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Ben Lawrence Hankin (WSBA No. 12531, admitted 1982), of Bellevue, resigned in lieu of disbarment, effective August 10, 2011. While not admitting to the misconduct in the Statement of Alleged Misconduct, Mr. Hankin admits that the Association could prove the violations, by a clear preponderance of the evidence, sufficient to result in his disbarment. The violations listed in the Statement of Alleged Misconduct include failure to act with reasonable diligence, failure to communicate, conflicts of interest, failure to diligently comply with a discovery request, failure to ensure that a non-lawyer assistant’s conduct is compatible with the professional obligations of the lawyer, and assisting another to engage in the unauthorized practice of law.
According to the Statement of Alleged Misconduct: Attorney K was a member of the Virginia State Bar until 2010 and has never been licensed to practice law in Washington. Since 1985, Mr. Hankin and Attorney K had a business relationship. At times, they shared office space and telephone numbers, and worked together on legal matters. The great majority of Mr. Hankin’s law practice involved providing services for Attorney K, or for entities controlled by Attorney K or his associates. Sometime in 1996, Clients, who owned an Oregon real estate company, hired Attorney K to provide legal representation for their company. In 2002, while negotiating with a bank to obtain a loan for another client (a limited liability company, hereinafter “LLC,” in which Attorney K also had an interest) Attorney K provided the lender with certain documents allegedly signed by Clients. These documents included a promissory note for $2,568,000, which was provided as a loan guarantee for LLC. LLC defaulted on the loan.
In January 2003, the lender sued Clients, claiming they were liable, as guarantors, for the indebtedness owed to them by LLC. In April 2003, the lender filed a Motion for Summary Judgment to establish Clients’ liability. Clients contacted Attorney K for representation in the suit. Attorney K approached Mr. Hankin to assist in preparing an Answer to the Complaint (“Answer”) and a Response to the Motion for Summary Judgment (“Response”). Mr. Hankin had never previously represented Clients. At the time, Mr. Hankin limited his law practice to nights and weekends, and was employed full time in a pawnshop. Mr. Hankin met with Attorney K for two weekends at a law library to prepare the Answer and Response. Mr. Hankin knew Attorney K was not a Washington-licensed attorney. Mr. Hankin had never met, spoke, or otherwise corresponded with Clients at any time during the representation and did not obtain their authority to act as their lawyer. He relied solely on Attorney K to provide him with “facts” and documents relating to the bank loan. Mr. Hankin never consulted Clients to ascertain if Attorney K’s “facts” were accurate and never personally reviewed the executed promissory note.
Attorney K and Mr. Hankin handwrote a draft Answer and Response.
Both the Answer and Response included admissions that Clients had executed the promissory note for $2,568,000 payable to the lender. The admissions minimized Attorney K’s involvement and potential liability in the matter, and exposed Clients to a multimillion dollar judgment. Attorney K, or someone at his direction, prepared and finalized the Answer and Response outside of Mr. Hankin’s presence and without his supervision. Attorney K met Mr. Hankin at the pawnshop to have him sign the pleadings. Mr. Hankin briefly reviewed the pleadings before signing the documents, but made no edits, and left Attorney K with the responsibility of filing them.
Mr. Hankin allowed Attorney K to retain all notes, legal research, work product, and documents associated with the case, while not keeping any files of his own. On April 29, 2003, the Answer and Response were filed under the wrong cause number without Mr. Hankin’s supervision or knowledge.
Mr. Hankin’s representation of Clients effectively ended after the preparation and filing of the Answer and Response. During his representation of Clients, Mr. Hankin made no efforts to communicate with Clients regarding factual and legal defenses, did not discuss settlement options with them, and did not contact opposing counsel or request relevant documents from the bank. Mr. Hankin knowingly abdicated his duty to provide independent legal advice to them. Before undertaking the representation, Mr. Hankin did not disclose to Clients that he had previously represented Attorney K or his associates, or that he had an ongoing business relationship with him. Mr. Hankin did not disclose that his representation of them could be materially limited by his responsibilities to Attorney K and by his own interest in maintaining a business relationship with him. Mr. Hankin did not obtain written waivers from Clients regarding the conflicts of interest.
In May 2003, Clients requested that Mr. Hankin attend a meeting scheduled between the bank and defendants in the suit. Mr. Hankin did not respond to their request, appear at the meeting, or otherwise contact them at any point regarding the bank litigation. Sometime in May 2003, Clients hired new counsel. On May 29, 2003, the Court granted the bank’s summary judgment motion. The court order granting the motion states that the documentation reviewed by the court included both Mr. Hankin’s response to the summary judgment motion and the supplemental response filed by Clients’ new counsel. A judgment of approximately $2,700,000 was entered against Clients in favor of the bank.
On June 27, 2003, Clients filed suit against Attorney K for breach of fiduciary duty and legal malpractice in federal court in Oregon. On June 30, 2004, pursuant to court subpoena, Mr. Hankin appeared for a deposition taken by Clients’ counsel in the federal suit, but did not produce any of the documents subpoenaed. Mr. Hankin refused to answer almost all questions presented to him, instead invoking the Fifth Amendment privilege against incrimination. Mr. Hankin attempted to assert a blanket privilege, refusing even to answer questions which subjected him to no criminal liability. After invoking the privilege approximately 20 times, Mr. Hankin and his counsel walked out of the deposition. Clients’ counsel subsequently filed a Motion for Order Compelling Discovery and for Sanctions against Mr. Hankin for his conduct during the deposition, which the Court granted. The Court found that Mr. Hankin’s conduct was only intended “to frustrate the deposition process.” The Court later entered a judgment of $16,005.23 against Mr. Hankin and his counsel for their conduct during the deposition. On December 14, 2004, Mr. Hankin finally appeared for his deposition.
Mr. Hankin’s conduct violated RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; RPC 1.4(a)(2), requiring a lawyer to reasonably consult with a client about the means by which the client’s objectives are to be accomplished; RPC 1.4(a)(3), requiring a lawyer to keep the client reasonably informed about the status of the matter; RPC 1.4(a)(4), requiring a lawyer to promptly comply with reasonable requests for information; RPC 1.4(b), requiring a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; RPC 1.7(a), prohibiting a lawyer from representing a client if the representation involves a concurrent conflict of interest; RPC 1.7(b), allowing a lawyer to represent a client notwithstanding the existence of a concurrent conflict of interest if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client, the representation is not prohibited by law, the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation, and each affected client gives informed consent, confirmed in writing; RPC 3.4(d), prohibiting a lawyer in pretrial procedure from failing to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; 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; and RPC 5.5(a), prohibiting a lawyer from practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assisting another in doing so.
Kevin M. Bank represented the Bar Association. Philip H. Ginsberg represented Mr. Hankin.
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