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Michael B. Roff (WSBA No. 31356, admitted 2001), of Otis Orchards, was suspended for six months, effective July 15, 2008, by order of the Washington State Supreme Court following approval of a stipulation. This discipline is based on two matters involving failure to deposit client funds in a trust account and charging unreasonable fees.
Matter No. 1: A woman (Ms. Z) was charged with theft and forgery in relation to her embezzlement of funds from her former employer. After being fired by her employer, but before police had referred the matter to the prosecutors, Ms. Z hired Mr. Roff to represent her. Ms. Z and Mr. Roff entered into a written fee agreement wherein Mr. Roff agreed to represent Ms. Z during the investigation and through trial, if charges were filed, in exchange for a flat fee of $15,000. Ms. Z paid $5,000 at the time the fee agreement was signed and her mother paid the $10,000 balance soon thereafter. Ms. Z asked Mr. Roff to negotiate a repayment schedule with her employer to avoid being charged criminally or to mitigate any sentence she might receive. Mr. Roff agreed to contact the employer and advised Ms. Z to accumulate any funds she could to pay to the employer. After charges were filed, Ms. Z sold her house and gave $25,000 of the proceeds to Mr. Roff to hold in trust for possible payment to the employer if agreement could be reached. Mr. Roff did not have a trust account because he only accepted “non-refundable retainers” from clients. Mr. Roff deposited Ms. Z’s $25,000 in his general account, despite the fact that the money was client funds. The balance in Mr. Roff’s general account never fell below the balance of Ms. X’s client funds that were in his possession. Ms. X later asked Mr. Roff to return $5,000 of the client funds and, later, to return another $10,000 of the client funds. Mr. Roff did so, leaving $10,000 of Ms. Z’s client funds in his possession.
At the time Mr. Roff returned the $10,000, he also asked Ms. Z to sign a receipt and a new fee agreement, which provided that Ms. Z was agreeing to pay Mr. Roff an additional $10,000 for the same representation in the embezzlement case. Ms. Z did so. The new fee agreement acknowledged that this additional $10,000 had already been paid. The purpose of the new fee agreement was to change the $10,000 in client funds remaining in Mr. Roff’s possession into an additional fee for Mr. Roff. The purported consideration given for the $10,000 fee increase was that Mr. Roff would be available for consultation with Ms. Z 24 hours a day and would pay all costs associated with the case out of his fee. Mr. Roff was, however, already obligated to communicate and consult with Ms. Z up through trial. The prosecutor subsequently advised Mr. Roff that Ms. Z should turn herself in. She did so on March 28, 2006, without advising Mr. Roff. Lawyer A, whom Ms. Z had retained to represent her on related civil matters, later notified Mr. Roff that Ms. Z was in custody, demanded a refund of the $25,000 fee that Ms. Z had paid, and threatened to file a Bar complaint. Mr. Roff believed this letter terminated his representation of Ms. Z. Another lawyer appeared on Ms. Z’s behalf. She pled guilty to the charges of theft and forgery, and was sentenced in July 2006. Prior to the grievance being filed, Mr. Roff and Lawyer A, acting on Ms. Z’s behalf, began negotiating over the demand that Mr. Roff refund his fee to Ms. Z. They agreed that Mr. Roff would retain the original $15,000 fee and that he would refund the $10,000 balance, which he refunded in October 2006.
Matter No. 2: In November 2005, a man (Mr. Y) was arrested in Spokane on a felony fugitive warrant from California. Mr. Y’s wife retained Mr. Roff to represent her husband. They paid Mr. Roff $2,500, which was a “non-refundable” flat fee. After Mr. Roff was hired, he consulted with Mr. Y, appeared with Mr. Y in court three times, and succeeded in having the fugitive matter dismissed when a California governor’s warrant was not served on Mr. Y within the required time. Several months later, a California sheriff’s deputy advised Mr. Y that the California governor’s warrant was being reissued and that he would be re-arrested in Spokane if he did not voluntarily travel back to California and turn himself in. A Spokane County public defender also called Mr. Y and told him that the governor’s warrant had been received in Spokane. Mr. Y went back to Mr. Roff for additional assistance. Even though Mr. Y was being sought on the same California warrant, Mr. Roff considered this second phase to be separate and distinct from the initial representation and charged Mr. Y another $3,000 flat fee, which Mr. Y paid. Mr. Roff spoke with the California sheriff’s deputy, but did little work on Mr. Y’s behalf thereafter. Mr. Y subsequently requested from Mr. Roff a refund of all fees paid and an accounting of time spent. Mr. Roff, believing he had earned fees in the matter, disputed Mr. Y’s claim to a full refund. Mr. Y sued Mr. Roff in small claims court. Mr. Roff participated in a mediation with Mr. Y. Mr. Roff refunded the second $3,000 fee and Mr. Y agreed that the initial $2,500 had been earned.
Mr. Roff’s conduct violated former RPC 1.14(a), requiring all funds of clients paid to a lawyer or law firm be deposited in one or more identifiable interest-bearing trust accounts maintained as set forth in the rules, and no funds belonging to the lawyer or law firm be deposited therein; and RPC 1.5(a), requiring that a lawyer’s fee be reasonable (and specifying that one of the factors considered in determining the reasonableness of a fee is the time and labor required to perform the legal service).
M. Craig Bray represented the Bar Association. Mr. Roff represented himself. |