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In re Disciplinary Proceeding Against Jones

Supreme Court of Washington, En banc

December 4, 2014

In the Matter of the Disciplinary Proceeding Against Russell Kenneth Jones, an Attorney at Law

Argued September 16, 2014.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Kurt M. Bulmer, for the attorney.

M. Craig Bray, for the bar association.

AUTHOR: Justice Mary E. Fairhurst. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. González, Justice Sheryl Gordon McCloud, Justice Mary I. Yu.

OPINION

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Fairhurst, J.

[182 Wn.2d 24] ¶ 1 Russell Kenneth Jones appeals the Washington State Bar Association (WSBA) Disciplinary Board (Board) recommendation that he be disbarred fro the practice of law. The WSBA charged Jones with four counts of misconduct arising out of litigation involving his mother's estate. The counts include failing to comply with discovery requests, engaging in frivolous litigation, and dishonestly and intentionally manipulating the value of the estate. Jones challenges each count. The hearing officer and a unanimous Board concluded that Jones violated RPC 3.1, [1] 3.4(c) and (d), [2] and 8.4(c) and (d). [3] The hearing officer recommended that Jones be disbarred. The Board unanimously adopted the hearing officer's recommendation. We find no reason to depart from the recommended sanction and disbar Jones from the practice of law.

[182 Wn.2d 25] I. FACTUAL BACKGROUND

¶ 2 Jones was admitted to the practice of law in the state of Washington in 1980 (Bar No. 10887). Jones was a solo practitioner from 1984 until 2011 when he went on inactive status.

¶ 3 The current disciplinary proceeding arose out of the estate proceedings of Jones' mother, Ms. Marcella Jones. Ms. Jones died testate in September 1995. Her will was admitted to probate and named Jones as personal representative (PR). Ms. Jones left her property equally to Jones and his three brothers, Peter, Jeffrey, and David. [4]

¶ 4 Ms. Jones' property was located in Spokane, Washington. Jones was living with his mother in the family home when she

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passed away. After Ms. Jones' death, Jones continued to live and operate his law office in the house.

¶ 5 Jones had the house appraised twice in November 1995 (hereinafter Meenach appraisal or Ciszech appraisal). Jones did not produce the Meenach appraisal at any proceeding. The Ciszech appraisal valued the house at approximately $ 155,000. An appraiser hired by Jones in 1995 valued the estate's piano at $ 5,000.

¶ 6 When Peter asked Jones to provide copies of the will or a summary of its terms in October 1995, Jones refused. The brothers met in May 1996 to divide up the estate's personal property, and at this meeting Jeffrey selected the piano valued at $ 5,000. At this meeting, Jones also informed his brothers that the house was appraised at $ 155,000, less defects. Despite their requests, Jones did not give Peter or Jeffrey a copy of either appraisal. The hearing officer found Jones' testimony that he showed Peter a copy of the appraisal not credible and rejected testimony from Jones' brother David that the appraisals were available at [182 Wn.2d 26] the May meeting. Peter, both at the meeting and in writing, offered to purchase the house at the price of $ 155,000, but Jones did not respond to Peter's offers. Even with Peter's offers and without telling the cobeneficiaries, Jones deeded the house to himself at a value of $ 125,866.27 and did not record the deed.

¶ 7 In September 1996 Jones distributed the piano to Jeffrey at the appraised value of $ 5,000. Jones made periodic distributions to his brothers from the estate. During this time, Jones lived in the house rent free and had the estate pay the utilities and taxes.

¶ 8 Peter and Jeffrey, concerned about Jones' use of the house, as well as his refusals to provide information, hired attorney Frank Gebhardt, [5] who contacted Jones in January 1998 seeking check registers and estate accounts. Jones did not provide the requested documents. The hearing officer found that Jones' claim that he attempted to give the check register to Gebhardt not credible. At this time, Jones began to pay the house utilities from his personal account and he contacted Jeffrey, claiming that the piano needed to be reappraised.

¶ 9 In June 1998 Peter and Jeffrey filed a petition to require Jones to provide basic estate information. The court commissioner ordered that he provide the information and documents, but Jones, as attorney for the estate, successfully moved to revise the order. In November 1998, after still not receiving any of the requested documents from Jones, Peter and Jeffrey petitioned for a judicial proceeding to remove Jones as PR. Peter and Jeffrey also filed a complaint for use of estate assets by a PR for personal benefit and for breach of fiduciary duty. In response to these actions, Jones asserted that he occupied the house according to an agreement by all heirs. This response was false because there was no such agreement among the heirs. In December 1998 Jones filed a declaration of completion [182 Wn.2d 27], swearing that he had completed a final accounting. In January 1999 Peter and Jeffrey petitioned for an accounting. The court consolidated the three actions.

¶ 10 In May 2001 Peter and Jeffrey's new attorney, Robert Greer, sent Jones interrogatories and requests for production. Jones responded and signed his responses under oath. However, his answers were knowingly false and incomplete. [6]

¶ 11 In June 2001 the parties attended an unsuccessful mediation with Judge Harold Clarke II. Before mediation, Jones sent Judge Clarke an accounting of the estate distributions. This accounting purported to show that the distributions among the brothers were equal. The accounting document was the first time that Peter and Jeffrey learned that Jones had distributed the house to himself for $ 125,866.27 and that Jones claimed the piano was valued at $ 14,950.00 rather than the original valuation of $ 5,000.00. The hearing officer found that the increase in the piano's value was to get back at Jeffrey for challenging Jones' administration

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of the estate. Jones claims that the increase in amount was based on a conversation with Stephen Bagmanyan, Jones' client and expert on pianos. Bagmanyan never saw the piano in person.

¶ 12 After the failed mediation, trial took place in September 2001 before Judge Rebecca Baker. Before trial, Greer requested a copy of the appraisal on the house from Jones, but Jones refused to produce it. Jones did not produce either appraisal on the house at trial. Although Jones listed Bagmanyan as a witness, he did not call Bagmanyan to testify or produce any other evidence to substantiate his claim that the piano was worth more than $ 5,000.

¶ 13 In October 2001 Judge Baker ordered that Jones be removed as PR. In addition, Judge Baker set aside Jones' [182 Wn.2d 28] attempt to deed the house to himself, found that the house was worth $ 159,000, that the piano was worth $ 5,000, and that Jones must reimburse Peter and Jeffrey for rent and other expenses. Judge Baker stated that her findings regarding the value of the house and piano would have a preclusive effect on subsequent litigation. In addition, Judge Baker asserted that her findings were necessary to reach her decision on other issues and that such findings " will then be res judicata for any further factual determinations in this litigation." Ex. A-27, at 2. She then appointed James Woodard as the PR of the estate.

A. The first appeal and subsequent litigation

¶ 14 In November 2001 Jones, represented by Philip Talmadge, appealed Judge Baker's decision to the Court of Appeals, Division Three. Division Three reversed Judge Baker's decision. In re Estate of Jones, 116 Wn.App. 353, 67 P.3d 1113 (2003). Peter and Jeffrey appealed Division Three's decision to this court, and we reversed, reinstating the trial court's ruling that the record supported the trial court's finding that the house was worth $ 159,000; that Jones' second appraisal of the piano was questionable; that Jones breached his fiduciary duty; and that it was proper to remove Jones as PR. In re Estate of Jones, 152 Wn.2d 1, 21-22, 93 P.3d 147 (2004). On appeal, Jones did not assign error to the trial court's valuation of the piano and house; as such, the findings were verities on appeal. The court remanded for a final accounting. Id. at 22.

¶ 15 After remand, Jones began to represent himself. Jones did not move for reconsideration of this court's decision. However, from 2004-2005 Jones filed a series of motions in superior court: three motions to disqualify Judge Baker, two motions for a neutral judge, four motions for reappraisal of the estate's assets, and one motion for witness testimony. In his second motion to disqualify Judge Baker, filed in February 2005, Jones asserted that Judge Baker made comments about him at a reception in September [182 Wn.2d 29] 2001, [7] during the 2001 trial. This motion was the first time that Jones raised the issue of actual bias based on Judge Baker's alleged comment three and a half years earlier. The hearing officer found that Jones' allegations regarding the statement made by Judge Baker were not credible. In his motions for reappraisal of the piano, Jones claimed that the piano's value had not been fully litigated before the court. [8] Judge Baker denied these motions, finding that they did not contain any factual or legal basis, and awarded attorney fees and costs to Peter and Jeffrey.

¶ 16 In March 2005 Jones filed another series of motions. These motions sought relief from Judge Baker's 2001 judgment under CR 60(b)(4) and (11) [9] or CR 54(b). [10]

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Through [182 Wn.2d 30] these motions Jones attempted to present evidence that he did not present at the trial in 2001. Peter and Jeffrey moved for sanctions under CR 11, claiming that the issues in Jones' motions were fully litigated and thus his motions were frivolous.

¶ 17 All motions made by Jones were denied by Judge Baker and found frivolous by the hearing officer. Judge Baker awarded Peter and Jeffrey sanctions against Jones.

B. The second appeal and subsequent litigation

¶ 18 In June 2005 Jones, represented by Michael Schein, petitioned Division Three for discretionary review of Judge Baker's orders denying the motions for relief from judgment and granting of CR 11 sanctions. In August 2005 Judge Baker authorized the sale of the house. Jones, represented by Schein, appealed this order. Woodard filed suit for possession of the house, and the trial court granted summary judgment authorizing his immediate possession. Jones, representing himself, appealed this order. Jones' appeals were consolidated for review.

¶ 19 Division Three affirmed Judge Baker's orders and summary judgment. In re Estate of Jones, noted at 140 Wn.App. 1022, 2007 WL 2452725, at *7. Division Three concluded that Jones' arguments were without factual or legal justification, finding that the doctrine of res judicata precluded further review because the issues in Jones' motions were fully litigated and upheld on appeal. 2007 WL 2452725, at *4. We denied Jones' petition for review. The hearing officer found that Jones' appeals and petitions for review were frivolous and harmful.

¶ 20 Jones was ejected from the house in March 2009, and it sold for $ 175,000. In February 2010 Jones filed a separate action against Jeffrey and Peter, again requesting relief from the 2001 judgment. Jones' complaint alleged that Judge Baker acted without jurisdiction and that Jeffrey and Peter made misrepresentations of fact. The hearing [182 Wn.2d 31] officer found that this complaint was filed without proper purpose and was frivolous.

¶ 21 In June 2010 Woodard filed a final accounting and petition for distribution. Jones filed a pleading titled " Objection to Final Accounting" in which he argued again that he was wrongfully removed as PR and that the piano was wrongfully valued at $ 5,000. The hearing officer found that this complaint was frivolous, as it was directly contrary to Division Three's 2007 decision. See Jones, 2007 WL 2452725, at *4.

¶ 22 In August 2010 Jones filed another motion under CR 60(b), seeking relief from the 2001 judgment. In this motion Jones reasserted arguments made in previous motions, including that there were no grounds to remove him as PR and that res judicata did not apply to the valuation of the house and piano. This motion was denied, and Judge Baker ordered Jones to cease filing motions on these issues. She stated that if he did not cease, he would be ordered to show cause as to why he should not be held in contempt and/or declared a vexatious litigant.

¶ 23 Less than a week after Judge Baker threatened to declare Jones a vexatious litigant, he filed an amended complaint, arguing again that the valuations of the house and piano were incorrect and never finalized.

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The hearing officer found that lawsuit frivolous.

C. The third appeal and subsequent ...


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