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Jack L. Burtch (WSBA 4161, admitted 1955), of Ocean Shores was disbarred, effective January 31, 2008, by order of the Washington State Supreme Court following an appeal. This discipline is based on conduct in two matters involving failure to act diligently, failure to communicate, charging unreasonable fees, failure to return unearned fees, frivolous defense, lack of candor towards a tribunal, knowingly disobeying an obligation under the rules of a tribunal, misrepresentation, and violating a sanction imposed under the Rules for Enforcement of Lawyer Conduct in connection with a disciplinary matter. For further information, see In Disciplinary Proceeding Against Burtch, 175 P.3d 1070 (2008).
Matter #1: Mr. Burtch represented Client A from approximately 1988 to the end of 1996 in separate, but related, matters. Twice during his representation of Client A, Mr. Burtch incurred monetary sanctions for his conduct toward the court. Mr. Burtch tried Client A’s case in December 1996. During the course of the trial, Client A rejected a settlement offer; ultimately the jury returned an adverse verdict.
Client A has consistently maintained that she understood Mr. Burtch had agreed to a contingent fee agreement with payment of costs and sanctions. Mr. Burtch has at various times confirmed that he had agreed to a contingent fee agreement on the condition that Client A pay some fees and provide him with sufficient funds to pay sanctions. Throughout this proceeding Mr. Burtch has maintained the original agreement was an hourly agreement which was converted to a contingent fee agreement before trial.
On January 29, 1997, Mr. Burtch sent Client A an invoice claiming she owed his firm $11,738.24 in addition to amounts paid during the 1988 to 1996 period. On January 30, 1997, Mr. Burtch received a cover copy of Client A’s letter and a grievance cover sheet from the Bar Association. Mr. Burtch sent the invoice to collection on April 2, 1997. Client A’s original letter to the Bar Association, which was treated as a grievance, appears to complain about Mr. Burtch requiring her to pay sanctions levied against him.
The relationship between Mr. Burtch and Client A was the subject of a prior disciplinary hearing on September 11, 2000. During this proceeding, Mr. Burtch testified he had an hourly fee agreement with his client, which was transformed into a contingent fee agreement. Mr. Burtch also testified the invoice had been sent in error. The hearing officer concluded Mr. Burtch owed Client A $2,640.15 in restitution because he forced her to pay the sanctions which were levied against him, and recommended that he be suspended for a period of six months. Mr. Burtch appealed.
The Board heard Mr. Burtch’s argument on appeal on April 13, 2001. Mr. Burtch again testified he had agreed to a contingent fee arrangement with Client A. The Board reduced the hearing officer’s recommended sanction to admonition based on its reversal of one count, and ordered Mr. Burtch to pay Client A $2,640.15 with 12 percent interest on that amount from January 29, 1997, until paid in full. Mr. Burtch filed an exception to costs and expenses on August 1, 2001. The Bar Association informed him the restitution payment was to be paid by September 5, 2002. The order became final September 19, 2002.
In an attempt to collect the restitution as ordered by the Board, Client A filed an action in district court in 2004. Mr. Burtch defended this action by claiming he was entitled to an offset from the restitution by the amount contained in the invoice sent January 29, 1997. Mr. Burtch testified in district court that “at all times” his agreement with Client A was for an hourly rate, not a contingent fee agreement, and Client A owed him over $11,000. His testimony was very clear that the payment agreement “was always an hourly rate,” but he had lost the hourly rate agreement, and thus could not prove the billing agreement. The district court judge ordered Mr. Burtch to pay the amount directed by the Board as restitution, but inadvertently neglected to include interest. This order did not overrule the order by the Board. Mr. Burtch paid $2,640.15 but has not paid interest as ordered by the Board.
Matter #2: Mr. Burtch entered into an attorney-client relationship with Client B in August 2004. Mr. Burtch was hired to bring a bad-faith claim against Farmer’s Insurance and to take action regarding a lien that had been filed against Client B’s property. Client B, and a contractor she brought to their initial meeting, informed Mr. Burtch that action needed to be taken promptly on the claim. The statute of limitations would expire at the end of the year, and Client B had a toxic-mold problem in her home. Mr. Burtch indicated that he would have the lien taken care of in a week and would file the lawsuits within two weeks. Mr. Burtch had Client B sign a retainer agreement that refers to a $2,000 nonrefundable retainer. Client B has difficulty reading and testified that she simply signed where Mr. Burtch instructed her to do so. Mr. Burtch maintains he adequately explained the payment of the retainer and observed Client B read and sign the agreement. For several months, Mr. Burtch took no action to obtain further information regarding the case. Client B first contacted Mr. Burtch on September 10 and 14, 2004, expressing concern whether he had made any effort to remove the lien. On September 27, Client B informed Mr. Burtch that she felt he was misrepresenting her and wanted her file returned. Mr. Burtch assured her he would complete the promised services within a week. He did not work on the file again until October 2004. Client B contacted Mr. Burtch in late November setting a deadline for completion of the promised services. Mr. Burtch failed to complete the work. Client B terminated Mr. Burtch’s services in December 2004, and requested a refund of $1,600, less than 30 days before the statute of limitations was set to expire. Mr. Burtch refused to refund the fees and instead produced an accounting to Client B which documented provision of services valued in excess of the $2,000 retainer already paid by Client B. The hearing officer did not find the accounting credible. Mr. Burtch failed to adequately and accurately explain the fee agreement to his client. The circumstances of her claim and the toxic living conditions of her home required immediate action. There is no evidence, other than his testimony, that Mr. Burtch did anything other than make one call to Client B’s contractor regarding the services he allegedly provided Client B. Client B sought alternative representation and was able to commence her legal action in a timely fashion.
Mr. Burtch’s conduct violated RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; RPC 1.4(b), requiring a lawyer to explain a matter to the extent reasonably necessary to permit a client to make informed decisions regarding the representation; RPC 1.5(a), requiring a lawyer’s fee to be reasonable; RPC 1.5(b), requiring a lawyer who has not regularly represented a client, or if the fee agreement is substantially different than that previously used by the parties, to communicate to the client preferably in writing, the basis or rate of the fee or factors involved in determining the charges for legal services and the lawyer’s billing practices; RPC 1.15(d), requiring a lawyer to take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client and allowing time for employment of other counsel; RPC 3.1, prohibiting a lawyer from bringing or defending a proceeding, or asserting or controverting an issue therein, unless there is a basis in law and fact for doing so that is not frivolous; RPC 3.3(a), prohibiting a lawyer from knowingly making a false statement of material fact or law to a tribunal or from offering evidence that the lawyer knows to be false; RPC 3.4(c), prohibiting a lawyer from knowingly disobeying an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and RPC 8.4(l), prohibiting a lawyer from violating his or her oath as an attorney.
Jonathan Burke represented the Bar Association. Mr. Burtch was represented by himself pro se and by Therese Wheaton. Bertha B. Fitzer was the hearing officer. |