In the Matter of The Disciplinary Proceeding v. Camp

171 Wash.2d 781

257 P.3d 599

In the Matter of the DISCIPLINARY PROCEEDING AGAINST W. Russell VAN CAMP, an Attorney at Law.

No. 200,811–9.

Supreme Court of Washington, En Banc.

Argued March 8, 2011.Decided June 16, 2011.

Dustin Douglass Deissner, Van Camp & Deissner, Spokane, WA, for Petitioner.Joanne S. Abelson, Washington State Bar Association, Seattle, WA, for Respondent.C. JOHNSON, J.

[171 Wash.2d 787] ¶ 1 This attorney discipline case focuses on an ambiguous written fee agreement, the representation provided in the litigation, and the attorney's conduct during the grievance investigation. Attorney W. Russell Van Camp required a $25,000 initial “retainer” fee to represent a client in an injunction suit, but he did not explain to the client whether it was a nonrefundable flat fee, an hourly fee, or something else. Nor did the fee agreement Van Camp prepared. When the client expressed confusion about the fee, Van Camp asserted it was a flat fee and made no effort to renegotiate in accordance with the client's understanding that he would be charged an hourly rate. In the suit, despite numerous settlement offers from opposing counsel and his client's desire to settle, Van Camp resisted settlement, prolonging the case, and neither communicated nor explained the settlement offers to the client. The client was not consulted or advised concerning the claims against him and the options available to him in resolving the case. After the client filed a grievance with the Washington State Bar Association (WSBA), Van Camp submitted differing and exaggerated time reconstructions based on hours he claimed to have worked on the case to justify the amount of the fee, despite having little to no work to show for it. We adopt the Disciplinary Board's reconstruction and disbar Van Camp.

Facts ¹

¶ 2 Van Camp has been practicing law since 1973. He has handled 37 cases in the United States District Court, Eastern District of Washington, where this client's suit was filed. He practices in Spokane, emphasizing in personal injury, criminal law, and family law. This proceeding arises out of Van Camp's representation of Randy Honkala, a car enthusiast. Honkala had obtained a “power lease” certificate for $5,000 that gave him purchasing priority for a Shelby Mustang. Honkala purchased the car through his previous employer, Wendle Motors, but it was delivered in poor condition, so Honkala returned it. Honkala expected to realize a profit on the car, but lost any expected profit and the $5,000. Then he discovered that Wendle had listed the returned vehicle on an auction site and was reselling it for a profit without disclosing the defects. Honkala contacted the auction's highest bidder to report the problems, which dissuaded the bidder from purchasing the car, and Honkala also made numerous derogatory posts about Wendle on various web sites.

¶ 3 Wendle, represented by Richard Campbell, sued Honkala in federal court in November 2006, seeking injunctive relief to stop the Internet postings, but additionally alleging various claims and seeking attorney fees.² A telephonic temporary restraining order (TRO) hearing was held in December 2006, and Honkala appeared pro se. Campbell said he wanted to get the case resolved without going to trial if possible. Honkala agreed to the restraining order so long as it was mutual. Wendle then moved for a preliminary injunction, noted for argument on December 20, 2006. Wendle e-mailed Honkala a proposed stipulation and permanent injunction that would have resolved the case through mutual restraints on defamation, and with all other claims against Honkala dismissed. Exs. Sent to Disciplinary Board (hereinafter Board Ex.) Exs. 5, 33. The e-mail conveyed that Wendle's primary purpose was for Honkala to stop the Internet postings. Honkala did not understand the permanent injunction, so, rather than reply to Wendle, he sought counsel.

¶ 4 Honkala found Van Camp's name in a phone book, and met with him on December 15, 2006, bringing the documents Wendle had sent. Van Camp required Honkala to pay him a $25,000 “retainer.” Van Camp did not explain how the fee would be calculated or whether it was refundable; Van Camp did inform Honkala that if the case settled within a week, he would return most of the $25,000. Honkala testified they discussed hourly rates. The fee agreement itself lists several items:

+--------------------------------------------------+
¦A. ¦An earned retainer of:              ¦$25,000  ¦
+---+------------------------------------+---------¦
¦B. ¦An hourly rate, computed as follows:¦         ¦
+---+------------------------------------+---------¦
¦   ¦Mr. Van Camp, Mr. Deissner          ¦250.00   ¦
+---+------------------------------------+---------¦
¦   ¦Mr. Shaw                            ¦100.00   ¦
+---+------------------------------------+---------¦
¦   ¦Paralegals                          ¦50.00    ¦
+---+------------------------------------+---------¦
¦   ¦Secretarial                         ¦25.00    ¦
+--------------------------------------------------+

Board Ex. 6. A small finger icon pointed to “A” on the agreement. The agreement also states, “Monies paid by the client shall be considered as earned towards the ultimate total fee, unless otherwise designated.” But the meaning of “earned retainer” is not explained, nor is the scope of representation defined other than to represent and defend Honkala in a suit. Honkala was not given a copy of the fee agreement. He obtained $25,000 through a home equity loan and brought Van Camp a check a few days later.

[171 Wash.2d 790] ¶ 5 Van Camp phoned Wendle's counsel, Richard Campbell, that same day, December 15, 2006. He joked that Campbell should send him a box of chocolates to thank him for all the money Campbell would make on this case. Later that day, Campbell faxed Van Camp a letter that mentioned the box of chocolates remark as tongue-in-cheek but communicated Wendle's desire to quickly resolve the case without further litigation. The letter referenced the settlement and proposed permanent injunction as attached, but evidently it was not transmitted with the letter. Van Camp did not respond to the letter or request the missing attachment, except to call Campbell's office to complain to the answering extern about his displeasure at seeing the chocolates remark in writing.

¶ 6 Little work was done on Honkala's case. Notices of appearance were filed by both Van Camp and his partner, Dustin Deissner. A declaration for Honkala was filed with a memo in opposition to the emergency TRO—which had already been granted: the upcoming hearing was for a preliminary injunction scheduled for December 20, 2006. Deissner represented Honkala in that telephonic hearing, and the preliminary injunction was granted. Van Camp performed no work in response to the preliminary injunction, and there is no evidence that he explained its significance to Honkala.

¶ 7 On February 21, 2007, Campbell sought a response to his December 15, 2006, letter, because a status conference was quickly approaching, but Van Camp did not respond. Van Camp participated in a telephonic scheduling conference in March, with a resulting discovery deadline of September 10, 2007. Someone in Van Camp's office answered Wendle's interrogatories in the middle of April, but no discovery was prepared on behalf of Honkala until late August.

¶ 8 In early March, Honkala sent Van Camp a letter expressing his concerns. Board Ex. 14. Honkala reminded Van Camp of his desire that the case be resolved as quickly as possible, given there was no benefit to prolonging it. Second, Honkala requested copies of the documents filed in his case to see what had been done to resolve it and stated he had asked several times yet received nothing. Third, Honkala requested an itemized bill showing what charges had been made against the $25,000 retainer. A week later, in full, Van Camp replied:

As to the breakdown of fees, our retainer agreement was for an earned retainer (flat fee), you would not be charged any more attorney fees. You don't have to worry about an additional charge for attorney fees. I do not keep hours on such retainers. If you have any questions let me know.

Board Ex. 17. The request for documents and more communication was repeated the following day by both Honkala and his wife. Honkala additionally sought any document stating the $25,000 was a flat fee. A packet of materials was sent, but it is unclear what this included. The Honkalas e-mailed again, wishing to discuss the claims against them, the steps being taken, and seeking a copy of the retainer agreement. Van Camp did not respond.

¶ 9 On July 20, 2007, Van Camp filed an answer to Wendle's complaint. He included a counterclaim against Wendle seeking the lost contract expectancy regarding the Shelby Mustang and damages for Wendle's defamation of Honkala. Board Ex. 23. Wendle had never moved for default, but Campbell requested an answer before the mediation Van Camp had scheduled for July 25, 2007. At the mediation, Honkala sought the $25,000 in attorney fees he had paid Van Camp, but Wendle rejected any legal responsibility for those fees. When the mediator mentioned the offer of settlement, it surprised Honkala, who was unfamiliar with the offer. The mediation was unsuccessful.

¶ 10 Following the attempted mediation, Honkala again e-mailed Van Camp, seeking copies of anything filed in support of the counterclaim. The e-mail reiterated Honkala's desire to resolve the case quickly. Following receipt of the few documents Van Camp could provide, Honkala sought a copy of the proposed permanent injunction referenced in Campbell's December 15, 2006, letter. Van Camp could not provide this as he never informed Campbell the injunction itself was not attached. Instead, Van Camp replied that this referenced the preliminary injunction already in place.³ Additionally, the copy of Campbell's letter sent to Honkala had been altered by a...