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Sandra L. Ferguson (WSBA No. 27472, admitted 1997), of Seattle, was suspended for 90 days, effective February 3, 2011, by order of the Washington State Supreme Court following an appeal. For more information, see In re Ferguson, 170 Wn.2d 916, 246 P.3d 1236 (2011). This discipline was based on conduct involving failure to disclose relevant facts to the court, appearing ex parte without notice to the opposing party, and obtaining an ex parte order and other relief through deception and misrepresentation.
In spring 2005, Ms. Ferguson’s brother and sister-in-law (Clients) were involved in litigation. Prior to Ms. Ferguson representing them, Clients had given the opposing party equity in a rental house as the down payment toward the purchase of a restaurant. The opposing party took possession of the house and agreed to make the mortgage payments on the house. By 2004, Clients claimed the opposing party was in default on the mortgage payments and, in February 2005, Clients filed a complaint seeking a writ of restitution to regain possession of the house from the opposing party.
On March 18, 2005, the superior court ordered that an additional hearing be scheduled to sort out the parties’ rights, but in the interim the opposing party would need to bring the mortgage payments current by March 28. During the second hearing, on March 30, 2005, both sides argued over whether the mortgage payments had been made. The opposing side explained to the court that if Ms. Ferguson’s clients were given temporary possession of the house, they would “file bankruptcy, immediately claim that they [had] equity in the house…,” and then the bankruptcy court would deprive the superior court of jurisdiction and Ms. Ferguson’s clients would be able to retain possession of the house permanently.
Around the time of these hearings, Clients were exploring the option of bankruptcy. They had been told by a bankruptcy attorney that gaining possession of the house prior to bankruptcy would enhance their financial and legal position significantly. The court consolidated the two matters, denied the writ of restitution, and ordered the case set for trial on the merits as soon as possible, deciding “more testimony and comments and study on it” was necessary to determine the rights of each party. The court found the opposing party was entitled to maintain possession of the house to preserve the status quo.
Ms. Ferguson stepped in as counsel for Clients after the March 30, 2005, hearing. On April 11, 2005, without notice to the opposing party, Ms. Ferguson appeared ex parte before the judge who ruled in the two earlier hearings. During these proceedings, Ms. Ferguson presented her pleadings and argued that the opposing party had violated the court’s March 18 order and lied to the court at the March 30 hearing by failing to make the required mortgage payments, yet stating they had done so. Ms. Ferguson did not inform the court of her clients’ intention to file for bankruptcy or that the mortgage company had recently required all mortgage payments to be made with certified funds, which might account for the delay in the mortgage company’s processing of checks. The judge signed Ms. Ferguson’s proposed order holding the opposing party in contempt and granting a writ of restitution for the possession of the house to Ms. Ferguson’s clients as a remedy for the opposing party’s contempt.
When counsel for the opposing party received notice of the ex parte hearing and order approximately two days after the hearing, he called the judge and scheduled a hearing for his motion to vacate the order. The afternoon before the hearing, Ms. Ferguson’s clients filed for bankruptcy using funds provided by Ms. Ferguson. Ms. Ferguson appeared at the hearing on the motion to vacate with notice of the bankruptcy filing that deprived the superior court of jurisdiction. Ultimately, the opposing party’s claim for the house was never heard. When the opposing party received an offer of purchase for the restaurant, the parties settled all claims with respect to both properties.
Ms. Ferguson’s conduct violated former RPC 3.3(f), requiring a lawyer, in an ex parte proceeding, to inform the tribunal of all relevant facts known to the lawyer that should be disclosed to permit the tribunal to make an informed decision; former RPC 3.4(c), prohibiting a lawyer from knowingly disobeying an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; former RPC 3.5(b), prohibiting a lawyer from communicating ex parte with a judge except as permitted by law; former RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and former RPC 8.4(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice.
Jonathan H. Burke represented the Bar Association at the hearing. M. Craig Bray represented the Bar Association on appeal. Kurt M. Bulmer represented Ms. Ferguson at the hearing. Shawn T. Newman represented Ms. Ferguson on appeal. Timothy J. Parker was the hearing officer. |