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Jeffrey Gene Poole (WSBA No. 15578, admitted 1986), of Everett, was disbarred, effective October 16, 2009, by order of the Washington State Supreme Court. This discipline was based on conduct in three matters involving a conflict of interest, misrepresentations to a tribunal, improper ex parte communication, failure to inform the tribunal of all relevant facts during an ex parte proceeding, dishonest conduct, and non-cooperation during a Bar Association investigation.
Matter No. 1: In 2003, Mr. Poole represented clients who were seeking to remove a lien filed against their residential property by former tenants. The lien holders (Mr. and Mrs. C) were in the process of dissolving their marriage. Upon agreement of all counsel, Mr. Poole’s clients posted a cash bond, which was deposited in the court registry. In September 2004, Mr. and Mrs. C’s marriage was dissolved and, in their Property Settlement Agreement, each was awarded “one half of the net proceeds from the lawsuit” involving Mr. Poole’s clients after paying “one half of approved combined attorney and professional fees and costs.” Mrs. C’s attorney subsequently filed a lien against the funds in the registry of the court on Mrs. C’s behalf.
In April 2005, Mr. Poole entered into an agreement on behalf of his clients with Mr. C, who was pro se at that time, in the form of a written stipulation under which Mr. Poole’s clients agreed to dismiss Mr. C from their lawsuit in exchange for a $10,000 payment to Mr. C from the funds in the court registry. Neither Mrs. C nor her attorney (Attorney B) knew of this agreement. On Friday, April 29, 2005, Mr. Poole left a voicemail message and signed a letter to Attorney B regarding the settlement and Poole’s intention to appear ex parte on May 2, 2005, to present an Order. He then faxed Attorney B a fax cover sheet referring to an attached letter. On Saturday, April 30, Attorney B retrieved Mr. Poole’s voicemail message, but only received the fax cover sheet without the letter. That same day, Attorney B faxed a letter to Mr. Poole stating that he did not receive anything more than the fax cover page and objecting to the settlement. The fax did not go through on April 30, but was completed May 2. Mr. Poole received Attorney B’s fax and saw that Attorney B had received only the fax cover page. Approximately one hour before the hearing, Mr. Poole faxed Attorney B a copy of his letter. Attorney B had already left his office that day for a hearing in another matter.
Mr. Poole went to the court’s Ex Parte Department and presented the Order. When questioned by the court, Mr. Poole misrepresented that Attorney B had been adequately notified. Mr. Poole failed to inform the court that Attorney B had an objection to the Stipulation. Based on those misrepresentations and omissions, the court granted Mr. Poole’s request and signed the Order. Later that month, with notice to Attorney B, Mr. Poole moved in the Court of Appeals to have Mr. C dismissed from the litigation. Attorney B filed an objection to the motion to dismiss, asserting that Mr. Poole had not provided notice to him of the ex parte application for an order disbursing funds from the court registry. In a memorandum and a declaration dated May 25, 2005, Mr. Poole misrepresented to the Court of Appeals the dates that a letter giving Attorney B notice of the ex parte appearance was in fact faxed to him.
Matter No. 2: In December 2003, Mr. Poole filed a lawsuit in district court against a former client (Mr. M) to collect attorney’s fees and costs. Mr. M initially filed a notice of appearance on behalf of himself and his wife. By early April 2004, Attorney C was assisting Mr. M. Attorney C did not formally appear until June 10, 2004, but Mr. Poole served Attorney C with documents prior to that date. On June 2, 2004, Mr. Poole appeared in district court for the trial. Neither Attorney C nor Mr. M appeared for trial. After the conclusion of the court proceedings, Mr. Poole sent the judge a letter with a proposed Judgment, which the judge subsequently signed. He did not send copies to Mr. M or Attorney C, who had not yet formally appeared. On June 3, 2004, Attorney C communicated a settlement offer to Mr. Poole. Mr. Poole informed Attorney C that he was not interested in settlement because the court had already awarded a judgment. On June 4, 2004, Attorney C visited the district court, discovered the clerk had not sent Mr. M notice of the trial date, and then advised Mr. Poole that he would be moving to “set aside what happened June 2….”
On January 4, 2005, Mr. Poole, Mr. M, and Attorney C appeared in superior court for supplemental proceeding so that Mr. Poole could gather additional information from Mr. M to assist him in collection of the judgment. Instead of submitting to an examination, Mr. M agreed to pay the amount of the judgment into the court registry on the understanding that the funds would remain in the registry until the dispute over the judgment’s validity was resolved. Minutes before the commencement of the supplemental proceedings calendar, Attorney C filed a motion for an order vacating the judgment, quashing the supplemental proceedings, and terminating and enjoining further collection action by Mr. Poole. The judge declined to consider the motion, as it had not been properly noted. Before leaving the courthouse, Attorney C deposited, on behalf of his client, $11,941.01 in the registry of the court. By letter dated January 5, 2005, Attorney C informed Mr. Poole that he would be amending the motion filed on January 4, 2005, and requested that Mr. Poole serve notice on him of any further actions taken in the matter. Mr. Poole received and responded to Attorney C’s letter that same day.
On January 7, 2005, Mr. Poole filed an ex parte motion for an order disbursing to himself $11,460.27 of the funds Mr. M had placed in the court registry. Mr. Poole did not provide Attorney C or Mr. M with a copy of this motion prior to going to court, and did not notify them of his intention to seek such an order. In his ex parte motion, Mr. Poole stated that on January 4, 2005, Mr. M “and his counsel agreed to pay the judgment into the court registry.” The motion did not inform the court that they did so on the understanding that the funds would remain in the court registry until the validity of the judgment was resolved, or that Attorney C still intended to pursue the issue of the validity of the judgment. Mr. Poole presented the ex parte motion to the supplemental proceedings judge, who granted it. Mr. Poole received $11,460.27 disbursed from the court registry.
On January 11, 2005, Attorney C filed in superior court a Motion to Set Aside and Vacate Judgment and requested a court order refunding the $11,941.01 to Mr. M, which he believed was still in the court’s registry. In his response, Mr. Poole asserted, “[O]n January 4, 2005, [Mr. M] deposited funds sufficient to pay the judgment in full into the registry of the court without reservation and did not designate the funds as a supersedeas bond to stay collection.” The superior court denied Attorney C’s motion, without prejudice to the motion being brought in district court. Subsequently, Attorney C amended the motion and filed it in district court. Mr. Poole filed a response stating that Mr. M had received notice of all actions. On April 21, 2005, the district court heard argument from Attorney C and Mr. Poole on the pending motion to vacate. The district court judge vacated the June 6, 2004, judgment, but allowed Mr. Poole to retain possession of the funds pending the resolution of the lawsuit through a bench trial. At the bench trial, held on September 16, 2005, the court ruled in Mr. Poole’s favor, indicating the funds previously collected remained his, but did not make an award of any additional costs or fees because “it was the Court’s error [in failing to send Mr. M notice of the original trial date which necessitated this last hearing.]”
Matter No. 3: In early August 2004, Mr. Poole began representing Mr. K. Mr. K owned valuable commercial real estate and generated his living expenses by refinancing his properties. Mr. K was also the sole owner and member of a limited liability company (LLC), which owned two parcels of property. At the beginning of the representation, Mr. Poole advised Mr. K that he must provide security for payment of Poole’s attorney’s fees and costs. Between August 2004 and January 2006, Mr. Poole provided representation to Mr. K in multiple lawsuits; he also served as manager of certain limited liability companies owned by Mr. K. On October 15, 2004, Mr. K signed a written fee agreement with Mr. Poole providing for payment of fees at certain hourly rates and security for payment of fees and costs, with the amount and terms of security not agreed to at that time. Between October 19, 2004, and December 22, 2004, Mr. Poole sent regular billing statements to Mr. K, which grew to a balance of $116,892.44 by December 22, 2004. On multiple occasions, Mr. Poole communicated his interest in obtaining payment from Mr. K by re-financing one or more of Mr. K’s properties. He repeatedly suggested that Mr. K consult with independent legal counsel regarding this arrangement.
On January 4, 2005, Mr. Poole prepared and delivered to Mr. K a letter that Mr. Poole called a Security Agreement. The Security Agreement set forth the understanding that Mr. K would “provide a note for $200,000.00 on each of the [two properties owned by LLC]” and “execute an irrevocable escrow instruction” that Mr. Poole’s firm would be paid the net proceeds from any loan on Mr. K’s property after payment of certain amounts. Mr. Poole also advised Mr. K to consult with independent legal counsel before signing the Security Agreement, the notes, the deeds of trust, and the irrevocable escrow instruction. Mr. K signed the Security Agreement on January 5, 2005.
After the Security Agreement was signed, Mr. Poole prepared a Promissory Note in the amount of $200,000 “or the full balance owed under the Security Agreement signed on January 4, 2005,” and had Mr. K sign the Promissory Note, as the sole member of LLC and personally. In February and March 2005, Mr. Poole served as legal counsel for Mr. K and manager of LLC to arrange for a $335,000 loan from Corporation W to LLC, secured by the two parcels of property. The net proceeds of the loan to the borrower were to be approximately $118,000. At the time, Mr. Poole intended that approximately $95,000 of the net proceeds of the loan would be used to pay his outstanding attorney’s fees and costs, and that an additional amount would be used to reimburse Mr. Poole for $10,000 he had advanced to Mr. K for living expenses. Mr. Poole intended to have Mr. K grant him a deed of trust on the property after the loan closed, so that Mr. Poole’s deed of trust would be subordinate to Corporation W’s deed of trust on the property. Mr. Poole did not advise Mr. K of any actual or potential conflict of interest nor explain any risks or possible implications in his representation of Mr. K in obtaining a loan from Corporation W, secured by the LLC property, even though Mr. Poole had a personal financial interest in the loan and the property. Mr. Poole did not obtain consent in writing from Mr. K to the potential or actual conflict of interest.
As of March 21, 2005, in order to secure payment of his attorney’s fees and costs, Mr. Poole prepared two Deeds of Trust, one on each property owned by LLC. Each Deed of Trust was in the amount of $200,000 and Mr. Poole was the beneficiary of each. On March 21, 2005, Mr. K signed both Deeds of Trust. The loan from Corporation W was finalized and Mr. Poole received and deposited $118,371.83 net proceeds into his trust account. Between March 25, 2005, and April 18, 2005, Mr. Poole transferred more than $94,000 of the loan funds to his firm for payment of invoiced fees and costs and more than $14,000 of the loan funds for reimbursement of advances made to Mr. K. On March 29, 2005, Mr. Poole recorded the two Deeds of Trust naming himself as grantee (beneficiary). Monthly payments on the loan were due beginning May 1, 2005. Mr. K, who had no regular income and no liquid assets, had no ready means for making the monthly payments on the loan. He was not assured enough time to refinance another property in order to make his monthly payments on the loan to avoid foreclosure.
In November 2005, Mr. K signed a purchase and sale agreement under which LLC agreed to sell one of its parcels of property for $500,000. At that time, Mr. Poole was claiming a right to payment of approximately $187,000 from any sale of LLC property on which Mr. Poole had a Deed of Trust. Mr. Poole withdrew from any and all legal representation of Mr. K and his business entities in December 2005. On January 5, 2006, the Washington State Supreme Court ordered that Mr. Poole be suspended from the practice of law for a period of six months. In January 2006, Mr. K and the buyer of the LLC property entered into a written Addendum to the Purchase and Sale Agreement of the property. The Addendum provided for wrap-around arrangement under which Mr. Poole would receive no funds on the closing of the sale. Instead, the buyer would sign a promissory note in the amount of $360,000 secured by a Deed of Trust that would “wrap” around the “existing Deed of Trust in favor of Jeffery [sic] Poole.” Mr. K would receive payments on the promissory note with the final cash out occurring on January 31, 2007. This arrangement provided Mr. K with time to reach an agreement regarding the payoff of Note, Deeds of Trust, and any other outstanding claims with Mr. Poole.
Non-cooperation: Between June 2005 and July 2007, Mr. Poole failed to cooperate with the Bar Association’s investigation of five grievances filed against him. Mr. Poole’s non-cooperation included failing to respond in a timely fashion, despite multiple reminders, to grievances and to requests for additional information. Mr. Poole also failed to appear for a deposition and to produce all documents set forth in subpoenas issued during the investigation of one of the grievances. Mr. Poole made misrepresentations to the Bar Association in three of the grievances and a misrepresentation in a declaration sent to the Supreme Court regarding one of the grievances.
Mr. Poole’s conduct violated RPC 1.7(b), prohibiting a lawyer from representing a client if a conflict of interest exists; RPC 3.3(a)(1), prohibiting a lawyer from making a false statement of fact or law to a tribunal; RPC 3.3(f), requiring a lawyer, in an ex parte proceeding, to inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse; RPC 3.5(b), prohibiting a lawyer from communicating ex parte with a judge except as permitted by law; RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; RPC 8.4(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice; RPC 8.4(l), prohibiting a lawyer from violating a duty or sanction imposed by or under the Rules for Enforcement of Lawyer Conduct in connection with a disciplinary matter; and RPC 8.4(n), prohibiting a lawyer from engaging in conduct demonstrating unfitness to practice law.
Christine Gray and Kathleen A.T. Dassel represented the Bar Association at hearing. Christine Gray and M. Craig Bray represented the Bar Association on appeal. Kurt M. Bulmer represented Mr. Poole at hearing on some of the counts of the Formal Complaint, and Mr. Poole represented himself on others. Mr. Poole represented himself on appeal to the Disciplinary Board. Lawrence R. Mills was the hearing officer.
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