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Norman W. Cohen (WSBA No. 373, admitted 1965), of Seattle, was disbarred, effective March 29, 2006, by order of the Washington State Supreme Court following a hearing. This discipline was based on his conduct between 1998 and 2000 involving failure to abide by a client's decisions concerning the objectives of representation, lack of diligence, failure to communicate with the client, and improperly attempting to withdraw from a representation.
In April 1998, a client hired Mr. Cohen to commence a lawsuit in an employment matter. Mr. Cohen filed the lawsuit, and trial was initially set for September 1999. At a pretrial conference in July 1999, Mr. Cohen and the defendants' lawyer stipulated to transfer the case to mandatory arbitration. Mr. Cohen neither informed his client about the pretrial conference nor explained to him what mandatory arbitration meant. The arbitration was set for December 1999. Rule 5.2 of the Mandatory Arbitration Rules (MAR) required Mr. Cohen to file a pre-hearing statement of proof 14 days before the arbitration, which he failed to do. Citing MAR 5.2, the defendants requested that Mr. Cohen's client be barred from presenting testimony or evidence at the hearing. Mr. Cohen responded to the request by faxing a very brief pre-hearing statement to the defendants' lawyer and the arbitrator. Mr. Cohen also faxed a letter to the arbitrator stating that he had no excuse for failing to file the pre-hearing statement. Because of his failure to file a pre-hearing statement, Mr. Cohen agreed in a pre-arbitration conference call with opposing counsel and the arbitrator to allow the entry of an award in the defendants' favor as long as it stated that there was no finding that Mr. Cohen's client failed to participate in the hearing. Mr. Cohen did not consult with his client or obtain client's consent to entry of an arbitration award in the defendants' favor. Mr. Cohen told his client that the arbitration had been cancelled because opposing counsel was sick. The arbitrator entered the award and Mr. Cohen filed a request for trial de novo. Mr. Cohen did not inform his client that, by filing a request for trial de novo, the client could be liable under MAR 7.3 for the defendants' costs and attorney's fees incurred after filing such a request.
In March 2000, the defendants' lawyer offered to settle the case for $2,000. Although Mr. Cohen's office forwarded a copy of the offer to the client, Mr. Cohen did not respond to the offer. A trial date was set for November 6, 2000, and a scheduling order was issued by the court requiring disclosure of primary witnesses and exhibits by June 5, 2000, and exchange of witness lists by October 16, 2000. Although the client had provided Mr. Cohen with one or more lists of witnesses shortly after hiring him, and had updated the information prior to the arbitration date, Mr. Cohen failed to contact the witnesses, including a witness that the client considered critical to the case. During a telephonic pretrial conference on October 13, 2000, the court ordered Mr. Cohen to communicate a settlement offer to the defense attorney that day, to arrange a mediation by October 20, and to exchange witness and exhibit lists by October 23. The court subsequently memorialized this in a written order. Mr. Cohen failed to do any of these things.
On October 13, 2000, the defendants' lawyer offered to settle the case for $1,000. Although Mr. Cohen's office forwarded a copy of the offer to the client, Mr. Cohen again did not respond to the offer. The defendants' lawyer called Mr. Cohen's office on three different occasions, but did not receive any return calls. On October 24, he faxed Mr. Cohen a letter informing him that he would be requesting exclusion of witnesses and exhibits because Mr. Cohen had not complied with the pretrial order. On October 26, the defendants' lawyer filed a motion to exclude evidence and to dismiss the case with prejudice.
On November 1, 2000, five days before trial, without having informed his client of his intentions, Mr. Cohen filed a motion seeking to withdraw on short notice. On the day before trial, Mr. Cohen's secretary informed the client that Mr. Cohen was in the process of withdrawing from the case. The client attempted to find another lawyer to represent him, but none of those he contacted were willing to take on the case so soon before the trial.
On November 7, the court held a hearing on the pending motions. The court denied Mr. Cohen's motion to withdraw as untimely and granted the defense counsel's motion to exclude evidence, permitting only limited testimony. After hearing this limited testimony, the court entered a judgment for the defendants and a judgment against Mr. Cohen's client for $8,118.75 in attorney fees.
Throughout the representation, Mr. Cohen had not telephoned or in any way communicated with the client regarding key issues in the case, and he did not return the client's phone calls.
Mr. Cohen's conduct violated RPC 1.2(a), requiring a lawyer to abide by a client's decisions concerning the objectives of representation and to consult with the client as to the means by which they are to be pursued; RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; RPC 1.4, requiring a lawyer keep a client reasonably informed about the status of a matter, promptly comply with reasonable requests for information, and explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; RPC 1.15, governing the circumstances in which a lawyer may withdraw from representation; and RPC 8.4(a), prohibiting a lawyer from attempting to violate the Rules of Professional Conduct.
Anne I. Seidel represented the Bar Association. Mr. Cohen represented himself. David K. Hiscock was the hearing officer. |