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Paul Hernandez (WSBA No. 21015, admitted 1991), of Seattle, was disbarred, effective May 21, 2008, by order of the Washington State Supreme Court following a default hearing. This discipline was based on conduct involving incompetent representation, lack of diligence, settling a case without a client’s authorization, forging a client’s name, misappropriating and converting funds, misrepresentation, lack of communication, and trust account irregularities.
Matter No. 1: In 2003, a client hired Mr. Hernandez to represent him in a personal-injury suit arising from a 2001 automobile accident. There was no written fee agreement. The client verbally agreed to pay Mr. Hernandez a contingency fee of one-third of any settlement amount. Mr. Hernandez verbally agreed that he would pay the client’s medical bills for accident-related health care from the proceeds of settlement.
In 2004, Mr. Hernandez filed a personal injury suit on behalf of the client and subsequently settled the case without the client’s knowledge, consent, or authorization. Mr. Hernandez provided to the insurance company settling the claim a settlement release on which he falsely signed the name of the client. Mr. Hernandez obtained the settlement proceeds in the form of a check. He falsely signed the client’s name to the back of the check and deposited the funds into his account without telling the client that the case had settled or that he had received the proceeds of the settlement. From mid-2004 to 2005, Mr. Hernandez failed to pay the client’s medical bills and failed to return the client’s numerous phone calls requesting information about the status of his case. Mr. Hernandez used the settlement funds to cover shortages in his client trust account.
In May 2005, Mr. Hernandez misrepresented to the client that the suit had just recently been settled and sent the client a check for $12,782.66 purporting to represent the client’s share of the settlement proceeds. At that time, Mr. Hernandez also promised the client that he would pay the client’s healthcare providers and would send the client an accounting of the settlement. Over the next several months, both the client and his medical providers left numerous telephone messages for Mr. Hernandez, to which he failed to respond. In August 2005, the client filed a grievance against Mr. Hernandez with the Bar Association. Mr. Hernandez failed to respond to the Bar Association’s request to answer the client’s grievance. Between August and November 2005, Mr. Hernandez paid the medical providers’ outstanding bills and wrote a letter of apology to the client, which he sent with a final disbursement statement. In November 2005, Mr. Hernandez was personally served with a subpoena duces tecum requiring his appearance at the Bar Association’s offices for a deposition, along with a request for production of his trust account records. Mr. Hernandez did not appear for his deposition. In December 2005, Mr. Hernandez met with disciplinary counsel and admitted that he knew his trust account was short at least $4,000 in August 2005, that he did not keep a running balance in his check register, and that he was not maintaining client ledgers. Mr. Hernandez refused to allow disciplinary counsel to copy his check register. He agreed to produce, no later than December 16, 2005, copies of all his client files, general and trust account deposit receipts, bank statements, cancelled checks, and check registers, as well as computer printouts of client settlement statements from January 2004 to the present for review. Mr. Hernandez subsequently failed to produce any of the agreed-upon information, and he failed to respond to further calls and letters from the Bar Association. The Bar Association served Mr. Hernandez with another subpoena duces tecum for his deposition, but Mr. Hernandez failed to appear. In May 2006, the Supreme Court suspended him from the practice of law based on his non-cooperation with the Bar Association’s investigation.
Matter No. 2: A client hired Mr. Hernandez to represent her in a personal-injury claim. In preparation for mediation of the claim in 2002, the client provided Mr. Hernandez with copies of her medical expenses and notices from one of her healthcare providers (Provider X) threatening court action for nonpayment of her medical bills. The client also referred phone calls from Provider X to Mr. Hernandez for resolution. The mediation resulted in a $3,000 settlement for the client. Mr. Hernandez and the client agreed that Mr. Hernandez would hold approximately $2,000 of the settlement monies in trust for payment of the outstanding medical bills, including one for Provider X. Mr. Hernandez and the client were to meet to pay the outstanding bills, but the meeting never occurred. Mr. Hernandez later advised the client that he had paid all her medical bills when, in fact, he had not done so. In 2003, Provider X filed suit and served the client with a summons and complaint. Mr. Hernandez received the summons and complaint from the client, told her that he “would take care of it,” and reassured her that it would be dismissed. Mr. Hernandez failed to respond to the summons and complaint, and Provider X secured a default judgment against the client. In October 2004, while refinancing her home, the client learned that a collection agency had placed a lien in the amount of approximately $2,500 against her real property on behalf of Provider X. When confronted by the client in October 2004, Mr. Hernandez agreed to work without payment to remove the lien, but took no steps to satisfy the judgment or remove the lien. The client also requested that Mr. Hernandez pay her the full amount of her settlement proceeds, which Mr. Hernandez still held and had failed to distribute to the client’s healthcare providers. Mr. Hernandez agreed to return his fee of $1,000 and to disburse all of her remaining settlement funds. Mr. Hernandez never took steps to satisfy the judgment or to remove the lien, and failed to respond to phone calls or letters from the client about her matter. The client discovered an additional lien filed against her by another healthcare provider whose medical bill Mr. Hernandez failed to pay. Her credit was severely damaged by the ongoing presence of the unsatisfied judgment and liens. Although Mr. Hernandez left the client a message in May 2006 requesting that they arrange a time to meet to discuss how he could repair the damage to the client’s credit, he did not follow through with his request. Mr. Hernandez failed to answer the Bar Association’s requests for a response to the client’s subsequent grievance.
Matter No. 3: In September 2006, the Bar Association’s auditor completed an audit of Mr. Hernandez’s trust account records for the time period between September 29, 2004, and July 31, 2006. The auditor found that Mr. Hernandez made numerous withdrawals from his trust account in the form of checks, cashier’s checks, and ATM withdrawals, but failed to record a client name or identify a client file on the checks, and that Mr. Hernandez removed funds from his trust account and converted the funds to his own use. The audit revealed that Mr. Hernandez’s trust account was short of funds on at least 114 out of 671 days.
Mr. Hernandez’s conduct violated RPC 1.1, requiring a lawyer to provide competent representation to a client; RPC 1.2(a), requiring a lawyer to abide by a client’s decisions concerning the objectives of representation and consult with the client as to the means by which they are to be pursued; RPC 1.3, requiring a lawyer to act with reasonable diligence and promptness in representing a client; former RPC 1.4, requiring a lawyer to keep a client reasonably informed about the status of a matter, promptly comply with reasonable requests for information, and explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; former RPC 1.5(b), requiring a lawyer who has not regularly represented a client to communicate the basis or rate of the fee or factors involved in determining the charges for legal services and the lawyer’s billing practices to the client; former RPC 1.5(c), requiring contingent-fee agreements to be in writing and to state the method by which the fee is to be determined; former RPC 1.14(a), requiring all funds of clients paid to a lawyer or law firm to be deposited in one or more identifiable interest-bearing trust accounts maintained and set forth pursuant to the rules; former RPC 1.14(b)(1), requiring a lawyer to promptly notify a client of receipt of his or her funds, securities, or other properties; former RPC 1.14(b)(3), requiring a lawyer to maintain complete records of all funds, securities, or other properties of a client coming into the possession of the lawyer and render appropriate accounts to his or her client regarding them; RPC 1.14(b)(4), requiring a lawyer to promptly pay or deliver to the client as requested by the client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive; former 8.4(b), prohibiting a lawyer from committing a criminal act [here, theft in violation of RCW 9A.56.030] that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; former RPC 8.4(c), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice; and RPC 8.4(l), prohibiting a lawyer from violating a duty or sanction imposed by or under the Rules for Enforcement of Lawyer Conduct in connection with a disciplinary matter (here, ELC 5.3).
Kathleen A.T. Dassel represented the Bar Association. Mr. Hernandez did not appear either in person or through counsel. Lawrence R. Mills was the hearing officer. |