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John R. Guardi (WSBA No. 32971, admitted
2002), of Bellingham, was ordered to receive
a reprimand following approval of a stipulation
by the Disciplinary Board on November
29, 2011. This discipline is based on conduct
involving failure to communicate, conflicts of
interest, and failure to deposit advance fees
into a trust account or provide an accounting
of advance fees he received or disbursed.
On two occasions, Mr. Guardi agreed
to represent two siblings who were jointly
charged with criminal violations in two
separate matters. In each matter, Mr. Guardi
agreed to provide the representation for a
flat fee, but did not enter into a written fee
agreement or otherwise satisfy the requirements
of RPC 1.5(f )(2). Nevertheless, in each
matter, Mr. Guardi failed to deposit and to
maintain the advance fees in a trust account.
In agreeing to represent the two siblings in
one of the matters involving robbery/burglary
charges, Mr. Guardi did not fully explain the
implications of the concurrent representation
or obtain each client’s written consent to the
concurrent representation. He continued to
represent the siblings despite: 1) learning that
their accounts were contradictory as to one
sibling’s knowledge of a firearm being brought
to the scene in her vehicle before a third defendant
pulled it out during the incident, and
2) receiving a plea offer from the prosecutor
that required all three defendants to accept
the offer in order to get the deal. A few months
after beginning representation, Mr. Guardi’s
clients discharged him and retained separate
counsel. Mr. Guardi did not provide his clients
with an accounting of the advance fees he
received or disbursed.
Mr. Guardi’s conduct violated RPC 1.4(a),
requiring a lawyer to promptly inform the
client of any decision of circumstance with
respect to which the client’s informed consent
is required by the Rules, reasonably consult
with the client about the means by which the
client’s objectives are to be accomplished,
keep the client reasonably informed about
the status of the matter, promptly comply
with reasonable requests for information,
and consult with the client about any relevant
limitation on the lawyer’s conduct; RPC 1.7(b),
allowing a lawyer to represent clients,
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 or other proceeding
before a tribunal, and each affected
client gives informed consent, confirmed in
writing; RPC 1.15A(c)(2), requiring a lawyer
to deposit into a trust account legal fees and
expenses that have been paid in advance, to
be withdrawn by the lawyer only as fees are
earned or expenses incurred; RPC 1.15A(e),
requiring a lawyer to promptly provide a written
accounting to a client or third person after
distribution of property or upon request; and
RPC 1.15A(h)(4), requiring that, for all trust
accounts, receipts must be deposited intact.
Marsha A. Matsumoto represented the Bar
Association. Mr. Guardi represented himself. |