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S. Don Phelps (WSBA No. 21247, admitted 1991), of Olympia, was disbarred, effective September 17, 2004, by order of the Washington State Supreme Court following a stipulation approved by the Disciplinary Board. This discipline was based on his conduct in two matters involving the commission of criminal acts, failure to avoid a conflict of interest, having sexual relations with a client, and engaging in conduct prejudicial to the administration of justice.
Matter 1: On August 12, 2002, Mr. Phelps was charged with two counts of first-degree child molestation based on allegations that, inter alia, he reached into the pants and fondled the genitalia of a 15-year-old boy who was staying overnight at his home. In November 2002, a jury convicted Mr. Phelps on both counts. He was sentenced to a 17.5-month term of confinement.
Matter 2: Mr. Phelps represented a client charged with second-degree murder in Thurston County Superior Court. The client was released from custody prior to trial. The conditions of release included requirements that the client reside with his grandmother and be at her home between 8:00 p.m. and 6:00 a.m., that when not at work or at home he be accompanied by someone at least 25 years old and aware of the restrictions, and that he not possess or consume alcohol. Violation of the conditions of pretrial release could have resulted in the client’s incarceration pending trial.
Mr. Phelps assisted and encouraged the client in violating the conditions of pretrial release by having the client spend the night at his home, by having the client run errands without being accompanied by someone over the age of 25, by supplying the client with alcoholic drinks, and by allowing the client to drink alcoholic beverages in front to him. When the client asked Mr. Phelps whether these actions were in violation of his pretrial release, Mr. Phelps assured him that it was permissible either because the client was going to see his lawyer, because the client was following the directions of his lawyer, or because Mr. Phelps had “taken care of it.” During this period, Mr. Phelps gave the client gifts and money, bought him meals, greeted him with hugs, and complimented him on his physique. On one occasion, while the client was showering in Mr. Phelps’s home, Mr. Phelps entered the bathroom; while the client was attempting to attire himself, Mr. Phelps grabbed the client’s genitalia. The client instructed Mr. Phelps not to go any further.
Mr. Phelps’s conduct violated RPC 1.7(b), prohibiting a lawyer from representing a client if the representation may be materially limited by the lawyer’s own interests, unless the lawyer reasonably believes the representation will not be adversely affected and the client consents in writing after a full disclosure; RPC 1.8(k), prohibiting a lawyer from having sexual relations with a current client; RPC 8.4(b), prohibiting a lawyer from committing a criminal act (namely, child molestation and assault) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; RPC 8.4(d), prohibiting conduct prejudicial to the administration of justice; and former RLD 1.1(a), which prohibits a lawyer from, inter alia, committing any unjustified act of assault or any act which reflects disregard for the rule of law.
Sachia Stonefeld Powell represented the Bar Association. Mr. Phelps represented himself. Ronald A. Roberts was the hearing officer. |