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Noel Lerner (WSBA No. 29978, admitted 2000), of Buckley, was disbarred, effective December 27, 2010, by order of the Washington State Supreme Court following a default hearing. This discipline was based on conduct in 11 separate matters involving lack of diligence, failure to communicate, charging unreasonable fees, trust account irregularities, failure to protect clients’ interests, failure to expedite litigation, making false statements, failure to disclose factual misstatements on documents submitted to the court, failure to supervise subordinates, direct solicitation of a client, dishonest conduct, conduct prejudicial to the administration of justice, and failure to cooperate in disciplinary investigations.
Dissolution matters : In late 2003 and 2004, five clients hired Ms. Lerner to represent them in their individual dissolutions. In one of the dissolutions, Ms. Lerner engaged in a pattern of intransigence during the proceedings sufficient enough to warrant monetary sanctions that her client ultimately had to pay. This included repeatedly failing to show up or showing up late for scheduled hearings and refusing to engage in meaningful settlement negotiations. Ms. Lerner moved for reconsideration of the sanctions after the deadline for doing so had elapsed and failed to note the motion for hearing. As a result, the judge never saw the motion nor ruled upon it.
In another dissolution matter, Ms. Lerner failed to attend a scheduled status conference or comply with court rules which required her to serve notice on opposing counsel regarding the date for a motion hearing. In four dissolution matters, Ms. Lerner failed to communicate with her clients, including failing to return clients’ phone calls, failing to keep clients fully apprised of their matters or to provide them with copies of papers filed on their behalf, and failing to inform a client of why the court imposed sanctions on him. In two dissolution matters, Ms. Lerner failed to timely file documents, which included a notice of appearance, a notice of withdrawal, an answer to a dissolution petition, and final dissolution papers. In two dissolution matters, Ms. Lerner allowed employees who worked under her to submit documents to the court containing factual misstatements. Ms. Lerner failed to review these documents or to correct them after learning of their inaccuracies. Two dissolution clients paid Ms. Lerner to represent them, but never received an accounting of the time spent on their cases, information about the rate at which they would be billed, or a refund of unearned fees. In one dissolution matter, Ms. Lerner withdrew from the case, but was unable to find or provide the client with all of the original documents he had given her.
In 2007, while Ms. Lerner was awaiting final action on a hearing officer’s unchallenged recommendation that she be suspended, a client hired her to represent him in his dissolution. Ms. Lerner did not inform the client of the likelihood of her impending discipline. She told him her office was in disarray due to remodeling. The client paid Ms. Lerner $3,500 to represent him through the pre-trial stage of the dissolution proceedings and requested that Ms. Lerner obtain a restraining order against his spouse. Ms. Lerner filed the petition for dissolution, but failed to timely seek a restraining order, return the client’s calls inquiring about his case, or prepare for her only court appearance made on his behalf. In April 2008, after the Disciplinary Board approved the suspension recommendation, Ms. Lerner told her client that she must withdraw from his case because of a conflict of interest. Without obtaining the client’s consent, Ms. Lerner transmitted his file, including confidential financial documents, to another lawyer. She did not return the client’s documents, refund any unearned portion of his fee or provide him with an accounting, and failed to sign or file a Notice of Withdrawal and Substitution or respond to communications from successor counsel. The client filed a grievance with the Bar Association against Ms. Lerner, to which Ms. Lerner failed to respond.
Non-cooperation : In October 2007, the Bar Association received a grievance against Ms. Lerner alleging that she acted incompetently in her representation of a client and tried to convince the client, who was the defendant in a criminal matter, to accept a plea agreement against his wishes. Disciplinary counsel sent Ms. Lerner a copy of the grievance and two letters requesting that she respond. She did not respond. Ms. Lerner agreed to a deposition after disciplinary counsel issued a subpoena duces tecum. She appeared for the deposition, but never addressed the grievance.
In December 2007, the Bar Association received a notice that Ms. Lerner’s trust account was overdrawn. The Association’s audit manager and disciplinary counsel both sent requests that Ms. Lerner provide an explanation of the overdraft with supporting documentation. Ms. Lerner did not respond. After disciplinary counsel issued a subpoena duces tecum for Ms. Lerner to appear for deposition in February 2008, she requested a postponement of the deposition. Disciplinary counsel postponed the deposition to March 2008; however, Ms. Lerner never provided an explanation of the overdraft or produced the requested documents. Disciplinary counsel obtained information directly from the bank, which showed that Ms. Lerner had made $800 worth of cash withdrawals from her trust account.
Criminal matters : In 2007, a client hired Ms. Lerner to defend him against charges of attempted murder. Ms. Lerner failed to complete discovery or comply with the omnibus order filed by the judge. The day of the trial, Ms. Lerner appeared at the trial unprepared to go forward. Ms. Lerner did not appear at the sentencing hearing, instead sending another attorney who was unfamiliar with the case. The court sentenced the client to 18 months’ incarceration.
In 2007, while Ms. Lerner was awaiting final action on a hearing officer’s unchallenged recommendation that she be suspended, she directly solicited employment from a potential client who was in jail on a charge of vehicular homicide. The client’s aunt paid Ms. Lerner $5,000 as a down payment for her legal fee. There was no written fee agreement and Ms. Lerner did not inform the client of her imminent suspension. During the five weeks she represented the client, Ms. Lerner gave her client discovery documents without obtaining the prosecutor’s approval or redacting the documents as required by court rule. Although Ms. Lerner assured her client that she was preparing for trial and would hire experts in her defense, she informed the prosecutor that the case would end in a plea. Ms. Lerner misinformed her client of the sentencing range that applied to the charges against her, significantly overstating the maximum sentence. When the client became dissatisfied at Ms. Lerner’s apparent failure to investigate or take any action in her case, she hired another lawyer to represent her on the charges. Ms. Lerner failed to acknowledge the substitution of counsel or forward to the successor counsel any files or documentation of work she had performed on the case. Ms. Lerner failed to refund any portion of the $5,000 fee or provide the client documentation to substantiate that she’d earned any portion of the fee.
In 2008, while awaiting final action on a hearing officer’s unchallenged recommendation that she be suspended, a client hired Ms. Lerner to represent him on a DUI charge. Members of the client’s family paid Ms. Lerner $5,400. There was no written fee agreement, and Ms. Lerner did not communicate with the family members or her client that she would be unable to carry out the representation because of her likely suspension until after they had fully paid her fee. Ms. Lerner failed to file any pretrial motions, conducted little or no investigation of her client’s case, and failed to appear for hearings, instead requesting continuances. On the day of the trial, Ms. Lerner appeared only to request another continuance and to state that she would not be going forward because she was “disqualified.” This was misleading. In fact, she had been informed that her disciplinary suspension would begin the next day.
The clients or members of the clients’ families in the four criminal cases filed grievances against Ms. Lerner with the Bar Association. Ms. Lerner failed to respond to any of the grievances.
Ms. Lerner’s conduct violated RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; former RPC 1.4, requiring a lawyer to keep a client reasonably informed about the status of a matter, promptly comply with reasonable requests for information, 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 1.5(b), requiring that the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation; RPC 1.15A(h)(5), requiring that all withdrawals from a trust account be made only to a named payee and not to cash; RPC 1.16(d), requiring that, upon termination of representation, a lawyer 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 3.2, requiring a lawyer to make reasonable efforts to expedite litigation consistent with the interests of the client; former RPC 3.3(a)(1), prohibiting a lawyer from making a false statement of material fact or law to a tribunal; former RPC 3.3(c), requiring a lawyer who has offered material evidence and comes to know of its falsity to promptly disclose this fact to the tribunal; RPC 3.4(c), prohibiting a lawyer from knowingly disobeying an obligation under the rules of a tribunal; RPC 5.1(a), requiring a partner in a law firm to make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct; RPC 5.1(b), requiring a lawyer having direct supervisory authority over another lawyer to make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct; former RPC 5.3(a), requiring a partner in a law firm to make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the conduct of a non-lawyer employee is compatible with the professional obligations of the lawyer; RPC 5.3(b), requiring a lawyer having direct supervisory authority over a non-lawyer to make reasonable efforts to ensure that the non-lawyer’s conduct is compatible with the professional obligations of the lawyer; RPC 5.3(c), requiring a lawyer to be responsible for conduct of a non-lawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved, or has direct supervisory authority over the person and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action; RPC 7.3(a), prohibiting a lawyer from directly soliciting professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain; 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; 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.
Natalea Skvir represented the Bar Association. Ms. Lerner did not appear either in person or through counsel. Barbara A. Peterson was the hearing officer. |