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Therese M. Wheaton (WSBA No. 18208, admitted 1988), of Shelton, resigned in lieu of disbarment, effective June 8, 2009. Ms. Wheaton affirmatively admitted that the WSBA could prove by a clear preponderance of the evidence sufficient violations of the Rules of Professional Conduct supporting disbarment, but did not affirmatively admit all facts and misconduct herein. This discipline is based on conduct involving failing to provide competent representation, failing to act with reasonable diligence, charging unreasonable fees, trust-account irregularities, committing criminal acts, inducing a client to engage in criminal acts, and conduct prejudicial to the administration of justice.
In April 2005, Client M paid Ms. Wheaton $1,000 to sue a cabinet distributor (CD) for installing faulty cabinets in his home in 2004. The fee agreement, signed on April 12, 2005, charged an initial “retainer” of $1,000, which covered the initial consultation through the filing of the complaint and temporary orders, if necessary. The agreement provided that the $1,000 fee was “earned upon receipt” and that the fee could be disbursed to counsel upon the client’s signature on the initial pleadings. The fee agreement required Client M to pay $150 per hour for services beyond those covered by the $1,000 “retainer,” with a cap of $2,000 “unless further approval.” The agreement allowed Ms. Wheaton to request additional sums for future fees and costs, provided that these funds would be deposited into her trust account. Ms. Wheaton placed the $1,000 in her trust account.
Client M contacted Ms. Wheaton several times about the status of the case, and she told him repeatedly that it was not “his turn” on her schedule. During this time, Client M discovered that the cabinets installed by CD had mold in them. Client M states that Respondent told him that this would require the hiring of an expert on the issue of mold. In January 2006, Ms. Wheaton had Client M sign another fee agreement, and pay an additional $2,500 “non-refundable” fee. This agreement was for “legal matters pertaining to home.” Ms. Wheaton told Client M that these additional funds were required for a mold expert. As in the first agreement, the fee could be disbursed to Ms. Wheaton only upon Client M’s signature on the initial pleadings. Ms. Wheaton’s billing records show no work on Client M’s cabinet matter between the signing of the first and second fee agreements. From April 2006 through July 21, 2006, Ms. Wheaton recorded approximately eight hours’ worth of time on Client M’s matter for a total of $1,050 in fees. She took $1,050 out of her trust account on July 31, 2006, despite the fact that her fee agreement did not allow her to do so until client M signed the initial pleadings in the matter. On September 13, 2006, Client M’s wife gave Ms. Wheaton an additional $1,000. Ms. Wheaton told Mrs. M that she did not have enough money to pay her staff. Mrs. M offered Ms. Wheaton $1,000 as an advance against the fees that she would earn on the case. Ms. Wheaton did not put this money in her trust account. In a deposition taken on July 16, 2008, Ms. Wheaton falsely testified that the $1,000 was for bedroom furniture that Mrs. M purchased from Ms. Wheaton.
Ms. Wheaton did not begin work on drafting the summons and complaint in Client M’s case until November 2006. On November 13, 2006, Ms. Wheaton took $1,000 from her trust account. This amount was $295 more than what was owed, according to the invoice that she produced. Because Client M had not yet signed the initial pleadings, no money was owed under the fee agreement. Client M terminated Ms. Wheaton’s services on February 7, 2007, and hired Attorney B. Ms. Wheaton told Attorney B that she had forwarded the summons and complaint to Client M on January 19, 2007, and had no response from him; however, review of the properties of the complaint from Ms. Wheaton’s computer shows that the complaint was not created until January 29, 2007. Client M denies that he received the complaint from Ms. Wheaton. On February 26, 2007, Ms. Wheaton deposited $1,150 back into her trust account and refunded $2,300 to Client M. Under Washington law, a claim against a contractor’s bond must be filed within two years after the work was substantially completed. Ms. Wheaton failed to file a claim within two years.
Client M takes hydrocodone and a generic form of Vicodin for severe neck and back pain. During the time that Ms. Wheaton represented Client M, she asked for his prescription pain medication on a monthly basis. Client M gave her his prescription medication at least 18 times, which often left him without his prescription pain medication for himself. Ms. Wheaton promised to replenish his supply when she got her own prescription filled, but never did. Client M and his wife feared that Ms. Wheaton would drop their case if he didn’t give the drugs to her. Ms. Wheaton testified that she never asked Client M for the prescription pain medication. She further testified that she has a severe allergy to hydrocodone and Vicodin and has not taken any form of hydrocodone since she discovered her allergy when she was 19 years old. Ms. Wheaton’s former legal assistant stated that she has seen Ms. Wheaton take Vicodin and that Ms. Wheaton has told her that she has taken Vicodin. Hydrocodone and Vicodin are controlled substances under RCW 69.50.206.
Ms. Wheaton’s conduct violated RPC 1.1, requiring a lawyer to provide competent representation to a client; former RPC 1.2(d), prohibiting a lawyer from counseling a client to engage, or assisting a client, in conduct that the lawyer knows is criminal and fraudulent (here, through a violation of RCW 69.50.401(1), Delivery of a Controlled Substance); former RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; former RPC 1.5(a), requiring a lawyer’s fee to be reasonable; former RPC 1.14(a), requiring that all funds of clients paid to a lawyer or law firm, including advances for costs and expenses, shall be deposited in one or more identifiable interest-bearing trust accounts maintained as set forth in the rules, and that no funds belonging to the lawyer or law firm shall be deposited therein; former RPC 1.15A(b), prohibiting a lawyer from using, converting, borrowing, or pledging client or third-person property for the lawyer’s own use; former RPC 1.15A(c), requiring a lawyer to hold property of clients and third persons separate from the lawyer’s own property, to deposit and hold in a trust account funds subject to this rule pursuant to the rules and to identify, label, and appropriately safeguard any property of clients or third persons other than funds; former RPC 8.4(b), prohibiting a lawyer from committing a criminal act (through a violation of RCW 69.50.4013, Possession of a Controlled Substance without a Prescription and RCW 9A.28.020, Criminal Attempt) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, and former RPC 8.4(c), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice.
Erica Temple represented the Bar Association. Craig C. Beles was the hearing officer. Ms. Wheaton represented herself. |