By Darren Smith, Weekend Contributor
After what was seemingly a never ending probate contest between a Washington State lawyer and his brothers, the State Supreme Court unanimously voted to disbar lawyer Russell Kenneth Jones, upholding the Washington State Bar Association Disciplinary Board’s unanimous recommendation that Jones be sanctioned with disbarment.
The case brings to light how vexatious behavior and unbrotherly love can come alive in probate matters and shows quite definitely the advantage of having trusted third-parties involved to take some of the emotion out of probate proceedings.
The nearly eighteen year battle was one of the worst a presiding judge had seen. The ruling from the State Supreme Court provides some rather unique behavior described below in its ruling:
In this matter, the contested assets for the most part consisted of the valuation of a house and a piano left in equal part to the sons of a Spokane mother, Marcella Jones who died in 1995. In her will she designated attorney Russell Jones (Hereinafter ‘Jones’) as Personal Representative (PR) and his three brothers Peter, Jeffrey, and David as equal co-beneficiaries.
Marcella Jones’ property was located in Spokane, Washington. Jones was living with his mother in the family home when she passed away. After Ms. Jones’ death, Jones continued to live and operate his law office in the house.
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.
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 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 co-beneficiaries, Jones deeded the house to himself at a value of $125,866.27 and did not record the deed.
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.
Peter and Jeffrey, concerned about Jones’ use of the house, as well as his refusals to provide information, hired attorney Frank Gebhardt 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.
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, swearing that he had completed a final accounting. In January 1999 Peter and Jeffrey petitioned for an accounting. The court consolidated the three actions.
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.
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 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.
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.
In October 2001 Judge Baker ordered that Jones be removed as PR. In addition, Judge Baker set aside Jones’ 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.” She then appointed James Woodward as the PR of the estate.
The first appeal and subsequent litigation
In November 2001 Jones, represented by former State Supreme Court Justice Philip Talmadge, appealed Judge Baker’s decision to the Court of Appeals, Division Three [Eastern Washington]. 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.
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 2001 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. 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.
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 ). Through 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.
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.
The second appeal and subsequent litigation
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. Woodward 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.
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. Id. at *4. The State Supreme Court denied Jones’ petition for review. The hearing officer found that Jones’ appeals and petitions for review were frivolous and harmful.
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 officer found that this complaint was filed without proper purpose and was frivolous.
In June 2010 Woodward 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.
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.
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. The hearing officer found that lawsuit frivolous.
The third appeal and subsequent litigation
In September 2010 Jones, representing himself, appealed Judge Baker’s order approving the final accounting and distribution. He argued that the decision should be vacated because the value of the house and piano were based on inconsistent appraisals, and he moved for reappraisal of the piano. In May 2011 Division Three granted Jeffrey’s and Peter’s motion on the merits to affirm the superior court’s orders, held that Jones’ appeal was frivolous, and imposed sanctions. Jones made a motion to modify the ruling, and when it was denied he petitioned for review, which was also denied.
In August 2012, just before his disciplinary hearing and after the Washington State Bar Association distributed its witness list naming Peter and Jeffrey, Jones filed a new lawsuit naming Peter and Jeffrey as defendants. The suit again asked for relief from the 2001judgment and asserted the same arguments Jones made in previous motions.
Failure to pay sanctions
Throughout the litigation about Ms. Jones’ estate, Jones was sanctioned multiple times, totaling over $138,881. As of the date of Jones’ disciplinary hearing he owed $123,901.93 in sanctions. He was held in contempt four separate times for failing to provide access and documentation to his assets.
COUNTS OF MISCONDUCT
The WSBA filed a complaint under ELC 10.3, charging Jones with four counts of misconduct.
Count one charged Jones with violating RPC 3.4(c) and (d) “[b]y failing to make a reasonably diligent effort to comply with one or more legally proper discovery requests served on him by Jeffrey and Peter’s lawyers during the course of the pre-trial litigation.”
Counts two and three charged Jones with violating RPC 3 .1 and/ or 8 .4(d) “[b]y filing motions for relief, vacation or revision of judgment, disqualification, and/or neutral judge that were frivolous” and for filing frivolous appeals.
Count four charged Jones with violating RPC 8.4(c) and/or (d) “[b ]y seeking to inflate the value of the piano in retaliation against Jeffrey and/or valuing the estate house at only $126,000 despite having and/or knowing of appraisals that valued the house at $155,000 or more.”
The hearing officer applied the American Bar Association’s Standards for
Imposing Lawyer Sanctions (1991 & Supp. 1992) to determine the appropriate sanction. For count one, the hearing officer determined that Jones violated RPC 3.4(c) and (d) “[b]y failing to make a reasonably diligent effort to comply with one or more legally proper discovery requests served on him” during the course of pretrial litigation. CP at 187. The hearing officer determined that Jones acted knowingly by making false responses to discovery requests and by withholding documents to conceal his dishonest responses. Such violation was found to be intentional discovery abuse that harmed the co beneficiaries of the estate, as well as the legal system. Applying ABA Standards std. 6.21, the hearing officer found that the appropriate presumptive sanction for count one was disbarment.
As to counts two and three, the hearing officer found that Jones violated RPC 3.1 and 8.4( d) “[b]y filing motions for relief, vacation and revision of judgments, disqualifications, and neutral judge that were frivolous” and by filing frivolous appeals. CP at 187. The hearing officer found that Jones acted with a knowing mental state because he filed such motions “with the clear purpose and intent to further his vendetta against brothers Jeffrey and Peter, co-beneficiaries, in an effort to intimidate them by the need to pursue and fund continuing litigation.” CP at 189. Such misconduct frustrated and prejudiced the administration of justice.
Similarly, for count three, the hearing officer found that Jones “engaged in knowingly frivolous appeals with the clear purpose and intent to further his vendetta against his co-beneficiaries.” Applying ABA Standards std. 6.21, the hearing officer found that the appropriate presumptive sanction for counts two and three was disbarment.
As to count four, the hearing officer found that Jones violated RPC 8.4(c) and (d) “[b]y seeking to inflate the value of the piano in retaliation against Jeffrey, and by undervaluing the estate house despite knowing of appraisals that valued the house at $155,000 or more.” CP at 187. The hearing officer found that Jones made the misrepresentations charged in count four knowingly as part of a dishonest scheme to defraud his co-beneficiaries. Such conduct “seriously adversely reflects on Respondent’s fitness to practice.” CP at 190. The hearing officer applied ABA Standards std. 5.11(b) to conclude that the presumptive sanction was disbarment.
The hearing officer then considered if any aggravating or mitigating factors should be applied to alter the presumptive sanction. The hearing officer found that seven aggravating factors applied: (1) dishonest or selfish motive, (2) a pattern of misconduct, (3) multiple offenses, (4) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, (5) refusal to acknowledge the wrongful nature of conduct, (6) substantial experience in the practice of law, and (7) indifference to making restitution. CP at 190-92. The hearing officer determined that one mitigating factor applied: absence of a prior disciplinary record. Pursuant to the ABA Standards’ presumptive sanctions and the application of the aggravating and mitigating factors listed above, the hearing officer recommended that Jones be disbarred. The hearing officer recommended that reinstatement be conditioned on Jones’ paying all unsatisfied judgments entered against him during the litigation.
In September 2013, by a unanimous vote, the Board adopted the hearing officer’s amended findings of fact and conclusions of law (FFCL).
Jones appealed to the State Supreme Court and held oral arguments by Jones’ attorney and an attorney representing the WSBA’s Office of Disciplinary Counsel.
The video of the oral arguments before the Washington Supreme Court can be viewed HERE
Counsel for Mr. Jones, Kurt Bulmer, argued the bar association did not define “frivolous” specifically as it related to his client’s conduct. Rather, instead of defining why it was considered frivolous, and therefore subject to challenge by Jones it was simply declared without reason. He further extended his argument to the rulings of the appeals court saying, interestingly, that their ruling is “hearsay” and he was not allowed to cross-examine the court of appeals judges in his client’s disciplinary hearing.
Justice Barbara Stephens then asked “You’re saying that a court of appeal’s opinion is hearsay?” to which Bulmer argued “As to proving whether or not it was frivolous. That’s right, because I don’t get to the court of appeals justices on the stand and say ‘well, when you rendered an opinion that it was frivolous what burden of proof did you use..,’ they [the bar] does not get to transfer over. They do not get transfer over the truth in the matter.”
This is a rather unusual approach. Please refer to the video for other arguments from both sides of the case.
At the conclusion of review, the Supreme Court ruled as follows:
We find that the challenged findings of fact are supported by substantial evidence and the challenged conclusions of law are adequately supported by the factual findings. Jones knowingly and with a dishonest intent violated RPC 3.1, 3.4(c) and (d), and 8.4(c) and (d). His conduct caused actual injury to his brothers, Woodward, and the administration of justice. The Board, by a unanimous vote, upheld the hearing officer’s conclusion that the presumptive sanction for such conduct under the ABA Standards is disbarment. We adopt the Board’s recommendation and order Russell Kenneth Jones disbarred from the practice of law.
It seems that after 15 motions, 8 appeals and appellate motions, 2 separate lawsuits that already been litigated, one of which was determined by the hearing board to have been retaliatory in nature, sanctions for over $138,000 dollars, ejection from the house subject to probate after 9 years of legal contentions, and the alleged infliction of harm to his brothers would be sufficient grounds for being not considered a model of brotherly love either.
By Darren Smith
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.