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Gerald G. Burke (WSBA No. 17773, admitted 1988), of Tacoma, was suspended for 30 days by order of the Supreme Court effective June 12, 2001, following a hearing. Mr. Burke was reinstated on July 12, 2001. The discipline was based on his failure to diligently represent and communicate with three clients between 1993 and 1995.
Matter 1: In September 1993, Mr. Burke agreed to represent a client in a paternity action. In April 1994, the court entered a summary judgment of paternity and set child support at $699 per month, reserving the issues of back support and visitation. On July 14, 1994, the arbitrator scheduled the back support arbitration for September 8. On July 18, Mr. Burke wrote a letter to the arbitrator indicating he had a scheduling conflict with the arbitration date. The arbitrator responded with alternate dates, and suggested that Mr. Burke reach a stipulation for a new date, or file a motion to reschedule. Although opposing counsel notified Mr. Burke that some of the arbitrator’s suggested dates were acceptable to her, Mr. Burke did not reach a stipulation or file a motion to reschedule.
On August 8, 1994, Mr. Burke wrote the client that he would withdraw from the case if the client did not make a $1,500 payment by August 15. Mr. Burke knew that the client, who had been on a payment plan for several months, could not make this payment. On August 12, Mr. Burke filed and served a notice of withdrawal that would take effect on August 28, 1994. During a discussion with the client about the withdrawal, Mr. Burke told him that he believed some of the mother’s testimony over the client’s. The client then agreed that Mr. Burke should not continue to represent him.
The prehearing statement in the arbitration was due August 25, 1994. Mr. Burke did not file or serve a prehearing statement or request an extension of time. On August 16, the opposing party objected to Mr. Burke’s withdrawal, indicating that she would agree to continue the arbitration. Mr. Burke then filed a motion to withdraw. On September 1, 1994, the arbitrator wrote to Mr. Burke that he was the lawyer on the case until he scheduled a formal hearing and had been granted leave to withdraw. The arbitrator stated that she would continue with the arbitration on the original date if Mr. Burke did not schedule a hearing on either a motion to withdraw or a motion to continue. Mr. Burke did not schedule either motion. On the day prior to the arbitration, Mr. Burke filed and served a second motion to withdraw, asking in the alternative for a continuance. He did not note this motion. On the same day, another lawyer contacted the arbitrator and the mother’s lawyer requesting a continuance for Mr. Burke’s client. The arbitrator granted the continuance. The new lawyer resolved the back support issue without arbitration.
Mr. Burke’s conduct violated RPCs 1.1, requiring lawyers to competently represent clients; 1.3, requiring lawyers to diligently represent clients; 1.4, requiring lawyers to keep clients reasonably informed of the status of their matters; 1.7, prohibiting lawyers from representing a client if the representation will be directly adverse to another client or limited by the lawyer’s own interests; and 1.15, requiring lawyers to reasonably protect clients’ interests upon withdrawal from their matters.
Matter 2: In 1994, Mr. Burke represented a client who was injured while working as a groundskeeper for a self-insured employer. The injury occurred on the premises of a metals business not owned by the employer. Prior to 1994, the employer paid Mr. Burke’s client $30,438. On August 2, 1994, the employer paid the client another $10,260. Revised Code of Washington (RCW) 51.24.060 et seq states that amounts paid by the employer become a lien against any recovery from the third party (the metals business).
On March 4, 1994, the employer asked Mr. Burke in writing whether the client had elected to pursue the third-party claim himself, and explained that the statute gave the employer a lien on any recovery. On March 7, Mr. Burke requested that the employer send him an election form. On March 20, Mr. Burke mailed the signed election form to the employer, indicating the employee would pursue the third-party claim. The form acknowledged that the client was required by statute to notify the employer prior to any settlement and that the client knew the employer was entitled to recover the amounts already paid.
On June 20, 1994, Mr. Burke settled the third-party claim for $46,000, but Mr. Burke did not notify the employer that he was settling the claim. The statute states that the settlement can be considered void if not approved by the employer. Mr. Burke disbursed the settlement funds without an order from the Department of Labor and Industries (L&I), which is also required by the statute. Mr. Burke withheld $15,459 from the settlement to pay for the client’s medical expenses.
On August 24, 1994, the employer sent Mr. Burke a letter asking if his client intended to pursue the third-party claim. On August 31, Mr. Burke responded that he had settled the claim. The employer, who retained counsel to protect its rights in the settlement, asked Mr. Burke to provide information about the client’s injury, so it could determine whether to approve the settlement after the fact or void the settlement. On January 17, 1995, the employer asked L&I to enforce its lien in the amount of $22,868. Mr. Burke responded to both the employer and L&I that the problem arose because he had not been notified of the employer’s lien rights or sent an election form. He told the employer that the remaining settlement amount was $15,4 59.
On February 16, 1995, Mr. Burke agreed to pay $22,868 to the employer. Mr. Burke paid the employer $15,459, leaving the client responsible for paying the remaining $7,500. Mr. Burke did not explain to his client that his own interest in retaining his fee conflicted with his decision to have the client pay the additional $7,500 owed on the lien.
In August 1995, the employer sent the client a warrant for the amount of the lien. When Mr. Burke received a copy of the warrant, he wrote a letter to the employer indicating the client’s agreement to make payments on the amount due. Mr. Burke did not advise the client that the warrant would become a lien on his home. During a refinance in June 1997, the client learned of the lien and paid the amount owed. In August 1997, the Bar Association suggested that Mr. Burke repay $7,500 to the client, indicating that this amount would be considered in mitigation of the sanction recommendation. Mr. Burke repaid the client after the client signed a three-page declaration stating that the client told Mr. Burke that the employer waived the lien. The client, who stated that he could not read all of the declaration, testified at his deposition that he had not told Mr. Burke that the employer waived the lien.
Matter 3: On April 13, 1995, Mr. Burke agreed to represent a mother in motions for reimbursement of her child’s medical expenses, contribution for future orthodontia, and an increase in monthly child support. On June 27, 1995, Mr. Burke filed a motion and arranged for service on the father. On September 14, 1995, Mr. Burke and the father’s lawyer agreed to set child support at $396 per month; however, the client did not receive a copy of the letter memorializing this agreement.
Mr. Burke drafted an order setting child support at $379 per month, obtained his client’s signature, and sent the order to opposing counsel, who noticed the lower child-support amount, and brought it to Mr. Burke’s attention. Mr. Burke entered the order with the court, and mailed a copy of the worksheets and order to the client. When the client saw the worksheets, she made an appointment with Mr. Burke to discuss worksheet errors. During this meeting, Mr. Burke did not notice the lower child-support amount. When Mr. Burke corrected the errors, the child-support amount was adjusted to $400 per month. Mr. Burke sent the corrected worksheet to opposing counsel, asking her to revise the order. Opposing counsel’s associate responded that Mr. Burke should prepare the corrected order and send it to her.
In October 1995, Mr. Burke prepared corrected worksheets and an order setting child support at $396 and had them signed by his client. Mr. Burke did not send the amended order to opposing counsel or file it with the court. On November 9, the client went to Mr. Burke’s office because she had not heard anything about the corrected order. The client discovered that neither the court file nor the Office of Support Enforcement file contained the $396 order. In January 1996, she filed a grievance with the Bar Association. A few days later, Mr. Burke filed a notice of withdrawal in the client’s case. He did not provide a copy of the notice of withdrawal to the client.
The client also requested that Mr. Burke seek reimbursement of out-of-pocket medical expenses. Mr. Burke did discuss this issue informally with opposing counsel. The father did not object to the request and asked for documentation of the actual expenses, which Mr. Burke sent. Opposing counsel then asked what portion of the expenses had been reimbursed by insurance. The client told Mr. Burke that the insurance company had sent the reimbursement checks to the father, who was the policyholder, and he had cashed the checks and kept the funds. Mr. Burke did not convey this information to opposing counsel or take any other steps to resolve this issue.
Joy McLean and Maria Regimbal represented the Bar Association. Mr. Burke represented himself. The hearing officer was Kenyon E. Luce.
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