In re Disciplinary Proc. against Stansfield

• Decision Date: 17 July 2008
• Docket Number: No. 200,479-2.,200,479-2.
• Parties: In the Matter of the DISCIPLINARY PROCEEDING AGAINST Mark STANSFIELD, an attorney at law.
• Court: Washington Supreme Court

187 P.3d 254 164 Wn.2d 108 In the Matter of the DISCIPLINARY PROCEEDING AGAINST Mark STANSFIELD, an attorney at law. No. 200,479-2. Supreme Court of Washington, En Banc. Argued January 15, 2008. Decided July 17, 2008.

[187 P.3d 256]

Mark Stansfield, Quincy, WA, Leland G. Ripley, Attorney at Law, Lake Stevens, WA, for Petitioner.

Natalea Skvir, Washington State Bar Association, Seattle, WA, for Respondent.

CHAMBERS, J.

¶ 1 Mark Stansfield was admitted to the Washington State Bar in 1980 and was actively practicing law in 2003 when the cases underlying this matter began. Prior to these proceedings, he had no discipline history. A hearing officer found that he violated former RPC 1.2(f) (2002) by purporting to represent a person without authority and former RPC 1.9 (1993) by representing clients with adverse interests. The hearing officer recommended sanctions of a reprimand and admonition respectively. The Washington State Bar Association Disciplinary Board (board) upheld the violations but recommended a six month suspension as a sanction. We affirm the violations but conclude that the board erred in failing to adopt some of the hearing officer's findings of fact, particularly those findings relating to Stansfield's motives and state of mind. We impose two reprimands, order Stansfield to pay restitution to Olga Chavez for the delay of her receipt of funds, and order him to disgorge the fee he received from his representation of Francisco Vargas.

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FACTS

Motor Vehicle Collision

¶ 2 On May 9, 2003, Francisco Vargas, Jr.,¹ sped through a stop sign in Quincy, Washington and struck a car driven by Miguel Urquilla. After the collision, both vehicles came to rest upside down. Both Miguel Urquilla and his passenger, Miguel Chavez, were killed.² Vargas was uninsured, and the police report stated that "there is probable cause to believe that the collision was due to Francisco L. Vargas operating his Lexus `while under the influence of intoxicating liquor or any drug.'" Ex. 50, at 12.

Urquilla Representation

¶ 3 On May 20-21, 2003, Miguel Urquilla's widow, Rosa Urquilla,³ and her daughter, Ivon Urquilla, met with Stansfield. Urquilla did not speak English, so her daughter acted as her interpreter. According to Stansfield, Urquilla told him that she needed help collecting underinsured motorist (UIM) benefits. Miguel Urquilla had UIM coverage with Farmers Insurance Company, and Farmers would tender policy limits only if the Urquilla estate was probated and there was a personal representative appointed. Urquilla also asked about suing Vargas for wrongful death, but Stansfield counseled her against pursuing the claim because Vargas lacked assets.

¶ 4 According to Stansfield, he was retained solely to probate the estate to facilitate collection of the Farmers insurance money. He took the case on an hourly basis instead of a contingency because the insurance company had already offered policy limits and because the limits were low. It is uncontested that Stansfield promptly filed the probate in Grant County Superior Court and Urquilla was appointed personal representative. Farmers transmitted the $50,000, and Urquilla, as personal representative, gave notice of an early distribution of the $50,000 and filed a notice of completion all within 90 days. Stansfield distributed $48,142.95 to the estate and retained the difference for his fees and costs.

Chavez Representation

¶ 5 Around the same time Urquilla retained Stansfield, she told Stansfield that Miguel Chavez's widow lived in Guatemala and was ill because of her shock at her husband's death. According to Stansfield, Urquilla told him that Olga Chavez⁴ had given her authority to act as personal representative of the Chavez estate. Stansfield had Urquilla sign a fee agreement and other documents as personal representative of the Chavez estate. Stansfield notified Farmers that he represented the estates of both Miguel Urquilla and Miguel Chavez. He then wrote a letter to Chavez, translated into Spanish, asking her whether she wanted him to handle her husband's estate and if she wanted to be the personal representative or Urquilla to be personal representative. Stansfield received no response to his letter to Chavez, so he followed up with another letter to which there was also no response. He also drafted pleadings for the probate of the Chavez estate, although he never filed them. He contends that his efforts on behalf of Chavez and the Chavez estate were motivated by a desire to protect them from others who might take advantage of them.

¶ 6 Meanwhile, on June 13, 2003, Chavez executed a power of attorney authorizing her brother-in-law, Mario Chavez, to find a lawyer to represent her family and her husband's estate. Mario Chavez hired attorney Glenn Carpenter, who filed a UIM claim, investigated possible wrongful death actions against both Vargas and Miguel Urquilla, and probated the Chavez estate.⁵ On August

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29, 2003, after he learned from the insurance adjuster that Stansfield claimed to be representing the Chavez family, Carpenter faxed a letter to Stansfield, asking him to stop his representation and informing Stansfield that Chavez had retained Carpenter to probate her husband's estate. On September 3, 2003, Stansfield responded by filing an attorney's lien for $2,299.32 against the Chavez estate.

¶ 7 On January 12, 2004, the insurance company issued a $50,000 check made payable to Carpenter, Stansfield, and Susanne Ruiz, the personal representative of the Chavez estate. Carpenter contacted Stansfield, asking permission to endorse his name on the check and assuring him that funds double his lien would be kept in the personal representative's trust account until his claim was resolved. Stansfield declined to endorse the check, although he did offer to compromise on his bill. Carpenter did not respond to Stansfield's offer. Carpenter persuaded the insurance company to split the insurance proceeds into two checks: one for $45,000, which did not name Stansfield, and another for $5,000, which required Stansfield's endorsement. In March 2004, Carpenter and Ruiz endorsed the larger check and sent the funds to Chavez. On April 12, 2004, Ruiz denied Stansfield's claim against the Chavez estate. Stansfield took no further action to enforce his lien. On November 16, 2005, Stansfield learned that Carpenter was still holding the $5,000 check and sent a formal notice of vacation of his lien. During the first week of January 2006, Carpenter received the remaining $5,000 insurance benefit and disbursed the funds to Chavez.

Vargas Representation

¶ 8 On September 2, 2003, Vargas was charged with three counts of vehicular homicide and two counts of vehicular assault arising from the motor vehicle collision. His arraignment was set for the morning of September 22, 2003. The Friday afternoon before his arraignment, Vargas and his mother, Maria Vargas, who had known Stansfield for 15 years, went to Stansfield's office without an appointment and asked Stansfield to represent Vargas. They brought with them the documents they received from the prosecuting attorney, including the charging information. The first and second pages of the information list Miguel Urquilla and Miguel Chavez as the victims. Stansfield testified that although he suspected that the accident involved Miguel Urquilla, he does not remember what documents he received or reviewed. According to Maria Vargas, Stansfield told her that "he had helped the Urquilla family, but that he would probably talk to somebody and he thought it would probably be okay for him to represent [Vargas]." Hearing Transcript (HT) at 274.

¶ 9 On Monday, September 22, 2003, before the arraignment, Stansfield had the Vargases sign a fee agreement charging them a nonrefundable flat fee of $10,000, retaining him for all "services including negotiations for settlement, pre-trial motions, if necessary, and settlement by the way of deferred sentence, plea of guilty, or a stipulation resulting in a finding of guilty, or any other settlement prior to trial," and requiring an additional $1,500 per day if the case proceeded to trial. Ex. 40A. The Vargases paid Stansfield the full $10,000 prior to the arraignment. Stansfield represented Vargas at the arraignment, and Vargas pleaded not guilty. On the same day, Stansfield filed a notice of appearance, a notice of demand for discovery, a demand for preservation of evidence, a demand for jury trial, and a demand for a bill of particulars on behalf of Vargas.

¶ 10 The Urquillas attended Vargas's arraignment and were "shocked" and "extremely upset" to see Stansfield representing Vargas. HT at 201-02, 228. After the arraignment, the Urquillas met with Carolyn Fair, the deputy prosecutor for Grant County, and expressed their concerns. Fair called Stansfield's office and spoke with his assistant, asking if Stansfield was planning to voluntarily withdraw his representation or if she needed to bring a motion. She did not speak directly to Stansfield, and he testified that he never received a message from her.

¶ 11 After the arraignment, Stansfield reviewed the Vargas court file and the Urquilla probate file and, after discussing the issue with another attorney, decided to withdraw from the case because he felt "uncomfortable." On October 7, 2003, Stansfield filed a

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notice of substitution of counsel and transferred all but $250 of the $10,000 flat fee to substitute counsel.

PROCEDURAL HISTORY

¶ 12 In February 2005, the Washington State Bar Association (WSBA) formally charged Stansfield with violating former RPC 1.2(f) (Count 1) and former RPC 1.9 (Count 2).⁶ The hearing officer found that Stansfield negligently violated both rules. He also found three aggravating factors: multiple offenses, vulnerability of the victim, and substantial experience in the practice of law; and one mitigating factor: absence of a prior disciplinary record. The hearing officer...