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John Hess (WSBA No. 22308, admitted 1992), of Renton, was disbarred by order of the Supreme Court effective August 8, 2001, following a default hearing. The discipline is based on his failure to diligently represent several clients and failure to properly deal with client funds.
Matter 1: In October 1995, Mr. Hess agreed to represent the wife in a marriage dissolution action. The parties agreed to an independent accounting, with each party paying $750. Mr. Hess was responsible for contacting the accountant and processing the payments through his office. The husband provided his records to the accountant and sent a $750 check to Mr. Hess. The accountant reviewed the records and billed the husband, who referred the charges to Mr. Hess. The accountant asked for a $500 retainer. Mr. Hess failed to pay the retainer, so the accountant returned the documents and declined to do further work on the matter. The husband asked Mr. Hess to forward $100 to the accountant and return the remaining $650 to him. After the husband filed a grievance, Mr. Hess issued a $146.90 check to the accountant. About six months later, Mr. Hess wrote the husband a check for $750. Mr. Hess did not comply with disciplinary counsel’s requests for information regarding this grievance.
Matter 2: In December 1995, Mr. Hess agreed to represent a client in a personal injury matter. The client had been injured in a rear-end automobile accident. In January 1996, both the client and Mr. Hess signed a document instructing Mr. Hess to pay the client’s chiropractor out of settlement proceeds.
In July 1998, Mr. Hess received $46,000 in settlement proceeds in the client’s case. He paid all of the client’s medical bills except the chiropractor’s. Mr. Hess told the client that he was holding the money for the chiropractor’s bill in his trust account, and that he believed the bill should be reduced.
In October 1998, Mr. Hess’s paralegal wrote to the chiropractor that no payments would be made until all service fees were removed and the balance reduced by one third. The chiropractor reduced his bill by $1,000. A few weeks later, Mr. Hess paid the chiropractor $1,000, leaving $3,437 outstanding. Although the client repeatedly instructed Mr. Hess to pay the bill, he made no further payments. The chiropractor sent bills to the client, with mounting interest. Mr. Hess did not maintain the disputed funds in his trust account, nor did he comply with disciplinary counsel’s requests for information regarding this grievance.
Matter 3: In October 1997, Mr. Hess agreed to represent Mr. A, who, with his stepfather, was a joint tenant on a checking and savings account containing approximately $10,000. After Mr. A’s mother died, his stepfather became involved with Mr. A’s former wife. Mr. A became concerned about his stepfather’s welfare and withdrew $10,000 from the joint account. Although Mr. A offered to return the funds, the stepfather filed a lawsuit against Mr. A. Mr. Hess advised Mr. A to give him the $10,000 for deposit in his trust account to pay any settlement or judgment. In the answer Mr. Hess drafted for the client, he stated the funds had been placed in a sealed bank account.
In April or May 1998, Mr. Hess informed the client that he had withdrawn $1,200 from the $10,000 for attorney’s fees. Mr. Hess refused the client’s requests to return the money to the trust account. The client discharged Mr. Hess and asked for a refund of the remaining funds. Mr. Hess wrote the client a check for $8,500, noting that he was holding $300 for potential costs. After the client left the office, Mr. Hess stopped payment on the check.
In May 1998, Mr. Hess wrote the client a replacement check for $6,305.05. He also gave the client a document called "costs and fees," indicating he spent 27.37 hours on the client’s case for $3,694.95 in attorney’s fees. Mr. Hess had not billed the client for these amounts and did not keep contemporaneous records of the time he spent on the client’s case. Mr. Hess and the client arbitrated their fee dispute. The arbitrator awarded Mr. Hess $650 and required him to refund $3,244.95 to the client.
At the time of the hearing, Mr. Hess had not paid the arbitration award, nor did he maintain the disputed funds in his trust account. Mr. Hess did not comply with disciplinary counsel’s requests for information regarding this grievance.
Matter 4: In November 1997, Mr. Hess agreed to represent a client in a personal injury matter. The client had been injured in a May 1995 automobile accident. Prior to contacting Mr. Hess, the client received a $15,000 settlement offer. Upon Mr. Hess’s advice, the client declined the offer. Mr. Hess and the client agreed that the client would send Mr. Hess reminders of the statute of limitations in her case. The client sent a reminder on March 26, 1998; Mr. Hess filed a complaint on May 15, 1998. Mr. Hess’s paralegal signed the summons and complaint.
In September 1998, the court dismissed the client’s lawsuit with prejudice, based on the defendant’s claim that the suit was not properly commenced prior to the expiration of the statute of limitations. Mr. Hess did not submit a response to the motion or attend the hearing. The court also imposed statutory attorney’s fees against Mr. Hess’s client. Mr. Hess took no action on the client’s request that he attempt to reopen her lawsuit.
In March 1999, the client retained new counsel. New counsel asked Mr. Hess to provide a declaration to support the client’s request to reopen the case. Mr. Hess agreed to provide a declaration, but did not do so. Based on Mr. Hess’s refusal to provide the declaration, the client’s new counsel determined that it was unlikely the court would set aside the dismissal. Mr. Hess did not comply with disciplinary counsel’s requests for information regarding this grievance.
Matter 5: In April 1998, Mr. Hess agreed to represent a client in a trial de novo of an arbitration award. The client had sustained back injuries and hearing loss in an automobile accident. The arbitrator awarded the client $6,714.54 plus costs. The client, who paid Mr. Hess $3,000 in advanced costs, was not able to contact Mr. Hess during summer and fall 1998.
The client appeared for the March 16, 1999 trial. While the client waited in the hall, Mr. Hess told the judge and defense counsel that he could not continue with the trial because of an anxiety disorder. The judge continued the trial and stated he would award costs to the defendants if counsel filed a motion. Mr. Hess told the client that the trial was continued because of his heart problems; however, Mr. Hess never rescheduled the client’s trial.
In May 1999, the court dismissed the client’s case for failure to prosecute. Mr. Hess did not inform the client that the court had dismissed his case. Mr. Hess also failed to provide the client with a refund or an accounting of the costs and fees in his case. Mr. Hess did not comply with disciplinary counsel’s requests for information regarding this grievance.
Matter 6: In May 1998, Mr. Hess agreed to represent a client in a lease and purchase of a Domino’s Pizza franchise. The client paid Mr. Hess $2,500 in advance fees. Mr. Hess agreed to draft the agreement so that the client could retain the profits and accept liability for operating the store prior to closing the sale. The client was selling a Domino’s Pizza in Maryland while purchasing one in Washington. Mr. Hess did not prepare the necessary lease and purchase agreements, and failed to attend a meeting with his client and the planned sale closing. The client attended the closing without counsel and was required to pay an additional $3,000 as pre-sale profits because Mr. Hess had not drafted the agreement.
After the closing, the client retained a second lawyer to contact Mr. Hess about a refund of his $3,000. Mr. Hess told the new lawyer that he would return a portion of the fees; however, he did not return any fees to the client until after the client filed a grievance, when Mr. Hess paid the client $1,000 and gave him a promissory note for $1,500. Mr. Hess made no payments under the promissory note, nor did he comply with disciplinary counsel’s requests for information regarding this grievance.
Matter 7: In December 1998, Mr. Hess agreed to represent a client who was attempting to purchase a home. During the home purchase, an $8,000 child-support arrearage appeared on the client’s credit report. Just before the home purchase was to close, Mr. Hess told the client that he could do nothing further to reduce the child-support arrearage. On January 8, the client paid the arrearage in full.
In April 1999, the mother served the client with a petition to modify child support. Mr. Hess agreed to file an answer for the client in this matter. After several weeks of unsuccessfully trying to contact Mr. Hess, the client discharged him and asked for a refund of his fees. Mr. Hess did not refund the client’s fees, nor did he comply with disciplinary counsel’s requests for information regarding this grievance.
Matter 8: In April 1999, Mr. Hess agreed to represent the father in a motion seeking primary residential placement of his children and a release from the mother stating that he was current on his child-support payments. The client paid $2,000 in advance fees and agreed to pay an additional $1,000. The client told Mr. Hess that the children were in danger and that the case must go forward immediately.
The client called several times during April, and then asked for his money back. Three days later, Mr. Hess called the client and promised to take care of the case immediately, promising a refund if the client was still unhappy. Mr. Hess’s legal assistant made an appointment for the client to meet with Mr. Hess on Sunday, April 25. The client appeared and waited two hours, but Mr. Hess failed to appear. Mr. Hess did meet with the client two days later and drafted a declaration. The client made significant corrections to the declaration and completed a financial declaration; however, Mr. Hess did not contact the client after their meeting.
On May 11, 1999, the client sent Mr. Hess a $25 check to cover the costs of mailing his file. Mr. Hess cashed the check and failed to send the client’s file or refund his retainer. Subsequently, the client filed a small-claims action in King County District Court. In June, the client received portions of his file; Mr. Hess mailed the remainder of the file to the client in August 1999. The court awarded the client a $2060.90 judgment that was later satisfied by Mr. Hess’s appeal bond. Mr. Hess did not comply with disciplinary counsel’s requests for information regarding this grievance.
Mr. Hess’s conduct violated RPCs 1.14 (a)(2), requiring lawyers to maintain disputed funds in their trust accounts; 1.14 (b)(4), requiring lawyers to promptly deliver client funds to clients upon request; 1.15(d), requiring lawyers to protect clients’ interests upon termination of the representation; 8.4(c), prohibiting lawyers from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; 1.4, requiring lawyers to keep clients reasonably informed about the status of their matters; 1.1, requiring lawyers to provide competent representation; and 1.3, requiring lawyers to diligently represent their clients.
Marsha Matsumoto represented the Bar Association. Mr. Hess represented himself. The hearing officer was William P. Bergsten.
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