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Seattle lawyer Emmet T. Walsh (WSBA No. 0860, admitted 1963) has been suspended for two years, starting October 10, 1997, pursuant to an order entered by the Supreme Court on that date. The discipline relates to Walsh’s work in 1989 as an attorney for an estate, wherein he failed to recognize and address the actual conflicts of interest between estate beneficiaries and the personal representative, whose status as an heir was not clearly defined, and for his collection of excessive attorneys’ fees, in violation of RPCs 1.7 and 1.5.
Facts
In February 1989, the adult siblings of a single 70-year-old deceased Seattle woman contacted Walsh about commencing an intestate probate. The value of the estate was approximately $165,000, and it consisted primarily of liquid assets (bank accounts and publicly traded stock). The siblings, who were Canadians, included two sisters; a brother; and a "younger brother," who was actually the nephew of the deceased (i.e., he was the son of a surviving sister). The "younger brother" had been raised as if he were a sibling. When the family met with Walsh, there was a discussion to the effect that the "younger brother" may have been adopted by the siblings’ parents. Walsh opined to the surviving family members that the Washington courts would recognize an "equitable" adoption, and under the intestate statute, the siblings (including the "younger brother") would share the estate equally. A sister and the elder brother expressed concern that there needed to be proof of adoption if the "younger brother" was to be treated as an heir of the estate.
Due to his age and closer proximity to Seattle, the siblings agreed that the "younger brother" would act as the personal representative. In the verified petition for letters of administration, Walsh listed the "younger brother"/petitioner as a brother and heir of the decedent. The elder brother attended the probate hearing. Walsh proceeded to represent the personal representative and the estate, and began to identify and consolidate assets of the estate. Substantial funds were placed in an estate account, which required the signature of either the personal representative or Walsh. On Walsh’s petition in late March 1989, the court granted the personal representative non-intervention powers in the intestate probate, and it waived the filing of a bond. Although Walsh and the personal representative researched the adoption issue over the next several months, no written proof of adoption was located.
Between mid-February and late April 1989, Walsh and the personal representative disbursed more than $40,000 to Walsh for professional fees (at a rate of $250 per hour) and costs from the estate account. From time to time, Walsh reviewed his time records with the personal representative. The professional time included traveling to British Columbia for meetings with the personal representative and others, and going to the bank. The personal representative, who had been a first mate on a tug, knew of many, but not of all, disbursals from the estate checking account. By spring 1989, Walsh had also disbursed more than $22,000 to the personal representative for fees, and approximately $5,000 in payment of the creditor’s claim, filed by the personal representative’s wife, for her care of the decedent in their home prior to her death.
In late April 1989, the younger-sister beneficiary and her adult daughter traveled to Seattle to meet with Walsh. They provided Walsh a written document expressing their concern that Walsh had a conflict of interest in representing the "younger brother" both as personal representative and as a beneficiary, when he was wrongfully listed as a beneficiary in the probate documents. They advised Walsh of their position that the "younger brother" had not been legally adopted. Walsh advised the sister beneficiary that she would have to retain another attorney if she wanted an accounting of the estate.
In early May 1989, the sister beneficiary and her daughter contacted a Seattle lawyer and also filed a grievance with the Association, alleging Walsh’s continued representation presented a conflict of interest. Walsh was provided a copy of the grievance in mid May. The lawyer for the sister beneficiary contacted Walsh by telephone and, on May 12, served him with a request for special notice (RCW 11.28.240) of proceedings in the case, which required Walsh to give notice of any intent to distribute estate assets or pay personal representative or attorneys’ fees. Walsh did not discuss his contacts with the sister beneficiary with the personal representative until approximately June 10. On May 1, Walsh and the personal representative made a partial distribution of the estate in the sum of $15,000 to each of the heirs, including the personal representative. Additionally on that date, $11,000 was paid to the personal representative for fees. On June 4, after his receipt of the request for special notice, Walsh caused an additional $4,000 to be distributed to each of the heirs (including the personal representative). A temporary restraining order was entered June 6, 1989, and served on Walsh and the personal representative.
Thereafter, the sister beneficiary and the elder brother brought proceedings for an accounting and removal of the personal representative. Ultimately, the personal representative could not establish his status as an heir of the estate. Walsh acted as attorney for the personal representative in his personal and representative capacities, until the personal representative was removed by court order in October 1989.
Procedural History
The sister beneficiary filed a grievance against Walsh in spring 1989. A hearing was ordered by a Review Committee and a formal complaint was filed in March 1991. Formal disciplinary proceedings were deferred pending the outcome of the civil proceedings. In the civil litigation, judgments were entered against Walsh and the personal representative in the sums of $142,000 and $56,000 (Canadian) respectively, in favor of the estate. The civil claims and Walsh’s appeal were resolved, in fall 1995, in favor of the estate. The Bar Association filed an amended formal complaint in July 1996, and a disciplinary hearing was held in August 1996. In December 1996, the hearing officer filed findings of fact, conclusions of law of ethics rule violations relating to conflicts of interest (RPC 1.7) and collection of clearly excessive fees (RPC 1.5), and recommended Walsh’s disbarment. In November 1996, the WSBA Lawyers’ Fund for Client Protection made a gift of $28,583.65 to the estate. In spring 1997, Walsh entered into a civil compromise of the outstanding judgment with the estate. In June 1997, the Disciplinary Board modified the disciplinary sanction recommendation to a two-year suspension, with the condition that prior to reinstatement, Walsh make full and complete restitution to the Lawyers’ Fund for Client Protection. Neither Walsh nor the Association appealed the Board’s recommendation. The Supreme Court entered an order of a two-year suspension, with the condition of restitution prior to reinstatement, on October 10, 1997.
Respondent was represented by Thomas P. Keefe and Kevin Keefe. The Bar Association was represented by disciplinary counsel Maria Regimbal and Christopher Sutton
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