In Re the Disciplinary Proceeding Against Kerr

Citations: 524 P.2d 406; 84 Wash. 2d 109; 1974 Wash. LEXIS 718Docket: C.D. 5706

Court: Washington Supreme Court; July 18, 1974; Washington; State Supreme Court

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Robert G. Kerr, an attorney admitted to practice in Washington since February 23, 1965, faced disciplinary action due to prior misconduct and new complaints. In 1971, he received a censure for three main infractions related to his representation of J.E. Miller in a child custody case. 

1. **Electronic Listening Device:** Kerr attempted to install a listening device in the office of Helen Zylstra, the juvenile court services director, during a planned interview concerning Miller's custody case. Both Kerr and Miller sought to secretly use the device, which they ultimately failed to do.

2. **False Affidavit:** Kerr filed an affidavit claiming that Miller's ex-wife had obtained custody through perjured testimony and was living with a paramour, despite lacking knowledge of these facts. He continued to represent Miller after submitting this affidavit, raising ethical concerns.

3. **Improper Accounting:** Kerr mishandled $900 given by Miller for investigator services. Kerr claimed the funds were exhausted without providing timely accounting. An audit revealed he overcharged for a conference that lasted significantly less time than billed, resulting in a $150 refund to Miller.

Since the 1971 censure, no other disciplinary actions were reported until this proceeding, which involves four new complaints. The first complaint, filed by Ed and Evelyn Garner, alleges that Kerr overcharged for legal services while representing Ed Garner, a narcotics addict. Ed was in Pierce County jail following a parole violation stemming from a prior assault conviction. Kerr had proposed a plan to send him to a rehabilitation center in Texas.

Respondent informed Garner that a proposed plan would necessitate an order from the U.S. District Court and approval from the board of prison terms and paroles. The plan involved a fee of $1,500, which Garner could not afford, but his mother secured the payment through a mortgage. Respondent sold the mortgage to George Dixon for $1,050 and managed the payments. By September 10, 1972, $482.02 remained on the note. Garner and his mother alleged that respondent guaranteed results, a claim he denied, and the hearing panel sided with respondent, finding no guarantee was made. Respondent undertook significant actions to advance Garner's plan, including securing commitments and approvals from various authorities and obtaining a medical examination for Garner. However, he was absent during the actual hearing at the board of prison terms and paroles in February 1969, possibly due to erroneous information from a state employee. The board did not approve the plan, despite considering respondent's recommendation. Garner received a minimum term of 7.5 years and later accused respondent of inaction, prompting respondent to provide a detailed account of his efforts, leading to Garner's apology. After Garner's release in February 1972, respondent offered to refund part of the fee, which went unanswered by the committee. The hearing panel deemed the fee excessive, reducing it to $750, which respondent complied with, also refunding Garner's mother accordingly. A reprimand was recommended and concurred by the disciplinary board.

In a separate complaint, respondent was accused of improperly contacting Charles David Nash, a client of another attorney, without the attorney's consent. Nash, who faced charges in Pierce County and had an extensive FBI record, was already represented by attorney John J. Majeres. Although respondent acknowledged Majeres was properly representing Nash, he later met with Nash and the deputy prosecuting attorney to discuss potential settlement of Nash's charges, indicating he might receive a fee of $5,000 for resolving all pending cases against Nash.

Mr. Robert T. Atkinson, the deputy prosecuting attorney, did not agree to a compromise regarding a case involving Nash, who initially expressed a desire to waive his right to a jury trial but failed to appear in court to formalize the waiver. Subsequently, the waiver was rescinded. A hearing panel concluded that respondent improperly contacted Nash without Mr. Majeres' prior approval and recommended a reprimand, which the disciplinary board supported.

A separate complaint by Charles Lee Edwards involved the respondent taking possession of Edwards' automobile after he was arrested and subsequently agreeing to represent him. Edwards, who had substantial equity in a 1969 Pontiac, assigned the vehicle to the respondent as security for a fee of $1,500. After the vehicle was taken out of impound, Edwards demanded its return but was denied until he paid the fee, leading to a dispute. Edwards’ attorney, Mr. Gary Cronk, later paid off the vehicle's balance and sold it for more than its market value. The hearing panel found that respondent failed to account for his client's property and recommended a reprimand, which was agreed upon by the disciplinary board.

The fourth complaint, filed by Mrs. Dorothy Gentry, concerned the misuse of funds placed in trust with the respondent during the probate process of Thorsten Gastgivar's estate, for which Gentry was appointed executrix. This was respondent's first experience handling a probate case, and the context of his conduct necessitated a review of the Gastgivar probate background, where Gentry was the stepdaughter of the deceased.

Mrs. Gentry relinquished her interest in her mother's estate, requesting that all assets be transferred to Thorsten Gastgivar. The King County probate court decree allocated all estate assets to him, including any unidentified property. Thorsten, a member of the Masters, Mates, Pilots Association, had a $7,500 death benefit payable to his brother, David O. Gastgivar. The union, unable to locate David except for an Albany, New York address, sent the check to the estate attorney, noting it was not part of Thorsten's estate and was intended solely for David. The union requested confirmation of David's contact and a copy of the executor's court appointment. 

The attorney failed to secure the check properly, leading to another client, Joseph V. Agosto, discovering it. Agosto, unfamiliar with David, managed to locate him in jail in Albany, where David was imprisoned due to alcoholism and a recent sentence. On February 14, 1970, the attorney and Agosto traveled to New York without the check. During their visit, the attorney informed David about the $7,500 draft and suggested that the estate might have a claim on it, discussing Washington state community property laws and proposing a settlement where the estate would receive $2,500, with the remainder going to the beneficiary.

Agosto and the respondent met in Albany, where Agosto prepared several legal documents, including a power of attorney allowing him to cash a $7,500 check on behalf of David O. Gastgivar. Agosto was to deduct expenses from this sum and hold the remainder as security or deposit it in a bank account for Gastgivar's benefit. However, Agosto did not deposit the funds for Gastgivar but instead used them for his overdrawn business account. Following this, a probate petition for Thorsten Gastgivar's will was filed in King County, with Mrs. Gentry appointed as executrix. David O. Gastgivar sought his money but received no satisfaction from Agosto or Gentry. After repeated demands and threats, Gastgivar eventually recovered a substantial portion of his funds, although Agosto claimed a deduction for expenses he never actually paid. The disciplinary board initially recommended a reprimand for the respondent but later amended it to a 60-day suspension. The court ultimately decided on a 6-month suspension for the respondent, Robert G. Kerr, for improper conduct regarding trust funds and confusing the beneficiary about his rights. Kerr was also ordered to pay the costs of the proceedings. The court emphasized that while it considers the disciplinary board's recommendations, it retains the ultimate authority over disciplinary actions.