Allper, In re, CD
| Decision Date | 09 October 1980 |
| Docket Number | No. CD,CD |
| Citation | 94 Wn.2d 456,617 P.2d 982 |
| Parties | In re the Disciplinary Proceedings Against Stanley B. ALLPER, an Attorney at Law. 5105. |
| Court | Washington Supreme Court |
Leland G. Ripley, Washington State Bar Ass'n, Seattle, for Bar ass'n.
Stanley B. Allper, pro se.
This is an attorney disciplinary proceeding referred to the court pursuant to Discipline Rule for Attorneys (DRA) 5.6(h) on a recommendation that respondent Stanley B. Allper be disbarred for mishandling clients' funds. We also shall determine if Allper should be held in contempt of court for failure to observe the suspension from practice order of this court dated November 17, 1978. That order resulted from his noncompliance with Continuing Legal Education (CLE) requirements for 1977 under Admission to Practice Rule (APR) 11.
The central question is: Should Allper be disbarred? We adopt the recommendation of the Disciplinary Board (board) of the Washington State Bar Association (bar) and, accordingly, order disbarment.
On June 27, 1979, a complaint was filed by the bar charging respondent Allper with unfitness to practice law as a result of an alleged mishandling of a client's funds, neglect of another client's affairs and his previous disciplinary record. Prior discipline includes: (1) censure for conduct prejudicial to the administration of justice and neglect of a legal matter (June 6, 1975); (2) censure for neglect of a legal matter, placing himself in a conflict-of-interest situation and failing to cooperate in a disciplinary investigation (August 29, 1977); (3) reprimand for neglect of a legal matter and intentional failure to carry out a contract of employment (August 11, 1978).
Allper filed an answer July 20, 1979, and a hearing was set for August 17, 1979. At Allper's request the hearing was postponed until September 28, 1979. His September 24, 1979, request for another continuance was denied. He was notified of the hearing and was under subpoena but did not appear personally or by counsel. He has not filed a brief contesting the board's findings, conclusions and recommendations.
The findings of the hearing board officer (hearing officer) adopted by the board indicate that in August 1975, Allper was employed by Robert and Ann Neal, who were selling a residence, to act as closing attorney in the transaction. Because of potential disputes over a real estate commission, the sellers' closing statement provided that $2,520 was "to be retained in escrow until instructed by the sellers to disburse." On September 2, 1975, Allper received $16,451.79 from the purchaser which he deposited into his account. He subsequently closed the transaction, disbursing necessary funds from the account.
Following the closing, the Neals were sued by one Sheehan, who claimed that the Neals should have sold the residence to him. Allper successfully defended the Neals and a judgment was entered in May 1977. During the handling of the real estate closing and the lawsuit, respondent earned substantial fees, but the amount was not determined, nor paid.
In May 1977, Allper advised Robert Neal that the $2,520 should be left in his attorney trust account because the realtor might sue for a commission. Neal met with Allper September 22, 1978, and urged that Allper state the fees due and that a settlement be made. Respondent, however, claimed that some of his records had been stolen, making it difficult to determine the time spent on the Neals' behalf. There was a discussion to the effect that Allper should pay Neal interest because of the delay, but Neal did not intend to give Allper authority to use the trust funds for his own purposes.
After the September 22, 1978, meeting, Neal attempted several times to contact Allper and obtain a settlement. Allper repeatedly promised immediate resolution and payment, which was not forthcoming.
Allper forwarded a letter to Neal January 31, 1979, stating that the amount owing for services was $1,530 and indicating that payment of the account balance would be made upon receipt of a save-harmless agreement. Neal refused to agree to the propriety of the fee but nonetheless furnished the save-harmless agreement. The dispute concerning fees has continued and was unresolved at the time of the hearing.
The hearing officer further found that Allper failed to maintain funds equal to the unpaid $2,520 in his trust account and that on a number of occasions in 1976, 1977 and 1978, trust checks in smaller amounts were returned by the bank "NSF." On January 31, 1979, the trust account had a zero balance and was closed. Allper has not paid the money due the Neals.
The hearing officer and the board concluded that Allper's conduct in handling the Neal funds violates DR 9-102(A) and (B). They also concluded that Allper's delay in signing and returning a Notice of Substitution and Withdrawal constitutes a technical violation of DR 2-110(B)(4), which requires a lawyer to withdraw from employment when discharged by a client.
Based upon his conclusion that Allper mishandled the Neal's funds and that respondent's disciplinary record indicated a general unfitness to practice law, the hearing officer recommended a one-year suspension.
At its November 16, 1979, meeting, the board unanimously adopted the findings of the hearing officer. However, the board modified the conclusion regarding the accumulation of discipline to provide that Allper's prior disciplinary record, including the conduct giving rise to a 90-day suspension recommendation already before the court, and the conduct involved in the instant proceeding, "constitutes a general unfitness to practice law as proscribed by DR 1-102(A) (6), and warrants disbarment." The board unanimously recommended disbarment, both for nonretention of the Neal funds in his trust account and for his general unfitness evidence by the cumulative discipline.
The earlier disciplinary action resulting in the 90-day suspension recommendation was initiated by a 3-count complaint filed by the bar. Count 1 alleged that Allper had given false testimony under oath and filed a false affidavit with the bar; count 2 alleged the mishandling of clients' funds; count 3 alleged unfitness to practice law.
After a disciplinary hearing, the hearing officer found no misconduct under count 1. As to count 3, he concluded that the earlier disciplinary sanctions against Allper together with the instant action did not show unfitness to practice law. The hearing officer concluded with reference to count 2 that Allper used funds belonging to four clients, failed to promptly pay and account to said clients and commingled the clients' funds with his own, contrary to DRA 1.1(c) and (i), and DR 9-102(A) and (B) of the Code of Professional Responsibility. These conclusions were based on Allper's handling of the funds of Lyn Foster, Paul Beckman, Fidelity Finance and the Metropolitan Health Club.
In June 1977, Allper began collecting rent for Foster. He properly received and deposited in his attorney trust account the June payment of $75 and remitted $50 to Foster, her two-thirds share. In July 1977, however, he failed to deposit the second payment, a check for the $200 balance due. Allper nevertheless wrote a trust account check to Foster for her $133.33 share of the $200, which was returned for insufficient funds.
On August 12, 1977, Allper wrote to himself and cashed a $375 trust account check to transfer funds to himself. His trust account records on that day showed an insufficient balance to cover the check, which was returned for insufficient funds.
Allper deposited $707.75 in the trust account August 23, 1977, which sum included $173.75 received for client Beckman. Beckman's funds were not delivered to him until after December 23, 1977. From the $707.75 deposit, the bad checks previously written to respondent and Foster were renegotiated and covered.
Respondent received and deposited $264 August 23, 1977. His August 25, 1977, check to Fidelity Finance in the amount of $148.17, the client's two-thirds share, was dishonored because of insufficient funds on both September 14, 1977, and September 29, 1977. Fidelity received a money order from Allper remitting the funds in early 1978. In addition, on October 16, 1977, Allper received $176 for Fidelity Finance. The next day he wrote a trust account check for his client's share which was returned twice for insufficient funds. In early 1978, Allper purchased a money order and remitted the funds.
Finally, on September 12, 1977, Allper received a $250 check made out only to himself on account due Metropolitan Health Club and for which Allper had brought collection proceedings. These funds were never deposited in the trust account. On the same day, Allper wrote a $166.67 trust account check to the Health Club, which was returned for insufficient funds September 23, October 11, and October 26.
As of the date of the discipline hearing, September 25, 1978, the Health Club check had not been paid despite an action and judgment against Allper for the funds. At the hearing Allper testified that he did not pay the judgment because he disagreed with collection tactics of a health club attorney but that he now believed he had been wrong and would pay. Allper satisfied the obligation before entry of the findings.
In his recommendations, the hearing officer reasoned that disbarment would be inappropriate if there was a rationale for a less severe sanction. He found that rationale in the general satisfaction of Allper's clients and in Allper's conduct, which Consequently, the hearing officer recommended a one-year suspension to be deferred for two years. During that two years respondent was to be required to submit quarterly accountings showing the activity and status of his trust account.
The...
To continue reading
Request your trial
-
Rosellini, Matter of
... ... , 539 P.2d 83 (1975); In re Robinson, 89 Wash.2d 519, 573 P.2d 784 (1978); In re Gibson, 90 Wash.2d 440, 442, 583 P.2d 633 (1978); In re Cary, 90 Wash.2d 762, 585 P.2d 1161 (1978); In re Hawkins, 91 Wash.2d 497, 589 P.2d 247 (1979); In re Zderic, 92 Wash.2d 777, 600 P.2d 1297 (1979); In re Allper, 94 Wash.2d 456, 617 P.2d 982 (1980) ... Despite these strong precedential statements that disbarment results from misuse of trust funds, there have been instances where this court has imposed less severe discipline. In In re Salvesen, 94 Wash.2d 73, 614 P.2d 1264 (1980), we ... ...
-
In the Matter of The Disciplinary Proceeding v. Camp
... ... We have disbarred attorneys for repeated behavior indicating the attorney did not learn from the previous disciplinary action. See In re Disciplinary Proceedings Against Yates, 110 Wash.2d 444, 453, 755 P.2d 770 (1988) (citing In re Disciplinary Proceedings Against Allper, 94 Wash.2d 456, 617 P.2d 982 (1980); In re Disciplinary Proceeding Against Vetter, 104 Wash.2d 779, 711 P.2d 284 (1985); In re Disciplinary Proceeding Against Selden, 107 Wash.2d 246, 728 P.2d 1036 (1986)). 56 Next, we consider the extent of agreement among the Disciplinary Board. We give ... ...
-
IN RE DISCIPLINARY PROCEEDING MILLER
... ... Each of the violations warrants disbarment pursuant to Standard 4.31. Furthermore, we have held that when an attorney uses client's funds for his or her own personal use, disbarment is the usual result. See In re Disciplinary Proceeding Against Allper, 94 Wash.2d 456, 463, 617 P.2d 982 (1980) ; In re Disciplinary Proceeding Against Kumbera, 91 Wash.2d 401, 403, 588 P.2d 1167 (1979) ... In looking at Miller's violation of RPC 8.4(c), which he has conceded to, Standard 5.11 proffers that disbarment is also the presumptive ... ...
-
In re the Disciplinary Proceeding Against
... ... We have disbarred attorneys for repeated behavior indicating the attorney did not learn from the previous disciplinary action. See In re Disciplinary Proceeding Against Yates, 110 Wn.2d 444, 453, 755 P.2d 770 (1988) (citing In re Disciplinary Proceeding Against Allper, 94 Wn.2d 456, 617 P.2d 982 (1980); In re Disciplinary Proceeding Against Vetter, 104 Wn.2d 779, 711 P.2d 284 (1985); In re Disciplinary Proceeding Against Selden, 107 Wn.2d 246, 728 P.2d 1036 (1986)). Next, we consider the extent of agreement among the Disciplinary Board. "We give deference ... ...
-
§12.3 RPC 8.4: Misconduct
...e.g., In re Felice, 112 Wn.2d 520, 527, 772 P.2d 505 (1989); In re Vetter, 104 Wn.2d 779, 786, 791, 711 P.2d 284 (1985); In re Allper, 94 Wn.2d 456, 476, 617 P.2d 982 148.This seems to have been so for at least a century. PIERCE'S CODE OF WASHINGTON §§3197(2), 3187 (1902). The specific lang......
-
Table of Cases
...Wn.2d 367, 128 P.3d 81 (2006): 1.2(2)(a), 1.2(2)(b), 1.7(1) Alejandre v. Bull, 159 Wn.2d 674, 153 P.3d 864 (2007): 18.4(8) Allper, In re, 94 Wn.2d 456, 617 P.2d 982 (1980): 17.2(2)(b) Allyn v. Boe, 87 Wn. App. 722, 943 P.2d 364 (1997), review denied, 134 Wn.2d 1020 (1998): 8.4(1) Am. Nurser......
-
Table of Cases
...P.2d 998, amended by 773 P.2d 420 (1989): 9–13 n.75 Allotta, In re, 109 Wn.2d 787, 748 P.2d 628 (1988): 16–23 n.215; 16–51 Allper, In re, 94 Wn.2d 456, 617 P.2d 982 (1980): 12–25 n.147; 12–35 n.215; 16–53 Alpha Inv. Co. v. City of Tacoma, 13 Wn. App. 532, 536 P.2d 674 (1975): 3–16 n.87; 7–5......
-
Attorney Fee Disgorgement as a Disciplinary Action
...proceedings are not criminal actions; they are sui generis, or peculiar to themselves." In re Allper, 94 Wash. 2d 456, 467, 617 P.2d 982, 987 (1980). See also Wash. R.L.D. 4.11(a) ("[D]isciplinary proceedings are neither civil nor criminal but are sui generis hearings intended to determine ......