In re Disciplinary Proceeding against Poole

• Citation: 125 P.3d 954,156 Wn.2d 196
• Decision Date: 05 January 2006
• Docket Number: No. 200,124-6.,No. 200,131-9.,200,124-6.,200,131-9.
• Court: United States State Supreme Court of Washington
• Parties: In the Matter of the DISCIPLINARY PROCEEDING AGAINST Jeffrey G. POOLE, Bar No. 15578, Attorney at Law.

Page 954

125 P.3d 954

In the Matter of the DISCIPLINARY PROCEEDING AGAINST Jeffrey G. POOLE, Bar No. 15578, Attorney at Law.

No. 200,124-6.

No. 200,131-9.

Supreme Court of Washington, En Banc.

Argued May 10, 2005.

Decided January 5, 2006.

COPYRIGHT MATERIAL OMITTED

Mr. Michael Hunsinger, Hunsinger & Associates Sutkus & Kestle, Mr. Kurt Bulmer, Attorney at Law, Seattle, for Petitioner/Appellant.

Mr. Catherine W. Smith, Attorney at Law, Seattle, for Appellee/Respondent.

BRIDGE, J.

On July 1, 2002, the Washington State Bar Association (Bar) filed a formal complaint against Jeffrey G. Poole seeking disbarment for alleged misconduct arising from his representation of grievant Joseph Matson. The complaint, in relevant part, charged Poole with mismanagement of his trust account and billing practices and allegations that he falsified documents. The hearing officer found that the Bar carried its burden on four of the six alleged counts of misconduct and recommended Poole be suspended for six months followed by two years probation and periodic audits of his trust account. The Washington State Bar Association Disciplinary Board (Board) affirmed the findings of fact and conclusions of law but, based on the finding of two additional aggravating factors, increased the suspension to one year. Poole and the Bar sought review which was granted. We now affirm in part and reverse in part the Board's ruling and order Poole suspended for six months followed by two years probation and periodic audits of his trust account.

I Facts and Procedural History

Poole was admitted to the Washington State Bar in 1986. He has been in private practice since that time and since 1993 or 1994 has been the sole principal of Poole & Associates. In August 1999, Matson, an independent construction equipment operator, retained Poole to pursue a claim against BFC Frontier, Inc. (BFC) for failure to pay for services Matson performed. Matson paid a $1,500 retainer and some small payments but was quickly unable to pay the mounting legal fees associated with the litigation. On December 17, 2000, trial against BFC commenced in Snohomish County Superior Court and on December 20, 2000, Poole sent Matson a statement reflecting an unpaid balance of $49,618.74. On December 21, 2000, the trial judge made an oral ruling in favor of Matson on most claims but deferred his ruling on attorney fees. BFC agreed to pay $27,675.35 in accord with the trial court's ruling. Both Poole and Matson testified they agreed the judgment award should be applied toward Matson's outstanding legal fees with Poole. BFC cut a check payable directly to Poole & Associates, and on January 2, 2001 it was deposited in the firm's general account. Inexplicably, the invoice dated February 15, 2001, and all subsequent invoices, failed to reflect the payment of $27,675.35 toward Matson's fees with Poole.

On February 9, 2001, the trial court awarded Matson $42,459.89 in attorney fees and costs, which BFC paid into Poole & Associates' trust account. By agreement between Poole and Matson, this amount was then disbursed from the trust account with Matson receiving $20,000 and Poole & Associates receiving $22,459.89. While both amounts were debited from the trust account, the record reflects that the $20,000 amount provided to Matson, in addition to the $22,459.89, was erroneously credited against his amount owing to Poole. In sum, at this point, Poole's office failed to credit Matson's account with $27,675.35 but erroneously credited his account with $20,000. The net result of this error was that from February 2001 onward, invoices sent to Matson reflected an amount owing of $7,675.35 in excess of the actual balance.

Beginning in February, the parties erroneously believed that Matson continued to owe Poole & Associates approximately $16,000 in legal fees. Hearing Officer's Am. Findings of Fact Conclusions of Law and Recommendations, Findings of Fact (FOF) 20; Ex. 11 (March 30 invoice reflecting balance owing of $15,927.75). However, the actual amount owing was $7,675.35 less, or approximately $8,200.

To satisfy the outstanding legal fees, Poole and Matson agreed that Matson would work off the remaining balance by performing trench work on a parcel of real property in Graham, Washington, owned by Poole's limited liability company (LLC). Poole testified that he believed the project should cost no more than $4,500, but he never conveyed that belief to Matson. Poole alleges he sent Matson a letter, dated February 19, 2001, memorializing the parties' agreements to date, to wit that $27,675.35 was applied to Matson's account, the division of the $42,459.89 award, that the balance due was around $16,000, and that Matson would perform trench work for Matson and in return Poole would "write off the balance of [his] bill." Ex. 9. While the Bar alleged this letter was created by Poole in October and only in response to Matson's discontent, the hearing officer found that the Bar failed to meet its burden and that there was insufficient evidence to determine whether or not the letter was actually drafted and sent in February 2001. In April, Matson began work on the Graham property which he completed in late May. In March and April 2001, Poole sent Matson invoices showing outstanding balances of approximately $16,000, with interest accruing.

In May 2001, with regard to a wholly separate matter, Matson met with an attorney representing a bonding company to whom he owed money. Matson and the attorney also discussed Matson's outstanding balance with Poole and it was following this conversation that Matson began to claim that Poole was withholding a portion of his BFC judgment award. On May 25, 2001, Matson faxed Poole an invoice for the completed trench work for $26,547.98. Deducting the believed $16,094.43 balance owing and the $500 Poole had paid for gas, he alleged Poole owed him $9,953.55. He further alleged that Poole was wrongfully "holding the balance of the claim that was awarded to [him] (approx. 7500.00) against the rules of professional responsibility" and demanded the "balance of [his] Trust account" be returned to him. Ex. 14. The parties had a heated telephone conversation that day, and Poole responded by letter the same day asserting that the firm was holding no funds for Matson in its trust account. In that letter Poole conflictingly stated (1) that because Matson had consulted with an attorney he would not communicate further with him without his written consent and (2) that he would be sending a second letter under separate cover addressing the dispute over the trench work invoice.

Shortly thereafter, Poole asserts that he sent Matson a letter and invoice, dated May 28, 2001, which allegedly conveyed that, in compliance with their agreement, he would "write of[f][his] bill." Ex. 15. The Bar charged that these documents were fabricated in October 2001, backdated, and never sent to Matson in May. In spite of the Bar's contention, Matson testified at the hearing that he received the May 28 letter and invoice in May 2001. Nevertheless, while the hearing officer could not determine whether the letter was sent, she concluded that the invoice was neither prepared nor sent in May 2001.

On June 1, 2001, Matson recorded a mechanics lien against Poole's LLC's Graham property for failure to pay for services performed. Poole, at the time, was hoping to sell a portion of this property to ameliorate his current financial troubles. On July 31, 2001, and again on October 1, 2001, Poole sent invoices to Matson for $16,717.00 and $17,044.61 respectively.

On October 2, 2001, Poole's LLC filed a motion for order to show cause to declare Matson's lien frivolous asserting that Matson had been paid in full (by writing off the balance owing). Matson retained attorney Bryan Lee to respond to Matson's motion. Following a telephone conversation between Poole and Lee, Poole agreed that by Monday, October 8, he would provide Lee with documentation that Matson had approved of the BFC judgment disbursements and that Poole had written off the balance of Matson's account. During this process, Poole claims that mistakes were discovered that he attributed to his bookkeeper, Angela Robinson, whom he fired as a result. Specifically, he testified he discovered the failure to post the $27,675.35 credit and the erroneous credit of $20,000 to Matson's account.

On Monday, October 8, Poole faxed four documents to Lee without a cover letter or explanation. These documents included the February 19 letter, the May 25 letter, and the disputed May 28, 2001 letter and invoice. The "May 28" invoice indicated that the outstanding balance owed by Matson was $17,044.61, that a credit in this amount was applied, and the balance owing was zero.

Thereafter, Lee informed Poole that he failed to credit the $7,675.35 from the BFC payment against Matson's bill to which Poole "immediately agreed." FOF 47. The next day, October 9, 2001, Lee and Poole entered into a written settlement agreement, establishing that Poole & Associates would pay Matson $8,439.16 ($7,675.35 plus interest) and $2,920 in attorney fees and costs by October 12, 2001. FOF 48. In exchange Matson would release the lien against the property and both parties would mutually release each other of all claims. Poole testified that he intended to use the proceeds from the sale of some of his LLC's lots to make the payments, although conflicting evidence was submitted regarding whether the parties discussed this contingency. The anticipated sale of the LLC property did not occur in October or November, and in November 2001, a lender foreclosed on the deed of trust against the Graham property.

Following several extensions and requests for payment, on December 5, 2001, on behalf of Matson, Lee filed a lawsuit against Poole & Associates, Poole, and Poole's LLC. On December 19 and 20, 2001, Poole & Associates paid $7,675.35 plus interest to Matson. Following the judge's ruling in...