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David R. Hellenthal (WSBA No. 18311, admitted 1988), of Spokane, was disbarred by order of the Washington State Supreme Court, effective March 24, 2010, following a default hearing. This discipline was based on conduct in four matters involving lack of diligence, failure to communicate, trust account irregularities, failure to protect clients’ interests, commission of a criminal act, violation of a court order, and violations of duties imposed by or under the Rules for Enforcement of Lawyer Conduct.
Matter No. 1: Two sisters hired Mr. Hellenthal on September 4, 2007, to set up a co-guardianship for their mother. One sister (“Client A”) paid Mr. Hellenthal $1,200, in two checks: a $200 check for filing fees and a $1,000 check, which was an advance fee payment. Unbeknownst to the clients, the Supreme Court suspended Mr. Hellenthal from the practice of law for 18 months, effective September 6, 2007. Client A learned of the suspension after reading a newspaper article and contacted Mr. Hellenthal to request a refund and return of her file. He told her that he was unable to do either, although he did return the file about a month later. The file contained notes of their initial meeting and a few pleadings, none of which had been filed with the court. Mr. Hellenthal claimed he had earned the fee, but produced no documents to verify the amount of time spent on the case or that the $1,000 fee was earned. In addition, a Montana lawyer with whom Mr. Hellenthal claims he spoke denied that he spoke to Mr. Hellenthal. Mr. Hellenthal negotiated both the checks and did not deposit the $1,000 check for advance fees into his trust account. He deposited the $200 check into his trust account, but did not maintain the funds there. On September 6, 2007, Mr. Hellenthal depleted and overdrew the trust account, which remained overdrawn until its closure in October 2007.
Matter No. 2: In May 2007, Client B consulted with Mr. Hellenthal about selling her deceased brother’s house and getting her mother on Medicaid. Another lawyer had already handled the probate, appointed a personal representative, and filed nearly all the necessary paperwork to close the deceased brother’s estate. Client B paid Mr. Hellenthal a total of $4,500, which Mr. Hellenthal failed to deposit into his trust account. In August 2007, Mr. Hellenthal had Client B sign some papers with respect to her brother’s estate, but did not file any of the papers with the court. Mr. Hellenthal did not inform Client B of his September 6, 2007, suspension. She learned of it after reading a newspaper article on September 13, 2007, and contacted Mr. Hellenthal to ask about the status of her brother’s estate. Mr. Hellenthal told her that he had not filed the papers and would get back to her. Mr. Hellenthal left a message on Client B’s answering machine in November 2007 stating that he had a strategy for completing the work without his being an attorney. Client B called him back and asked for a refund. Mr. Hellenthal said he did not have the money and never gave Client B the papers she signed. Client B paid other lawyers a total of $1,600 to complete work for which she had paid Mr. Hellenthal $4,500.
Matter No. 3: Client C, who had a power of attorney for her mother, hired Mr. Hellenthal to appeal a Social Security decision regarding overpayment of her mother’s monthly benefits and to have Medicaid recalculate the amount of co-payments made to the nursing home in which her mother resided. Client C paid Mr. Hellenthal $2,187.50 to handle her mother’s legal matters. Mr. Hellenthal properly appealed the overpayment determination made by Social Security and asked Medicaid to recalculate their co-payments. The Social Security benefits were reinstated from March 2007 forward pending the outcome of the appeal. A telephonic hearing on the issue of calculation of the Medicaid benefits was set for March 12, 2007. Mr. Hellenthal did not appear at the hearing. The administrative law judge (ALJ) left a message for Mr. Hellenthal the day of the hearing. When Mr. Hellenthal did not return the call by the end of the day, the ALJ entered a default and dismissed the appeal. Mr. Hellenthal did not tell Client C that he had not attended the hearing or that the appeal had been dismissed, and he did not request that the dismissal be vacated.
In May 2007, Mr. Hellenthal instructed Client C to pay her mother’s nursing home $4,738.01, an amount charged to Client C’s mother due to the problem with the Medicaid co-payments. Client C paid this sum from her mother’s supplemental needs trust, thinking they were still waiting for a decision on the appeal. Mr. Hellenthal did not inform Client C or her mother of his September 6, 2007, suspension. In late September 2007, Client C tried to reach Mr. Hellenthal, but his phone was disconnected. Shortly thereafter, another lawyer advised Client C of Mr. Hellenthal’s suspension. She hired a new lawyer to look into the appeal that Mr. Hellenthal was handling, and he discovered it had been dismissed.
In October 2007, Client C picked up her client file at Mr. Hellenthal’s home, during which time Mr. Hellenthal told her that it was his “strategy” not to attend the March 12, 2007, hearing. Client C’s new lawyer subsequently filed a motion to vacate the dismissal based on ineffective assistance of counsel. Client C’s mother died shortly thereafter and, because her estate was not probated, the issue was never resolved. Had the appeal been successful, Medicaid would have paid the nursing home the $4,738.01 that Mr. Hellenthal instructed Client C to pay from her mother’s supplemental needs trust.
Matter No. 4: In May 1998, Ms. D amended her Living Trust Agreement to name Mr. Hellenthal and Mr. E as co-successor trustees. She specified that they must reach a consensus before taking any action in relation to the trust, including disbursements of trust assets. Ms. D died in April 2007, and Mr. E and Mr. Hellenthal became co-trustees for the trust. Mr. E opened a bank account in the name of Ms. D’s trust. Before Mr. Hellenthal became an authorized signer on the account, he billed the trust for administrative fees through Mr. E. Between December 2007 and May 2008, Mr. Hellenthal made several urgent requests for payment, often demanding advance payments. During this period, Mr. Hellenthal was paid approximately $10,000 in administration fees.
By mid-April 2008, Mr. Hellenthal had added himself to the trust’s account. Between May 2008 and August 2008, without the knowledge or approval of Mr. E, Mr. Hellenthal made 17 withdrawals from the account totaling $25,000 using counter checks. Many of the checks were made payable to himself or “Cash” and contained a statement on the memo line that they were for a “Trustee Advance.” Mr. Hellenthal had no entitlement to the funds he withdrew and has not accounted for them. In August 2008, Mr. E closed the account and moved the remaining funds into an account to which Mr. Hellenthal did not have access. In September 2008, Mr. Hellenthal cashed a $2,000 check, even though the account had been closed. Following a petition by Mr. E, the superior court removed Mr. Hellenthal as co-trustee of Ms. D’s trust and ordered him to repay the trust $27,000, disgorge all fees he received for his services to the trust, pay attorney fees and costs, and submit to Mr. E all documentation relating to the trust in his possession. Mr. Hellenthal has neither complied with the court order, nor cooperated in a subsequent investigation by the Bar Association.
Mr. Hellenthal’s conduct violated RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; RPC 1.4, requiring a lawyer to promptly inform the client of any decision of circumstance with respect to which the client’s informed consent is required by these Rules, reasonably consult with the client about the means by which the client’s objectives are to be accomplished, keep the client reasonably informed about the status of the matter, promptly comply with reasonable requests for information, consult with the client about any relevant limitation on the lawyer’s conduct, and explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; RPC 1.5(a), prohibiting a lawyer from making an agreement for, charging, or collecting an unreasonable fee or an unreasonable amount for expenses; RPC 1.15A(h), prohibiting a lawyer from depositing or retaining funds belonging to the lawyer in a trust account except for funds to pay bank charges, funds belonging in part to a client or third person and in part to the lawyer, and funds necessary to restore appropriate balances; RPC 1.16(d), requiring a lawyer, upon termination of representation, to take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee or expense that has not been earned or incurred; RPC 8.4(b), prohibiting a lawyer from committing a criminal act (here, theft) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; RPC 8.4(i), prohibiting a lawyer from committing any act involving moral turpitude, or corruption, or any other act which reflects disregard for the rule of law; RPC 8.4(j), prohibiting a lawyer from willfully disobeying or violating a court order directing him or her to do or cease doing an act which he or she ought in good faith to do or forbear; and 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.
Joanne S. Abelson represented the Bar Association. Mr. Hellenthal was not represented either in person or through counsel. Lewis W. Card was the hearing officer.
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