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Douglas K. Robertson (WSBA No. 16421, admitted 1986), of Bellingham, was ordered to receive a reprimand on December 13, 2006, following a stipulation approved by a hearing officer. This discipline was based on his conduct between 2001 and 2003 involving conflicts of interest and failure to withdraw from representation after a conflict of interest became apparent.
In early 2000, Mr. Robertson began representing a real estate developer. A year earlier, another partner in Mr. Robertson’s firm had been hired to represent a lender/investor in a real estate development matter in which Mr. Robertson’s client was the developer. Conflict waiver letters were signed by the lawyers and clients providing that if a dispute arose, Mr. Robertson would withdraw from representing the developer while his partner would continue to represent the lender/investor client. During the fall of 2001, disputes arose between the two parties over a particular real estate development project. At a meeting in November 2001, the clients were informed that an actual conflict existed, that the lender/investor client had the right to request that Mr. Robertson cease representing the developer, and that both parties could consult independent counsel. The lender/investor client consented to Mr. Robertson’s continued representation of the developer.
Between November 2001 and April 2002, each side sought to negotiate a settlement of the dispute and a draft agreement was prepared by Mr. Robertson. The draft settlement agreement included written disclosure of and waiver of any conflict of interest. In February 2002, a specific disagreement arose between the parties regarding the disbursement of proceeds from the sale of property in the development project, which the parties endeavored to resolve by oral agreement.
In March 2002, Mr. Robertson wrote a letter to his law partner asserting that the lender/investors had reneged on an agreement about use of sale proceeds and stating that because the “situation created an actual conflict,” an independent lawyer would be advising his client as to the relationship between the parties. Soon after that date (in March 2002), another lawyer took over representation of the developer regarding the settlement agreement. Thereafter, Mr. Robertson was not involved with the negotiation or representation of the developer regarding the settlement agreement. In early April, another lawyer acting as co-counsel for the lender/investor requested that Mr. Robertson withdraw from representing the developer on any projects involving the lender/investor. Mr. Robertson refused to completely withdraw, but subsequently withdrew from representing the developer on some matters related to the lender/investor.
In mid-April, the two parties signed a settlement agreement. Though based on the earlier drafts prepared by Mr. Robertson, the final document was negotiated and modified by independent counsel or co-counsel for both parties. The April settlement agreement did not contain conflict consent language. The lender/investor was then asked to sign a new conflicts waiver regarding the involvement of Mr. Robertson, but refused to do so. Mr. Robertson continued to represent the client on certain projects involving the lender/investor through mid-2003.
Mr. Robertson’s conduct violated RPC 1.7(a), prohibiting a lawyer from representing a client if the representation of that client will be directly adverse to another client, unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and each client consents in writing after consultation and full disclosure of the material facts; 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 adversely affected and the client consents in writing after a full disclosure of material facts; RPC 1.10(a), prohibiting lawyers associated in a firm from knowingly representing a client when any of the lawyers in the firm would be prohibited from the representation if practicing alone; and former RPC 1.15(a)(1), requiring a lawyer to withdraw from a representation if the representation will result in a violation of the Rules of Professional Conduct or other law.
Nancy Bickford Miller represented the Bar Association. Leland G. Ripley represented Mr. Robertson. Randolph O. Petgrave III was the hearing officer.
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