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Thomas J. Earl (WSBA No. 10902, admitted 1980), of Moses Lake was disbarred effective May 13, 2004, by order of the Washington State Supreme Court following a hearing. This discipline was based on his conduct from 1992 through 1998, involving charging fees while representing clients as court appointed criminal defense counsel, failing to explain the choice between appointed counsel and retained counsel, charging unreasonable fees and voluntarily maintaining an excessive caseload while one of the lawyers under contract to provide indigent criminal defense in Grant County.
Matter 1: In 1996, Mr. Earl was appointed to defend a client in two criminal matters. In September and October 1997, Mr. Earl was appointed to represent the same client in a sentencing violation and two new felony charges. Mr. Earl filed notices of appearance in the new cases, but not in the sentencing violation matter. The client’s Determination of Indigency form was filed, but not signed by the court. Although Mr. Earl testified that he was not appointed to represent this client, the hearing officer found that he was appointed counsel. Mr. Earl charged the client $3,000 for this representation.
Matter 2: In June 1998, the court appointed Mr. Earl to represent a client on a criminal felony charge. The client wanted to retain a particular lawyer. The client only partially completed the indigency report and the court found him not indigent. Mr. Earl did not fully explain the client’s rights to seek appointed counsel and made no effort to complete the indigency report or argue that the client was actually indigent. Mr. Earl contacted the client on the day of the hearing and suggested that the client retain him. The client agreed to pay Mr. Earl $3,000, but could not meet the payment schedule. Mr. Earl withheld services pending the client’s payments.
Matter 3: In September 1993, Grant County Superior Court issued an order appointing the indigent defenders to represent a defendant. Following the usual procedure, the Court appointed the indigent defenders at the first hearing, prior to filing of the indigency report. Five days later, Mr. Earl filed his notice of appearance and a document identifying himself as the client’s lawyer. No determination of indigency report was ever filed in this case. In October and again in November 1993, the client’s mother paid Mr. Earl $1,500 for the client’s representation. Mr. Earl was obligated to provide this representation without charge to the client.
Matter 4: On December 18, 1992, the court appointed the “contract defenders” to represent a criminal defendant. The defendant agreed to accept appointed counsel, but indicated he may attempt to retain counsel. Mr. Earl appeared in court with the defendant that same day. By June 1993, the client had paid Mr. Earl $2,220.00. Mr. Earl did not provide his client a full and fair explanation regarding the decision to retain Mr. Earl, after the court entered an order appointing counsel.
Matter 5: In April 1998, Mr. Earl was appointed to represent a criminal defendant. In May, the court found the client indigent, but able to contribute. On August 5, 1998, a jury found the client guilty. On August 10, 1998, prior to sentencing and without a determination of the client’s indigency status for appeal, Mr. Earl talked to the client about the cost of retaining him for the appeal. Mr. Earl agreed to do the client’s appeal for a flat fee of $5,000.00. By accepting the client’s money during the appointed representation and prior to a determination of the client’s indigency for appeal, Mr. Earl may have created a conflict between his personal interests in keeping the client’s funds and the client’s interests in qualifying for appointed counsel. The hearing officer found the $5,000 fee to be unreasonable based on the actual work Mr. Earl performed.
Matter 6: On August 1, 1994, Mr. Earl appeared in court as appointed counsel with an indigent criminal defendant. The next day, Mr. Earl filed a notice of appearance. The client believed he would receive better representation if he hired a lawyer rather than using appointed counsel. By January 1995, the client paid Mr. Earl $2,700.00. Mr. Earl did not initiate the discussion leading to the client retaining him, but he took advantage of the client’s belief that he would receive a better outcome if he retained Earl. The hearing officer found that Mr. Earl was obligated to represent the client and should have refused the payment.
Matter 7: In April 1993, Mr. Earl was assigned counsel for a criminal defendant charged with child rape and child molestation. The client and his family believed that Mr. Earl was not aggressively defending the client. During an in-chambers meeting with the judge prior to trial, Mr. Earl stated, “he [the client] believes my role is to find proof that he’s innocent of this particular charge. I’ve explained to him the role, or my role, is to see his constitutions rights are protected.” The hearing officer found that Mr. Earl fundamentally misunderstood his role as assigned counsel. The hearing officer also found that Mr. Earl’s voluntarily excessive caseload was prejudicial to the administration of justice.
Matter 8: In July 1996, Mr. Earl appeared as appointed counsel for a criminal defendant on felony charges, including attempted murder. The client was acquitted by reason of insanity and committed to Eastern State Hospital. Mr. Earl’s appointed representation ended. In August 2000, the client retained Mr. Earl to represent him in an attempt to modify his conditions of confinement and to explore revoking his guilty plea. The court docket reflects no work on the client’s case after August 2000. In fall 2000, the client asked Mr. Earl to withdraw and refund the unused portion of his $2,500 in fees. Mr. Earl did not withdraw or refund any of the fees. A few weeks later, the client filed a grievance against Mr. Earl. Mr. Earl told the client he would take no further action on his case while the grievance was pending. In June 2001, new appointed counsel successfully withdrew the client’s insanity plea and entered a guilty plea to a reduced charge with no additional confinement.
Mr. Earl’s conduct violated RPCs 1.3, requiring lawyers to diligently represent their clients; 1.4(b), requiring lawyers to explain client matters to the extent reasonably necessary to permit the client to make an informed decision regarding the representation; 1.5(a), requiring lawyers to charge reasonable fees; 1.7(b), prohibiting lawyers from representing a client if the representation may be materially limited by the lawyers own interests; 7.1, prohibiting lawyers from making false or misleading statements communications about the lawyer or the lawyer’s services; 8.4(c), prohibiting lawyers from engaging ion conduct involving dishonesty, deceit, fraud or misrepresentation; 8.4(d), prohibiting conduct prejudicial to the administration of justice; and 8.4(i), prohibiting lawyers from committing acts involving moral turpitude.
Christine Gray and Linda B. Eide represented the Bar Association. Nels Hansen represented Mr. Earl at hearing. Mr. Earl represented himself on appeal. Kenneth Fielding was the Hearing Officer.
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