| Description: |
Robert L. Hayes (WSBA No. 21239, admitted 1991), of Tacoma, was ordered to receive a reprimand on September 29, 2006, following a hearing. This discipline was based on his conduct in 2003 involving a conflict of interest.
In May 2003, a Washington resident died intestate leaving three adult children: Child A, Child B, and Child C. The three children had grown up in the same neighborhood with Mr. Hayes, and Child A had maintained contact with Mr. Hayes after high school. To save money, the siblings initially did not retain the services of a lawyer to help them prepare court papers or assist them with the administration of the estate. On May 21, a superior court commissioner appointed Child B, who had no prior experience administering an estate, to be the administrator. Soon after that, Child A began calling and writing to Child B, demanding a full accounting and requiring her to perform services.
In June 2003, Child A telephoned Mr. Hayes and asked Mr. Hayes to assist both him and Child C by reviewing the superior court probate file and intervening with Child B to require her to provide an accounting. In a letter confirming the telephone call, Child A informed Mr. Hayes that both he and Child C decided they needed Mr. Hayes’s “help and assistance” in dealing with Child B. Child A enclosed a personal check in the amount of $250. Child A signed the letter as “your friend, although now I guess client.” Mr. Hayes went to the courthouse, reviewed the probate file, and confirmed by telephone with Child A that he had received the check for $250. Mr. Hayes reported to Child A that there had been no new activity in the court file since the probate documents were filed in May. Mr. Hayes then wrote a letter to Child B on behalf of Child A requesting a full accounting of the estate assets, a copy of a power of attorney the decedent had executed to Child B before her death, and information about transactions under the power of attorney. At the end of June, Child B wrote to her two siblings and included some receipts and summaries of their mother’s assets. She also forwarded to them a letter that she had sent to Mr. Hayes asking him to represent her as administrator of the estate.
In July 2003, Child A and Mr. Hayes talked by phone. At Mr. Hayes’s direction, Child A confirmed in writing that the $250 check was “an advance prepayment . . . for legal representation of the estate of [the decedent] where [Child B] is the Administrator.” That same month, Mr. Hayes and Child B entered into a written fee agreement which referenced the $250 as a “retainer fee paid . . . in advance.” In July 2003, Child A wrote to Mr. Hayes and thanked him for helping Child B as administrator of the estate. In August, Child A wrote to Child B that he was “glad that [Mr. Hayes] is helping you.” Child A was aware that Mr. Hayes was no longer his personal lawyer but was performing legal services on behalf of Child B as the estate administrator. By these actions, Child A expressly agreed and consented to Mr. Hayes’s representation of Child B as administrator.
Two months later, Child A wrote Child B a letter stating that she was being unfair and had still not provided a full accounting of the estate assets to him. He also filed a pro se petition to remove Child B as administrator of the estate. Mr. Hayes, on behalf of Child B, filed a declaration in opposition to the petition. In November 2003, the court commissioner ordered the appointment of a substitute independent administrator.
In December, Mr. Hayes signed a fee agreement and filed a notice of appearance to represent Child B “in her individual capacity as an heir to her mother’s estate.” Child A never consented to Mr. Hayes’s representation of Child B in her individual capacity as heir.
In January 2004, Child A wrote to Mr. Hayes asking him for a refund of the $250 he had sent him in June 2003. Child A stated that Mr. Hayes’s bill to the estate indicated that he had only spent one hour drafting the letter to Child B on Child A’s behalf, and therefore Mr. Hayes should only be entitled to receive $90 (his hourly fee). Mr. Hayes responded that he did not owe him a $160 refund and that the $250 payment had been credited equally among the three heirs to the estate. Child A filed a motion in the probate proceeding in which he raised the issue of Mr. Hayes’s representation of Child B by stating that he and Child C would not release or waive Mr. Hayes’s potential conflict of interest arising from his representation of Child B individually in the probate matter.
In January 2004, the commissioner appointed a new personal representative. An order approving final account and a decree of distribution were filed in March 2005. As part of the distribution, Child A was refunded the $250 fee paid to Mr. Hayes.
Mr. Hayes’s conduct violated RPC 1.9(a), prohibiting a lawyer from representing another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents in writing after consultation and a full disclosure of the material facts.
Kevin M. Bank represented the Bar Association. Mr. Hayes represented himself. Stephen J. Henderson was the hearing officer. |