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Thomas J. Brothers (WSBA No. 9653, admitted 1980) of Lynnwood, was disbarred, effective January 16, 2007, by order of the Washington State Supreme Court following a stipulation approved by the Disciplinary Board. This discipline was based on his conduct between 1997 and 2000 involving unreasonable fees, conflicts of interest, trust account irregularities, the practice of law while suspended, and commission of criminal acts.
In the 1990s, Mr. Brothers provided estate-planning advice and representation to a husband and wife. At the time of the husband’s death in 1997, the estate had assets of approximately $7 million, largely in marketable securities. One of the children (Client A) was named the personal representative of the estate, as well as trustee of certain estate entities. In August 1997, Client A hired Mr. Brothers to settle the estate and to provide representation regarding minimizing the ultimate estate taxation by utilizing limited liability companies (LLCs) to transfer assets prior to the wife’s death.
Upon the wife’s death in March 1999, Client A hired Mr. Brothers to settle the wife’s estate. Mr. Brothers did not enter into a written fee agreement with Client A, did not keep any time records to support his fees, and did not provide regular monthly billings. Between September 1997 and June 1998, Mr. Brothers charged fees totaling $41,490 for settling the husband’s estate and creating the LLCs. Upon the death of the wife, Mr. Brothers and Client A orally agreed to a fee of one percent of the gross taxable estate for settling the estate. This fee would have been $51,332. Shortly before filing the estate tax return in June 2000, Mr. Brothers and Client A engaged in a series of discussions regarding his fee. Based in part on Mr. Brothers’s estimation of the hours spent on the matter, Client A agreed to pay a fee of $179,166. Mr. Brothers did not give Client A any consideration for agreeing to the increased fee, did not advise her to seek the advice of independent counsel, and neither sought nor obtained Client A’s consent to the conflict of interest arising out of the renegotiation of the fee arrangement.
The $179,166 included an advance fee of $50,000 paid in June 2000 for services expected to be rendered in the future. Mr. Brothers and Client A agreed that Mr. Brothers would account for the advance fee on an hourly basis, but Mr. Brothers did not deposit any portion of the $50,000 into a trust account, nor did he provide any accounting. A reasonable fee for settling both estates would have been $45,000. Mr. Brothers collected fees of $220,656 for his work on the combined estates.
In December 1999, in a prior disciplinary proceeding, the Supreme Court suspended Mr. Brothers from the practice of law for three months. At the time, Mr. Brothers was advised of his suspension and about the obligation under the former Rules for Lawyer Discipline requiring him to provide notice of his suspension to all clients. Mr. Brothers concealed his suspension from Client A and continued to provide her with ongoing advice and representation.
In December 1999, Mr. Brothers signed a sworn affidavit pursuant to former Rule for Lawyer Discipline 8.3 attesting to compliance with his duties on suspension. In the affidavit, Mr. Brothers falsely stated, “I was representing no clients at the time of suspension.”
Mr. Brothers’s conduct violated RPC 1.4(b), requiring a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; RPC 1.5(a), requiring a lawyer’s fee to be reasonable; RPC 1.7(b), prohibiting a lawyer from representing a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless the lawyer reasonably believes the representation will not be affected and the client consents in writing after consultation and a full disclosure in writing of the material facts; former RPC 1.14(a), requiring all funds of clients paid to a lawyer or law firm be deposited in one or more identifiable interest-bearing trust accounts and no funds belonging to the lawyer or law firm be deposited therein; former RPC 1.14(b)(3), requiring a lawyer to maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his or her client regarding them; former RPC 1.15(a)(1), requiring a lawyer to withdraw from the representation of a client if the representation will result in a violation of the Rules of Professional Conduct or other law; RPC 1.8(a), prohibiting a lawyer who is representing a client in a matter from entering into a business transaction with a client or knowingly acquiring an ownership, possessory, security, or other pecuniary interest adverse to a client unless the transaction and its terms are fair and reasonable and fully disclosed and transmitted in writing to the client, the client is given opportunity to seek the advice of independent counsel, and the client consents; RPC 8.4(b), prohibiting a lawyer from committing a criminal act (here, the unlawful practice of law and false swearing) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; former RLD 1.1(a) (prohibiting a lawyer from committing any act involving moral turpitude, or corruption, or any unjustified act of assault or other act which reflects disregard for the rule of law), former RLD 1.1(l) (prohibiting a lawyer from engaging in the practice of law while suspended for any reason), former RLD 8.1(a) (imposing duties upon suspension), and former RLD 8.2 (requiring a disbarred or suspended lawyer to discontinue the practice of law).
Randy V. Beitel represented the Bar Association. Mr. Brothers represented himself. |