November 2009

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.

Disbarred

Jeffrey J. Arntzen (WSBA No. 22586, admitted 1993), of Blaine, was disbarred, effective August 20, 2009, by order of the Washington State Supreme Court following a default hearing. This discipline resulted from conduct involving failure to act diligently, lack of communication, failure to protect clients’ interests, failure to expedite litigation, practicing law while suspended, commission of criminal acts, dishonest conduct, violation of a court order, and failure to cooperate with Bar Association investigations.

Matter No. 1: In January 2007, a British Columbia (B.C.) barrister acting on behalf of her client hired Mr. Arntzen to transfer title of Washington real property from her client to the other owners of the property. Mr. Arntzen agreed that he would facilitate the title transfer, but did not memorialize the agreement in writing. Mr. Arntzen prepared and forwarded the appropriate documents to the B.C. barrister. After all necessary signatures had been obtained, the paperwork was returned to Mr. Arntzen for final processing and recording. On March 30, 2007, after receiving the executed paperwork, Mr. Arntzen advised the B.C. barrister for the first time that he required payment of his fee prior to recording the documents. The B.C. barrister replied that it was the custom in Canada to pay upon receiving confirmation that the documents had been recorded and title had been transferred. Mr. Arntzen did not respond. Mr. Arntzen never recorded the documents and retained the signed originals. The B.C. barrister, her client, and the owners of the property attempted to contact Mr. Arntzen by e-mail and phone. Mr. Arntzen did not respond or communicate with them after March 30, 2007. The B.C. barrister had replacement documents prepared, hired another party to record the documents, and filed a grievance against Mr. Arntzen. Mr. Arntzen did not respond to the grievance until he was served with a subpoena duces tecum requiring him to appear for a non-cooperation deposition. The Association received a written response on the morning of the day when the deposition was to be held.

Matter No. 2: Client B hired Mr. Arntzen to represent her in a collection action. In February 2006, Mr. Arntzen filed suit; service was effected in June 2006. After filing the return of service, Mr. Arntzen did not file any other documents or take any other action in the matter, but told Client B that he had gone to court and obtained a judgment against the debtor. This was not true. Client B asked for copies of the paperwork, but received nothing. Client B attempted to contact Mr. Arntzen on multiple occasions over a period of months, but was unsuccessful until August 29, 2007. On that date, Mr. Arntzen admitted to Client B that he had “dropped the ball” in her case. He promised to speak with her again one week later and told her that he would send her copies of the documents he had filed. Mr. Arntzen did not speak with Client B again or send her any documents. In December 2007, the court clerk filed a motion to dismiss Client B’s matter for want of prosecution. Mr. Arntzen did not respond to the motion or advise Client B of it. The court dismissed the matter in February 2008.

The Supreme Court suspended Mr. Arntzen from the practice of law on June 13, 2007, for nonpayment of Bar license fees. Mr. Arntzen never notified Client B or the court of his suspension. On November 29, 2007, Client B filed a grievance against Mr. Arntzen. Mr. Arntzen did not respond to the grievance.

Matter No. 3: In April 2007, Client C hired Mr. Arntzen to represent her in a divorce action and paid him a $1,000 fee. The Supreme Court suspended Mr. Arntzen from the practice of law, effective June 13, 2007. In early August 2007, Client C contacted Mr. Arntzen because she had not heard from him. Mr. Arntzen instructed Client C to come to his office and sign the divorce papers. He failed to notify her of his suspension and continued to hold himself out as authorized to practice law by telling Client C that he would file the papers with the court. In December 2007, Mr. Arntzen’s secretary scheduled a meeting between Client C and Mr. Arntzen. Mr. Arntzen did not appear for the meeting or attend a subsequent telephone conference with Client C scheduled in January 2008. Client C later discovered that Mr. Arntzen had never filed her divorce matter. She asked Mr. Arntzen to refund her $1,000, but he did not do so. Client C filed a grievance against Mr. Arntzen on January 30, 2008. Mr. Arntzen did not respond to the grievance.

Matter No. 4: On August 16, 2007, Client D hired Mr. Arntzen to probate the will of a deceased relative and transfer ownership of the relative’s property. Mr. Arntzen did not tell Client D that he had been suspended from the practice of law on June 13, 2007. Client D gave Mr. Arntzen the will and the deed to the property, and subsequently paid Mr. Arntzen a fee of $1,200. Mr. Arntzen did no work on Client D’s matter. Between September 2007 and February 2008, Client D made numerous attempts to contact Mr. Arntzen and obtain information about his matter. Mr. Arntzen did not return his calls. Mr. Arntzen’s secretary scheduled three telephone conferences, but Mr. Arntzen cancelled each of them. After December 21, 2007, Client D was unable to reach anyone at Mr. Arntzen’s office. Client D left voice-mail messages beginning in January 2008 requesting return of his documents and his $1,200. The voice-mail continued to indicate the caller had reached the Law Office of Jeffrey Arntzen. Mr. Arntzen did not respond to any of Client D’s messages. In February 2008, with the Association’s assistance, Client D obtained his documents from Mr. Arntzen; however, Mr. Arntzen did not refund the $1,200. Client D hired another lawyer to probate the will and filed a grievance against Mr. Arntzen on February 11, 2008. Mr. Arntzen did not respond to Client D’s grievance.

Matter No. 5: In the summer of 2006, Client E hired Mr. Arntzen to assist with a transfer of title to real property. Mr. Arntzen agreed to assist, indicated his services would cost $1,000, and asked Client E to provide certain documents. Client E complied with Mr. Arntzen’s requests. The Supreme Court suspended Mr. Arntzen from the practice of law effective June 13, 2007. Mr. Arntzen never advised Client E of his suspension. After he was suspended, Mr. Arntzen drafted an affidavit of heirship for Client E and billed him $210 for drafting and recording the affidavit. Mr. Arntzen recorded the signed affidavit on July 6, 2007. In September 2007, Mr. Arntzen met with Client E and asked him to sign papers to transfer the title of the property. Mr. Arntzen told Client E that the transfer would be completed soon and asked for payment of his $1,000 fee, which Client E paid. Mr. Arntzen did not complete the transfer or complete any other work on Client E’s matter. He did not respond to repeated attempts by Client E to contact him after October 4, 2007. On February 5, 2008, Client E traveled to Blaine and discovered that Mr. Arntzen’s office was closed. Client E located a friend of Mr. Arntzen who was able to put him in contact with Mr. Arntzen. Mr. Arntzen asked for 10 days to complete the matter. Mr. Arntzen never completed the transfer. In April 2008, Client E sent an e-mail to Mr. Arntzen’s personal e-mail address demanding that Mr. Arntzen forward his file to a friend or another lawyer and refund the fees paid. Mr. Arntzen did not respond, did not provide a refund, and did not transfer the file. On May 23, 2008, Client E filed a grievance against Mr. Arntzen, who did not respond to the grievance.

Mr. Arntzen’s conduct violated 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 the client reasonably informed about the status of the matter, promptly comply with reasonable requests for information, and to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; RPC 1.5(a), prohibiting a lawyer from making an agreement for, charging, or collecting an unreasonable fee or an unreasonable amount for expenses; RPC 1.16(a)(1), prohibiting a lawyer from representing a client or, where representation has commenced, from withdrawing from the representation of a client if the representation will result in violation of the Rules of Professional Conduct or other law; RPC 1.16(d), requiring that, upon termination of representation, a lawyer shall take steps to the extent reasonably practicable 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 or expense that has not been earned or incurred; RPC 3.2, requiring a lawyer to make reasonable efforts to expedite litigation consistent with the interests of the client; RPC 5.5(a), prohibiting a lawyer from practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction; RPC 5.8(a), prohibiting a lawyer from engaging in the practice of law while suspended from the practice of law for any cause; RPC 8.4(b), prohibiting a lawyer from committing a criminal act 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(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice; 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; 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 in connection with a disciplinary matter (including ELC 14.1, duty to notify client and court of suspension and ELC 14.2 duty to discontinue practice upon suspension).

M. Craig Bray represented the Bar Association. Mr. Arntzen did not appear either in person or through counsel.

Suspended

Larry A. Botimer (WSBA No. 23805, admitted 1994), of Federal Way, was suspended for six months, effective August 20, 2009, by order of the Washington State Supreme Court following an appeal. For further information, see In re Disciplinary Proceeding Against Botimer, ___Wash 2.d___, 214 P.3d 133 (2009). This discipline is based on conduct involving revealing client confidences and conflicts of interest.

After he retired from the IRS, Mr. Botimer established a law practice that focused on tax work. Mr. Botimer served for several years as a tax preparer for the R family. From 1995 to 2000, he prepared yearly tax returns for Mrs. R and, from 1995 to 2001, he did the same for Mrs. R’s son JR and JR’s wife. Mr. Botimer assisted Mrs. R with decisions related to her ownership stake in a Seattle nursing home facility. In 1992, Mrs. R retired from the Seattle business but retained ownership of the property, leasing it back to JR and his wife. Mr. Botimer advised JR and his wife regarding incorporation of the Seattle business as a subchapter S corporation, and he advised Mrs. R about creating a “consulting business” as part of an overall tax strategy. Mr. Botimer also prepared tax returns for the Seattle business.

Mr. Botimer also assisted Mrs. R with business matters related to a Spokane care facility run by her other son, MR. The Spokane facility is incorporated under subchapter S. Mrs. R guaranteed loans for the Spokane facility and secured these loans with her Seattle real property, yet received no stock in the Spokane business. Mr. Botimer advised her as to her options regarding the Spokane facility, including restructuring the business so that Mrs. R could both be involved in management of the Spokane facility and receive potential tax benefits reflecting the Spokane business’s losses on her own tax returns. Controversy arose when MR would not recognize that his mother or brother had an ownership stake in the Spokane business. Both brothers disagreed as to the extent of each one’s stock ownership. Mr. Botimer assisted JR and his wife in negotiations with MR regarding potential solutions. Mr. Botimer did not obtain conflict waivers in the course of his assistance of the various members of the R family and did not discuss with them the advantages and disadvantages of joint representation. Mr. Botimer did not use a written client engagement agreement or any other method to obtain consent in writing to the conflicts.

Mrs. R, JR, and JR’s wife decided to close the Seattle nursing care facility and sell the property in August 2000. The proceeds of this sale were to go to the three family members, with JR and his wife expecting half. Mr. Botimer also requested that his fees be paid out of these proceeds. Upon the sale, Mrs. R did not share the proceeds with JR, JR’s wife, or Mr. Botimer. Instead, she used the proceeds to satisfy her loan guarantees to the Spokane business. In 2002, Mr. Botimer terminated his representation of Mrs. R with a letter stating that “her failure to cooperate with him, refusal to follow his advice and failure to pay for [his] legal services” led to his decision. The letter also informed Mrs. R that Mr. Botimer was sending correspondence to the IRS to inform the agency “that [Mrs. R’s tax] returns do not contain a true record of your taxable income and that you neglected to report gifts made to your son.” Without seeking or obtaining Mrs. R’s consent, Mr. Botimer followed through and sent the letter to the IRS informing the agency of Mrs. R’s failure to, contrary to his advice, correctly state her income and pay gift tax. The letter also contained allegations that Mrs. R had illegally invested her grandchildren’s trust property.

To resolve disputes stemming from the sale of the Seattle property, JR and his wife sued Mrs. R, MR, and the Spokane business in 2004. Mr. Botimer cooperated with JR and his wife’s attorney in the lawsuit, and provided the attorney with three declarations to use in pretrial proceedings. The declarations contained detailed background information about Mrs. R’s business affairs related to the Seattle business, as well as information about her estate plans. He attached copies of Mrs. R’s tax returns and other documents related to his prior tax preparation work. Mr. Botimer also included information describing JR and his wife’s lease of the Seattle property and business transactions with MR as tax avoidance tactics. Mrs. R did not give her consent to these disclosures, and no court ordered this revelation of Mrs. R’s client information.

Mr. Botimer’s conduct violated former RPC 1.6, prohibiting a lawyer from revealing confidences or secrets relating to representation of a client unless the client consents after consultation; former RPC 1.7, 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 that the representation will not adversely affect the relationship with the other client and each client consents in writing after consultation and a full disclosure of the material facts; and former 1.9(b), prohibiting a lawyer who has formerly represented a client in a matter from thereafter using confidences or secrets relating to the representation to the disadvantage of the former client.

Randy V. Beitel and Nancy Bickford Miller represented the Bar Association. Paul E. Simmerly represented Mr. Botimer. David B. Condon was the hearing officer.

Admonished

Robert Earl Beach III (WSBA No. 6710, admitted 1976), of Spokane, was ordered to receive an admonition on March 6, 2009, by order of a review committee of the Disciplinary Board. This discipline was based on conduct involving failure to act with reasonable diligence and failure to deliver to a client funds which the client was entitled to receive.

In September 2004, Client A retained Mr. Beach to resolve a real estate dispute for her mother. Client A paid Mr. Beach $2,500 based on an oral agreement. Mr. Beach deposited the funds into his general account. In November 2004, after several attempts, Client A was able to speak with Mr. Beach about the case. He promised to draft a letter by the end of the week, but did not do so. In December 2004, Client A asked for a refund of the fees she paid. Mr. Beach agreed to refund her fees. In March 2005, Mr. Beach promised to send the refund by May 1, 2005, which he failed to do. In June 2005, Mr. Beach did send a refund, but his check bounced. On July 19, 2005, he refunded $2,697.26 to Client A.

Mr. Beach’s conduct violated RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; RPC 1.4(a)(3), requiring a lawyer to keep the client reasonably informed about the status of the matter; and former RPC 1.14(b)(4), requiring a lawyer to promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.

Marsha M. Matsumoto represented the Bar Association. Mr. Beach represented himself.

Non-Disciplinary Notices

Suspended Pending the Outcome of Disciplinary Proceedings

Thomas O. Mix Jr. (WSBA No. 24112, admitted 1994), of Lansing, Michigan, was suspended pending the outcome of disciplinary proceedings, pursuant to ELC 7.1 (Interim Suspension for Conviction of a Crime), effective August 24, 2009, by order of the Washington State Supreme Court. This is not a disciplinary sanction.

Suspended Pending the Outcome of Disciplinary Proceedings

Mark A. Schneider (WSBA No. 18398, admitted 1988), of Tacoma, was suspended pending the outcome of disciplinary proceedings, pursuant to ELC 7.2(a)(3), effective September 28, 2009, by order of the Washington State Supreme Court. This is not a disciplinary sanction. Mark A. Schneider is to be distinguished from Mark W. Schneider of Seattle and Mark A. Schneider of Bellevue.