329 P.3d 870
Wash.2014Background
- In 2008 Margaret Keen (91) and her son Stephen (65) retained Alan Hall to prepare estate-plan documents: a special needs trust, will, power of attorney, and living will; fee $3,000.
- Hall named himself successor trustee, successor executor, alternate health-care representative, and alternate agent under the durable power of attorney; trust authorized trustee compensation ($8,000/yr or 2% of corpus) and permitted Hall to hire himself as counsel and bill the trust.
- Margaret had poor eyesight and limited capacity to read; Hall did not read documents verbatim to her, though she initialed and signed. Margaret later executed a declination as trustee, appointing Hall, who collected $2,000 as a quarterly trustee fee from funds Stephen provided although the trust corpus never exceeded $49.
- The Keens later retained new counsel (Clausen), revoked Hall’s documents, and requested originals and fee refund; Hall refused, threatened Clausen (including an unannounced visit to her home) and threatened to sue the Keens and Clausen for reporting him.
- The WSBA filed a disciplinary complaint; a hearing officer found violations of multiple RPCs, identified seven aggravating factors, recommended a two-year suspension, and the Disciplinary Board unanimously adopted that recommendation. Hall appealed; the Supreme Court affirmed the two-year suspension.
Issues
| Issue | Association's Argument | Hall's Argument | Held |
|---|---|---|---|
| Conflict of interest / informed consent (RPC 1.4(b), 1.7(a)(2), 1.8(a)) | Hall created multiple roles for himself that posed a personal pecuniary conflict and failed to provide adequate explanation or alternatives; waivers were insufficient | He claims Margaret requested his appointment and reliance on waiver language and consent provisions | Court affirmed: Hall violated communication, conflict, and business-transaction rules because waivers did not satisfy RPC 1.8(a)(3) or disclose alternatives and Hall failed to obtain informed consent |
| Unreasonable fees and dishonesty (RPC 1.5, 8.4(c)) | Hall charged and collected $2,000 quarterly trustee fee while not legally trustee and while corpus was negligible; billed for memo to himself and duplicated compensation | Hall contends work was preparatory for trustee duties and prior flat fee covered some work; claims awareness Margaret would step down | Court affirmed: fees were unreasonable and dishonest — collecting trustee fees before lawfully serving, charging for memo to himself, and double-billing violated RPC 1.5 and 8.4(c) |
| Failure to return originals / termination duties (RPC 1.15A(f), 1.16(d)) | Clausen’s certified letter revoked Hall’s representation and requested originals; Hall refused to return documents and fee | Hall says he withheld originals to protect Keens from alleged elder abuse and to preserve claims against Clausen | Court affirmed: letter effectively terminated representation; Hall had duty to surrender originals and refund unearned fees and refusal violated RPC 1.15A(f) and 1.16(d) |
| Conduct prejudicial to administration of justice (RPC 8.4(d)) | Hall threatened and harassed opposing counsel to withdraw the grievance and threatened suit against clients/reporters | Hall claims his actions were to expose elder abuse and not to interfere with justice | Court affirmed: unannounced threatening visit and related conduct were prejudicial to administration of justice and violated RPC 8.4(d) |
Key Cases Cited
- In re Disciplinary Proceeding Against Marshall, 167 Wn.2d 51 (court gives deference to hearing officer's findings of fact)
- In re Disciplinary Proceeding Against Anschell, 149 Wn.2d 484 (mental-state findings are factual and for hearing officer)
- In re Disciplinary Proceeding Against Carmick, 146 Wn.2d 582 (conduct prejudicial to administration of justice analyzed with respect to practice norms)