In re Disciplinary Proceeding Against Fossedal
201,600-6
Wash.Aug 17, 2017Background
- Dana K. Fossedal, a Washington attorney since 1998, received $117,225.17 settlement funds for client Brian Schoof in January 2010, endorsed and deposited the check into her trust account, and never disbursed the funds to Schoof.
- Fossedal moved trust funds between banks and repeatedly transferred trust funds to her business/personal accounts; by September 2011 the trust account held $24.74. She used the funds for payroll and personal expenses.
- Schoof repeatedly sought his money, filed a WSBA grievance (2012), and obtained a default judgment; the Lawyers’ Fund for Client Protection later paid Schoof $117,225.17. Fossedal pled guilty to first-degree theft (abuse of trust) and was sentenced to a jail term and restitution.
- At the disciplinary hearing Fossedal admitted the facts and presented evidence of chronic pain and opioid dependence as mitigation; the hearing officer found multiple mitigating factors and recommended a three-year suspension (presumptive sanction is disbarment for theft).
- On appeal the WSBA Disciplinary Board unanimously (11-0) recommended disbarment, finding that physical pain and opioid dependence did not establish the required extraordinary mitigation and that causation for chemical dependency was not shown.
- The Washington Supreme Court adopted the Board’s recommendation and disbarred Fossedal, requiring payment of court-ordered restitution and reimbursement to the LFCP before reinstatement.
Issues
| Issue | Plaintiff's Argument (Fossedal) | Defendant's Argument (ODC / Board) | Held |
|---|---|---|---|
| Whether extraordinary mitigation excused departure from presumptive disbarment for theft of client funds | Chronic debilitating pain and opioid dependence caused impaired judgment and constitute extraordinary mitigation warranting suspension instead of disbarment | Pain and substance dependence do not establish causation or extraordinary mitigation; prior precedent disfavors mitigation for addiction-related theft | Court: No; neither pain nor opioid dependence (nor their combination) established extraordinary mitigation — disbarment upheld |
| Whether medical/psychiatric evidence was required to prove causation from chemical dependency | Hearing officer’s findings and lay testimony suffice to show opioid dependence caused misconduct | Expert medical evidence is required to prove causation of misconduct by mental/chemical condition | Court: Expert/medical proof required; record did not establish causation and prior cases refuse to treat addiction as extraordinary mitigation |
| Whether hearing officer’s findings about motive/mental state conflict with criminal conviction (ELC 10.14(c)) | Hearing officer’s nuanced findings about memory and motive justify mitigation despite conviction | Conviction establishes intent conclusively for disciplinary purposes; findings inconsistent with intent are problematic | Court: Declined to resolve conflict because disbarment was warranted regardless; did not overturn hearing officer findings as unnecessary to outcome |
| Whether disbarment is proportionate given the Board’s unanimous recommendation | Suspension recommended by hearing officer is proportional in light of mitigating factors | The unanimous Board recommendation and severity of client harm make disbarment proportionate to protect public confidence | Court: Disbarment proportionate and necessary to protect public and maintain confidence in profession |
Key Cases Cited
- Rentel v. Washington State Bar Ass'n, 107 Wn.2d 276 (1986) (strong policy against client fund violations; disbarment presumptive for theft of client funds)
- Schwimmer v. Washington State Bar Ass'n, 153 Wn.2d 752 (2005) (addiction does not ordinarily constitute extraordinary mitigation for theft of client funds)
- McLendon v. Washington State Bar Ass'n, 120 Wn.2d 761 (1993) (extraordinary mitigation found where uncontroverted psychiatric evidence showed organic mental illness altered judgment)
- Petersen v. Washington State Bar Ass'n, 120 Wn.2d 833 (1993) (expert testimony required to establish medical facts in disciplinary proceedings)
- Anschell v. Washington State Bar Ass'n, 141 Wn.2d 593 (2000) (deference to Disciplinary Board’s sanction recommendation; unanimity merits particular weight)