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Marlene K. Wenger (WSBA No. 35478, admitted 2004), who practiced in Centralia, was suspended for six months, to be followed by a one-year probation, effective August 25, 2010, by order of the Washington State Supreme Court following approval of a stipulation. This discipline is based on conduct involving failure to provide competent representation, conversion, misrepresentation to a tribunal, concealing evidence, dishonest conduct, and engaging in conduct prejudicial to the administration of justice.
Ms. Wenger met with client shortly after the death of a client’s cousin on June 5, 2007. The client told Ms. Wenger that he had searched the decedent’s home and found only what appeared to be an incomplete draft of a will. Eventually, several incomplete wills on preprinted forms were found, all of which named Mr. M as sole beneficiary. On June 21, 2007, Mr. M brought Ms. Wenger a will, which was apparently signed by the decedent and by three witnesses. The will named Mr. M as the sole beneficiary of the estate. Ms. Wenger was aware of the statute that requires a person in possession of a will to file it with the court. Ms. Wenger made no effort to contact the witnesses and did not file the will with the court. Instead, Ms. Wenger sent the will to a handwriting examiner to obtain an opinion on whether decedent’s signature was genuine. On July 10, 2007, the handwriting examiner reported that it was “highly probable” that decedent’s signature was not genuine. Ms. Wenger put the will in her file and sent the report’s conclusions to Mr. M, informing him that she would initiate proceedings to have the client administer the estate and would not update Mr. M as he would no longer be considered an heir.
On July 26, 2007, Ms. Wenger filed pleadings, including a Petition for Letters of Administration and a proposed Order, with the court stating that decedent had died intestate. These documents gave no indication that Ms. Wenger had in her possession a document purporting to be a will. A judge signed the order on the day the petition was filed. Ms. Wenger hired another attorney to evict interlopers staying on the decedent’s property and to prepare documents for her client to sell the property.
In October 2007, Mr. M hired Lawyer B to represent him. Lawyer B notified Ms. Wenger that he would seek to have the will probated. Shortly thereafter, Ms. Wenger filed the will with the court and Lawyer B filed a Petition for Probate and Revocation of the Letters of Administration, along with written testimony of the witnesses to the will. The judge revoked the letters testamentary, admitted the will to probate, and appointed Ms. Wenger’s client and Mr. M as co-personal representatives of the estate.
In mid-November 2007, the decedent’s estate received a $10,000 refund, which Ms. Wenger placed into her trust account and part of which she used to pay certain expenditures. On December 7, 2007, Ms. Wenger wrote Lawyer B with a summary of these expenditures, advising him that $5,960.08 remained on decedent’s account and that she had accrued $6,550 in fees for work on the estate. Lawyer B wrote to Ms. Wenger that Mr. M agreed with some of her expenditures, but that he did not agree to payment of fees incurred in the attempt to invalidate the will. The next day, Ms. Wenger informed Lawyer B by letter that she was applying the entire remaining balance in her trust account to her fees. Without obtaining approval from the court, Ms. Wenger withdrew a total of $5,570.18 from her trust account for her fees.
Throughout 2008 and early 2009, Ms. Wenger repeatedly informed Lawyer B that she was entitled to collect the balance of fees she claimed were due her, and insisted that her client was entitled to compensation for work he performed in connection with the estate. Ms. Wenger did not accept a $5,000 settlement offer from Lawyer B to her client. Instead, she wrote to Lawyer B that her client should be paid $10,000 from the estate, and her outstanding fees were $2,200. Ms. Wenger did not provide any documentation to either Lawyer B or the court in support of her client’s $10,000 claim. In April 2008, after the deadline for a will contest had passed, Lawyer B sent Ms. Wenger a deed for her client’s signature to convey the decedent’s property to Mr. M. His cover letter requested itemization of work her client performed for the estate. No itemization was ever produced. On December 16, 2008, Ms. Wenger wrote Lawyer B stating her client would not sign the deed absent an agreement that the estate would pay her fees and compensate her client. She later wrote to warn Lawyer B that she would file a lien against the decedent’s property and encourage her client to do the same. Also on December 16, 2008, Ms. Wenger sent Lawyer B the estate inventory and appraisement, stating that she would begin to close the estate and have her client sign the deed if Mr. M signed the inventory. The inventory and appraisement were incomplete.
RCW 11.48.210 provides that the court may allow “just and reasonable” attorney fees in probates and that application for the fees may be made during the probate. At no time did Ms. Wenger or her client make any application to the court for attorney fees or personal representative compensation. The closing of the estate was delayed for almost one year, due largely to Ms. Wenger’s insistence that Lawyer B and Mr. M agree to pay her and her client. By late February 2009, Ms. Wenger’s client had still not signed the deed. Lawyer B filed a petition for a decree of distribution under TEDRA (Trust and Estate Dispute Resolution Act) in an effort to close the estate. In March 2009, Ms. Wenger’s client finally signed the deed to transfer the decedent’s property to Mr. M. On April 17, 2009, the court entered an order resolving the petition for a decree. It allowed Ms. Wenger to keep funds she had already disbursed to herself, but did not allow her any further fees. Ms. Wenger reimbursed Mr. M $3,000 for the legal fees he had expended to have the will admitted and the estate probated.
Ms. Wenger’s conduct violated RPC 1.1, requiring a lawyer to provide competent representation to a client; RPC 1.15A(b), prohibiting a lawyer from using, converting, borrowing, or pledging a third person’s property for the lawyer’s own use; RPC 3.3(a)(1), prohibiting a lawyer from knowingly making a false statement of fact or law to a tribunal or failing to correct a false statement of material fact or law previously made to the tribunal by the lawyer; RPC 3.4(a), prohibiting a lawyer from unlawfully obstructing another party’s access to evidence or unlawfully altering, destroying, or concealing a document or other material having potential evidentiary value; RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and RPC 8.4(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice.
Natalea Skvir represented the Bar Association. Leland G. Ripley represented Ms. Wenger. |