| Description: |
Tacoma lawyer David C. Hemmelgarn (WSBA No. 13370, admitted 1983) has been ordered suspended for two years effective January 13, 1997, pursuant to a stipulation to discipline. The suspension is based upon Hemmelgarn's misconduct with respect to several client matters between early 1991 and fall 1995. Among the factors considered in mitigation of the disciplinary sanctions was Hemmelgarn's mental condition during this period, which affected his ability to practice law.
Lack of Diligence, Competence and Communication
Case 1 - Hemmelgarn was hired to represent a client against the State of Washington for a personal injury matter. He served a complaint for damages upon the incorrect statutory state employee, resulting in the suit being dismissed after the statute of limitations had expired. Hemmelgarn was unsuccessful in an appeal. Despite the dismissal, Hemmelgarn continued to assure the client and several health care providers for two years after the case had been dismissed that trial of the matter was pending. By failing to properly accomplish service of process within the period of the statute of limitations, Hemmelgarn violated RPC 1.1 (competence) and RPC 1.3 (diligence); by failing to inform client of the status of the case and of the dismissal of the lawsuit. Hemmelgarn violated RPC 1.4 (reasonably inform client about case), and by misrepresenting that the case had been dismissed to his client and to health care providers, Hemmelgarn violated RPC 8.4(c) (dishonesty). As part of the stipulation, Hemmelgarn has agreed to make restitution to his client of all out-of-pocket expenses, including medical care costs.
Case 2 - After filing a petition for dissolution of his client's marriage, in May 1999, and conducting negotiations with the spouse's lawyer. Hemmelgarn ceased further action, failed to advise his client of a trial date, failed to appear for trial and, thereby, allowed a decree containing provisions contrary to the client's wishes to be entered. By failing to diligently pursue the client's dissolution, Hemmelgarn violated RPC 1.3 (diligence). By failing to keep the client informed about the case, Hemmelgarn violated RPC 1.4 (reasonably inform client about case). As part of the stipulation, Hemmelgarn has agreed to make restitution to the client for fees paid by the client to another lawyer hired to vacate the dissolution decree.
Case 3 -In early 1991, Hemmelgarn, while an active member of the Oregon Bar, undertook the representation of two clients injured in a motor vehicle accident. Hemmelgarn subsequently failed to pay his bar dues, resulting in his suspension from the Oregon Bar. On the day the statute of limitations was to expire, Hemmelgarn requested the assistance of another Oregon lawyer, who filed a summons and complaint prepared by Hemmelgarn. Hemmelgarn failed to comply with Oregon law, which requires service be accomplished within sixty days of filing, or advise his client of the need to accomplish service within the sixty-day period. As a result, the lawsuit was dismissed. Hemmelgarn's waiting to the last day to file a complaint and his failure to make arrangements for the proper service of process violated RPC 1.1 (competence) and RPC 1.3 (diligence). His failure to tell his client of his suspension from the practice of law in Oregon and of the client's need to promptly seek new counsel violated RPC 1.4 (reasonably inform client about case).
Case 4 - Hemmelgarn was hired in the fall of 1991 to defend a client in a suit to enforce a contract for the sale of a mobile home. He failed to appear timely at a hearing, and a default summary judgment was entered. Over the next few months, Hemmelgarn exchanged telephone calls and letters with opposing counsel, but did not move to vacate the default summary judgment until one hundred and eleven days after its entry. The motion was denied and Hemmelgarn failed to inform the client, who learned of the judgment when the client's bank account was garnished. Hemmelgarn's failure to respond to a summary judgment motion and to timely file a motion to vacate the judgment violated RPC 1.1 (competence) and RPC 1.3 (diligence). Hemmelgarn's failure to tell his client of the entry of the summary judgment and writ of garnishment violated RPC 1.4 (reasonably inform a client about case).
Case 5 - In October 1990, Hemmelgarn was hired to defend a client who was being sued for breach of contract to purchase a mobile home, and to recover the client's down payment. The client, after agreeing to purchase the mobile home and making the down payment, refused to complete the purchase because the dealer failed to timely deliver the mobile home. After initially working on the case, Hemmelgarn failed to bring the matter to conclusion and failed to maintain communication with the client. Hemmelgarn's failure to pursue the client's lawsuit violated RPC 1.3 (diligence) and RPC 3.2 (reasonable efforts to expedite litigation). Hemmelgarn's failure to respond to the client's requests for information violated RPC 1.4 (reasonably inform client about case).
Improper Representation
Case 6 - Hemmelgarn, while an active member of the Oregon Bar, was hired, in January 1992, to defend a Washington client against her former husband's enforcement, in the state of Oregon, of an agreement in which, he claimed, the client had consented to forgive support arrearage in exchange for his consent to the adoption of their child by the client's present husband. Hemmelgarn was also to assert the client's claim for support arrearage. After the representation began, Hemmelgarn learned he was suspended from the Oregon Bar for nonpayment of dues. He told the client that he had been suspended but that he intended to be reinstated prior to the trial. He continued to represent the client and to bill the client for the work. On the day of trial, Hemmelgarn was still suspended. He faxed the client, who had been waiting for him to appear, that he could not represent the client at the trial and made suggestions about how the client could proceed with the trial alone. The client settled the matter on her own for a number of reasons, including Hemmelgarn's inability to appear on the client's behalf and the continued cost of litigation. Hemmelgarn's conduct in failing to timely withdraw from the case and his ongoing work for the client when he could not practice violated RPC 1.15 (duty to withdraw). By giving advice to the client in Oregon, when suspended from active membership in Oregon, Hemmelgarn violated RPC 5.5 (a) (prohibiting unauthorized practice of law) and RPC 8.4(d) (prohibiting conduct prejudicial to the administration of justice). By seeking payment for services performed when he was suspended from active membership in the Oregon bar, Hemmelgarn violated RPC 1.5 (charging an unreasonable fee). As part of the stipulation, Hemmelgarn has agreed to make restitution to the clients of fees collected during the time he was suspended from the Oregon bar.
Misconduct in Criminal Matters
Cases 7 and 8 - While representing different clients during 1991 and 1992 in various criminal matters in district and superior court cases, Hemmelgarn was late to court or failed to appear. Hemmelgarn's tardiness or failure to appear at several district court and superior court hearings violated RPC 1.3 (diligence) and RPC 8.4(d) (conduct prejudicial to administration of justice).
Case 9 - While representing a client in a criminal case. Hemmelgarn, in November 1991, signed an indemnitor's agreement to ensure the client's appearance in court. By signing an indemnitor's agreement with a bonding company on behalf of a client, Hemmelgarn gave improper financial assistance to a client and gained a financial interest in the litigation, which violated RPC 1.8(c) (financial assistance to client during litigation) and RPC 1.7(b) (representing client when representation may be limited by lawyer's own interests).
Prior to reinstatement, Hemmelgarn must demonstrate he is physically and mentally fit to practice law, and make restitution as stated above. Upon reinstatement, Hemmelgarn will be on probation for two years.
Hemmelgarn represented himself. Disciplinary counsel Maria Regimbal and Christopher Sutton represented the Bar Association. The hearing officer was F. Ross Boundy of Seattle.
|