MATTER OF DISCIPLINARY PROCEEDING AGAINST BROTHERS, 09653-8.

Citation149 Wash.2d 575,70 P.3d 940
Decision Date12 June 2003
Docket NumberNo. 09653-8.,09653-8.
CourtUnited States State Supreme Court of Washington
PartiesIn the Matter of the DISCIPLINARY PROCEEDING AGAINST Thomas J. BROTHERS, Attorney at Law.

70 P.3d 940
149 Wash.2d 575

In the Matter of the DISCIPLINARY PROCEEDING AGAINST Thomas J. BROTHERS, Attorney at Law

No. 09653-8.

Supreme Court of Washington, En Banc.

Argued January 17, 2003.

Decided June 12, 2003.


70 P.3d 941
Leland G. Ripley, Lake Stevens, for Respondent

Randy Von Beitel, Washington State Bar Assc., Christine Gray, WSBA, Seattle, for Petitioner.

OWENS, J.

The Washington State Bar Association (WSBA) hearing officer and the majority of the Disciplinary Board (Board) recommended that attorney Thomas J. Brothers be suspended for one year for charging a grossly unreasonable fee. Mr. Brothers claims that the Board abused its discretion when it denied his motion to remand for introduction of further evidence surrounding his newly diagnosed medical condition. We disagree and hold that the Board acted within its discretion. We also decline to remand for additional evidence regarding the specific nature of the fee agreement. In the alternative, Mr. Brothers challenges the recommended sanction.

70 P.3d 942
We also conclude that the recommended one-year suspension is appropriate

FACTS

Thomas J. Brothers was admitted to the practice of law in 1980. His solo practice focuses on estate planning, wills, and trusts. Mr. Brothers prepared a living trust for Ms. Stella Hawkins in 1994. In 1996, Ms. Hawkins and her son Larry Matthews approached Mr. Brothers and explained that she was having ongoing problems with another son, "Corky" Matthews. Ms. Hawkins wanted Mr. Brothers to adjust her estate plan by creating an irrevocable living trust, naming Larry Matthews as trustee and leaving all of her property to him.

Soon after the 1996 trust was created, Ms. Hawkins decided to sell her home. At that time Mr. Brothers discovered that in 1990 Ms. Hawkins had conveyed the house to another living trust, which she had created in 1987 with the help of another attorney. Ms. Hawkins wanted Mr. Brothers to transfer the house from her 1987 trust to her 1996 trust. Mr. Brothers concluded that a legal challenge to the transfer was likely because it would eliminate Corky Matthews' interest in the house.

Mr. Brothers claims that Larry Matthews did not want to pay an hourly or flat fee for what Mr. Brothers predicted would amount to substantial legal work if the transfer were challenged. On July 2, 1996, Mr. Brothers and Larry Matthews agreed in writing to a fee of one-third of the value of the house in exchange for "`all necessary legal services to clear title,'" payable "`[o]n the compromise or termination of such services.'" Finding of Fact 6. On the same day, Mr. Brothers' paralegal prepared a quitclaim deed to transfer Ms. Hawkins' home from the 1987 trust to the 1996 trust, which Ms. Hawkins promptly executed. The paralegal also prepared a request for distribution from Ms. Hawkins' annuity for $36,663, the amount of Mr. Brothers' fee, which Ms. Hawkins also signed on that day. Mr. Brothers knew at the time that his fee amounted to a significant portion of Ms. Hawkins' estate.

On July 29, 1996, Mr. Brothers deposited a check for $36,663 from Ms. Hawkins' annuity company into his interest-bearing trust account. He distributed the fee to his paralegal and himself shortly thereafter. At that time, Mr. Brothers charged other clients as little as $50 to prepare a quitclaim deed.

Corky Matthews never challenged the 1996 living trust or the transfer of the house. In 1998, Larry Matthews filed a grievance with the WSBA complaining about the amount of the fee. Immediately, Mr. Brothers expressed to disciplinary counsel a willingness to discuss the fee, and after the complaint was filed, he wrote to Larry Matthews to try to settle the issue. Just after the disciplinary hearing, Mr. Brothers sent Larry Matthews a full refund plus 12 percent interest accrued from 1996 to 2001.

The hearing officer also found that Mr. Brothers had previously been suspended from the practice of law for three months in 1999, based on violations of RPC 1.5(a) (unreasonable fees) and RPC 1.14 (trust account rules). In April 1995, the personal representatives of an estate filed a grievance after Mr. Brothers withdrew $35,000 in fees and travel reimbursements, of which he eventually repaid $25,000 at the suggestion of disciplinary counsel. Although the violation was based on a failure to communicate the basis for the fee, rather than unreasonableness, the circumstances of the previous violation are factually similar to the current one.

In this case, the hearing officer concluded that Mr. Brothers had violated RPC 1.5 by charging an unreasonable fee.1 He also found both aggravating and mitigating factors. Mr. Brothers' prior disciplinary offense and his selfish motive were aggravating factors. Mitigating factors included his good faith, but untimely, effort at restitution and his cooperative attitude. Ultimately,

70 P.3d 943
the hearing officer recommended a one-year suspension

The WSBA appealed to the Board, arguing that Mr. Brothers should be disbarred. Mr. Brothers moved to remand the proceedings back to the hearing officer for consideration of additional evidence regarding a recently diagnosed medical condition. The majority of the Board denied the motion to remand because "it [did] not meet the requirements set out in the Rules for Lawyer Discipline and Civil Rules." Disciplinary Bd. Order, at 1. In the alternative, Mr. Brothers conceded that he had charged an unreasonable fee, but argued that the appropriate sanction for his violation was a reprimand. The majority (eight members) of the Board found that the hearing officer's findings of fact were supported by substantial evidence, held that the hearing officer's conclusions of law were correct, and adopted the recommended one-year sanction for the reasons given by the hearing officer.

Four board members dissented,2 arguing that they "would have sent this matter back to the hearing officer for additional evidence regarding the fee agreement." Disciplinary Bd. Dissent. Specifically, the dissenting members wanted to determine whether the fee arrangement involved a contingent fee or a flat fee based on a percentage. If the fee were indeed contingent, they would have requested more evidence surrounding the contingency. They would also have requested a finding regarding Larry Matthews' understanding of the fee and how it was calculated.

Mr. Brothers exercised his right to appeal to this court. He contends that the Board abused its discretion when it declined to remand for further findings regarding his newly discovered medical condition. He also asks this court to remand for further evidence regarding the specific nature of the fee agreement. In the alternative, he argues that this court should impose a reprimand rather than a one-year suspension.

ISSUES

1. Whether the Board abused its discretion by denying Mr. Brothers' motion to remand for further evidence regarding his newly diagnosed medical condition.

2. Whether the majority of the Board erred by not remanding to the hearing officer for further evidence regarding the specific nature of the fee agreement.

3. Whether a one-year suspension, recommended by both the Board and the hearing officer, is an appropriate sanction in this case.

ANALYSIS

This court has plenary authority in all matters of attorney discipline. In re Disciplinary Proceeding Against Carmick, 146 Wash.2d 582, 593, 48 P.3d 311 (2002) (citing former RLD 2.1). Even so, unchallenged findings of fact, affirmed by the Board, are accepted as verities on appeal. Id. at 594, 48 P.3d 311. In addition, we give "considerable weight" to the Board's sanction recommendations, In re Disciplinary Proceeding Against Kuvara, 149 Wash.2d 237, 246, 66 P.3d 1057 (2003), and do "`not lightly depart from [them].'" In re Disciplinary Proceeding Against Anschell, 141 Wash.2d 593, 607, 9 P.3d 193 (2000) (quoting In re Disciplinary Proceedings Against Dann, 136 Wash.2d 67, 84, 960 P.2d 416 (1998), and citing In re Disciplinary Proceeding Against Haskell, 136 Wash.2d 300, 317, 962 P.2d 813 (1998)).

1. Newly Diagnosed Medical Condition. Mr. Brothers contends that the Board erred by denying his motion to remand for further evidence regarding his newly diagnosed medical condition.3 He argues that the condition affected his mental state at the time of his misconduct and that it should be considered as a mitigating factor.

In a disciplinary proceeding, a respondent may request that the Board remand for a new hearing to consider newly discovered evidence....

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