| Description: |
F. Michael Misner (WSBA No. 5742, admitted 1974), of Gig Harbor, was ordered to receive a reprimand on July 27, 2005, following a stipulation approved by a hearing officer. This discipline was based on his conduct in 2003 involving the making of a false statement of material fact to a third person.
In November 2001, Mr. Misner began representing a client who had been seriously injured in an automobile accident. The fee agreement provided for a 40 percent contingent fee, with costs to be deducted after payment of the attorney’s fee. In March 2003, Mr. Misner requested information from the Washington State Department of Social and Health Services (DSHS) about the amount of medical benefits paid on behalf of his client. DSHS notified Mr. Misner that it asserted a lien in the amount of $56,695.45 and enclosed a copy of the statement of lien. By letter, with a copy of the fee agreement enclosed, Mr. Misner asked to discuss the possibility of DSHS reducing its lien. DSHS responded that it would not waive or compromise its lien.
Following a mediation, the case settled for $50,000 in April 2003. Mr. Misner advised DSHS of the settlement and again requested that DSHS waive or reduce its lien. DSHS refused to do so. Mr. Misner determined that there would be no money left for his client if the DSHS lien, together with his costs and fees, were deducted from the settlement proceeds. Mr. Misner told the client that he would waive $21,821.98 in costs that Mr. Misner had advanced. Additionally, in May 2003, Mr. Misner prepared and had his client sign a new agreement providing for a 75 percent contingent fee. Mr. Misner did not intend to charge a 75 percent fee. The purpose of the new agreement was to prevent DSHS from satisfying any part of its lien against the settlement proceeds, so that the client would receive a portion of the funds. In response to a September 2003 DSHS inquiry about the status of the case, Mr. Misner informed DSHS by letter that the case had been settled for $50,000, and he enclosed a copy of the May 2003 fee agreement along with a list of costs and expenses. In the letter, Mr. Misner asked for written confirmation that DSHS would waive its lien. DSHS again declined to waive or alter its lien.
Prior to entry into the disciplinary stipulation, Mr. Misner paid DSHS the share of the settlement proceeds to which it was entitled under the original 40 percent fee agreement. Mr. Misner took no fee so that his client would receive a share of the settlement proceeds.
Mr. Misner’s conduct violated RPC 4.1(a), prohibiting a lawyer in the course of representing a client from knowingly making a false statement of material fact or law to a third person.
Scott G. Busby represented the Bar Association. Leland G. Ripley represented Mr. Misner. Gregory J. Rosen was the hearing officer. |