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John R. Scannell (WSBA No. 31035, admitted 2001), of Seattle, was disbarred, effective September 9, 2010, by order of the Washington State Supreme Court following an appeal. This discipline is based on conduct involving conflicts of interest and non-cooperation with disciplinary counsel. For more information, see In re Scannell, 169 Wn.2d 723, 239 P.3d 332 (2010).
As early as 2003, Mr. Scannell represented a client in two civil cases; in one of the cases Mr. Scannell hoped to gain the biggest contingency fee of his career. While those cases were pending, the client and his wife were charged with stealing computers. Mr. Scannell represented both the client and his wife in the criminal case. Mr. Scannell discussed the possibility of a conflict of interest with them, but not exhaustively. He did not discuss that each spouse might have an interest in shifting blame to the other or that their interests might diverge from Mr. Scannell's because of his financial stake in the success of the client's civil suit. Mr. Scannell never obtained any written consent to the joint representation, nor did he know that such informed consent was required. Mr. Scannell advised the couple to enter Alford pleas, in which the defendants plead guilty without conceding guilt, in order to minimize the impact of the convictions on the client's civil cases. While the client was sentenced to five months of work release, his wife pled to a higher-level offense and was sentenced to one year in prison.
During Mr. Scannell's representation of the couple, the client performed computer work for Mr. Scannell in exchange for a $500 retainer fee that Mr. Scannell usually charged for civil cases. Their agreement was informal. There was no written contract, nor was there any evidence that Mr. Scannell advised the client to seek advice from another attorney before agreeing to perform the work.
In February 2005, the Bar Association began investigating two grievances filed against Mr. Scannell. One grievance was related to the above-mentioned representation and the second was for an unrelated matter. In May 2005, the Bar Association requested from Mr. Scannell certain documents regarding the joint representation of the client and his wife. Mr. Scannell did not respond, and instead asked that the investigation be deferred while the client's two civil cases were pending. Disciplinary counsel declined to defer the investigation because the civil cases were not related to the criminal case which gave rise to the grievance, or to the terms of the business transaction with the client.
Mr. Scannell delayed responding to the second grievance as well, requiring disciplinary counsel to issue him a second notice after granting him an extension of time to respond. When he finally did respond, Mr. Scannell did not provide any documentation, and denied the existence of a "business transaction" with his client, claiming the term was too vague to understand and professed confusion about the charges in the second grievance. Disciplinary counsel then served Mr. Scannell with a subpoena duces tecum for a deposition, requiring him to produce files and documents related to the two grievances. Mr. Scannell avoided producing documents for over three years by repeatedly delaying, rescheduling, or refusing to attend depositions for reasons that were frivolous and were raised in an untimely fashion. For example, Mr. Scannell drove to the site of a deposition on the day it was scheduled to deliver a letter stating he would not attend the deposition because the Bar Association had not provided him with witness travel fees pursuant to RCW 2.40.020.
The Bar Association served Mr. Scannell two more times with subpoenas duces tecum. The deposition eventually occurred on September 25, 2006, but Mr. Scannell refused to attend. In the end, Mr. Scannell never attended a deposition. He did not produce any of the requested documents until December 2008.
Mr. Scannell filed a "Petition for Writ of Prohibition, Mandamus, Injunction, [and] Complaint for Declaratory Judgment" in superior court against the State, the Bar, the Disciplinary Board, the former chair of the Disciplinary Board, and disciplinary counsel. The Bar's general counsel moved to dismiss as to all defendants for lack of subject matter jurisdiction. The Court of Appeals affirmed the dismissal and denied review.
On May 30, 2007, while Mr. Scannell's suit was pending, disciplinary counsel filed a formal disciplinary complaint against Mr. Scannell. Mr. Scannell responded with a series of duplicative motions to recuse or disqualify disciplinary counsel, all proposed hearing officers, and the entire Disciplinary Board for reasons that were groundless. These reasons included that the hearing officers were adverse parties to his lawsuit, creating a conflict of interest, and that the hearing officers and Disciplinary Board were biased by ex parte contacts with disciplinary counsel when defending against the lawsuit. Mr. Scannell objected to the setting of a hearing in the matter and twice moved to postpone the hearing date.
Mr. Scannell requested extensive discovery, asking the Office of Disciplinary Counsel to review all of its grievance files since 1997. He hoped to discover facts related to his theory that disciplinary counsel's requests for documents were retaliation for a grievance Mr. Scannell filed against another lawyer. The hearing officer allowed Mr. Scannell's discovery request only as to the time period when his grievance was being investigated. Meanwhile, Mr. Scannell never completely responded to the Bar's discovery requests, claiming lack of time and resources to produce all of the documents. The discovery requests sought documents that disciplinary counsel had previously subpoenaed three times, beginning in 2005.
Mr. Scannell's discipline hearing occurred in December 2008. The hearing officer recommended a suspension for not less than two years. The Disciplinary Board concluded that Mr. Scannell intentionally failed to cooperate in the Bar Association investigations with the intent to frustrate and delay the disciplinary proceedings and the Board unanimously voted to disbar Mr. Scannell. The Supreme Court upheld the decision.
Mr. Scannell's conduct violated former RPC 1.7(b)(2), prohibiting a lawyer from representing a client if there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer; RPC 3.1, prohibiting a lawyer from bringing or defending a proceeding, or asserting or controverting an issue therein, unless there is a basis in law and fact for doing so that is not frivolous; 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.
Scott G. Busby represented the Bar Association. Mr. Scannell represented himself. Timothy J. Parker was the hearing officer. |