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John P. Mele (WSBA No. 16381, admitted 1986), of Bellevue, was disbarred, effective May 21, 2008, by order of the Washington State Supreme Court following a hearing. This discipline resulted from conduct in a class-action lawsuit involving improper communication with represented class members and misrepresentations of material facts to the court and to opposing counsel.
Mr. Mele represented a construction company and its owners in a class-action lawsuit. The lawsuit alleged that Mr. Mele’s clients failed to provide their employees with meal periods or pay them for missed meal periods. The class was officially certified under CR 23(b)(2) in December 2002, contained all the employees of the construction company from April 1999 to those currently employed, and was represented by two attorneys certified as class counsel.
In late January 2003, Mr. Mele prepared and e-mailed to one of his clients (employer) a generic declaration template. The declaration dealt exclusively with the legal defense of “waiver” of meal periods — that is, whether or not the employee chose to work without a meal period. The declaration recited facts about the claims made by the class, attested to the class member’s knowledge of Washington law, and concluded with an affirmative statement of “waiver” of meal periods by the class member. The employer needed only to insert the name and employment date of each class member. By agreement, the employer was to present the declarations to all class members for their review and signature, and then return all the signed declarations to Mr. Mele to be used as evidence in support of the legal defense of “waiver.” The employer also mailed declarations to former employees and to those class members who could not come into the employer’s office to sign the declaration in person. In February 2003, the employer notified Mr. Mele they had begun collecting signatures and sent to Mr. Mele checklists containing the name of each class member and the status of each class member’s declaration. The employer procured approximately 60 signed declarations, which were obtained without class counsels’ knowledge or consent and without notification to class members that counsel represented them. The declarations formed the sole factual basis for Mr. Mele’s Motion to Decertify Class, filed in March 2003.
On February 25, 2003, a class member (Mr. S) contacted Mr. Mele to discuss the declaration he had received by mail from the employer. At a critical point during their phone conversation, when Mr. Mele realized he was speaking with a represented class member, he did not terminate the phone call. Instead, he continued the conversation about the subject matter of litigation. Mr. Mele advised Mr. S that he was not required to sign the declaration and that he would inform the employer that Mr. S would not be signing the “waiver” declaration.
On February 26, 2003, Mr. Mele produced the declarations to class counsel as part of discovery. The day before, class counsel had heard from some of the class members who were concerned about documents they were being asked to sign by company management. On reviewing the declarations, class counsel immediately telephoned Mr. Mele to discuss what he viewed as an ethical violation. During that conversation and during a second one later that day, Mr. Mele stated that he had not spoken personally to any class members, although he had spoken to Mr. S the preceding day.
In March 2003, Mr. Mele submitted a personal declaration, made under penalty of perjury, to the court for its consideration in a sanctions hearing. Mr. Mele’s declaration was in response to a declaration filed by Mr. S attesting to his phone conversation with Mr. Mele. In his declaration, Mr. Mele knowingly misrepresented the material facts of the date, time duration, and sequence of his telephone conversation with Mr. S, and misrepresented his knowledge and the character of his involvement in his clients’ use of the generic declaration.
In December 2002, class counsel had served interrogatories seeking a telephone list of class members. Mr. Mele had not provided the list by the January 2003 date that the interrogatories were due. At the March 2003 motion to compel/sanctions hearing, Mr. Mele knowingly misrepresented to the court why the list had not been turned over to class counsel. Mr. Mele informed the court that his client had concerns regarding turning over a telephone list of all their employees, but then asserted that he had instructed his client to do so. Mr. Mele did instruct his client in January 2003 to turn over a telephone list of all class members. However, after discovering in February 2003 that his client had not done so, and after assuring opposing counsel that same day he would get the phone list to him, Mr. Mele failed to reinstruct his client to produce the telephone list. At the March 2003 hearing, when Mr. Mele asserted he had directed his client to produce the list, Mr. Mele knew he had not done so since discovering his client’s failure to produce the list in February.
Mr. Mele’s conduct violated former RPC 3.3(a)(1), prohibiting a lawyer from knowingly making a false statement of material fact or law to a tribunal; former RPC 3.3(a)(4), prohibiting a lawyer from offering evidence that the lawyer knows to be false; former RPC 4.2, prohibiting a lawyer from communicating about the subject matter of the representation with a party the lawyer knows to be represented by another lawyer, without consent of the other lawyer; former RPC 8.4(a), prohibiting a lawyer from violating or attempting to violate the Rules of Professional Conduct; former 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and former RPC 8.4(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice.
Kathleen A.T. Dassel represented the Bar Association. Kurt M. Bulmer represented Mr. Mele. |