| Description: |
Shane O. Nees (WSBA No. 29944, admitted 2000), of Fairfield, was disbarred, effective June 3, 2010, by order of the Washington State Supreme Court, following a default hearing. This discipline is based on conduct involving failure to act diligently, failure to communicate, failure to withdraw from representation, making false representations to a tribunal, failure to expedite litigation, failure to return client property, the commission of an illegal act, and failure to cooperate with investigation proceedings.
Matter No. 1: In April 2006, Client B hired Mr. Nees to represent her in a personal injury matter that arose out of an auto accident. Later that month, Mr. Nees forwarded a settlement offer from the other party's insurance company to Client B and told her the insurance company was claiming she was 50 percent at fault for the accident. Client B disagreed and declined the offer. In June 2006, the insurance company issued a check to Client B for 50 percent of the damages to her vehicle. She kept the check but did not cash it. Mr. Nees left the firm in March 2007 and, with Client B's agreement, took her case with him. He never informed Client B of his new address and did not change his address of record with the Association until May 22, 2008. The insurance company attempted to contact Mr. Nees regarding Client B's matter, but Mr. Nees did not respond. In April 2007, the insurance company contacted Client B directly to inquire why she had not cashed the check and to advise her that it was "stale-dated." Client B called Mr. Nees, who assured her that he would call the insurance company, but he never did and took no further action. Client B tried many times thereafter to contact Mr. Nees for information on her case, but Mr. Nees did not respond. Sometime after March 2008, Client B discovered Mr. Nees's phone had been disconnected. When Client B attempted to deal with the insurance company herself, she was told they could not speak to her since she was represented. Mr. Nees never withdrew from Client B's representation. On May 19, 2008, Client B filed a grievance against Mr. Nees. On June 17, 2008, Mr. Nees was suspended from the practice of law for nonpayment of licensing fees.
Matter No. 2: In April 2006, Mr. Nees filed a personal injury lawsuit on behalf of a husband and wife (Client W) as a result of an automobile accident. When Mr. Nees left his firm in March 2007, he took Client W's case with him. He did not notify the Association of his change of address until May 2008. He never notified Client W of his new address. In July 2007, the defendants in the case prevailed in a mandatory arbitration. Mr. Nees filed for trial de novo, which was set for October 8, 2007, and he informed Client W of the date. Two days before trial, Mr. Nees told Client W that the trial was going to be continued because the docket was too full. After telling Client W that, Mr. Nees appeared in court on October 8, 2007, while Client W, believing the trial would be continued, did not appear. It would not have been necessary to continue the trial if Client W had appeared and Mr. Nees had been prepared for trial. Mr. Nees's statement about the continuance was false. On Mr. Nees's motion, the court continued the trial date to February 2008 and ordered terms of $447.80 to be paid to defendants by November 26, 2007, because Client W failed to appear. Mr. Nees did not advise Client W of the February 2008 date or the order requiring payment of terms. Neither Mr. Nees nor Client W paid the terms. Later, Client W wrote twice to Mr. Nees seeking information about his case, but Mr. Nees did not respond. Client W then left the state for the winter without knowing about the upcoming trial date. On February 1, 2008, Mr. Nees did not appear for a court-appointed pretrial conference, and the court struck the trial date because of his failure to appear. Subsequently, the defendants filed a motion to dismiss. In response, Mr. Nees filed a motion to continue the trial. In his declaration accompanying the motion, Mr. Nees falsely stated that he advised Client W of the February 2008 trial date, but that Client W said that he could not drive back due to inclement weather.
On March 14, 2008, the court dismissed Client W's action with prejudice, finding that plaintiffs and plaintiffs' attorney had willfully disregarded the court's orders, failed to pay the $447.80 in terms, and failed to appear at the October 2007 trial date. The court awarded the defendants attorney fees and costs of $4,094.67. Client W returned to Washington in March 2008 and left phone messages for Mr. Nees requesting an update of his matter. Mr. Nees did not respond, and on May 12, 2008, Client W filed a grievance.
Matter No. 3: On April 2007, Client M hired Mr. Nees to pursue a personal injury matter. Prior to leaving the country for three weeks in August 2007, Client M tried to contact Mr. Nees for an update on his matter, but Mr. Nees did not respond. When Client M returned, he left several voice messages and sent e-mails to Mr. Nees, who again did not respond. Only after Client M threatened to terminate Mr. Nees on October 9, 2007, did Mr. Nees respond to Client M's request for information. At the end of November 2007, Client M sent Mr. Nees a medical report and asked Mr. Nees to keep him updated on any progress made in the matter. Mr. Nees informed Client M in December 2007 and January 2008 that progress was being made in negotiations and that he was working on a settlement package to present to the other party. Client M tried to contact Mr. Nees after January 2008 to obtain status of the matter, but Mr. Nees did not respond. Mr. Nees never completed or forwarded the settlement package to the other party. On March 11, 2008, Client M terminated Mr. Nees's representation by e-mail and requested his client file. Mr. Nees did not respond to Client M's e-mail or return his file. Client M then contacted the Association for help in obtaining his file. Mr. Nees did not respond to the Association's requests and did not return Client M's file. On April 21, 2008, Client M filed a grievance against Mr. Nees.
Matter No. 4: In October 2007, Client D hired Mr. Nees to pursue a personal injury claim on her behalf and provided Mr. Nees with documents related to the accident. Mr. Nees advised Client D to call him on February 27, 2008, after seeing her doctor, to discuss strategy for settlement. On that day, Client D left Mr. Nees messages, but Mr. Nees did not respond. He also did not respond to multiple subsequent calls from Client D. When it was clear that Mr. Nees took no action to settle the matter or pursue it in court, Client D hired another attorney. Client D called Mr. Nees and left messages informing him that she was terminating his representation and asked him to return her client file and paperwork. Mr. Nees did not respond to Client D's calls, or return her file or the documents she had given him. On April 3, 2008, Client D filed a grievance against Mr. Nees. On May 20, 2008, Mr. Nees filed an untimely response to Client D's grievance. He never returned Client D's file.
Matter No. 5: Mr. Nees was hired by Client J's company to collect on two debts. In the first case, Mr. Nees obtained a judgment and order directing the debtor's employer to garnish the debtor's wages and pay $386.60 to Client J. The employer paid the funds on June 4, 2008, via check made payable to Mr. Nees. In the second case, Mr. Nees obtained a default judgment against the debtor. Shortly thereafter, Mr. Nees was terminated by Client J's company, who hired a new lawyer. The new lawyer sought to collect the judgment by garnishing the debtor's employer. The employer paid the funds to the clerk of the court in September and October 2008. The clerk forwarded the two payment checks, totaling $1,812.35, to Mr. Nees instead of to Client J's new lawyer.
In both cases, Mr. Nees endorsed the checks and negotiated them without notifying Client J of the receipt of the checks or tendering payment of the funds to Client J. Mr. Nees was not entitled to any offsets for fees or costs. Client J found out about the payments when it contacted the employer and the garnishee defendant and was given copies of the cancelled checks. In the second case, Mr. Nees negotiated the checks after he was suspended from the practice of law. Client J filed a grievance against Mr. Nees on September 19, 2008.
Failure to Cooperate: In all but one of the foregoing matters, Mr. Nees failed to respond to the Association's requests for his response to client grievances. In Matter No. 4, Mr. Nees's response was untimely. The Association had to subpoena Mr. Nees for a non-cooperation deposition, to be held on September 23, 2008. Mr. Nees did not appear at the deposition. On October 17, 2008, the Association filed a petition with the Supreme Court for an interim suspension based on Mr. Nees's failure to cooperate with the grievance investigations. The Court ordered Mr. Nees to appear on November 18, 2008, to show cause why the petition should not be granted. Mr. Nees contacted the Association after the order was issued and said that he would provide written responses to the grievances by November 10, 2008, but failed to do so. Mr. Nees did not appear at the show cause hearing or file a response to the petition for interim suspension. On November 19, 2008, the Court granted the Association's petition and suspended Mr. Nees from the practice of law. On June 3, 2010, Mr. Nees was disbarred.
Mr. Nees'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 communicate with a client and explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; RPC 1.16(d), requiring that, upon termination of representation, a lawyer shall 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 that has not been earned or incurred; RPC 3.2, requiring a lawyer to make reasonable efforts to expedite litigation consistent with the interests of the client; RPC 3.3(a)(1), prohibiting a lawyer from knowingly making a false statement of material fact or law to a tribunal; RPC 8.4(b), prohibiting a lawyer from committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects (here, RCW 9A.56.030, 9A.56.040); 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 of moral turpitude, corruption, or other act reflecting the disregard for the rule of law; 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.
M. Craig Bray represented the Bar Association. Mr. Nees did not appear. John H. Loeffler was the hearing officer. |