This matter is before the court upon a petition of the Washington State Bar Association for an order to show cause why the respondent should not be adjudged in contempt of this court's order, entered March 5, 1970 (In re Hawkins, 77 Wn.2d 777, 466 P.2d 147 (1970)), suspending him from the practice of law for a period of 18 months beginning June 1, 1970. After the order to show cause was issued, the matter was referred to a hearing panel of the bar association to determine the facts.
From these, it appears that the respondent's listing as an attorney was continued in the Yakima telephone directory published for the year October 1970 to October 1971, although he had an opportunity to withdraw that listing after he was notified of his suspension; that a resident of Yakima, needing the services of an attorney, found his name in the directory and called him; that she was given an appointment and was directed by him to his unmarked office and that she went to the office and discussed her legal problem
It is the position of the bar association that by his conduct in failing to change his listing in the telephone directory, in failing to advise a prospective client that he was not authorized to practice law and in allowing her to believe that he would write a letter or give her other legal assistance, the respondent held himself out as entitled to practice law and thereby violated this court's order of suspension.
RCW 2.48.180 provides:
The statute makes clear that holding oneself out as entitled to practice law constitutes contempt of an order of suspension. See also People ex rel. Colorado Bar Ass'n v. Humbert, 86 Colo. 426, 282 P. 263 (1929) and State ex rel. Patton v. Marron, 22 N.M. 632, 167 P. 9 (1917), and cases cited therein.
In In re Vandercook, 78 Wn.2d 301, 474 P.2d 106 (1970), we said at page 304:
See also In re Talbot, 78 Wn.2d 295, 474 P.2d 88 (1970).
The testimony of the prospective client in the record before us shows that the respondent's conduct did indeed produce an unfavorable impression upon the mind of that
Having permitted and encouraged the "client" to believe that he was authorized to and would give her legal assistance, the respondent cannot be heard to say that his conduct was excusable because he did not do that which he would have been obliged to do, under the circumstances, had he been authorized to practice law.
If a suspended attorney leads a member of the public to believe that he is authorized to and will render him legal services, he not only injures the prospective client but casts doubt upon the integrity of the profession. For these reasons he is forbidden to hold himself out as entitled to practice law.
The record and the findings also show that the respondent received, during the first few months of his suspension, monthly retainer payments from a client, the Roza
The district had an oral contract with the respondent which was renewed each year, whereby he was paid a monthly retainer fee, for which he was to perform no legal services but was to hold himself in readiness to render services when asked to do so. He was, however, expected to attend board meetings of the district. For any legal services actually performed, the respondent was paid additional fees.
A retainer is a fee which a client pays when he retains an attorney to act for him, and thereby prevents him from acting for his adversary. Black's Law Dictionary 1479 (4th rev. ed. 1968); see Right of attorney to retaining fee, Annot., 21 A.L.R. 1442.
At the hearing conducted in this proceeding, the chairman of the board of the Roza Irrigation District and the manager both testified that it was their understanding that the retainer was to be paid to the respondent to assure that he would be available when legal services were needed and to prevent his representing others who might be adversaries of the district. After the respondent was suspended from the practice of law, he could no longer render those services nor could he represent an adversary of the client. Thus the payments made to him during the period of his suspension were without consideration and the respondent was not entitled to receive them.
The record is devoid of any evidence that the respondent ever explained the status of his contract to his client. He continued to accept the payments on the retainer contract
By his own testimony, the respondent was aware that he was not entitled to accept a retainer fee, and he does not suggest now that he had a legal right to receive these fees under the retainer contract. We think that under such circumstances, the respondent, in the exercise of good faith, had a duty to advise the client that he was not entitled to receive retainer fees. If there was any doubt in his mind upon this score, we feel safe in assuming that he could have obtained advice upon this matter from the ethics committee of the Washington State Bar Association; and had he done so, and acted according to that advice, his good faith could not now be questioned.
Implicit in this court's order of suspension was a direction that the respondent advise his clients that he could not represent them during the period of suspension and could not be paid any fees which were not already earned. While the respondent did advise the Roza Irrigation District that he had been suspended, he failed to advise it of the effect that that suspension would have upon the retainer arrangement. He allowed the client to assume that it was still under obligation to him under that arrangement, even though he knew or should have known otherwise.
In In re Vandercook, supra, we said that an attorney who has withdrawn from a case after accepting a retainer is obliged to refund any portion of the retainer which he has not earned, citing CPE 44. This rule is now embodied in CPR EC 2-32.
The respondent is ordered to refund, if he has not already done so, those retainer payments which covered periods during which he was suspended and unable to perform legal services for the Roza Irrigation District had he
For those acts and omissions described herein, whereby the respondent held himself out as entitled to practice law in this state, a formal reprimand shall issue.
The respondent is further ordered to pay the costs of this proceeding.
HAMILTON, C.J., FINLEY, HUNTER, HALE, NEILL, STAFFORD, WRIGHT, and UTTER, JJ., concur.