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Richard C. Kimberly (WSBA No. 10666, admitted 1980), of Bellingham, received a reprimand based on a stipulation approved by the Disciplinary Board on March 29, 2001. The discipline is based upon his failure to comply with his criminal defendant client’s request to testify at a jury trial in 1995.
In 1995, Mr. Kimberly defended a client against charges of rape in the second degree and unlawful imprisonment. Prior to trial, Mr. Kimberly suggested, and the client agreed, that the client would not testify in his own defense. During the trial, the court twice sanctioned and fined Mr. Kimberly for disrespect outside the presence of the jury.
Initially, Mr. Kimberly decided to send an associate to present closing argument in the client’s case, but he appeared personally after the court ordered him to complete the case. When Mr. Kimberly returned to the courthouse, his client indicated that the client wanted to testify. The defense had rested, but closing argument had not yet been presented. Mr. Kimberly still believed that it would not be in his client’s best interest to testify, so did not move to re-open the evidence to allow the testimony. Mr. Kimberly then proceeded with closing argument.
The jury found the client guilty as charged. The client obtained new counsel, who filed a motion for a new trial based on ineffective assistance of counsel. Mr. Kimberly signed a supporting declaration admitting that the client had asked to testify, and that Mr. Kimberly had not presented the testimony; the court denied the motion. The court of appeals indicated that Mr. Kimberly’s conduct had fallen below the standard of care, but denied the client’s motion. In August 1999, the Washington Supreme Court granted the client an evidentiary hearing on the sufficiency of his defense at trial. After the hearing, the motion was denied.
Mr. Kimberly’s conduct violated RPC 1.2(a), requiring lawyers to abide by a client’s decision whether to testify in a criminal case.
Leslie Allen represented the Bar Association. Richard Kimberly represented himself.
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