| Description: |
Phillip E. Miller (WSBA No. 7703, admitted 1977), of Bellevue, was disbarred, effective April 8, 2005, by order of the Washington State Supreme Court following a hearing. This discipline was based on his conduct in 2001 involving commission of a criminal act; conduct involving dishonesty, fraud, deceit, and misrepresentation; and failure to secure a written contingent fee agreement; and his conduct in 2002 and 2003 involving failure to cooperate with a disciplinary investigation. Phillip E. Miller is to be distinguished from Phillip S. Miller of Seattle.
Matter 1: Mr. Miller was employed by a licensed collection agency (hereinafter Corporation A) to pursue collection actions on claims assigned by Corporation A’s clients. Mr. Miller’s compensation was based on receiving a percentage of the 33 percent fee that Corporation A charged for collecting assigned claims. The fee arrangement between Mr. Miller and Corporation A was never reduced to writing. In early 2001, Mr. Miller assisted certain owners and employees of Corporation A in forming a new corporation (hereinafter Corporation B) in order to avoid some of Corporation A’s liabilities. Mr. Miller became Corporation B’s president, sole corporate officer, sole director, and the only shareholder. Corporation B operated a lien-filing and collection business comparable to that of Corporation A, but Corporation B was never licensed as a collection agency. Mr. Miller continued to handle collection claims for Corporation B for a percentage of the collection fee charged by the corporation. The fee arrangement between Mr. Miller and Corporation B was not reduced to writing.
In mid-2001, a client assigned a $150,000 claim to Corporation A for collection. Corporation B subsequently assumed the assignment of the collection claim. Mr. Miller filed suit to collect the claim. Mr. Miller subsequently negotiated with the debtor regarding payment of the claim. The lawsuit settled in August 2001, and the debtor paid $130,699.63 in full satisfaction of the settlement agreement. The sum was deposited into Corporation B’s bank account and Mr. Miller obtained an order of dismissal of the lawsuit. Mr. Miller was paid a fee of $19,059, constituting 40 percent of Corporation B’s 33 percent share of the collected sum. Neither Mr. Miller nor anyone else at Corporation B notified the client of the settlement or the dismissal. The general manager of Corporation B instructed Mr. Miller to attempt to cut a better deal with the client in order to increase Corporation B’s share of the settlement.
Later in August 2001, a representative of the client contacted Mr. Miller to ascertain the status of the matter. Although Mr. Miller knew that the full amount owing had already been collected, he did not reveal this information to the client. Instead, he misled the client into believing that Corporation B had received an offer from the debtor to settle the matter for 85 percent of the amount due. The client indicated that it was not interested in such an offer, pointed out that the amount of the claim should have been greater, and insisted that a lien should be filed for the full amount. Despite the settlement agreement and dismissal of the lawsuit, the lien was filed and Mr. Miller received additional payments from the debtor. The total amount received on the claim was $149,777.67, of which the client was entitled to receive $100,351.04.
In October 2001, Mr. Miller became aware of a shortage in Corporation B’s bank account balance resulting in an inability to pay the client what was due from the settlement funds. On October 15, 2001, the client again contacted Mr. Miller about the claim. Mr. Miller did not disclose that he had received the full sum owed by the debtor, but instead misled the client into believing that the debtor was offering to pay 85 percent of the total or to make periodic payments of 100 percent of the amount due. Mr. Miller confirmed these “payment options” in an October 16, 2001, letter to the client. The client did not agree to either of these proposals.
In December 2001, the client learned from the debtor that the claim had been paid in full several months earlier. The client subsequently filed suit against Corporation B and Mr. Miller for moneys owed from the settlement. Judgment was confessed for $150,000. A settlement agreement required an initial payment of $50,000 followed by $2,000 monthly payments commencing in March 2002. Payments ceased in July 2003, with an unpaid balance of $70,000 remaining.
Matter 2: In July 2002, during the Bar Association’s investigation of Matter 1, Mr. Miller appeared at a deposition in response to a subpoena duces tecum requiring him to bring all financial records relating to the handling of funds received in connection with the collection claim. Mr. Miller did not bring those records to the deposition. He testified that this was an oversight and agreed to provide the records. Mr. Miller never provided all of the records. As a result, it was necessary for a Bar Association auditor’s examination to be based on microfiche copies of canceled checks and deposit items obtained from the bank. The need to reconstruct records greatly complicated the examination of the account.
Mr. Miller’s conduct violated RPC 1.5(c)(1), requiring contingent fee agreements to be in writing; RPC 8.4(b), prohibiting commission of a criminal act (here, theft in the first degree) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; RPC 8.4(c), prohibiting conduct involving dishonesty, deceit, fraud, or misrepresentation; RPC 8.4(d), prohibiting conduct prejudicial to the administration of justice; former RLD 2.8(a), requiring a lawyer to promptly respond to any inquiry or request for information relevant to grievances; and RPC 8.4(l), prohibiting a lawyer from violating a duty imposed by or under the Rules for Enforcement of Lawyer Conduct (here, ELC 5.3(e), requiring a lawyer to promptly respond to any inquiry or request for information relevant to grievances).
Randy Beitel represented the Bar Association. Kurt M. Bulmer represented Mr. Miller. Lish Whitson was the hearing officer. |