October 2007

These notices of imposition of disciplinary sanctions and actions are published pursuant to Rule 3.5(d) of the Washington State Supreme Court Rules for Enforcement of Lawyer Conduct, and pursuant to the February 18, 1995, policy statement of the WSBA Board of Governors.

For a complete copy of any disciplinary decision, call the Washington State Disciplinary Board at 206-733-5926, leaving the case name, and your name and address.

NOTE: Approximately 30,000 persons are eligible to practice law in Washington state. Some of them share the same or similar names. Bar News strives to include a clarification whenever an attorney listed in the Disciplinary Notices has the same name as another WSBA member; however, all discipline reports should be read carefully for names, cities, and bar numbers.

Suspended

Timothy W. Carpenter (WSBA No. 5882, admitted 1974), of Bellingham, was suspended for two months, effective April 12, 2007, by order of the Washington State Supreme Court following a hearing. This discipline was based on his conduct in 1999 involving conflicts of interest. For additional information, see In re Discipline of Carpenter, 160 Wn.2d 16, 155 P.3d 937 (2007).

In the fall of 1996, Corporation A and the individual who controlled the corporation (hereinafter collectively “Client A”) bought a gas station from a seller. A California corporation (“Corporation B”) was used to facilitate the transaction, with all parties signing a real property exchange agreement. After acquiring the property, Client A stopped making payments on the note, and the seller sued both Client A and Corporation B. Mr. Carpenter represented both Client A and Corporation B in the action brought by the seller.

Corporation B was concerned that Mr. Carpenter represented both clients and that Corporation B had a potential cross claim against Client A that might not be pursued. Corporation B asked for additional assurances of indemnity in the action. Client A signed an additional indemnity statement in April 1999. In May, Mr. Carpenter sent a letter to Client A noting that he was overdue on his legal bill. Client A’s phone had been disconnected and he had not replied to correspondence, likely raising questions about the value of Client A’s indemnity. Corporation B asked to be dismissed from the action on grounds of not being a real party in interest, and requested that this claim be included in the answer. The appropriate language was added to the answer, but Mr. Carpenter decided it was unlikely that Corporation B would be dismissed. Consequently, Mr. Carpenter did not argue that Corporation B should be dismissed in the subsequent response to summary judgment.

In August 1999, judgment was entered against Client A and Corporation B, jointly and severally, for $343,516.11. Corporation B wanted Client A to post a bond to protect Corporation B’s assets from the judgment. Client A told an associate of Mr. Carpenter’s that he was leaning toward appealing the judgment without posting a bond. Meanwhile, Mr. Carpenter attempted to settle with the seller by offering to return the gas station, along with a cash payment of $20,000. This offer was rejected. Client A did not have any other assets that could be readily reached by judgment.

The seller attempted to attach Corporation B’s assets in California to satisfy the judgment. In September 1999, Corporation B filed a separate suit against Client A to enforce the indemnity provisions. In October 1999, Mr. Carpenter withdrew from the representation of Corporation B in the gas-station litigation. He then accepted service and entered a notice of appearance for Client A in the indemnity action. Mr. Carpenter never obtained written consent from Corporation B to represent Client A in the indemnity action.

Corporation B posted its own bond for $460,000 in the gas-station litigation. In January 2000, Corporation B obtained a summary judgment for $343,693.11 against Client A in the indemnity action. This award was then applied toward payment of Corporation B’s obligation in the gas-station litigation.

Mr. Carpenter’s conduct violated RPC 1.7, prohibiting a lawyer from representing a client if the representation will be materially limited by the lawyer’s responsibilities to another client, a third person, or the lawyer’s own interests, unless (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client, and (2) each client consents in writing after consultation and a full disclosure of the material facts; RPC 1.9, prohibiting a lawyer who has formerly represented a client in a matter from thereafter representing another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents in writing after consultation and full disclosure of the material facts; and former RPC 1.15(a)(1), requiring a lawyer to withdraw from the representation of a client if the representation will result in a violation of the Rules of Professional Conduct or other law.

Nancy Bickford Miller, Special Disciplinary Counsel Loren G. Armstrong, and Special Disciplinary Counsel John H. Ridge represented the Bar Association. Kurt M. Bulmer represented Mr. Carpenter. Lee Grochmal was the hearing officer.

Suspended

Theodore R. Parry (WSBA No. 15203, admitted 1985), of Seattle, was suspended for one year, effective April 5, 2007, by order of the Washington State Supreme Court following a stipulation approved by the Disciplinary Board. This discipline was based on his conduct in several matters involving lack of diligence, failure to communicate with clients, conflict of interest, trust-account irregularities, fee improprieties, failure to supervise a nonlawyer employee, and use of a false firm name.

Between 2001 and 2005, Mr. Parry engaged in the following conduct that established grounds for discipline:

• For eight months, representing on all of his pleading paper, letterhead, business cards, and e-mail communications that he was practicing as a member of a law firm when no such firm existed.

• In two personal-injury matters, collecting fees on the same day settlement checks were deposited in the firm’s trust account and before the settlement checks had cleared the banking system, thereby using funds of other clients until the settlement checks cleared the banking process.

• Paying his firm a fee based on one-third of the gross recovery when the fee agreement provided for one-third of the net recovery and without reviewing the proposed fee disbursement with this client.

• Drafting a fee agreement that did not clearly indicate the manner in which the contingent fee was to be calculated.

• Withdrawing trust-account funds that he was not entitled to collect, and failing to return overpayments to the trust account when the overpayments were brought to his attention.

• Failing to promptly pursue resolution of a client’s medical-provider claim in a personal-injury matter.

• In two personal-injury matters, using fee agreements giving him a power of attorney to execute settlement checks and releases on behalf of the clients without first obtaining the clients’ consent in writing after full disclosure.

• Failing to return to the trust account funds collected for cost reimbursement when the client disputed entitlement to those funds.

• Failing to advise a client whether the claims he was pursuing were the property of the client’s bankruptcy estate.

• Failing to supervise his clerk so that the medical records necessary to pursue a client’s claim were obtained in a timely matter.

Mr. Parry’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 the 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, when the lawyer has not regularly represented the client, or if the fee agreement is substantially different than that previously used by the parties, to communicate the rate of the fee or factors involved in determining the charges for legal services, preferably in writing; former RPC 1.5(c)(1), requiring a contingent-fee agreement to be in writing and state the method by which the fee is to be determined; former RPC 1.7(b), prohibiting a lawyer from representing a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless the lawyer reasonably believes the representation will not be adversely affected and the client consents in writing after consultation and a full disclosure of the material facts; former RPC 1.14(a), requiring that all funds of a client paid to a lawyer be deposited into an identifiable interest-bearing trust account and that no funds belonging to the lawyer be deposited therein; RPC 5.3, requiring a lawyer having direct supervisory authority over a nonlawyer to make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; former RPC 7.1(a), prohibiting a lawyer from making a false or misleading communication about the lawyer or the lawyer’s services, including a communication that contains a material misrepresentation of fact; RPC 7.5(a), prohibiting a lawyer from using a firm name, letterhead, or other professional designation that violates RPC 7.1(a); and RPC 7.5(d), providing that lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.

Randy V. Beitel represented the Bar Association. Thomas A. Campbell represented Mr. Parry.

Reprimanded

A.E. Bud Bailey (WSBA No. 33917, admitted 2003), of Vancouver, was ordered to receive a reprimand on April 6, 2007, by order of the Washington State Supreme Court imposing reciprocal discipline in accordance with an order of the Supreme Court of the State of Oregon following approval of a stipulation. This discipline was based on his conduct between 1999 and 2002 involving conflicts of interest and entering into a business transaction with a client. For more information, see Oregon State Bar Bulletin, Discipline (May 2007), available at www.osbar.org/publications/bulletin/07may/discipline.html.

Mr. Bailey’s conduct violated former Oregon DR 5-101(A), prohibiting a lawyer from accepting or continuing employment if the exercise of the lawyer’s professional judgment on behalf of the lawyer’s client will be or reasonably may be affected by the lawyer’s own financial business, property, or personal interests, except with the consent of the lawyer’s client after full disclosure; and former Oregon DR 5-104(A), prohibiting a lawyer from entering into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise the lawyer’s professional judgment therein for the protection of the client, unless the client has consented after full disclosure.

Felice P. Congalton represented the Bar Association. Bradley F. Tellam represented Mr. Bailey.

Reprimanded

Jerry J. Davis (WSBA No. 33294, admitted 2002), of Spokane, was ordered to receive a reprimand on September 5, 2006, following a stipulation approved by a hearing officer. This discipline was based on his conduct between 2003 and 2005 involving trust-account irregularities.

On September 4, 2003, Mr. Davis’s bank notified the Bar Association that a check drawn on Mr. Davis’s client trust account had been presented for payment against insufficient funds. On September 18, 2003, Mr. Davis’s bank notified the Bar Association that a second check drawn on his client trust account had been presented for payment against insufficient funds. The Bar Association’s audit manager conducted an audit of Mr. Davis’s client trust account covering the period between June 2003 and March 2005. Mr. Davis cooperated in the audit of his client trust account. The audit revealed a number of deficiencies in the records that Mr. Davis kept of the client funds in his possession. Mr. Davis failed to enter all his account transactions in his check register, failed to include with each account transaction a reference to the client to whom that transaction applied, failed to keep a running balance in his check register, failed to reconcile his check register with his bank statements, and failed to maintain an individual client transaction summary or ledger for each client whose funds were in his possession.

Due to these deficiencies, as well as others, neither Mr. Davis nor the Bar Association’s audit manager could determine the ownership of all of the funds in Mr. Davis’s client trust account. Based on a reconstruction, the audit manager concluded that there was a $532.60 shortage in Mr. Davis’s client trust account and that an additional $827.79 related to client matters that were no longer active. These funds should have been disbursed to clients and/or former clients. The audit manager recommended that, after restoring $532.60 to his client trust account, Mr. Davis disburse the additional $827.79 to his clients and/or former clients after determining the ownership of those funds. Mr. Davis agreed to comply with the recommendations.

Mr. Davis’s conduct violated 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.

Scott G. Busby represented the Bar Association. Mr. Davis represented himself. Joseph Nappi Jr. was the hearing officer.

Reprimanded

James M. Doran (WSBA No. 5104, admitted 1973), of Bellingham, was ordered to receive a reprimand on November 30, 2006, following a stipulation approved by a hearing officer. This discipline was based on his conduct in 2002 involving a conflict of interest and failure to withdraw from representation after the conflict of interest became apparent. (James M. Doran is to be distinguished from James R. Doran of Twisp.)

In early 2000, Mr. Doran was hired to represent a lender/investor in a real estate development matter. In early 2001, the developer asked another partner in Mr. Doran’s firm to take over his legal matters. Conflict-waiver letters were signed by the lawyers and clients providing that if a dispute arose, Mr. Doran’s partner would withdraw from representing the developer while Mr. Doran would continue to represent the lender/investor client. During the fall of 2001, a dispute arose between the two parties over a particular real estate development project. At a meeting in November 2001, the clients were informed that an actual conflict existed, that Mr. Doran’s client could request that Mr. Doran’s partner cease representing the developer, and that both parties could consult independent counsel. Mr. Doran’s client consented to continued representation of the developer by Mr. Doran’s partner.

Between November 2001 and April 2002, each side sought to negotiate a settlement of the dispute, and a draft settlement agreement was prepared by Mr. Doran’s partner. The draft settlement agreement included written disclosure and waiver of any conflict of interest. In February 2002, a specific disagreement arose between the parties regarding disbursement of proceeds from the sale of property in the development project, which the parties endeavored to resolve by oral agreement.

In March 2002, Mr. Doran’s partner wrote a letter to Mr. Doran asserting that Mr. Doran’s clients had reneged on the agreement about the use of sale proceeds and stating that because the “situation created an actual conflict,” an independent lawyer would be advising his client as to the relationship between the parties. In mid-April, the two parties signed a settlement agreement. Though based on earlier drafts prepared by Mr. Doran’s partner, the final document was negotiated and modified by independent counsel or co-counsel for both parties. The April settlement agreement did not contain conflict consent language.

In April and May 2002, Mr. Doran’s client was asked to sign a new conflict waiver regarding the involvement of Mr. Doran’s partner, which the client refused to do. By early April 2002 or sooner, Mr. Doran knew of his client’s concerns about his partner continuing to work for the developer, but Mr. Doran did not take steps to address it. Mr. Doran withdrew from the representation in April or May 2003 and co-counsel took over the representation.

Mr. Doran’s conduct violated RPC 1.7(a), prohibiting a lawyer from representing a client if the representation of that client will be directly adverse to another client, unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and each client consents in writing after consultation and full disclosure of the material facts; RPC 1.7(b), prohibiting a lawyer from representing a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless the lawyer reasonably believes the representation will not be adversely affected and the client consents in writing after a full disclosure of material facts; RPC 1.10(a), prohibiting lawyers associated in a firm from knowingly representing a client when any of the lawyers in the firm would be prohibited from the representation if practicing alone; and former RPC 1.15(a)(1), requiring a lawyer to withdraw from a representation if the representation will result in a violation of the Rules of Professional Conduct or other law.

Nancy Bickford Miller represented the Bar Association. Leland G. Ripley represented Mr. Doran. Randolph O. Petgrave III was the hearing officer.

Reprimanded

Thomas W. Nawalany (WSBA No. 32465, admitted 2002), of Portland, OR, was ordered to receive a reprimand on March 14, 2007, by order of the Washington State Supreme Court imposing reciprocal discipline in accordance with an order of the Supreme Court of Oregon following a stipulation. This discipline was based on his conduct in 2001 involving failure to use the requisite thoroughness and preparation reasonably necessary to represent a client. For more information, see Oregon State Bar Bulletin, Discipline (February/March 2007), available at www.osbar.org/publications/bulletin/07febmar/discipline.html.

Mr. Nawalany’s conduct violated former Oregon DR 6-101(A), requiring a lawyer to provide competent representation to a client.

Felice P. Congalton represented the Bar Association. Christopher R. Hardman represented Mr. Nawalany.

Reprimanded

Douglas K. Robertson (WSBA No. 16421, admitted 1986), of Bellingham, was ordered to receive a reprimand on December 13, 2006, following a stipulation approved by a hearing officer. This discipline was based on his conduct between 2001 and 2003 involving conflicts of interest and failure to withdraw from representation after a conflict of interest became apparent.

In early 2000, Mr. Robertson began representing a real estate developer. A year earlier, another partner in Mr. Robertson’s firm had been hired to represent a lender/investor in a real estate development matter in which Mr. Robertson’s client was the developer. Conflict waiver letters were signed by the lawyers and clients providing that if a dispute arose, Mr. Robertson would withdraw from representing the developer while his partner would continue to represent the lender/investor client. During the fall of 2001, disputes arose between the two parties over a particular real estate development project. At a meeting in November 2001, the clients were informed that an actual conflict existed, that the lender/investor client had the right to request that Mr. Robertson cease representing the developer, and that both parties could consult independent counsel. The lender/investor client consented to Mr. Robertson’s continued representation of the developer.

Between November 2001 and April 2002, each side sought to negotiate a settlement of the dispute and a draft agreement was prepared by Mr. Robertson. The draft settlement agreement included written disclosure of and waiver of any conflict of interest. In February 2002, a specific disagreement arose between the parties regarding the disbursement of proceeds from the sale of property in the development project, which the parties endeavored to resolve by oral agreement.

In March 2002, Mr. Robertson wrote a letter to his law partner asserting that the lender/investors had reneged on an agreement about use of sale proceeds and stating that because the “situation created an actual conflict,” an independent lawyer would be advising his client as to the relationship between the parties. Soon after that date (in March 2002), another lawyer took over representation of the developer regarding the settlement agreement. Thereafter, Mr. Robertson was not involved with the negotiation or representation of the developer regarding the settlement agreement. In early April, another lawyer acting as co-counsel for the lender/investor requested that Mr. Robertson withdraw from representing the developer on any projects involving the lender/investor. Mr. Robertson refused to completely withdraw, but subsequently withdrew from representing the developer on some matters related to the lender/investor.

In mid-April, the two parties signed a settlement agreement. Though based on the earlier drafts prepared by Mr. Robertson, the final document was negotiated and modified by independent counsel or co-counsel for both parties. The April settlement agreement did not contain conflict consent language. The lender/investor was then asked to sign a new conflicts waiver regarding the involvement of Mr. Robertson, but refused to do so. Mr. Robertson continued to represent the client on certain projects involving the lender/investor through mid-2003.

Mr. Robertson’s conduct violated RPC 1.7(a), prohibiting a lawyer from representing a client if the representation of that client will be directly adverse to another client, unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and each client consents in writing after consultation and full disclosure of the material facts; RPC 1.7(b), prohibiting a lawyer from representing a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless the lawyer reasonably believes the representation will not be adversely affected and the client consents in writing after a full disclosure of material facts; RPC 1.10(a), prohibiting lawyers associated in a firm from knowingly representing a client when any of the lawyers in the firm would be prohibited from the representation if practicing alone; and former RPC 1.15(a)(1), requiring a lawyer to withdraw from a representation if the representation will result in a violation of the Rules of Professional Conduct or other law.

Nancy Bickford Miller represented the Bar Association. Leland G. Ripley represented Mr. Robertson. Randolph O. Petgrave III was the hearing officer.

Reprimanded

J.J. Sandlin (WSBA No. 7392, admitted 1977), of Zillah, was ordered to receive a reprimand on January 29, 2007, following approval of a stipulation by a hearing officer. This discipline was based on his conduct in 2004 involving improper withdrawal from a representation.

In May 2003, Mr. Sandlin was hired by two individuals (“clients”) to represent them in various complex litigation matters related to their prior employment at a corporation that developed pharmaceutical products (“corporation”). Mr. Sandlin represented the clients in a lawsuit against the corporation. He was also defending the clients in a lawsuit filed by a company that had taken over the corporation. Meanwhile, an involuntary bankruptcy petition was filed against the corporation by a number of investors, including the clients. Mr. Sandlin was hired by the clients, after the involuntary bankruptcy was filed, to represent their individual interests.

In March 2004, the parties reached a “global settlement” in the bankruptcy court that resolved all the pending and potential litigation matters. Under the terms of the global settlement, any disputes regarding the terms of the settlement would be resolved at arbitration by the bankruptcy judge. Shortly thereafter, disputes arose. The judge set a December 2004 deadline for the submission of arbitration statements and set an arbitration hearing for January 2005. As a result of the order, Mr. Sandlin knew that the judge would not take testimony at the January hearing, but would consider only each party’s written submission.

On December 14, Mr. Sandlin told one of the two clients that he and the other client should put together a draft of the corporation’s history for their arbitration statements. Mr. Sandlin represented that he would review the draft before filing. On December 16, one of the clients e-mailed Mr. Sandlin the draft. After sending the e-mail, the client called Mr. Sandlin, who confirmed his receipt of the e-mail. After reviewing the draft declarations, Mr. Sandlin did not feel that he could submit them to court. All submissions were due by 5:00 p.m. on December 17, 2004.

On December 17, 2004, at 3:42 p.m., less than 90 minutes before the filing deadline, Mr. Sandlin sent the clients an e-mail informing them that he was withdrawing from representing them, effective immediately. At 3:59 p.m., Mr. Sandlin sent another e-mail to the clients advising them to file their arbitration statements directly with the judge. Mr. Sandlin did not telephone the bankruptcy court judge’s law clerk to inform the law clerk that his clients needed an extension of time to file their joint declaration. He did not telephone either of the clients to tell them about his withdrawal. Mr. Sandlin did not file a motion for an extension of the filing deadline on the clients’ behalf. No arbitration statement was filed by Mr. Sandlin, and the two clients were unable to find other counsel to represent them before the January hearing.

Mr. Sandlin’s conduct violated former RPC 1.15(b), permitting a lawyer to withdraw from representing a client if withdrawal can be accomplished without material adverse affect on the interests of the client; and former 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.

Fuchsia Dulan represented the Bar Association. Mr. Sandlin represented himself. Richard B. Price was the hearing officer.

Admonished

Ralph D. Pittle (WSBA No. 1194, admitted 1971), of Bellevue, was admonished following a stipulation approval by a hearing officer. This discipline was based on his conduct involving a conflict of interest and failure to obey an obligation under the rules of a tribunal.

In March 2004, Mr. Pittle and his wife purchased a house in Arizona. They received financial assistance from Mrs. Pittle’s married daughter, who paid half of the down payment, half of the monthly loan payments, and other expenses for the property. Despite the daughter’s financial contributions, the warranty deed was in the name of Mr. Pittle and his wife as community property with right of survivorship, and there was no documentary evidence of the daughter’s interest in the property. Over the next several years, Mr. Pittle and his wife made a number of undocumented loans to a landscaping business operated by the daughter and her husband to help with business cash-flow problems. Mr. Pittle later represented the daughter in a dissolution action filed against her husband in 2005.

In December 2005, Mr. Pittle filed a motion in the dissolution action asking that the couple’s community residence in Bellevue be distributed to the daughter or that a refinance of the residence be compelled in order to pay back taxes and home mortgage payments. The motion discussed many of the couple’s assets, but did not mention their interest in the Arizona property. In December 2005, the husband’s lawyer filed a motion to disqualify Mr. Pittle. Mr. Pittle filed declarations asserting a preexisting oral agreement that the parties to the dissolution would have a one-half interest in the equity of the Arizona property if the property were sold. The judge disqualified Mr. Pittle in January 2006, citing RPC 1.7 and RPC 3.7.

In July 2006, the daughter’s new lawyer filed a motion to reappear, asking that Mr. Pittle be permitted to associate in the dissolution matter for discovery and trial purposes. The motion included a conflicts waiver signed by the daughter regarding possible conflicts relating to the Arizona property and to undocumented loans made by Mr. and Mrs. Pittle in order to keep the landscaping business operating. Despite the January 2006 order disqualifying him, and while the motion to reappear was pending, Mr. Pittle made contact with the husband’s lawyer on several occasions, by e-mail and telephone, about the settlement issues in the dissolution. The motion to reappear was denied, and the dissolution case was settled shortly thereafter.

Mr. Pittle’s conduct violated RPC 1.7(b), prohibiting a lawyer from representing a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless the lawyer reasonably believes the representation will not be adversely affected and the client consents in writing after consultation and with full disclosure of the material facts; and 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.

Nancy Bickford Miller represented the Bar Association. Leland G. Ripley represented Mr. Pittle. William S. Bailey was the hearing officer.