DISCIPLINARY PROCEEDING AGAINST CARMICK

• Citation: 48 P.3d 311,146 Wash.2d 582
• Decision Date: 20 June 2002
• Docket Number: No. 11365-3.,11365-3.
• Court: United States State Supreme Court of Washington
• Parties: In the Matter of the DISCIPLINARY PROCEEDING AGAINST Stephen T. CARMICK, Attorney at Law.

48 P.3d 311

146 Wash.2d 582

In the Matter of the DISCIPLINARY PROCEEDING AGAINST Stephen T. CARMICK, Attorney at Law.

No. 11365-3.

Supreme Court of Washington, En Banc.

Argued February 12, 2002.

Decided June 20, 2002.

As Amended on Denial of Reconsideration July 30, 2002.

Jonathan Burke, Seattle, for Petitioner/Appellant.

Kurt Bulmer, Seattle, for Appellee/Respondent.

JOHNSON, J.

Attorney Stephen T. Carmick asks us to reverse the recommendation of the Washington State Bar Association Disciplinary Board (Disciplinary Board) to suspend him for 60 days from the practice of law for violations of the Rules of Professional Conduct (RPCs). The violations arose from Carmick's representation of a client in settlement negotiations concerning outstanding interest on a child support judgment. The Disciplinary Board found Carmick violated the RPCs by (1) misrepresenting an ex parte order to the superior court; (2) negotiating directly with an adverse party he knew, or should have known, was represented by counsel; and (3) omitting a material fact adverse to his client's position during negotiations with the represented party. We approve the Disciplinary Board's determination regarding the first two grounds of violation and impose a 60-day suspension.

FACTS

Carmick was admitted to the practice of law in Washington in 1980. During the events at issue, he was a sole practitioner in Lewis County. In July 1994, David Catron contacted Carmick. Catron wanted Carmick to represent him in a negotiation for interest on a past due child support judgment, entered against Catron under the Uniform Reciprocal Enforcement of Support Act (URESA). Catron wanted to settle the disputed interest for less than the amount calculated by the Lewis County prosecutor's office. Prosecutors Eugene Butler and Nelson Hunt had commenced the URESA action in 1985 on behalf of Barbara McCracken Alligood (McCracken),¹ a Florida resident. On October 15, 1985, an agreed order and judgment for support in the amount of $15,037.40 was entered in the URESA action. In October 1986, because the state of Florida had lost contact with McCracken, the superior court granted Butler's motion to dismiss the initial petition without prejudice. In September 1993, Catron's then attorney (not Carmick) negotiated with Butler and arranged a payment satisfying the face amount of the URESA judgment in exchange for a release of judgment lien without satisfaction of judgment. As this payment was for the face amount only, the interest on the URESA judgment remained outstanding. In April 1994, Butler located McCracken and sent her a letter advising that the face amount of the judgment had been paid and she could make a claim for interest.

In June 1994, Catron realized interest on the URESA judgment was still outstanding and contacted Butler to request a satisfaction of judgment so he could proceed with a loan to remodel his home. Butler discussed Catron's offer with McCracken. McCracken informed Butler she wanted the interest due her and authorized him to negotiate with Catron on her behalf. Butler calculated the outstanding interest at approximately $11,000, but Catron argued the amount should be lower. On July 12, 1994, Butler executed a release of judgment lien without satisfaction of judgment and the title company processing Catron's loan tendered the Lewis County Superior Court a check for $11,000.

Catron initially attempted to negotiate a lower interest amount directly with McCracken, but was unsuccessful. At this point, Catron hired Carmick to negotiate and settle the dispute for less than the amount held by the superior court. Carmick began his representation of Catron by reviewing the court file. Although virtually all of the pleadings in the URESA action referenced Butler, Carmick did not contact Butler. Instead, Carmick telephoned McCracken to discuss the terms under which she would agree to settle her claim. The content of the conversations between McCracken and Carmick is disputed, but both parties agree Carmick did not reveal to McCracken that $11,000 had been deposited with the superior court. Both parties also agree at some point during their conversations Carmick indicated neither Butler nor Hunt was available but did not tell McCracken she should not consult with them. Butler and Hunt later testified they were available for consultation at the time. However, McCracken did not try to contact either Butler or Hunt.

On July 14, 1994, Carmick drafted and forwarded settlement papers to McCracken settling her claim for $5,000. Carmick's cover letter implied McCracken might have difficulty collecting the interest from Catron. The cover letter also directed McCracken to sign and return any other documents she had "received from the Lewis County Prosecuting Attorney's Office." Clerk's Papers at 13.

On July 25, 1994, Carmick filed the settlement papers McCracken had returned to him, signed and notarized. At approximately the same time, Carmick filed a notice of appearance, but did not serve the notice on Butler, Hunt, or McCracken. On August 2, 1994, Carmick presented an ex parte order to Lewis County Superior Court Judge David R. Draper, authorizing disbursement of $5,000 to McCracken and $6,000 to Catron. No notice of presentation of the order was given to Butler, Hunt, or McCracken. Carmick admits he told Judge Draper both Butler and McCracken were aware of the ex parte order and approved it. The superior court entered the ex parte order and funds were disbursed.

On September 7, 1994, although Butler's calculations indicated the correct total interest due was $12,381.14, he sent a letter to McCracken preparing to satisfy her claim by disbursing the $11,000 he believed was held still by the superior court. Butler discovered Carmick's activities and moved to vacate the ex parte order for disbursement based on fraud. Carmick withdrew from his representation of Catron. Butler and Catron's substitute counsel reached a settlement for an additional $1,000 payment to McCracken, which was finalized on December 30, 1994.

On January 19, 1995, Butler filed a grievance against Carmick. Based on its investigation, the Washington State Bar Association (WSBA) filed a complaint against Carmick for violations of the RPCs resulting from his representation of Catron. The WSBA alleged three counts of misconduct. Count I alleged Carmick violated RPC 4.1(a) and RPC 8.4(c) by misrepresenting through omission McCracken's ability to collect the interest due from Catron. Count II alleged Carmick violated RPC 3.3(f), RPC 3.4(c), RPC 3.5(b), RPC 4.1(a), and RPC 8.4(d) by making misrepresentations to the superior court in his motion for an ex parte order to disburse funds and by failing to serve notice on the parties of the ex parte motion and order. Count III alleged Carmick violated RPC 4.2 by contacting McCracken whom he knew, or should have known, was represented by counsel.

Carmick's disciplinary hearing began on June 28, 1999. On July 21, 1999, the hearing officer entered 19 findings of fact and 7 conclusions of law. In his conclusions of law, the hearing officer determined it was reasonable for Carmick not to have believed Butler represented McCracken, based on the practices in Lewis County at the time, and, as a matter of law under URESA, Butler did not represent McCracken. The hearing officer reasoned since no attorney-client relationship could exist between Butler and McCracken after the URESA petition was dismissed, Carmick could not violate RPC 4.2 by contacting McCracken directly. The hearing officer also concluded Carmick had made no material misrepresentations to McCracken. The hearing officer reached no conclusions of law as to Carmick's conduct in the ex parte proceeding before Judge Draper. The hearing officer dismissed the proceedings against Carmick and recommended no sanctions. The WSBA filed a motion for reconsideration, which was denied.

The WSBA appealed the decision to the WSBA Disciplinary Board. The Disciplinary Board adopted the hearing officer's 19 findings of fact and made 5 additional findings.

20. In a telephone conversation with Ms. McCracken, Ms. McCracken indicated she wanted to speak with Mr. Butler or Mr. Hunt. Respondent told Ms. McCracken that Mr. Butler was on vacation and Mr. Hunt was handling a murder trial. Neither statement was true.

21. On August 2, 1994, when Respondent present[ed] an ex parte order to disburse funds to Ms. McCracken, Respondent represented to the court that all parties were aware of the order. Yet, Respondent had not even provided notice to the parties that the order was being presented.

22. Mr. Butler subsequently discovered the ex parte order while reviewing the court file related to the amount of outstanding interest due Ms. McCracken. Mr. Butler was also contacted by Ms. McCracken who advised him of her prior conversations with Respondent. Upon discovering Respondent's actions, Mr. Butler moved to vacate the ex parte order of disbursement.

23. Respondent withdrew from his representation of Mr. Catron. Mr. Butler reached a settlement with substitute counsel James Lawler. The settlement included a stipulation that the ex parte order of disbursement should be set aside. However, by that time Mr. Catron was essentially judgment proof.

24. In December 1994, Ms. McCracken settled her claim for interest for $6,000: the $5,000 disbursed pursuant to Respondent's ex parte August 2, 1994 order to disburse, and an additional $1,000 from Mr. Catron.

Clerk's Papers at 202-03.

The Disciplinary Board rejected the hearing officer's seven conclusions of law, finding they should more appropriately be characterized as findings of fact, and adopted four new conclusions of law.

1. Respondent violated RPC 4.1(a) and 3.3(f)[²] by misrepresenting information to Ms. McCracken in the process of representing Mr. Catron. Specifically, Respondent (a) misrepresented by omission to Ms. McCracken the availability of assets of Mr. Catron to

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