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Fernando Perez-Pena (WSBA No. 4858, admitted 1973), of Seattle, was suspended for 60 days, effective October 4, 2007, by order of the Washington State Supreme Court following an appeal. This discipline was based on conduct involving an unjustified act of assault and failure to return an unearned fee. For further information, see In re Disciplinary Proceeding Against Perez-Pena, 161 Wash.2d 820, 168 P.3d 408 (2007).
In March 2001, a married couple (clients) hired Mr. Perez-Pena to help them in an immigration matter. The clients agreed to a $2,000 fee, which they paid via check. There was no written fee agreement. Due to a number of concerns, the clients decided not to proceed with the matter and asked for a refund. Mr. Perez-Pena agreed to return $1,500, charging a flat fee of $500 for the work he had done, and gave the clients a check in that amount. However, they were unable to deposit the check because the bank account had only the client wife’s maiden name on it. Mr. Perez-Pena had possession of the clients’ marriage certificate, so they went back to his office to obtain the certificate. Their demeanor was hostile and, after obtaining the certificate, they threatened lawsuits and WSBA complaints. Based on the threats and what he perceived as a lack of appreciation for his agreement to refund the money, Mr. Perez-Pena stopped payment on the check. He did not notify the clients, and the check bounced.
After a series of hostile dealings, letters, and phone conversations, Mr. Perez-Pena agreed to give the clients a refund of $1,600 if they agreed to sign releases of liability (note: this arrangement potentially violates RPC 1.8(h)(1), but was not included in the formal complaint). The clients agreed and went to Mr. Perez-Pena’s office with the releases and the bounced check. The client husband went into the office, where he was disruptive. Mr. Perez-Pena called the police and the client husband left.
Mr. Perez-Pena ultimately agreed to go to his bank to obtain a cashier’s check for the clients, and the parties met to exchange the documents. During the exchange, the client wife tried to keep the check and grab the releases back from Mr. Perez-Pena. Mr. Perez-Pena pushed or hit the client wife, who ended up with the check but tore the release document in half. Mr. Perez-Pena thereafter reported the check stolen, and it bounced. The city of Seattle charged Mr. Perez-Pena with misdemeanor assault, and a jury convicted him on January 30, 2002. In February, the court granted Mr. Perez-Pena a deferred sentence. Mr. Perez-Pena completed the conditions of his deferred sentence and, in July 2003, the court vacated his judgment and sentence and dismissed the complaint. In May 2005, in anticipation of his disciplinary proceedings, Mr. Perez-Pena filed a motion to clarify the docket entries of July 2003 asking, inter alia, for the court to vacate the jury sentence. The court clarified that it had vacated the judgment and sentence and dismissed the complaint but, notably, it would not vacate the jury verdict. In May 2002, the clients filed a claim against Mr. Perez-Pena in small claims court for the unearned portion of the fee they paid to Mr. Perez-Pena. The court awarded the clients $1,431.45, which Mr. Perez-Pena has not paid.
Mr. Perez-Pena’s conduct violated RPC 8.4(b), prohibiting a lawyer from committing a criminal act (here, assault) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; RPC 8.4(i), prohibiting a lawyer from committing any unjustified act of assault or other act which reflects disregard for the rule of law; and former RPC 1.15(d), requiring a lawyer to take steps to the extent reasonably practicable to protect a client’s interests upon termination of representation, such as refunding any advance payment of fee that has not been earned.
M. Craig Bray represented the Bar Association. Anthony Savage represented Mr. Perez-Pena. James C. Lawrie was the hearing officer. |