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M. Fred Weedon (WSBA No. 3413, admitted 1970), of Lopez, has been censured pursuant to a stipulation for discipline approved by the Disciplinary Board on July 28, 1998. The discipline is based upon his conduct with respect to a real estate transaction and subsequent litigation.
In September 1989, Weedon acted as the independent closing agent for the purchase and sale of a residential waterfront property on Lopez Island consisting of a house and land adjacent to the seller’s commercial property. The residential purchasers did not intend to purchase the seller’s commercial property, but did intend to purchase the entire cove, which they believed was part of the property they purchased.
In October 1990, the residential purchasers became concerned that their deed’s legal description included the commercial property. They consulted Weedon, who eventually ascertained the title company had made a mistake regarding the legal description of the property. According to Weedon, he considered the error a scrivener’s error. Weedon advised the purchasers of the mistaken legal description and asked if they wanted him to correct or reform the deed. They responded that they would hire counsel to protect their interests, and, in fact, did so. Weedon began representing the sellers shortly thereafter.
According to Weedon, he advised the purchasers’ lawyer that the way to correct the problem was to re-record the deed. Although Weedon did not receive permission to do so, on January 24, 1991, he filed a "correction deed," which changed the legal description of the property, decreasing its size and waterfront footage. The purchasers and their lawyer maintain that Weedon did not tell them of this action until months later; Weedon maintains he told the lawyer within a few days.
In April 1991, the sellers sold their commercial property to a third party. This property also had been conveyed to the residential purchasers according to the September 1989 deed, and was the subject of the correction deed. Weedon acted as an independent closing agent in this transaction. He notified the residential purchasers’ lawyer of the sale after it closed.
In December 1991, the residential purchasers sued Weedon, the sellers, the third party purchasers, the title company and others. In April 1993, the parties mediated a settlement, which was confirmed by court order on July 17, 1995. The order stated, among other things, that Weedon "shall" deposit $7,000 into the court registry, after which time he would be dismissed with prejudice. On August 7, 1995, Weedon obtained an ex parte order which provided that he would be entitled to be dismissed upon his payment of $7,000 into the court registry, but did not include the mandatory language of the court’s written order. He failed to provide the purchasers’ lawyer with notice that he was seeking the ex parte order, and never advised him that he obtained it. He did not pay the funds into the court registry until September 1997, after he received a letter from bar counsel opining that his actions constituted an ethical violation.
Weedon’s conduct violated RPC 4.4, which prohibits a lawyer from burdening third parties, and RPC 3.5(b), which prohibits a lawyer from improperly using ex parte proceedings.
William Bergsten represented Weed-on. Disciplinary Counsel Joanne S. Abelson represented the Bar Association.
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