September 2006
Disciplinary Notices
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.
Resigned in Lieu of Disbarment
John P. Junke Sr. (WSBA No. 10743, admitted 1980), of Walla Walla, resigned in lieu of disbarment, effective June 26, 2006. The resignation was based on his conduct between 2004 and 2005 involving sexual relations with a then-current client, conflicts of interest, and other conduct prejudicial to the administration of justice.
In August 2003, Mr. Junke began representing a client in a dependency action involving the client's son. The dependency action was initiated after the client was arrested for possession of controlled substances with intent to sell and child endangerment. As a result of the dependency action, the client's son was placed with relatives and the client was allowed only supervised visitation, with supervision to be provided by either the "relative care giver" or a person approved by the Department of Social and Health Services (DSHS). In November 2003, the client hired Mr. Junke to represent her in her criminal matter. In August 2004, the client pleaded guilty and was sentenced.
During the course of the representation, Mr. Junke and his client began a personal and intimate relationship, which included sexual relations. The relationship continued until approximately mid-2005. After the client was sentenced in 2004, Mr. Junke took her with him to Seattle on two occasions. On one of these trips, the client's son accompanied them. Although the client was not permitted to leave Walla Walla County without permission from her probation officer, Mr. Junke obtained permission from the probation officer for only one such trip. In addition, although the client was allowed only supervised visitation with her son, Mr. Junke never sought approval from DSHS to supervise the client's visits with her son during these trips.
Mr. Junke'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 that the representation will not be adversely affected and the client consents in writing after a full disclosure of material facts; RPC 1.8(k), prohibiting a lawyer from having sexual relations with a current client of the lawyer unless a consensual sexual relationship existed between them at the time the lawyer/client relationship commenced; and RPC 8.4(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice.
Joanne S. Abelson represented the Bar Association. Janelle Carman represented Mr. Junke.
Disbarred
Norman W. Cohen (WSBA No. 373, admitted 1965), of Seattle, was disbarred, effective March 29, 2006, by order of the Washington State Supreme Court following a hearing. This discipline was based on his conduct between 1998 and 2000 involving failure to abide by a client's decisions concerning the objectives of representation, lack of diligence, failure to communicate with the client, and improperly attempting to withdraw from a representation.
In April 1998, a client hired Mr. Cohen to commence a lawsuit in an employment matter. Mr. Cohen filed the lawsuit, and trial was initially set for September 1999. At a pretrial conference in July 1999, Mr. Cohen and the defendants' lawyer stipulated to transfer the case to mandatory arbitration. Mr. Cohen neither informed his client about the pretrial conference nor explained to him what mandatory arbitration meant. The arbitration was set for December 1999. Rule 5.2 of the Mandatory Arbitration Rules (MAR) required Mr. Cohen to file a pre-hearing statement of proof 14 days before the arbitration, which he failed to do. Citing MAR 5.2, the defendants requested that Mr. Cohen's client be barred from presenting testimony or evidence at the hearing. Mr. Cohen responded to the request by faxing a very brief pre-hearing statement to the defendants' lawyer and the arbitrator. Mr. Cohen also faxed a letter to the arbitrator stating that he had no excuse for failing to file the pre-hearing statement. Because of his failure to file a pre-hearing statement, Mr. Cohen agreed in a pre-arbitration conference call with opposing counsel and the arbitrator to allow the entry of an award in the defendants' favor as long as it stated that there was no finding that Mr. Cohen's client failed to participate in the hearing. Mr. Cohen did not consult with his client or obtain client's consent to entry of an arbitration award in the defendants' favor. Mr. Cohen told his client that the arbitration had been cancelled because opposing counsel was sick. The arbitrator entered the award and Mr. Cohen filed a request for trial de novo. Mr. Cohen did not inform his client that, by filing a request for trial de novo, the client could be liable under MAR 7.3 for the defendants' costs and attorney's fees incurred after filing such a request.
In March 2000, the defendants' lawyer offered to settle the case for $2,000. Although Mr. Cohen's office forwarded a copy of the offer to the client, Mr. Cohen did not respond to the offer. A trial date was set for November 6, 2000, and a scheduling order was issued by the court requiring disclosure of primary witnesses and exhibits by June 5, 2000, and exchange of witness lists by October 16, 2000. Although the client had provided Mr. Cohen with one or more lists of witnesses shortly after hiring him, and had updated the information prior to the arbitration date, Mr. Cohen failed to contact the witnesses, including a witness that the client considered critical to the case. During a telephonic pretrial conference on October 13, 2000, the court ordered Mr. Cohen to communicate a settlement offer to the defense attorney that day, to arrange a mediation by October 20, and to exchange witness and exhibit lists by October 23. The court subsequently memorialized this in a written order. Mr. Cohen failed to do any of these things.
On October 13, 2000, the defendants' lawyer offered to settle the case for $1,000. Although Mr. Cohen's office forwarded a copy of the offer to the client, Mr. Cohen again did not respond to the offer. The defendants' lawyer called Mr. Cohen's office on three different occasions, but did not receive any return calls. On October 24, he faxed Mr. Cohen a letter informing him that he would be requesting exclusion of witnesses and exhibits because Mr. Cohen had not complied with the pretrial order. On October 26, the defendants' lawyer filed a motion to exclude evidence and to dismiss the case with prejudice.
On November 1, 2000, five days before trial, without having informed his client of his intentions, Mr. Cohen filed a motion seeking to withdraw on short notice. On the day before trial, Mr. Cohen's secretary informed the client that Mr. Cohen was in the process of withdrawing from the case. The client attempted to find another lawyer to represent him, but none of those he contacted were willing to take on the case so soon before the trial.
On November 7, the court held a hearing on the pending motions. The court denied Mr. Cohen's motion to withdraw as untimely and granted the defense counsel's motion to exclude evidence, permitting only limited testimony. After hearing this limited testimony, the court entered a judgment for the defendants and a judgment against Mr. Cohen's client for $8,118.75 in attorney fees.
Throughout the representation, Mr. Cohen had not telephoned or in any way communicated with the client regarding key issues in the case, and he did not return the client's phone calls.
Mr. Cohen's conduct violated RPC 1.2(a), requiring a lawyer to abide by a client's decisions concerning the objectives of representation and to consult with the client as to the means by which they are to be pursued; RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; RPC 1.4, requiring a lawyer 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; RPC 1.15, governing the circumstances in which a lawyer may withdraw from representation; and RPC 8.4(a), prohibiting a lawyer from attempting to violate the Rules of Professional Conduct.
Anne I. Seidel represented the Bar Association. Mr. Cohen represented himself. David K. Hiscock was the hearing officer.
Reprimanded
Robert C. Brungardt (WSBA No. 8214, admitted 1978), of Shelton, was ordered to receive a reprimand on August 2, 2005, following a stipulation approved by a hearing officer. This order is based on his conduct in 2003 and 2004 involving lack of diligence and improper withdrawal from representation.
In March 2001, Mr. Brungardt was hired to commence a lawsuit on behalf of a client who had been involved in an automobile accident on March 10, 2001. The client and Mr. Brungardt met and signed a fee agreement. In August 2003, Mr. Brungardt served a complaint on the allegedly at-fault party. Shortly thereafter, Mr. Brungardt and the other party's insurer reached an agreement that the complaint would not be filed without 30 days' notice, and Mr. Brungardt sent the insurer a demand package. In February 2004, about two weeks before expiration of the statute of limitations, Mr. Brungardt told his client that he was terminating the representation. The client contacted several other lawyers. These lawyers declined to take the case because the statute of limitations would soon expire. On March 1, 2004, the client picked up her file from Mr. Brungardt's office. On March 3, 2004, one week before the statute of limitations was to expire, Mr. Brungardt filed the complaint. Because Mr. Brungardt had not served the complaint within 90 days of filing it, or filed the complaint within 90 days of serving it, Mr. Brungardt failed to commence the action and thereby toll the statute of limitations.
In March 2004, another lawyer agreed to take the client's case and spoke with Mr. Brungardt by telephone. Mr. Brungardt told the new lawyer that he had made a demand on the opposing party's insurer. The file that the client had picked up from Mr. Brungardt's office did not contain a copy of the demand letter. During the telephone conversation, the new lawyer asked Mr. Brungardt for a copy of the demand letter. Mr. Brungardt did not respond to that request. The new lawyer sent two written requests to Mr. Brungardt for a copy of the demand letter, for any response received, and for notes that Mr. Brungardt might have taken. Mr. Brungardt did not reply to either of the written requests, nor did he respond to multiple telephone calls made by the new lawyer's legal assistant asking about the documents that had been requested. The new lawyer subsequently settled the case on behalf of the client.
Mr. Brungardt's conduct violated RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; and RPC 1.15, governing the circumstances in which a lawyer may withdraw from representation, and requiring a lawyer to take reasonable steps to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.
Scott G. Busby represented the Bar Association. Mark J. Fucile represented Mr. Brungardt. Kimberly A. Boyce was the hearing officer.
Reprimanded
Jeffrey Alan Hess (WSBA No. 7072, admitted 1976), of Seattle, was ordered to receive a reprimand on February 9, 2006, following a stipulation approved by a hearing officer. This discipline was based on Mr. Hess's conduct in 2002 involving conduct prejudicial to the administration of justice and disobeying a court order.
Between 1997 and 2002, Mr. Hess represented his brother in protracted and contentious post-dissolution proceedings. His brother's ex-wife sought modification of the child-custody arrangements, and a trial was set for May 2002. In a joint statement of evidence filed with the court, Mr. Hess identified 34 witnesses to be called on behalf of his client at trial. On the morning of the trial, Mr. Hess and opposing counsel appeared before the superior court judge. The judge initiated a discussion about the expected length of the trial, indicating that she had reserved two afternoons. The opposing counsel stated that the trial would probably take longer than two afternoons, because he had six or seven witnesses and Mr. Hess had "identified, I think, 37 witnesses he intends to call." In response to the court's and opposing counsel's comments, Mr. Hess only stated: "I don't intend to call 36 witnesses, Your Honor." At that point, Mr. Hess knew that his client was not going to contest custody, but he did not inform the court or opposing counsel that there would be no need to set aside or prepare for two afternoons of trial testimony. The court set the trial to begin that afternoon at 1:30 p.m., and opposing counsel prepared for trial. At approximately 1:25 p.m., opposing counsel received Mr. Hess's three-sentence hearing brief indicating that his client was not contesting custody, which obviated the need for a trial. Opposing counsel moved for sanctions against Mr. Hess for failing to notify him that there would be no trial. The judge issued an order awarding a judgment for sanctions and terms in the amount of $1,345 jointly and severally against Mr. Hess and his client. Mr. Hess and his client did not timely pay the sanctions assessed by the court. In January 2006, Mr. Hess paid $1,909.90 into the superior court registry, which represented the $1,345 assessed by the court plus $564.90 in accrued interest.
Mr. Hess's conduct violated RPC 8.4(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice; and RPC 8.4(j), prohibiting a lawyer from willfully disobeying or violating a court order directing him or her to do or cease doing an act which he or she ought in good faith to do or forbear.
Christine Gray represented the Bar Association. Mr. Hess represented himself. David W. Wiley was the hearing officer.
