In re Boelter

• Decision Date: 07 October 1999
• Docket Number: No. 09213-3.,09213-3.
• Citation: 139 Wash.2d 81,985 P.2d 328
• Court: Washington Supreme Court
• Parties: In the Matter of the DISCIPLINARY PROCEEDINGS AGAINST Arthur H. BOELTER, Attorney at Law.

985 P.2d 328

139 Wash.2d 81

In the Matter of the DISCIPLINARY PROCEEDINGS AGAINST Arthur H. BOELTER, Attorney at Law.

No. 09213-3.

Supreme Court of Washington, En Banc.

Argued June 24, 1999.

Decided October 7, 1999.

Kurt M. Bulmer, Seattle, for Petitioner.

Joanne S. Abelson, Washington State Bar Association, Seattle, for Respondent.

ALEXANDER, J.

Attorney Arthur H. Boelter appeals the Washington State Bar Association (WSBA) Disciplinary Board's recommendation to this court that he receive a six-month suspension from the practice of law due to three counts of misconduct. The alleged misconduct arose out of a fee dispute between Boelter and a client, Robert Withey. The Board found that Boelter threatened to reveal Withey's confidences in a suit to collect fees and falsely claimed that a disclosable tape recording of a conference with Withey existed. It also found that the amount Withey was billed for the legal services was unreasonable. Boelter contends that a clear preponderance of the evidence does not support the findings of misconduct, and that the aggravating and mitigating factors were not properly weighed in determining his sanction.

FACTS

Boelter was admitted to practice in Washington in 1979. At the time of the alleged misconduct he was a principal in the Seattle law firm of Boelter, Silver and Gale, a firm that was known for a portion of the time material to this appeal as Boelter and Gale. Boelter was hired by Withey in 1990 to represent him before the Internal Revenue Service (IRS) in a tax dispute. During their initial conference, which occurred in August 1990, Withey revealed confidential information to Boelter regarding his past dealings with the IRS, including information that led Boelter "to conclude that Withey had concealed assets from the IRS and a bank." Clerk's Papers (CP) at 119. Boelter and Withey discussed payment of fees at this meeting. Boelter requested, and Withey paid in two installments, an $800 advance fee deposit which was deposited in the firm's trust account. Withey also received a pamphlet entitled "Boelter, Silver & Gale Attorneys at Law Terms of Engagement." Ex. 1; see also Report of Proceedings (RP) at 26.

Most of the legal work for Withey was performed by two associate attorneys at Boelter's law firm, Deborah Lyons and John White. The law firm did no substantive legal work for Withey after November 1990. At that time a balance of fees was owing. In January and September of 1991, Boelter directed White to write letters to Withey in an effort to collect the unpaid fees. On October 8, 1991, Boelter wrote a letter to Withey that is at issue here. The letter alleged that Withey owed $1,824.33 for legal services performed and it warned that

if we are not paid in full by October 15, 1991, we will file suit for the fees. You should understand that if we are forced to file suit, you forgo the attorney-client privilege and I would be forced to reveal that you lied on your statements to the IRS and to the bank as to your financial condition. This would entail disclosure of the tapes of our conversations about your hidden assets. There is a federal statute 18 U.S.C. § 1001 which provides for up to one year in jail for such perjury. The choice is yours.

Ex. 4; see CP at 119-20. Following receipt of this letter, Withey formed an opinion that Boelter had a tape recording of their August 1990 conversation, and believed that Boelter would reveal confidential information about Withey's financial condition and assets if Withey did not pay his bill. Boelter followed this letter with a handwritten "speedmemo" dated November 15, 1991, confirming a telephone conversation with Withey. At the bottom it read that "[a] copy of this letter is also being sent by certified mail. Our preparations to file suit have begun. I would suggest that you liquidate one of the undisclosed art works you have & pay us by Nov. 25, 1991[.] Your choice[.]" Ex. 5.

In January 1992 Boelter and Withey reached a verbal understanding concerning settlement of Withey's account, and Boelter confirmed the agreement in a January 3, 1992, letter to Withey. Withey thereafter made a $400 payment to Boelter's firm, but failed to make the other payments outlined in the letter.

On March 3, 1992, at Boelter's behest, Boelter's associate, White, filed suit in Snohomish County District Court against Withey and Withey's wife. Withey's attorney, Harry Platis, then contacted White and told him

that he had received $1,803.97 from Withey and had placed it in his trust account, and that he was authorized to pay those funds to Respondent [Boelter] upon return of the tape recordings of Respondent's conference with Withey and on condition that Respondent give Withey all of his files and retain no copies.

CP at 121 (citation omitted); see also Ex. 70. White told Platis that he did not know of any tape recordings, and had not seen either the October 8, 1991, letter or the lower portion of the November 15, 1991, "speed-memo" in the file Boelter had given to him.

Concerned over the legal and ethical consequences of what appeared to be threats to Withey, White spoke with another associate who showed White a tape in Boelter's "desk drawer with the name `Withey' written on a `post-it' note attached to the tape." CP at 122. When White shared his concerns with Boelter, Boelter "clearly implied that a tape of his August 17, 1990 conversation with Withey had existed but that it had been erased." CP at 126. Boelter "told White that the tape no longer existed" and showed him that the tape was no longer in the desk drawer. CP at 122. White informed Platis of what he had learned, and Platis then indicated that a signed affidavit from Boelter attesting to "the fact that there was no longer a tape" would be acceptable. CP at 122. White prepared an affidavit at Boelter's request and Boelter signed it, with White notarizing his signature. In his affidavit, Boelter averred that "a tape recorded record was made" of Boelter's conversations with Withey and that the "tape has been erased and no transcript or copy of the original tape exists." Ex. 9. Relying upon this document, White wrote a letter to Platis on March 25, 1992, to confirm that the lawsuit was ready for settlement. Prior to consummating this agreement, Withey filed the grievance with the WSBA that is at issue here. The collection lawsuit against Withey did, however, proceed and was eventually settled in October 1993, upon Withey's payment to Boelter of $1,300.

In an April 1992 letter to Boelter, the WSBA requested a response to Withey's grievance. Boelter's response was filed in letter form with the WSBA in May 1992. In it he stated that the conference with Withey was not, in fact, tape-recorded and that the October 8, 1991, letter referred to dictation tapes. The letter did not mention the affidavit upon which the settlement negotiations between White and Platis had been predicated. Three years passed before the WSBA again wrote Boelter soliciting information concerning the grievance. During that interval Boelter asked White to destroy the affidavit he had signed in 1992. White refused to do so. White did, however, return the Withey file to Boelter at Boelter's request. Two other associates in Boelter's law firm subsequently made a copy of the affidavit and submitted it to the WSBA..

In February 1997, The WSBA formally charged Boelter with eight counts of misconduct, alleging violations of the Rules of Professional Conduct (RPC). A three-day hearing was thereafter held before Hearing Officer Fred Butterworth in April 1997. In addition to the alleged impropriety of the methods Boelter used in trying to collect the fees owed by Withey, the WSBA claimed that the fees charged to Withey were unreasonable. Its audit manager testified in support of this allegation and indicated that had various unauthorized and unreasonable fees not been added to Withey's account, and had Withey's $800 advance fee deposit been credited in a manner consistent with the "Terms of Engagement" pamphlet, only $186.48 would have been owed by Withey as of March 3, 1992-not the $1,803.97 for which the lawsuit was maintained.

In August 1997 the hearing officer filed his extensive "Findings of Fact, Conclusions of Law and Hearing Officer's Recommendation" with the Disciplinary Board, finding that three counts of misconduct had been proven by "a clear preponderance of the evidence." See CP 115-50. Count I was that Boelter "engaged in conduct in violation of RPC 8.4(c), because the letter contained materially false and misleading information intended to obtain payment of earned and unpaid fees from Withey." CP at 137. Count IV was based on Boelter, in violation of RPC 8.4(c), falsely "stating [in] the October 8, 1991 letter to Withey that a tape did exist, and stating to White in the course of representation in the lawsuit that there had been a tape recording, but that it had been destroyed." CP at 137-38. Count VII was that Boelter's "conduct in adding certain unauthorized costs and expenses to Withey's monthly billing statements and charging certain excessive or unauthorized fees, violated RPC 1.5." CP at 138. The hearing examiner accepted as fact the WSBA's determination that the amount owed by Withey at the time the collection lawsuit was filed was $186.48, and not $1,803.97. The hearing examiner recommended the following sanctions: "On Counts I and IV the conduct of the lawyer warrants a 90 day suspension from the practice of law and Count VII restitution of the fees paid by Mr. Withey plus any fees Mr. Withey paid to Harry Platis." CP at 140.

In December 1997, by a 6-5 decision, the Board approved the examiner's findings and recommendation that Boelter pay restitution, but recommended an increased sanction of six months suspension on the basis that "the increased sanction is more appropriate to the misconduct found by the Hearing Officer." CP at 152. The five dissenters would have adopted the hearing officer's...