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J. Porter Kelley (WSBA No. 1480, admitted 1954), of Tacoma, was suspended for one year, effective January 6, 2010, by order of the Washington State Supreme Court following approval of a stipulation. This discipline was based on conduct involving trust account irregularities, failure to maintain adequate records of client funds, and failure to provide an accounting to client of how funds were spent.
In 2007–2008, Mr. Kelley represented a client in a family law matter. Mr. Kelley received $2,000 from the client as an advance fee, which he deposited directly into his general account instead of his trust account. Mr. Kelley eventually earned the $2,000 advance fee. As the case progressed, Mr. Kelley asked the client for fees as the work was performed. Mr. Kelley’s estimate of time spent was based on notations kept in his file, but he did not send contemporaneous billings to the client. Mr. Kelley deposited additional funds he received from the client into his general account. Mr. Kelley did not keep complete records of the funds he received from the client or provide the client with an accounting of the funds she paid him. He sent the client a billing statement after the case was completed and did not bill her for all the time he put into the case.
As part of the investigation of the above matter, the Bar Association subpoenaed trust account records for the years 2006 to 2009 from Mr. Kelley’s bank and reviewed his trust account check register. Mr. Kelley did not maintain ledgers for individual clients and his trust account check register was incomplete. He failed to identify a client matter for each disbursement and failed to enter a balance after each transaction. In numerous instances, Mr. Kelley wrote checks out of trust to cash or to himself with no notation on the check or in the register as to the client matter. In at least two instances, Mr. Kelley deposited his own funds into the trust account. On one occasion, Mr. Kelley deposited a check made payable to him from his brother into the trust account and then, seven days later, withdrew the funds. The check from Mr. Kelley’s brother was a personal loan and was unrelated to any client matter. On another occasion, Mr. Kelley deposited his own funds into trust in order to pay the mediator in the above matter out of the trust account.
Mr. Kelley’s conduct violated RPC 1.15A(c), requiring a lawyer to hold property of clients and third persons separate from the lawyer’s own property, which includes: (1) depositing and holding in a trust account funds subject to the rules, (2) depositing into a trust account legal fees and expenses paid in advance until earned or incurred, and (3) identifying, labeling, and appropriately safeguarding any property of clients or third persons other than funds and preserving such records for seven years after return of the property; RPC 1.15A(d), requiring a lawyer to promptly notify a client or third person of receipt of the client or third person’s property; RPC 1.15A(e), requiring a lawyer to promptly provide a written accounting to a client or third person after distribution of property or upon request and to provide at least annually a written accounting to a client or third person for whom the lawyer is holding funds; RPC 1.15A(h)(1), prohibiting funds belonging to the lawyer from being deposited or retained in a trust account except (i) funds to pay bank charges, (ii) funds belonging in part to a client or third person and in part presently or potentially to the lawyer, or (iii) funds necessary to restore appropriate balances; RPC 1.15A(h)(2), requiring a lawyer to keep complete records as required by Rule 1.15B; RPC 1.15A(h)(5), requiring that all trust account withdrawals are made only to a named payee and not to cash; and RPC 1.15B(a), requiring a lawyer to maintain current trust account records.
Joanne S. Abelson represented the Bar Association. Mr. Kelley represented himself. |