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Randy L. Durham (WSBA No. 17382, admitted 1987), of Tacoma, was suspended for two years, effective April 14, 2006, by order of the Washington State Supreme Court following a stipulation approved by the Disciplinary Board. This discipline was based on his conduct in three matters between 2000 and 2004 involving lack of diligence, failure to abide by a client’s decision concerning the objective of representation, filing a non-meritorious claim, and misrepresentations to clients.
Matter 1: Between 1997 and 2004, Mr. Durham represented a sheet-metal business. In January 1999, Mr. Durham commenced an action on behalf of the client to recover damages resulting from a breach of contract and to foreclose on a bond and retainage fund. The named defendants in the action included a general contractor, a governmental entity, and a bonding company. In October 2000, the presiding judge partially granted the client’s motion for summary judgment, awarding the client $5,500 against the retainage fund. No order was signed at the time of the hearing. In November 2000, Mr. Durham sent the general contractor’s lawyer a proposed order for signature. The order was never signed and returned, but Mr. Durham did not pursue the matter further. In December 2001, the general contractor made an offer to settle all claims for $11,997.62. Mr. Durham did not respond to the offer. For a period of approximately two years, during which there was little activity on the case, Mr. Durham repeatedly misled the client about the status of the matter. In October 2002, the general contractor offered to settle for $13,727.48. Mr. Durham communicated the offer to the client, who told him to counter-offer $15,000. Mr. Durham instead counter-offered $17,003.48. The parties failed to reach a settlement. In November 2002, Mr. Durham filed a second motion for summary judgment seeking the identical relief sought in the October 2000 motion. As a result, the judge signed the order that Mr. Durham had prepared and circulated in November 2000.
Matter 2: Mr. Durham’s client was hired by a general contractor to install metal sidings at a construction project for a university. The client did not receive full payment for its services. In May 2000, Mr. Durham commenced an action on the client’s behalf, naming the contractor, the bond, and the university as defendants. The bonding company tendered defense of the claim to the general contractor. In June 2001, Mr. Durham negotiated a settlement that included a “Joint Pursuit of Claims” agreement, under which Mr. Durham’s client obtained $40,446.49, assigned $25,000 of its claims against the university to the contractor and the bonding company, waived and released its claims against the bonding company and the university, and agreed to dismiss the contractor and the bonding company from the lawsuit. Mr. Durham advised the client to sign the agreement, erroneously assuring him that it would not jeopardize the client’s right to collect additional damages. In July 2001, in accordance with the settlement, Mr. Durham filed the stipulation and order voluntarily dismissing the contractor and the bonding company from the case. The client did not recover any damages above the amount paid pursuant to the agreement.
The client subsequently expressed dissatisfaction about the outcome of the lawsuit. Mr. Durham suggested that the client file a suit to void the agreement on the basis of fraudulent inducement. In August 2002, Mr. Durham filed a second suit against the contractor, the bonding company, and the university. Lawyers for the bonding company and the university requested that Mr. Durham voluntarily dismiss the lawsuit for a number of reasons. Despite being notified that the bonding company would seek attorney’s fees and costs for a frivolous lawsuit, Mr. Durham did not dismiss either party. In March 2003, Mr. Durham advised the client that he would file a motion for default “to focus the court on our request for Arbitration.” In fact, no request for arbitration had ever been filed, the relief sought in the complaint exceeded the jurisdictional requirement for mandatory arbitration, and there was no contractual basis for arbitration.
In September and October 2003, all defendants filed motions for summary judgment. Mr. Durham erroneously advised the client that the defendants’ chances for success were “nominal” and that the university’s motion was baseless. The court granted the defendants’ motions, noting in its order that the claims against the bonding company and the bond were frivolous in their entirety. The order included an award of attorney’s fees and costs against Mr. Durham’s client under the frivolous claims statute. When the client told Mr. Durham that he was shocked to find out the lawsuit was frivolous, Mr. Durham told the client that he would pay the award of attorney’s fees and costs, which he did not immediately do.
Mr. Durham told the client that it was still possible to execute on the default judgment obtained in the first lawsuit. In fact, this course of action was not viable, because the client had waived such a remedy when it settled and voluntarily dismissed the general contractor from the first lawsuit in July 2001. In February and March 2004, Mr. Durham repeatedly misled the client about the status of the matter.
In March 2004, the bonding company garnished the client’s bank account to recover the attorney’s fees and costs previously assessed. In April 2004, Mr. Durham attempted to pay the fees and costs with his credit card, but the bonding company’s law firm was not set up to process credit cards and requested a check. Three weeks later, the bonding company again garnished the client’s bank account. Shortly thereafter, Mr. Durham mailed a check that fully satisfied the judgment.
Matter 3: In March 2000, in an unrelated matter, the CEO of the sheet-metal business asked Mr. Durham to investigate and pursue claims against the CEO’s business partner for breach of an agreement. Mr. Durham came to the conclusion that the CEO had no viable claims against the business partner because, among other reasons, the statute of limitations for such an action had already passed. He failed, however, to advise the CEO about this conclusion. The CEO believed Mr. Durham was actively pursuing the claims. In August 2002, Mr. Durham made a number of misrepresentations to the CEO about his efforts to pursue the claims and serve a lawsuit on the CEO’s business partner.
Mr. Durham’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 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 regarding the representation; RPC 3.1, prohibiting a lawyer from bringing or defending a proceeding, or asserting or controverting an issue therein, unless there is a basis for doing so that is not frivolous; and RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Leslie C. Allen represented the Bar Association. Mr. Durham represented himself. |