| Description: |
Alec M. Schwimmer (WSBA No. 22588, admitted 1993), of Jacksonville, OR, was disbarred, effective March 17, 2005, by order of the Washington State Supreme Court following a hearing. This discipline was based on his conduct between 1998 and 2001 involving failure to communicate with and diligently represent a client; misrepresentations to a court; multiple acts of misconduct relating to client funds and trust account matters (including misappropriation of client funds); failure to cooperate with disciplinary investigations; and testifying falsely during disciplinary depositions. For additional information please see In re Discipline of Schwimmer, 153 Wn.2d 752, 108 P.3d 761 (2005).
Matter 1: In late 2000, Mr. Schwimmer commenced representing a client in connection with several criminal matters pending in superior court. Mr. Schwimmer signed a scheduling conference order setting an omnibus hearing in all the cases for February 2001. At the omnibus hearing, three of the matters were set for a May 15, 2001, change of plea hearing or for trial on May 30 in the event guilty pleas were not entered. Respondent failed to contact his client following the February hearing. Although he knew of the court dates, Mr. Schwimmer did not appear in court for the May 15 hearing or the May 30 trial date. He did not inform the court or the prosecutor that he would not be appearing on the trial date. The judge set the case over for May 31, 2001, and asked the prosecutor to attempt to contact Mr. Schwimmer. The prosecutor was unable to contact him. On May 31, the judge ordered the trial dates continued, appointed a public defender to represent the client, and set a hearing for June 5. At the June 5 hearing, Mr. Schwimmer appeared and agreed to withdraw. During the hearing, Mr. Schwimmer intentionally made false or misleading representations to the court about his physical and mental condition and about efforts he had made to obtain treatment for alcohol and/or drug abuse. Subsequently, during the course of an ensuing disciplinary investigation, Mr. Schwimmer made false or misleading representations in a deposition about his physical and mental condition and about efforts he had made to obtain treatment for alcohol and/or drug abuse.
Matter 2: Between August 1998 and June 2001, Mr. Schwimmer engaged in the following conduct that established grounds for discipline:
• Knowingly failing to maintain complete records regarding client funds in his possession, including the failure to maintain any running trust account ledger or balance or any individual client ledgers.
• In two instances, disbursing sums that had been deposited into his trust account on behalf of clients without creating any records to establish what was done with the money or whether it was paid to or for the benefit of the clients.
• In one instance, depositing settlement funds into his trust account without any accompanying information identifying a client, and disbursing those funds without creating any records to establish what was done with the money.
• Failing to notify a client of receipt and deposit into his trust account of a $5,505.16 settlement check.
• Intentionally misappropriating over $2,500 of funds belonging to a client and using the funds for the benefit of himself and others.
• Causing his trust account to have a negative balance of $760.16.
Subsequently, during the course of a disciplinary investigation commenced following the Bar Association’s receipt of notice of an overdraft on Mr. Schwimmer’s trust account, Mr. Schwimmer failed to respond to requests for information, testified falsely regarding the source of trust account deposits and the disposition of client funds, and failed to provide a client file and a release for medical/treatment records as requested by disciplinary counsel.
Mr. Schwimmer’s conduct violated RPC 1.3, requiring a lawyer to act with reasonable diligence in representing a client; RPC 1.4, requiring a lawyer to keep a client reasonably informed about the status of a matter, to promptly comply with reasonable requests for information, and to explain a matter to the extent reasonably necessary to permit the client to make informed decisions; RPC 1.14(a), requiring that all funds of a client paid to a lawyer be deposited into an identifiable interest-bearing trust account and that no funds belonging to the lawyer be deposited therein except as permitted by rule; RPC 1.14(b)(2), requiring that a lawyer identify and label client property on receipt and put it in a safe deposit box or other place of safekeeping as soon as possible; RPC 1.14(b)(3), requiring a lawyer to maintain complete records of all funds, securities, and other properties of a client and to render appropriate accounts regarding them; RPC 1.14(b)(4), requiring a lawyer to promptly pay or deliver to the client as requested by the client the funds, securities, or other property in the possession of the lawyer that the client is entitled to receive; RPC 3.2, requiring a lawyer to make reasonable efforts to expedite litigation; RPC 3.3(a)(1), prohibiting a lawyer from making a false statement of material fact or law to a tribunal; RPC 8.4(b), prohibiting a lawyer from committing a criminal act (here, theft) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; RPC 8.4(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice; former Rule for Lawyer Discipline (RLD) 1.1(a), subjecting a lawyer to discipline for any act involving moral turpitude, dishonesty, or corruption, or other act which reflects a disregard for the law; and former RLD 2.8(a), requiring a lawyer to promptly respond to any inquiry or request for information relevant to grievances.
David A. Middaugh and Jean K. McElroy represented the Bar Association. Mr. Schwimmer represented himself. Dennis W. Lane was the hearing officer. |