted 1993), of Enumclaw, resigned in lieu of disbarment, effective January 9, 2008. In connection with his resignation in lieu of disbarment, Mr. Szabo admitted that the WSBA could prove by a clear preponderance of the evidence sufficient violations of the Rules of Professional conduct to result in his disbarment, but did not admit any specific misconduct. The misconduct and violations described in the Statement of Admitted and Alleged Misconduct (none of which are specifically admitted by Mr. Szabo) are as follows: Mr. Szabo operated Escrow Authority II (EA II), a real estate escrow business in connection with his law practice. At all times relevant to these matters, Mr. Szabo had access to, control of, and responsibility for EA II’s trust account, including the passwords for the account. Substantial sums of money were deposited and disbursed from EA II’s trust account in connection with real estate closings. Mr. Szabo was responsible for maintaining and recordkeeping for the EA II trust account, including reconciling the account. Although he had possession of the bank statements, Mr. Szabo did not reconcile the trust account to the bank statements or to the client ledgers on a monthly basis. In April 2002, Mr. Szabo prepared the incorporation documents for Western Trustee Services LLC (Western Trustee), which was owned by his law partner. Western Trustee handled reconveyances for EA II. Mr. Szabo also prepared the incorporation documents for Sammamish Title in October 2002. Mr. Szabo was manager of Sammamish Title, which handled the recording of documents for EA II. Mr. Szabo maintained, controlled, and was responsible for the bank accounts for Western Trustee and Sammamish Title, to which he deposited fees payable to Western Trustee and Sammamish Title. Mr. Szabo withdrew money from the Western Trustee and Sammamish Title bank accounts to pay bills for EA II, and otherwise treated the accounts as though they were EA II accounts. Between April 2005 and March 2007, Mr. Szabo engaged in the following conduct, which involved one or more of the before-mentioned businesses and/or another real estate escrow business that Mr. Szabo later operated in connection with his law office, Action Escrow: • Failed to disclose to clients that Western Trustee and Sammamish Title were affiliated with Mr. Szabo and/or with EA II, and that amounts paid to Western Trustee and/or Sammamish Title were actually payments to Mr. Szabo; Resigned in Lieu of Disbarment Todd W. Wetsel (WSBA No. 20720, admitted 1991), of Portland, Oregon, resigned in lieu of disbarment, effective February 26, 2008. In connection with his resignation in lieu of disbarment, Mr. Wetsel admitted that the WSBA could prove by a clear preponderance of the evidence sufficient violations of the Rules of Professional conduct to result in his disbarment, but did not admit any specific misconduct. The misconduct and violations described in the Statement of Admitted and Alleged Misconduct (none of which are specifically admitted by Mr. Wetsel) are as follows: In October 2006, Mr. Wetsel was hired to represent a client in a marital dissolution in Clark County, Washington. In January 2007, the client received a check for $243,371.19, which represented proceeds from the sale of the client’s marital residence. These funds were owned jointly by the client and his soon to be ex-spouse. Mr. Wetsel deposited the funds into his trust account in Oregon. In January 2007, Mr. Wetsel stopped working on the client’s dissolution. During January and February 2007, Mr. Wetsel did not return the client’s phone calls. Consequently, the client hired another lawyer to represent him. Mr. Wetsel intentionally removed approximately $94,000 of the client’s money from his trust account and used it for personal purposes without the knowledge, consent, or authority of the client. Mr. Wetsel intentionally did not respond to the client’s repeated requests to disburse $243,371.19. In June 2007, Mr. Wetsel was suspended by the Washington State Supreme Court for failing to pay State bar dues and by the Oregon State Bar for 18 months in a disciplinary matter involving six unrelated client matters. In September 2007, the Washington State Supreme Court entered an order of reciprocal discipline suspending Mr. Wetsel for 18 months, effective September 13, 2007. After being suspended from the practice of law in Oregon and Washington, Mr. Wetsel continued to hold approximately $150,000 belonging to the client in his trust account. He did not return these funds despite repeated requests by the client. Mr. Wetsel agreed to promptly disburse $150,000 to the registry of the Clark County Superior Court by December 28, 2007, and the remaining funds owed ($94,371.19) to the registry within 90 days. Mr. Wetsel’s conduct violated RPC 1.15A(b), prohibiting a lawyer from using, converting, borrowing, or pledging client or third-person property for the lawyer’s own use; RPC 1.15A(f), requiring a lawyer to promptly pay or deliver to the client or third person the property which the client or third person is entitled to receive; RPC 8.4(b), prohibiting a lawyer from committing a criminal act (here, theft under RCW 9A.56.020) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. Jonathan Burke represented the Bar Association. Mr. Wetsel represented himself. Disbarred Jack L. Burtch (WSBA 4161, admitted 1955), of Ocean Shores was disbarred, effective January 31, 2008, by order of the Washington State Supreme Court following an appeal. This discipline is based on conduct in two matters involving failure to act diligently, failure to communicate, charging unreasonable fees, failure to return unearned fees, frivolous defense, lack of candor towards a tribunal, knowingly disobeying an obligation under the rules of a tribunal, misrepresentation, and violating a sanction imposed under the Rules for Enforcement of Lawyer Conduct in connection with a disciplinary matter. For further information, see In Disciplinary Proceeding Against Burtch, 175 P.3d 1070 (2008). Matter #1: Mr. Burtch represented Client A from approximately 1988 to the end of 1996 in separate, but related, matters. Twice during his representation of Client A, Mr. Burtch incurred monetary sanctions for his conduct toward the court. Mr. Burtch tried Client A’s case in December 1996. During the course of the trial, Client A rejected a settlement offer; ultimately the jury returned an adverse verdict. Client A has consistently maintained that she understood Mr. Burtch had agreed to a contingent fee agreement with payment of costs and sanctions. Mr. Burtch has at various times confirmed that he had agreed to a contingent fee agreement on the condition that Client A pay some fees and provide him with sufficient funds to pay sanctions. Throughout this proceeding Mr. Burtch has maintained the original agreement was an hourly agreement which was converted to a contingent fee agreement before trial. On January 29, 1997, Mr. Burtch sent Client A an invoice claiming she owed his firm $11,738.24 in addition to amounts paid during the 1988 to 1996 period. On January 30, 1997, Mr. Burtch received a cover copy of Client A’s letter and a grievance cover sheet from the Bar Association. Mr. Burtch sent the invoice to collection on April 2, 1997. Client A’s original letter to the Bar Association, which was treated as a grievance, appears to complain about Mr. Burtch requiring her to pay sanctions levied against him. The relationship between Mr. Burtch and Client A was the subject of a prior disciplinary hearing on September 11, 2000. During this proceeding, Mr. Burtch testified he had an hourly fee agreement with his client, which was transformed into a contingent fee agreement. Mr. Burtch also testified the invoice had been sent in error. The hearing officer concluded Mr. Burtch owed Client A $2,640.15 in restitution because he forced her to pay the sanctions which were levied against him, and recommended that he be suspended for a period of six months. Mr. Burtch appealed. The Board heard Mr. Burtch’s argument on appeal on April 13, 2001. Mr. Burtch again testified he had agreed to a contingent fee arrangement with Client A. The Board reduced the hearing officer’s recommended sanction to admonition based on its reversal of one count, and ordered Mr. Burtch to pay Client A $2,640.15 with 12 percent interest on that amount from January 29, 1997, until paid in full. Mr. Burtch filed an exception to costs and expenses on August 1, 2001. The Bar Association informed him the restitution payment was to be paid by September 5, 2002. The order became final September 19, 2002. In an attempt to collect the restitution as ordered by the Board, Client A filed an action in district court in 2004. Mr. Burtch defended this action by claiming he was entitled to an offset from the restitution by the amount contained in the invoice sent January 29, 1997. Mr. Burtch testified in district court that “at all times” his agreement with Client A was for an hourly rate, not a contingent fee agreement, and Client A owed him over $11,000. His testimony was very clear that the payment agreement “was always an hourly rate,” but he had lost the hourly rate agreement, and thus could not prove the billing agreement. The district court judge ordered Mr. Burtch to pay the amount directed by the Board as restitution, but inadvertently neglected to include interest. This order did not overrule the order by the Board. Mr. Burtch paid $2,640.15 but has not paid interest as ordered by the Board. Matter #2: Mr. Burtch entered into an attorney-client relationship with Client B in August 2004. Mr. Burtch was hired to bring a bad-faith claim against Farmer’s Insurance and to take action regarding a lien that had been filed against Client B’s property. Client B, and a contractor she brought to their initial meeting, informed Mr. Burtch that action needed to be taken promptly on the claim. The statute of limitations would expire at the end of the year, and Client B had a toxic-mold problem in her home. Mr. Burtch indicated that he would have the lien taken care of in a week and would file the lawsuits within two weeks. Mr. Burtch had Client B sign a retainer agreement that refers to a $2,000 nonrefundable retainer. Client B has difficulty reading and testified that she simply signed where Mr. Burtch instructed her to do so. Mr. Burtch maintains he adequately explained the payment of the retainer and observed Client B read and sign the agreement. For several months, Mr. Burtch took no action to obtain further information regarding the case. Client B first contacted Mr. Burtch on September 10 and 14, 2004, expressing concern whether he had made any effort to remove the lien. On September 27, Client B informed Mr. Burtch that she felt he was misrepresenting her and wanted her file returned. Mr. Burtch assured her he would complete the promised services within a week. He did not work on the file again until October 2004. Client B contacted Mr. Burtch in late November setting a deadline for completion of the promised services. Mr. Burtch failed to complete the work. Client B terminated Mr. Burtch’s services in December 2004, and requested a refund of $1,600, less than 30 days before the statute of limitations was set to expire. Mr. Burtch refused to refund the fees and instead produced an accounting to Client B which documented provision of services valued in excess of the $2,000 retainer already paid by Client B. The hearing officer did not find the accounting credible. Mr. Burtch failed to adequately and accurately explain the fee agreement to his client. The circumstances of her claim and the toxic living conditions of her home required immediate action. There is no evidence, other than his testimony, that Mr. Burtch did anything other than make one call to Client B’s contractor regarding the services he allegedly provided Client B. Client B sought alternative representation and was able to commence her legal action in a timely fashion. Mr. Burtch’s conduct violated RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; RPC 1.4(b), requiring a lawyer to explain a matter to the extent reasonably necessary to permit a client to make informed decisions regarding the representation; RPC 1.5(a), requiring a lawyer’s fee to be reasonable; RPC 1.5(b), requiring a lawyer who has not regularly represented a client, or if the fee agreement is substantially different than that previously used by the parties, to communicate to the client preferably in writing, the basis or rate of the fee or factors involved in determining the charges for legal services and the lawyer’s billing practices; RPC 1.15(d), requiring a lawyer to take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client and allowing time for employment of other counsel; RPC 3.1, prohibiting a lawyer from bringing or defending a proceeding, or asserting or controverting an issue therein, unless there is a basis in law and fact for doing so that is not frivolous; RPC 3.3(a), prohibiting a lawyer from knowingly making a false statement of material fact or law to a tribunal or from offering evidence that the lawyer knows to be false; RPC 3.4(c), prohibiting a lawyer from knowingly disobeying an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and RPC 8.4(l), prohibiting a lawyer from violating his or her oath as an attorney. Jonathan Burke represented the Bar Association. Mr. Burtch was represented by himself pro se and by Therese Wheaton. Bertha B. Fitzer was the hearing officer. Disbarred Thomas P. Sughrua (WSBA No. 14117, admitted 1984), of Seattle, was disbarred, effective February 20, 2008, by order of the Washington State Supreme Court following approval of a stipulation. Mr. Sughrua agreed that if the matter were to proceed to a public hearing, there was a substantial likelihood that the Bar Association would be able to prove, by a clear preponderance of the evidence, the facts and misconduct described herein. This discipline is based on conduct in four matters involving failure to maintain complete records of all clients’ funds coming into his possession and intentional misappropriation of client’s funds. Matter #1: Beginning in 2002, Mr. Sughrua represented a client in a dispute with a mortgage lender. The client gave Mr. Sughrua $10,000 in 2003 to be deposited in a court registry and then paid in whole or in part to the mortgage lender when the dispute was settled. Mr. Sughrua failed to maintain any records of the funds and intentionally misappropriated some or all of the funds for his own use. Beginning in 2004, Mr. Sughrua represented the same client in two separate personal-injury claims. Mr. Sughrua settled both of the client’s claims, one without her knowledge. In July 2005, Mr. Sughrua received settlement checks of $5,000 for the first claim and $8,750 for the second claim. Mr. Sughrua failed to notify the client of receipt of these funds and, without the client’s knowledge, endorsed the checks in the client’s name and deposited them into his lawyer trust account. Mr. Sughrua failed to maintain any record of these funds and intentionally misappropriated some or all of the funds for his own use. In January 2007, the client terminated the representation and the client’s new lawyer demanded that Mr. Sughrua return all of the client’s files and provide a written accounting of all the funds Mr. Sughrua had handled on the client’s behalf. In February 2007, Mr. Sughrua sent to the client’s new lawyer a check for $10,000 for the funds the client had given Mr. Sughrua in connection with the dispute with her mortgage lender. He also sent an accounting of the funds he had received in connection with the two personal-injury claims. In that letter, Mr. Sughrua stated that he was holding $7,995.36 in his trust account on the client’s behalf, and that he would continue working “at no extra charge” to compromise certain liens against the settlement funds. Mr. Sughrua has not disbursed any of the settlement funds to the client and, by March 2007, he had only $24.91 in his trust account. Matter #2: Mr. Sughrua represented a client in an appeal before the Board of Industrial Insurance Appeals from a decision by the Department of Labor and Industries. Mr. Sughrua settled the client’s claim and received a settlement check for the amount of $2,138.40 in June 2006, which he deposited into his lawyer trust account. Mr. Sughrua failed to maintain any records of these funds and intentionally misappropriated some or all of the funds for his own use. Between June and December 2006, the client made numerous attempts to contact Mr. Sughrua to inquire about the settlement funds. Mr. Sughrua did not respond to the client’s inquiries. By December 8, 2006, Mr. Sughrua had only $22.23 in his trust account. On December 21, 2006, Mr. Sughrua sent to the client a check for $1,025.67 representing the client’s share of the settlement funds. Matter #3: In April 2005, Mr. Sughrua acted as the escrow closing agent with respect to the sale of commercial property by a corporation (seller) to a limited liability company (purchaser). In order to effect the transaction, the purchaser deposited $25,000 as earnest money with a realty company. The realty company transferred the earnest money to Mr. Sughrua, who deposited the funds into his lawyer trust account. Mr. Sughrua failed to maintain any records of the funds and intentionally misappropriated some or all of the funds for his own use. By July 2005, Mr. Sughrua only had $634.12 in his trust account. Between December 2006 and January 2007, lawyers for both parties sent at least five letters to Mr. Sughrua informing him that the parties had reached a settlement concerning the distribution of the earnest money and requesting that Mr. Sughrua distribute the earnest money in accordance with the settlement. Mr. Sughrua did not respond to these requests and did not distribute the money to either party. By January 16, 2007, Mr. Sughrua only had $20.94 in his trust account. Matter #4: In January 2003, Mr. Sughrua filed a wrongful death action on behalf of the estate of a decedent and the decedent’s family. Mr. Sughrua reached a settlement with one of the defendants in November 2006. The defendant’s insurer sent Mr. Sughrua two checks, each for $10,000 and each payable to one of the members of the decedent’s family and to Mr. Sughrua as his or her attorney. Mr. Sughrua endorsed both checks, each in the name of the family member to whom the check was written, and deposited the checks into his lawyer trust account. Mr. Sughrua failed to maintain any records of these funds and intentionally misappropriated some or all of the funds for his own use. He did not disburse any of the settlement funds to the two family members to whom the checks were written. By March 2007, Mr. Sughrua only had $24.91 in his trust account. In June 2007, Mr. Sughrua reached a settlement with one of the remaining defendants, whose insurer sent Mr. Sughrua a check for $50,000 payable to Mr. Sughrua as attorney for the estate of the decedent. These funds were to be held in trust for the decedent’s minor son. Mr. Sughrua deposited the funds into his lawyer trust account. He failed to maintain any records of the funds and intentionally misappropriated some or all of the funds for his own use. Mr. Sughrua has not disbursed any of the funds to either the decedent’s minor son or to the decedent’s estate. By August 2007, Mr. Sughrua had only $19,071.09 in his trust account. Mr. Sughrua’s conduct violated 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; and former RPC 1.14(b)(3) and current 1.15B(a), 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. Scott G. Busby represented the Bar Association. Lowell H. Ashbach Jr. represented Mr. Sughrua. Suspended Robert C. Brungardt (WSBA No. 8214, admitted 1978), of Shelton, was suspended for 30 days, effective February 20, 2008, by order of the Washington State Supreme Court following approval of a stipulation. This discipline was based on conduct involving failure to timely report and pay workers’ compensation premiums. In June 2004, Mr. Brungardt discovered that his bookkeeper (a long-time employee and relative) had embezzled approximately $50,000 from his operating account. Mr. Brungardt fired the bookkeeper, but did not report the theft to the authorities because she was a member of his family. The embezzlement severely impacted Mr. Brungardt’s personal and business life. As a result, he decided to retire and close his practice. Mr. Brungardt did not know how to do payroll for his law office. He asked his secretary/legal assistant (secretary) if she could do his payroll, but she declined since she had no training in bookkeeping or accounting. Instead of hiring a temporary bookkeeper to do his payroll, Mr. Brungardt asked his secretary if he could pay her in cash for the few months it would take him to close his practice. His secretary had been working for him on a full-time basis since the late 1990s. She agreed, because she thought it would be for a short time and knew that Mr. Brungardt had been severely impacted by his bookkeeper’s embezzlement. Mr. Brungardt did not close his practice and did not pay the Department of Labor and Industries (L&I) any workers’ compensation premium for the second quarter of 2004 through the third quarter of 2006. In 2006, L&I received an anonymous tip that Mr. Brungardt had been paying three employees in cash for the past two years. L&I audited Mr. Brungardt for the time period October 1, 2003, through September 20, 2006, and concluded that he had employed seven persons during that time. Because of the lack of documentation, L&I estimated Mr. Brungardt’s unreported workers’ compensation premiums. Three of the persons identified by L&I as Mr. Brungardt’s employees were relatives. In order to arrive at the number of hours they had been employed by him, L&I divided Mr. Brungardt’s gross payments to them by an average hourly wage. Mr. Brungardt denies that the relatives were his employees. Instead, he states that he gave them money for other reasons. The other four persons identified as employees by L&I had been paid in cash or by check drawn on Mr. Brungardt’s operating account. As Mr. Brungardt kept no records, L&I assumed that each person was a full-time employee, employed at a rate of 520 hours per quarter. Two of the employees were JG and his wife. In addition to his own law practice, JG shared space with and worked as a contract lawyer for Mr. Brungardt. JG’s wife assisted JG with his law practice. She occasionally filled in as Mr. Brungardt’s receptionist and did some bookkeeping for Mr. Brungardt’s firm. Mr. Brungardt treated JG as an independent contractor, and did not believe he owed workers’ compensation premiums for the work JG did in his office. Mr. Brungardt has since been informed by the L&I auditor that JG was deemed his employee, among other reasons, because JG provided services for Mr. Brungardt at Mr. Brungardt’s office and did not obtain his own business license until June 2005. Mr. Brungardt employed his secretary as a salaried, and later hourly, employee during the audited period. She left his employ in August 2006. Mr. Brungardt also employed an individual in 2003, at a time when he had a bookkeeper and was reporting and paying workers’ compensation premiums to L&I. Mr. Brungardt asserts that the auditor orally told his office that he owed $1,158.23 in overdue workers’ compensation premiums, which he paid by check in December 2006. Mr. Brungardt admits the check was returned for insufficient funds. In January 2007, L&I sent Mr. Brungardt a legal notice that it was assessing him $2,871.94, plus $1,400 penalty for failure to keep records. Mr. Brungardt agreed that he owed L&I $1,158.23 for past due workers’ compensation premiums, but believed that the balance of L&I’s assessment was unjustified. In May 2007, to resolve the issue, Mr. Brungardt paid L&I the entire assessment. Mr. Brungardt’s conduct violated RPC 8.4(b), prohibiting a lawyer from committing a criminal act (here, violating RCW 50.36.020) that reflects adversely on the lawyer’s honest, trustworthiness, or fitness as a lawyer in other respects. Leslie C. Allen represented the Bar Association. Mr. Brungardt represented himself. Suspended Susanne A. Griffin (WSBA No. 16775, admitted 1987), of Santa Monica, California, was suspended for 30 days, effective February 12, 2008, by order of the Washington State Supreme Court imposing reciprocal discipline in accordance with an order of the Supreme Court of California following approval of a stipulation. This discipline was based on Ms. Griffin assisting in the transfer of correspondence between inmates in two different segregated sections of the same correctional facility without prior approval of the head of the facility. For more information, see the California Bar Journal (February 2008), available at http://calbar.ca.gov/state/calbar/calbar_home.jsp. Ms. Griffin’s conduct violated the State of California’s Business and Professions Code, section 6068(a), which makes it the duty of an attorney to support the Constitution and the laws of the United States and of the state of California. Felice P. Congalton represented the Bar Association. Ms. Griffin represented herself. Admonished Wesley K. McLaughlin (WSBA No. 35374, admitted 2004), of Tacoma, was ordered to receive an admonition on January 4, 2008, by order of a review committee. This discipline was based on conduct involving trust-account irregularities. During 2006, the Bar Association received two overdraft notices for Mr. McLaughlin’s client trust account. Following an audit, the Bar Association found three trust-account errors. In January 2006, Mr. McLaughlin deposited a settlement check. After verifying by phone that the check had cleared, he wrote two checks against the deposit. In fact, the check had not cleared. In October 2006, Mr. McLaughlin asked his bank to transfer $3,500 from his business account to a new advertising account. Additionally, he asked an employee to withdraw $1,000 from his general account. In fact, the bank withdrew $35,000 from his trust account instead of $3,500 from his business account. When notified of the error, the bank credited the amount to the business account instead of the trust account. Although Mr. McLaughlin indicated that he reconciles his bank accounts monthly, he did not discover this error for two months. He hired an accountant to reconcile his accounts. During the audit process, three of his client ledgers had negative balances. Mr. McLaughlin had corrected all of these negative balances. Mr. McLaughlin’s conduct violated former RPC 1.14(b)(3), which requires a lawyer to maintain complete records of all funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive. Fuchsia Dulan represented the Bar Association. Kenneth S. Kagan represented Mr. McLaughlin. Non-Disciplinary Notices Suspended Pending the Outcome of Disciplinary Proceedings Stephen J. Oelrich (WSBA No. 29263, admitted 1999), of Tacoma, was suspended pending the outcome of disciplinary proceedings, pursuant to ELC 7.2(a)(3), effective March 3, 2008, by order of the Washington State Supreme Court. This is not a disciplinary action. Suspended Pending the Outcome of Disciplinary Proceedings James E. Jacobson Jr. (WSBA No. 19431, admitted 1990), of Las Vegas, Nevada, was suspended pending the outcome of disciplinary proceedings, pursuant to ELC 7.2(a)(1), effective March 21, 2008, by order of the Washington State Supreme Court. This is not a disciplinary action. Mr. Jacobson is to be distinguished from James P. Jacobsen of Seattle.
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