In re Greenlee
| Decision Date | 05 October 2006 |
| Docket Number | No. 200,294-3.,200,294-3. |
| Court | Washington Supreme Court |
| Parties | In re the Matter of the Disciplinary Proceeding Against A. Graham GREENLEE, Bar No. 890, an Attorney at Law. |
Phillip H. Ginsberg, Attorney at Law, Seattle, for Petitioner/Appellant.
Kevin M Bank, Washington State Bar Association, Seattle, for Appellee/Respondent.
¶ 1 Mr. A. Graham Greenlee appeals the findings and conclusions of the Disciplinary Board (Board) of the Washington State Bar Association (Bar) that he violated former RPC 1.8(h) (2000). The Board's decision was based upon Greenlee instructing his former client, Linda Sanchez-Suwaneh, to sign a waiver and release that settled any legal malpractice claims she had against him without first advising her in writing that it was appropriate for her to consult independent legal counsel. Greenlee was given a six-month suspension.
¶ 2 This court must first decide whether former RPC 1.8(h) includes settlement with former clients of potential malpractice claims where no actual malpractice claim was ever raised or established. This court answers this question in the affirmative. Accordingly this court also must decide whether the hearing officer and Board properly found that Greenlee's actions violated the rule and whether to adopt the Board's recommended sanctioning of Greenlee for knowing violation of the rule. This court upholds the hearing officer and Board in regard to both questions.
¶ 3 Mr. A. Graham Greenlee was admitted to the practice of law in Washington in 1968. Answering Br. of Wash. State Bar Ass'n at 29.
¶ 4 Greenlee represented Sanchez-Suwaneh in a personal injury case arising from an automobile collision. He filed a lawsuit on her behalf against multiple defendants. Sanchez-Suwaneh was "unsophisticated," "partially disabled," and had a limited level of understanding. Clerk's Papers (CP) at 20, 23, 33. She had not progressed beyond the 10th grade and never graduated from high school. Greenlee was "fully aware that she had memory problems and limited understanding as evidenced by the incessant repetition of questions he and his staff were forced to answer for her." CP at 33. Her memory problems did not help matters. She was a difficult client. On or about March 1, 2004, Greenlee withdrew from her case, having reached the end of his patience in dealing with her.
¶ 5 Sanchez-Suwaneh thereafter settled her case on her own with liability insurers, ultimately receiving a settlement check bearing both her name and Greenlee's. Because of his withdrawal, Greenlee waived any fee in the case but sought reimbursement of $1,595 in costs he advanced on his client's behalf.
¶ 6 On March 16, 2004, Sanchez-Suwaneh went to Greenlee's office to obtain his endorsement on the settlement check. Greenlee apparently expected her to thereupon provide repayment of the costs he advanced, but she did not bring the funds with her. Sanchez-Suwaneh and Greenlee, through his paralegal, agreed those costs would be paid from the settlement funds.
¶ 7 Sanchez-Suwaneh also requested written confirmation from Greenlee that she owed him no money other than the $1,595 in costs. Greenlee would only agree to do so if she released him from any claims she might have against him. Accordingly, Greenlee prepared a settlement agreement and mutual release between himself and Sanchez-Suwaneh.
¶ 8 The release, "a six (6) page document written entirely in `legalese' (highly technical language)," provided that Sanchez-Suwaneh agreed to reimburse Greenlee the $1,595 in costs, that he disclaimed any further financial obligations owing from her to him, and that she agreed to waive any claims she might have against him. CP at 21. The release states the agreement is a final settlement of "mutual claims and causes of action against one another," and that Sanchez-Suwaneh agreed to extinguishment of "any and all claims she may have against A. Graham Greenlee arising out of the services he provided in his representation." Bar Ex. 3, at 1-2. The settlement agreement and mutual release further provided that the parties:
[F]orever discharge each other from and against all actions, causes of action, claims, suits, debts, damages, judgments, and demands whatsoever, whether matured or unmatured ... whether now known or unknown, that Linda Sanchez-Suwaneh or A. Graham Greenlee now has or may have ... at any time prior to and including the date of this Agreement or hereafter can, shall, or may have or claim to have, arising out of or relating to the subject motor vehicle accident and costs, and any other matter described herein.
¶ 9 Sanchez-Suwaneh signed the release in Greenlee's reception area. She had no independent counsel review it with her before signing and was not advised by Greenlee in writing that it was appropriate to do so.
¶ 10 On September 13, 2004, the Bar filed a formal complaint against Greenlee. The Bar alleged he violated former RPC 1.8(h) by having former client Sanchez-Suwaneh sign the release to settle any malpractice claims she might have against him without first advising her in writing that it was appropriate to consult independent legal counsel.
¶ 11 A disciplinary hearing took place in December 2004. Sanchez-Suwaneh testified that if she had been notified in writing to consult independent counsel, she would have done so. She further testified that at the time she signed the release she was under stress and rushed and did not know exactly what she was signing. Sanchez-Suwaneh apparently believed at that time that she had claims against Greenlee for the way he represented her.
¶ 12 The hearing officer issued findings of fact, conclusions of law, and a recommendation on January 18, 2005. Amended findings of fact, conclusions of law, and recommendation were filed by the hearing officer on February 7, 2005. Ultimately, the hearing officer found that Greenlee engaged in a knowing conflict of interest in violation of former RPC 1.8(h).
¶ 13 As stated by the hearing officer:
The thrust of RPC 1.8(h) is to prevent the lawyer from obtaining any release of claims from an unrepresented client without written notice to seek the advice of counsel because, by seeking a release of his own liability, the lawyer places himself in direct conflict with the unrepresented client. The rule is not intended to burden the client with the duty to ascertain and evaluate the legal technicalities of whether a claim exists.
CP at 29 (para.26). The hearing officer relied primarily on In re Carson, 268 Kan. 134, 991 P.2d 896 (1999) for the proposition that a malpractice claim need not be pending for a violation of former RPC 1.8(h).
¶ 14 Specifically, the hearing officer found, "[i]t is obvious Greenlee's sole motivation was to obtain her release of any and all liability claims she might, even potentially, have against him." CP at 26. The hearing officer also found it was "unthinkable that Mr. Greenlee would not immediately comply with this simple request [for written assurance that she owed him nothing further] by a former client he well knew had limited understanding, instead of hiding his true intent to advantage himself in a complicated six (6) page release Sanchez-Suwaneh had little hope of actually understanding." CP at 27.
¶ 15 The hearing officer recommended a one-year suspension. Following briefing, the matter was argued to the Board in May 2005. On July 1, 2005, the Board, by a vote of 8-3, adopted the hearing officer's decision, except for a reduction in the sanction recommendation to six months. On September 7, 2005, the Board filed a clarification of its decision in which the three dissenting members explained they voted against the majority because they "would have approved [the] hearing officer's decision," i.e., they believed a one-year suspension to be the appropriate sanction. Supplemental Clerk's Papers (SCP) at 11-12. Greenlee has been disciplined six times previously.1
¶ 16 When a lawyer discipline decision by the Board is appealed, this court has "plenary authority" on review. In re Disciplinary Proceeding Against Whitt, 149 Wash.2d 707, 716, 72 P.3d 173 (2003). This court gives "`serious consideration' to the Board's recommendation." In re Disciplinary Proceeding Against Longacre, 155 Wash.2d 723, 742, 122 P.3d 710 (2005). Nonetheless, while we do "not lightly depart from the Board's recommendation," we are "not bound by it." In re Disciplinary Proceeding Against Tasker, 141 Wash.2d 557, 565, 9 P.3d 822 (2000). This court reviews conclusions of law de novo. Whitt, 149 Wash.2d at 716-17, 72 P.3d 173. We have "the inherent power to promulgate rules of discipline, to interpret them, and to enforce them." In re Disciplinary Proceeding Against Stroh, 97 Wash.2d 289, 294, 644 P.2d 1161 (1982) (emphasis added). This court upholds the hearing officer's findings of fact if they are supported by substantial (albeit disputed) evidence. In re Disciplinary Proceeding Against Huddleston, 137 Wash.2d 560, 568, 974 P.2d 325 (1999). Factual findings that are unchallenged on appeal are accepted as verities. In re Disciplinary Proceeding Against Christopher, 153 Wash.2d 669, 677, 105 P.3d 976 (2005).
¶ 17 Greenlee argues that former RPC 1.8(h) does not extend to settlement with former clients of potential malpractice claims where no actual claim is made or proved. He argues that at the very least, former RPC 1.8(h) should be given only prospective application to cover such scenarios. The Bar disputes Greenlee's interpretation, urging this court to uphold the Board. Both the Board and the hearing officer below found that former RPC 1.8(h) includes settlement of potential malpractice claims even where no actual claim is made or proved. For reasons that follow, we hold that former RPC 1.8(h) does include settlement of potential malpractice...
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