Disciplinary Proceeding v. Koehler

750 P.2d 254, 110 Wash. 2d 24, 1988 Wash. LEXIS 21
CourtWashington Supreme Court
DecidedFebruary 18, 1988
DocketNo. C.D. 6396
StatusPublished
Cited by5 cases

This text of 750 P.2d 254 (Disciplinary Proceeding v. Koehler) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Disciplinary Proceeding v. Koehler, 750 P.2d 254, 110 Wash. 2d 24, 1988 Wash. LEXIS 21 (Wash. 1988).

Opinion

Durham, J.

Attorney Mary Fung Koehler appeals from the unanimous recommendation of the Disciplinary Board (Board) of the Washington State Bar Association that she be suspended from the practice of law for 1 year. The bar association petitions this court pursuant to Rule for Lawyer Discipline 3.2 for an order suspending Koehler immediately pending the outcome of proceedings to determine her competence to defend herself in another disciplinary proceeding. Finally, Koehler moves for a stay of proceedings in this appeal pending the outcome of the competency hearing. Following oral argument in this matter, we granted the bar association's petition for immediate suspension by order dated January 31, 1986.1

Koehler argues that the findings of fact and conclusions of law entered by the Board are not supported by the evidence. We disagree and adopt the Board's recommendation.

Koehler was admitted to the practice of law in the State of Washington on November 22, 1968. In 1977, Koehler received a letter of censure for conduct which violated Disciplinary Rule 1-102(A)(4) of the Code of Professional Responsibility. The censured conduct involved misrepresentation to opposing counsel in a dissolution proceeding regarding the disposition of proceeds from a sale of real [26]*26property of the parties. In 1981, this court suspended Koehler for 60 days for failure to render accountings and remit funds to clients. Imposition of this sanction was suspended for 2 years, however, on the following condition:

[T]hat [Koehler] periodically provide review of her accounting system to assure that time slips, charges and costs expended for clients are being regularly and systematically recorded and periodic statements are produced to clients.

In re Koehler, 95 Wn.2d 606, 612, 628 P.2d 461 (1981).

The present appeal is from disciplinary proceedings based on the complaints of two clients, Judy Mosbrucker and Joan Bowyer. Mosbrucker retained Koehler in August 1980 for a dissolution action. The trial began in March 1981 in Snohomish County Superior Court. After 2Vi weeks in trial, the judge issued an order on his own motion limiting the time in which Mosbrucker, through Koehler, could present her case in chief. Throughout the trial, Koehler made groundless accusations and insinuations against opposing counsel, his client and the judge, and otherwise delayed and obstructed the progress of the trial. This conduct included attempting to place a value on property never established as being owned by the parties, questioning witnesses on points which had already been admitted, and calling the participants liars. Koehler also repeatedly demanded that the judge read all exhibits during her examination of witnesses, even though he informed her that he would read them later. The trial lasted 5 weeks and could have been concluded much earlier but for Koehler's delays and obstruction.

During the trial, Koehler submitted an affidavit to the court claiming $37,000 attorney fees, $4,000 "Associate Attorneys' and Paralegals' Fee" and $3,000 "Assisting Out of Area Attorneys Fees and Investigative Costs". At the trial's conclusion, Koehler asked for an award of $75,000 as her attorney fees. The judge found that the amount was clearly excessive and that a reasonable fee was $7,500. After the trial was completed, Koehler provided Mosbrucker with [27]*27a "rough cost bill" for $66,629.73 in fees and stated that this was not a final accounting. No other bill for fees or costs was ever provided. Koehler had also agreed to allow Mosbrucker credit for photography work performed by the client, but no credit was ever given for the work performed.

After Mosbrucker refused to give Koehler a mortgage to secure fees not fully determined and not agreed to, Koehler filed an attorney's lien against her client's home in Snoho-mish County, still without having given her client a final billing. Such attorney's liens on real property were subsequently disallowed by this court in Ross v. Scannell, 97 Wn.2d 598, 647 P.2d 1004 (1982). Koehler delayed removing the lien on her client's property for over 2 years after the Ross decision was filed, and for over 1 year after bar association counsel wrote to her requesting that she remove the lien, providing a copy of Ross v. Scannell.

The second complaint which led to the disciplinary proceedings appealed from was filed by client Joan Bowyer. Bowyer consulted Koehler in September 1974 for assistance in collecting delinquent child support. In November 1975, during the course of an action to modify her divorce decree, Bowyer executed a mortgage, which was later recorded, to secure payment of "not to exceed" $2,000 in legal fees. Koehler subsequently performed various legal services for Bowyer over an 8-year period, some related to the dissolution modification and some not, but never provided her client with a bill or an accounting even though both Bowyer and her former husband made substantial payments to Koehler.

In May 1983, Bowyer attempted to use her home as collateral for a bank loan. Koehler refused to accept $2,000 and release the mortgage or to provide a statement of fees owed, and did not release the mortgage until she had been paid $8,338.40. Bowyer was thus required to obtain a larger loan with attendant interest.

Following complaints by Mosbrucker and Bowyer, Koeh-ler was charged by the bar association with violations of numerous provisions of the Rules for Lawyer Discipline and [28]*28the Code of Professional Responsibility. A bifurcated disciplinary hearing was held and Koehler appeared pro se at the initial fact-finding stage on October 22, 1984. Hearing Officer Claude M. Pearson found that the bar association counsel had met the burden of proof on every count charged.

During the second stage of proceedings to determine a sanction on March 12, 1985, Koehler was represented by counsel. The hearing officer recommended that Koehler be suspended for 1 year, but as an alternative, that she be suspended for 60 days and be on probation for 10 months provided she accept certain conditions in writing. The conditions included an admission of error, cancellation of the Mosbrucker fee, refund of interest to Bowyer, payment of costs to the bar association, and proof that, before reinstatement, she sent an itemized billing to each client and entered into a fee agreement with each client. During the 10-month period of suspension, Koehler was to report through her attorney on her billing frequency and fee agreement arrangements. She was also not to file any attorney's liens or mortgages unless the amount was liquidated and the subject of an itemized billing.

The Board then adopted the hearing officer's findings, conclusions, and recommendations by a unanimous vote of 9 to O. (It later ordered costs and expenses of $14,958.64 assessed against Koehler.) Koehler appealed to this court.

While the appeal of the Mosbrucker and Bowyer matters was pending, another disciplinary proceeding against Koehler began on October 28, 1985. The bar association, inter alia, charged her with neglecting a legal matter and disobeying this court's directive in In re Koehler, supra, while representing Nancy Sexsmith, and with collecting a clearly excessive fee and failing to account for client funds, while representing Albert and Beverly Hirsh.

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750 P.2d 254, 110 Wash. 2d 24, 1988 Wash. LEXIS 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disciplinary-proceeding-v-koehler-wash-1988.