September 2008
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
Courtenay D. Babcock (WSBA No. 22674, admitted 1993), of Blaine, was disbarred, effective April 7, 2008, by order of the Washington State Supreme Court following a default hearing. This discipline was based on conduct in five client matters involving failure to provide competent representation, lack of diligence, failure to communicate, charging unreasonable fees, failure to protect clients’ interests, engaging in dishonest conduct, engaging in conduct that is prejudicial to the administration of justice, and violating a duty imposed by or under the Rules for Enforcement of Lawyer Conduct.
Between April 2000 and August 2006, Mr. Babcock engaged in the following conduct:
• Abandoning his practice and failing to diligently represent and communicate with clients in four separate matters;
• Failing to complete and process an application to change a client’s status in an immigration matter;
• Failing to provide to one client a written fee agreement or an explanation of fees or an accounting of time Mr. Babcock spent on the client’s case, and failing to render an accounting to another client of the funds held in Mr. Babcock’s trust account;
• Failing to perform any legal services on behalf of a client in one matter and then failing to refund her deposit, and failing to perform any legal services on behalf of a second client in another matter while obtaining payment of approximately 20 percent (or $11,100) of her settlement proceeds without confirming the agreement in writing;
• Retaining an entire $2,500 advance fee deposit while having performed only a single minor legal service on behalf of the client, and then failing to refund the unearned portion of the advance fee deposit, thereby charging an unreasonable fee for the minor legal service performed;
• Withdrawing a client’s advance fee deposit from his trust account without the client’s knowledge, consent, or authorization, and using it for his own purposes;
• Failing to respond to a client’s requests and to communicate with a client about the refund of his $3,000 advance fee deposit, and failing to promptly refund that advance fee deposit;
• Misrepresenting to the Association the status of his practice and his relationship with a client; and
• Failing to cooperate with the Bar Association’s investigation in three matters and misrepresenting to the Bar Association in another matter that a client was not his client and that he was not receiving a share of that client’s settlement proceeds.
Mr. Babcock’s conduct violated RPC 1.1, requiring a lawyer to provide competent representation to a client; 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 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 1.5(a), requiring a lawyer’s fee to be reasonable; RPC 1.5(b), requiring that when a lawyer has not regularly represented a client, or if the fee agreement is substantially different than that previously used by the parties, the lawyer communicates to the client within a reasonable time the basis or rate of the fee or the factors involved in determining the charges, preferably in writing; 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; RPC 1.5(e), allowing a division of fee between lawyers who are not in the same firm to be made only if the division is between the lawyer and a duly authorized lawyer referral service, or the division is in proportion to the services provided by each lawyer, or by written agreement with the client, each lawyer assumes joint responsibility for the representation, the client is advised of and does not object to the participation of all the lawyers involved, and the total fee is reasonable; 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; 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.
Kathleen A.T. Dassel represented the Bar Association. Mr. Babcock did not appear either in person or through counsel. Joseph D. Bowen was the hearing officer.
Disbarred
Allen C. Hamley (WSBA No. 1028, admitted 1969), of Bellevue, was disbarred, effective July 9, 2008, by order of the Washington State Supreme Court following approval of a stipulation. This discipline was based on conduct involving conversion of estate funds and submitting false declarations to the court.
Mr. Hamley drafted wills for a married couple, Mr. and Mrs. W, naming himself to serve as executor or personal representative (PR) of both estates. Mr. and Mrs. W jointly owned a note and deed of trust for monies they had loaned. Mrs. W died in September 2000; Mr. Hamley filed a probate petition in King County Superior Court in December 2000 and a declaration of completion to close Mrs. W’s estate in June 2005. Mr. W died in August 2004; Mr. Hamley filed a probate petition in King County Superior Court in October 2004. Mr. W’s will named his stepson and Mr. Hamley as co-PRs. Mr. Hamley also served as attorney for the co-PRs.
In May 2005, Mr. Hamley received payoff proceeds totaling $37,124.05 for the note and deed of trust (the estate funds). Mr. Hamley did not deposit the estate funds to an estate bank account. Instead, he deposited the estate funds to his trust account. In or about August 2005, Mr. Hamley withdrew over $21,000 by cashier’s check from the estate funds in his trust account. He did not tell his co-PR about the withdrawal, and he took the funds without authorization. Mr. Hamley used the money to insulate himself from potential legal liability to another client. Later, he testified that he used the funds to protect himself, because “I didn’t have other funds available.”
On May 8, 2006, Mr. W’s stepdaughter (Ms. A), who was a beneficiary of his estate, filed a petition for removal of the co-PRs. Ms. A sought appointment of a successor PR and an accounting. On May 26, 2006, in response to the petition for removal, Mr. Hamley signed and filed a declaration with the court in which he falsely swore that “all funds” of the estate had been deposited to an estate account. In fact, Mr. Hamley had deposited over $37,000 in estate funds to his trust account. On June 1, 2006, the court ordered Mr. Hamley to resign as co-PR, blocked certain bank accounts, and awarded attorney’s fees against Mr. Hamley and Mr. W’s stepson personally for fees incurred by the heirs in bringing the removal proceedings. On June 19, 2006, by a stipulated order, the court removed Mr. W’s stepson as co-PR and appointed Ms. A as the new PR. Mr. Hamley repaid the $37,000 in estate funds described above and associated attorney fees.
Mr. Hamley’s conduct violated RPC 3.3(a), prohibiting a lawyer from making a false statement of fact or law to a tribunal; RPC 4.1, prohibiting a lawyer, in the course of representing a client, from knowingly making a false statement of material fact or law to a third person; RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and RPC 8.4(i), prohibiting a lawyer from committing any act involving moral turpitude, corruption, or other act which reflects disregard for the rule of the law, regardless of conviction or acquittal of a felony or a misdemeanor.
Linda B. Eide represented the Bar Association. Joseph J. Ganz represented Mr. Hamley.
Disbarred
Paul Hernandez (WSBA No. 21015, admitted 1991), of Seattle, was disbarred, effective May 21, 2008, by order of the Washington State Supreme Court following a default hearing. This discipline was based on conduct involving incompetent representation, lack of diligence, settling a case without a client’s authorization, forging a client’s name, misappropriating and converting funds, misrepresentation, lack of communication, and trust account irregularities.
Matter No. 1: In 2003, a client hired Mr. Hernandez to represent him in a personal-injury suit arising from a 2001 automobile accident. There was no written fee agreement. The client verbally agreed to pay Mr. Hernandez a contingency fee of one-third of any settlement amount. Mr. Hernandez verbally agreed that he would pay the client’s medical bills for accident-related health care from the proceeds of settlement.
In 2004, Mr. Hernandez filed a personal injury suit on behalf of the client and subsequently settled the case without the client’s knowledge, consent, or authorization. Mr. Hernandez provided to the insurance company settling the claim a settlement release on which he falsely signed the name of the client. Mr. Hernandez obtained the settlement proceeds in the form of a check. He falsely signed the client’s name to the back of the check and deposited the funds into his account without telling the client that the case had settled or that he had received the proceeds of the settlement. From mid-2004 to 2005, Mr. Hernandez failed to pay the client’s medical bills and failed to return the client’s numerous phone calls requesting information about the status of his case. Mr. Hernandez used the settlement funds to cover shortages in his client trust account.
In May 2005, Mr. Hernandez misrepresented to the client that the suit had just recently been settled and sent the client a check for $12,782.66 purporting to represent the client’s share of the settlement proceeds. At that time, Mr. Hernandez also promised the client that he would pay the client’s healthcare providers and would send the client an accounting of the settlement. Over the next several months, both the client and his medical providers left numerous telephone messages for Mr. Hernandez, to which he failed to respond. In August 2005, the client filed a grievance against Mr. Hernandez with the Bar Association. Mr. Hernandez failed to respond to the Bar Association’s request to answer the client’s grievance. Between August and November 2005, Mr. Hernandez paid the medical providers’ outstanding bills and wrote a letter of apology to the client, which he sent with a final disbursement statement. In November 2005, Mr. Hernandez was personally served with a subpoena duces tecum requiring his appearance at the Bar Association’s offices for a deposition, along with a request for production of his trust account records. Mr. Hernandez did not appear for his deposition. In December 2005, Mr. Hernandez met with disciplinary counsel and admitted that he knew his trust account was short at least $4,000 in August 2005, that he did not keep a running balance in his check register, and that he was not maintaining client ledgers. Mr. Hernandez refused to allow disciplinary counsel to copy his check register. He agreed to produce, no later than December 16, 2005, copies of all his client files, general and trust account deposit receipts, bank statements, cancelled checks, and check registers, as well as computer printouts of client settlement statements from January 2004 to the present for review. Mr. Hernandez subsequently failed to produce any of the agreed-upon information, and he failed to respond to further calls and letters from the Bar Association. The Bar Association served Mr. Hernandez with another subpoena duces tecum for his deposition, but Mr. Hernandez failed to appear. In May 2006, the Supreme Court suspended him from the practice of law based on his non-cooperation with the Bar Association’s investigation.
Matter No. 2: A client hired Mr. Hernandez to represent her in a personal-injury claim. In preparation for mediation of the claim in 2002, the client provided Mr. Hernandez with copies of her medical expenses and notices from one of her healthcare providers (Provider X) threatening court action for nonpayment of her medical bills. The client also referred phone calls from Provider X to Mr. Hernandez for resolution. The mediation resulted in a $3,000 settlement for the client. Mr. Hernandez and the client agreed that Mr. Hernandez would hold approximately $2,000 of the settlement monies in trust for payment of the outstanding medical bills, including one for Provider X. Mr. Hernandez and the client were to meet to pay the outstanding bills, but the meeting never occurred. Mr. Hernandez later advised the client that he had paid all her medical bills when, in fact, he had not done so. In 2003, Provider X filed suit and served the client with a summons and complaint. Mr. Hernandez received the summons and complaint from the client, told her that he “would take care of it,” and reassured her that it would be dismissed. Mr. Hernandez failed to respond to the summons and complaint, and Provider X secured a default judgment against the client. In October 2004, while refinancing her home, the client learned that a collection agency had placed a lien in the amount of approximately $2,500 against her real property on behalf of Provider X. When confronted by the client in October 2004, Mr. Hernandez agreed to work without payment to remove the lien, but took no steps to satisfy the judgment or remove the lien. The client also requested that Mr. Hernandez pay her the full amount of her settlement proceeds, which Mr. Hernandez still held and had failed to distribute to the client’s healthcare providers. Mr. Hernandez agreed to return his fee of $1,000 and to disburse all of her remaining settlement funds. Mr. Hernandez never took steps to satisfy the judgment or to remove the lien, and failed to respond to phone calls or letters from the client about her matter. The client discovered an additional lien filed against her by another healthcare provider whose medical bill Mr. Hernandez failed to pay. Her credit was severely damaged by the ongoing presence of the unsatisfied judgment and liens. Although Mr. Hernandez left the client a message in May 2006 requesting that they arrange a time to meet to discuss how he could repair the damage to the client’s credit, he did not follow through with his request. Mr. Hernandez failed to answer the Bar Association’s requests for a response to the client’s subsequent grievance.
Matter No. 3: In September 2006, the Bar Association’s auditor completed an audit of Mr. Hernandez’s trust account records for the time period between September 29, 2004, and July 31, 2006. The auditor found that Mr. Hernandez made numerous withdrawals from his trust account in the form of checks, cashier’s checks, and ATM withdrawals, but failed to record a client name or identify a client file on the checks, and that Mr. Hernandez removed funds from his trust account and converted the funds to his own use. The audit revealed that Mr. Hernandez’s trust account was short of funds on at least 114 out of 671 days.
Mr. Hernandez’s conduct violated RPC 1.1, requiring a lawyer to provide competent representation to a client; RPC 1.2(a), requiring a lawyer to abide by a client’s decisions concerning the objectives of representation and 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; former RPC 1.4, requiring a lawyer to 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; former RPC 1.5(b), requiring a lawyer who has not regularly represented a client to communicate the basis or rate of the fee or factors involved in determining the charges for legal services and the lawyer’s billing practices to the client; former RPC 1.5(c), requiring contingent-fee agreements to be in writing and to state the method by which the fee is to be determined; former RPC 1.14(a), requiring all funds of clients paid to a lawyer or law firm to be deposited in one or more identifiable interest-bearing trust accounts maintained and set forth pursuant to the rules; former RPC 1.14(b)(1), requiring a lawyer to promptly notify a client of receipt of his or her funds, securities, or other properties; former RPC 1.14(b)(3), requiring a lawyer to maintain complete records of all funds, securities, or other properties of a client coming into the possession of the lawyer and render appropriate accounts to his or her client regarding them; RPC 1.14(b)(4), requiring a lawyer to promptly pay or deliver to the client as requested by the client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive; former 8.4(b), prohibiting a lawyer from committing a criminal act [here, theft in violation of RCW 9A.56.030] that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; former RPC 8.4(c), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice; 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 (here, ELC 5.3).
Kathleen A.T. Dassel represented the Bar Association. Mr. Hernandez did not appear either in person or through counsel. Lawrence R. Mills was the hearing officer.
Disbarred
John P. Mele (WSBA No. 16381, admitted 1986), of Bellevue, was disbarred, effective May 21, 2008, by order of the Washington State Supreme Court following a hearing. This discipline resulted from conduct in a class-action lawsuit involving improper communication with represented class members and misrepresentations of material facts to the court and to opposing counsel.
Mr. Mele represented a construction company and its owners in a class-action lawsuit. The lawsuit alleged that Mr. Mele’s clients failed to provide their employees with meal periods or pay them for missed meal periods. The class was officially certified under CR 23(b)(2) in December 2002, contained all the employees of the construction company from April 1999 to those currently employed, and was represented by two attorneys certified as class counsel.
In late January 2003, Mr. Mele prepared and e-mailed to one of his clients (employer) a generic declaration template. The declaration dealt exclusively with the legal defense of “waiver” of meal periods — that is, whether or not the employee chose to work without a meal period. The declaration recited facts about the claims made by the class, attested to the class member’s knowledge of Washington law, and concluded with an affirmative statement of “waiver” of meal periods by the class member. The employer needed only to insert the name and employment date of each class member. By agreement, the employer was to present the declarations to all class members for their review and signature, and then return all the signed declarations to Mr. Mele to be used as evidence in support of the legal defense of “waiver.” The employer also mailed declarations to former employees and to those class members who could not come into the employer’s office to sign the declaration in person. In February 2003, the employer notified Mr. Mele they had begun collecting signatures and sent to Mr. Mele checklists containing the name of each class member and the status of each class member’s declaration. The employer procured approximately 60 signed declarations, which were obtained without class counsels’ knowledge or consent and without notification to class members that counsel represented them. The declarations formed the sole factual basis for Mr. Mele’s Motion to Decertify Class, filed in March 2003.
On February 25, 2003, a class member (Mr. S) contacted Mr. Mele to discuss the declaration he had received by mail from the employer. At a critical point during their phone conversation, when Mr. Mele realized he was speaking with a represented class member, he did not terminate the phone call. Instead, he continued the conversation about the subject matter of litigation. Mr. Mele advised Mr. S that he was not required to sign the declaration and that he would inform the employer that Mr. S would not be signing the “waiver” declaration.
On February 26, 2003, Mr. Mele produced the declarations to class counsel as part of discovery. The day before, class counsel had heard from some of the class members who were concerned about documents they were being asked to sign by company management. On reviewing the declarations, class counsel immediately telephoned Mr. Mele to discuss what he viewed as an ethical violation. During that conversation and during a second one later that day, Mr. Mele stated that he had not spoken personally to any class members, although he had spoken to Mr. S the preceding day.
In March 2003, Mr. Mele submitted a personal declaration, made under penalty of perjury, to the court for its consideration in a sanctions hearing. Mr. Mele’s declaration was in response to a declaration filed by Mr. S attesting to his phone conversation with Mr. Mele. In his declaration, Mr. Mele knowingly misrepresented the material facts of the date, time duration, and sequence of his telephone conversation with Mr. S, and misrepresented his knowledge and the character of his involvement in his clients’ use of the generic declaration.
In December 2002, class counsel had served interrogatories seeking a telephone list of class members. Mr. Mele had not provided the list by the January 2003 date that the interrogatories were due. At the March 2003 motion to compel/sanctions hearing, Mr. Mele knowingly misrepresented to the court why the list had not been turned over to class counsel. Mr. Mele informed the court that his client had concerns regarding turning over a telephone list of all their employees, but then asserted that he had instructed his client to do so. Mr. Mele did instruct his client in January 2003 to turn over a telephone list of all class members. However, after discovering in February 2003 that his client had not done so, and after assuring opposing counsel that same day he would get the phone list to him, Mr. Mele failed to reinstruct his client to produce the telephone list. At the March 2003 hearing, when Mr. Mele asserted he had directed his client to produce the list, Mr. Mele knew he had not done so since discovering his client’s failure to produce the list in February.
Mr. Mele’s conduct violated former RPC 3.3(a)(1), prohibiting a lawyer from knowingly making a false statement of material fact or law to a tribunal; former RPC 3.3(a)(4), prohibiting a lawyer from offering evidence that the lawyer knows to be false; former RPC 4.2, prohibiting a lawyer from communicating about the subject matter of the representation with a party the lawyer knows to be represented by another lawyer, without consent of the other lawyer; former RPC 8.4(a), prohibiting a lawyer from violating or attempting to violate the Rules of Professional Conduct; former 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and former RPC 8.4(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice.
Kathleen A.T. Dassel represented the Bar Association. Kurt M. Bulmer represented Mr. Mele.
Suspended
Jeb E. Burgess (WSBA 36891, admitted 2005), of Bellevue, was suspended for three years, effective July 9, 2008, by order of the Washington State Supreme Court. This discipline is based on conduct that involved criminal acts.
In March 2006, Mr. Burgess blocked the path of a 13-year-old girl (A.S.) with his car and attempted to engage her in conversation by asking her questions, including her name, her dog’s name, and the location of the middle school. Mr. Burgess did not expose himself on this occasion. In April 2006, Mr. Burgess approached another 13-year-old girl in his van and asked directions to the middle school. When she walked up to the passenger window to answer his question, she observed him in the driver’s seat exposing his penis and masturbating. In May 2006, Burgess approached another girl in his car and asked directions to the middle school. As she was looking at him, he was holding something that looked like a tissue in his left hand and then uncovered his penis. In August 2006, Mr. Burgess approached an 11-year old girl and a nine-year-old girl on a school playground and said he was looking for a cell phone. He also said he found some money and asked if it was theirs. As he was leaving he turned and said words to the effect, “I have something cool to show you,” and unzipped his pants and exposed himself to them. In September 2006, Mr. Burgess again blocked A.S.’s path with his car and asked her if she had seen the middle school yet. He drove away when she began to use her cell phone. Mr. Burgess did not expose himself on this occasion. Mr. Burgess was arrested that day and signed an admittedly false statement under oath.
In January 2007, the King County Prosecutor filed an Amended Information charging Mr. Burgess with five gross misdemeanors, which included two counts of indecent exposure (RCW 9A.88.010(1)), one count of stalking (RCW 9A.46.110), and two counts of communication with a minor for immoral purposes (RCW 9.68A.090). Mr. Burgess pleaded guilty to the five-count Amended Information, was sentenced to consecutive 12-month terms with all but 60 days suspended and five years probation, and was required to register as a sex offender. Mr. Burgess admitted that from approximately April 2005 until September 25, 2006, he had engaged in a pattern of “cruising” behavior in which he would drive around, generally after school let out or when he had time, looking for girls with whom to converse and expose his penis and masturbate. He admitted that, during this period of time, he attempted to expose himself 30 times and was successful on eight occasions. He also admitted that he had researched some criminal statutes before engaging in the behavior and knew it was wrong.
Mr. Burgess’s conduct violated RPC 8.4b, 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; and RPC 8.4(i), prohibiting a lawyer from committing any act involving moral turpitude, or corruption, or any unjustified act of assault or other act which reflects disregard for the rule of the law.
Joanne S. Abelson represented the Bar Association. David Allen represented Mr. Burgess. Lish Whitson was the hearing officer.
Reprimanded
Clinton M. Coons (WSBA No. 27246, admitted 1997), of Kent, was ordered to receive a reprimand on May 12, 2008, following approval of a stipulation by a hearing officer. This discipline resulted from engaging in conduct that led to conviction of a misdemeanor under the Internal Revenue Code of 1986, as amended.
Mr. Coons co-owned and operated Business Office Suite Services (BOSS), which provided business services such as bookkeeping functions, paralegal support and office space to clients. Mr. Coons mostly handled estate-planning matters, document preparation, powers of attorney, tax preparation, and setting up Limited Liability Corporations (LLCs). During the fiscal year ending March 31, 2004, BOSS failed to file an income-tax return. Mr. Coons knew that he had to timely file BOSS’s tax return and timely pay the income taxes due, and intentionally failed to do so. The amount of tax due was $54,667. BOSS initially did not file the tax return based on erroneous advice from accountants as to whether any taxes were owed. In 2005, the IRS began investigating BOSS in connection with its tax filing and reporting requirements. As a result of the IRS inquiry, BOSS hired a forensic accountant to reconstruct the company’s financial records to determine if it had any tax liabilities during fiscal year 2004. The IRS was aware of this process, which took two years and extended past the IRS-imposed deadline. BOSS did not file the tax returns before the deadline because the directors were unsure of the amount due.
In November 2006, Mr. Coons was charged with violating 26 U.S.C. § 7203, a misdemeanor. Mr. Coons pleaded guilty in May 2007. He was placed on probation for three years and was required to report his conviction to the Bar Association. The delinquent tax return has been filed and all back taxes and penalties have been paid.
Mr. Coons’s conduct violated 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.
Joanne S. Abelson represented the Bar Association. Paige Davis represented Mr. Coons.
Reprimanded
Andrew T. Mathis (WSBA No. 27090, admitted 1997), of Kent, was ordered to receive a reprimand on May 12, 2008, following approval of a stipulation by a hearing officer. This discipline resulted from engaging in conduct that led to conviction of a misdemeanor under the Internal Revenue Code of 1986, as amended.
Mr. Mathis co-owned and operated Business Office Suite Services (BOSS), which provided business services such as bookkeeping functions, paralegal support, and office space to clients. Mr. Mathis mostly handled estate-planning matters, document preparation, powers of attorney, tax preparation, and setting up Limited Liability Corporations (LLCs). During the fiscal year ending March 31, 2004, BOSS failed to file an income-tax return. Mr. Mathis knew that he had to timely file BOSS’s tax return and timely pay the income taxes due, and intentionally failed to do so. The amount of tax due was $54,667. BOSS initially did not file the tax return based on erroneous advice from accountants as to whether any taxes were owed. In 2005, the IRS began investigating BOSS in connection with its tax filing and reporting requirements. As a result of the IRS inquiry, BOSS hired a forensic accountant to reconstruct the company’s financial records to determine if it had any tax liabilities during fiscal year 2004. The IRS was aware of this process, which took two years and extended past the IRS-imposed deadline. BOSS did not file the tax returns before the deadline because the directors were unsure of the amount due.
In November 2006, Mr. Mathis was charged with violating 26 U.S.C. § 7203, a misdemeanor. Mr. Mathis pleaded guilty in May 2007. He was placed on probation for three years and was required to report his conviction to the Association. The delinquent tax return has been filed, and all back taxes and penalties have been paid.
Mr. Mathis’s conduct violated RPC 8.4(b), which prohibits a lawyer from committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.
Joanne S. Abelson represented the Bar Association. Paige Davis represented Mr. Mathis.
