150 Wash. 2d 744 | Wash. | 2004
Attorney Norman Wolfe Cohen (Cohen) appeals the Washington State Bar Disciplinary Board’s (Board) recommendation to suspend him for one year for three counts of misconduct. The Washington State Bar
Cohen argues that the WSBA failed to prove count III, improper withdrawal from his client’s case, since he offered a letter from his physician that suggested he suffers from physical and mental conditions. He also argues that the hearing officer and Board failed to properly evaluate the applicable aggravating and mitigating circumstances and that the one-year suspension is disproportional to sanctions imposed for similar offenses. We reject Cohen’s arguments and affirm the Board’s recommendation that Cohen should provide restitution and serve a one-year suspension without credit for any period of suspension he serves in his other disciplinary matter. We also hold that the hearing officer and the Board may properly consider other pending disciplinary cases in determining sanctions.
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Statement of the Facts
Cohen was admitted to the WSBA in 1965. His practice consists of workers’ compensation, employment law, and personal injury. Since 1970, Cohen has received four admonitions, a censure, and a reprimand because he failed to communicate with clients or diligently pursue cases. Last year, we suspended Cohen for six months followed by two years of probation for misconduct in his handling of
This matter arose from Cohen’s representation of Ron “Arne” Erickson (Erickson). In May 1996, Erickson retained Cohen to represent him in an employment dispute with King County Parks (King County). The trial court judge initially scheduled Erickson’s trial for July 27, 1998. Despite Erickson’s requests for quick resolution of his case, Cohen obtained a continuance due to commitments in other cases and failed to inform Erickson about the delay.
Cohen contacted King County’s counsel, Alex Golan, about a second continuance in July 1998 after Golan filed a motion to compel discovery. When Golan hesitated, Cohen offered to voluntarily dismiss the suit. Cohen and Golan executed a joint stipulation to voluntarily dismiss Erickson’s suit, and the trial court judge dismissed his case on August 6, 1998. To justify this second delay to his client, Cohen told Erickson that King County had asked for the continuance, and that he could not oppose King County’s request.
Cohen refiled Erickson’s lawsuit in September 1998 but failed to file a confirmation of service or to send Erickson a copy of the scheduling order for the new trial. Cohen also failed to timely file a confirmation of joinder and statement of arbitrability. After Cohen missed a status conference, the trial court judge dismissed Erickson’s case without prejudice in April 1999. Cohen paid the sanction required by the court for the missed status conference and subsequent dismissal, and had the case reinstated once again in June 1999.
At arbitration, Cohen presented two witnesses and demanded one dollar in damages. The arbitrator ruled against Erickson. Cohen then filed for a trial de novo but neglected to timely file a jury demand with his request, pursuant to King County Local Mandatory Arbitration Rule 7.1. On Cohen’s motion to reverse this error, the trial court refused to grant Erickson’s jury demand.
Finally, in November 2000, after the defendants filed a summary judgment motion and a motion for expedited consideration, Cohen filed a motion to withdraw. He failed to inform Erickson of his intent to withdraw before filing his motion with the trial court. Cohen supported his motion with a letter from his physician that stated Cohen suffered from high blood pressure, hyperlipidemia, and had recently experienced the death of a relative. Cohen knew of his health problems for more than a year before making his decision to withdraw from Erickson’s case.
Erickson was unable to obtain new counsel after Cohen withdrew because of the difficult procedural posture of his case. Cohen left his client with no jury, trial de novo, and a rapidly approaching trial date. Consequently, Erickson agreed to dismiss the case with prejudice after defendants notified him that he could be liable for King County’s attorney fees and costs.
On September 24, 2001, the WSBA filed its formal complaint against Cohen based on his actions in Erickson’s case and held a disciplinary hearing on May 7, 2002. Count
In count II, the WSBA asserted that Cohen had failed to communicate adequately with his client. On count II, the hearing officer found that Cohen violated RPC 1.4(a) and 1.4(b) because he did not tell Erickson about the voluntary dismissal. He found that Cohen also failed to explain the risks of mandatory arbitration, failed to tell Erickson about the transfer of his case to arbitration, failed to obtain his consent to the arbitration transfer, neglected to return Erickson’s phone calls, and failed to keep Erickson informed about the status of his case. R. at 13-14, CL 65.
In count III, the WSBA asserted that Cohen violated RPC 1.15, 1.3, and 1.4 by improperly withdrawing from Erickson’s case, and/or failing to withdraw sooner, and/or failing to tell Erickson sooner about his need to withdraw. On count III, the hearing officer found that Cohen had violated RPC 1.15 by withdrawing from Erickson’s case without a valid reason. R. at 14, CL 65. The hearing officer did not find that Cohen’s claims of physical and mental health problems justified withdrawal. R. at 14, CL 66. Further, Cohen violated RPC 1.15, 1.3, and 1.4 by failing to advise his client about his illness even though he knew about his conditions for more than one year before making his motion to withdraw. Id.
The hearing officer considered the following eight aggravating factors when making his decision to discipline Cohen: prior disciplinary offenses, dishonest or selfish motive, pattern of misconduct, multiple offenses, refusal to acknowledge wrongfulness of the conduct, vulnerability of the victim, substantial experience in the practice of law,
The Board adopted the hearing officer’s findings of fact, conclusions of law, and recommendation with several amendments. Decision Papers (DP) at 1. The Board omitted all references to Cohen I but determined that the remaining aggravating factors justified the yearlong suspension. Id. The Board refused to give Cohen credit for any other suspension and declined to impose any probationary period. Id. Finally, the Board found that restitution of $1,836.42 should remain a condition of Cohen’s reinstatement at the end of the suspension. Id. at 2. Cohen appealed.
Before this court, Cohen challenges the hearing officer’s and Board’s conclusion that the WSBA proved count III since he had provided the hearing officer and Board with his physician’s letter, which he asserts established physical and emotional conditions that justified his untimely withdrawal from Erickson’s case. Additionally, Cohen argues that the hearing officer and Board incorrectly determined aggravating and mitigating circumstances and that his one-year suspension is disproportional to sanctions imposed for similar misconduct. Cross-appealing, WSBA requests that we provide guidance to the Board as to whether it should consider other pending disciplinary actions as evidence of a pattern of misconduct, an aggravating factor, when it imposes sanctions.
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Standard of Review
This court bears the ultimate responsibility for lawyer discipline in Washington. In re Disciplinary Pro-
We give greater weight to the conclusions of the Board with regard to the recommended sanction than we give to the conclusions of the hearing officer. In re Disciplinary Proceeding Against McMullen, 127 Wn.2d 150, 162, 896 P.2d 1281 (1995). We have stated that the Board is “ ‘ “the only body to hear the full range of disciplinary matters” ’ ” and has a “ ‘ “unique experience and perspective in the administration of sanctions.” ’ ” Anschell, 141 Wn.2d at 607 (quoting In re Disciplinary Proceeding Against Dann, 136 Wn.2d 67, 84, 960 P.2d 416 (1998) (quoting In re Disciplinary Proceeding Against Noble, 100 Wn.2d 88, 94, 667 P.2d 608 (1983))). Nonetheless, we are not bound by the Board’s recommendations. In re Disciplinary Proceeding Against Haskell, 136 Wn.2d 300, 317, 962 P.2d 813 (1998).
III
Analysis
Counts I and II
As an initial matter, Cohen has conceded that the WSBA proved count I, violations of RPC 1.3 and 3.2, and count II,
Count III: Physical and/or Mental Illnesses to Justify Withdrawal
RPC 1.15 details withdrawal requirements for lawyers in Washington State. It contains two sections. RPC 1.15(a)(1)-(3) identifies circumstances that require a lawyer to withdraw from representation of a client, and RPC 1.15(b)(l)-(6) identifies circumstances when a lawyer is permitted to withdraw from representation of a client so long as withdrawal does not cause “material adverse effect on the interests of the client.” RPC 1.15(b). The provision at issue in this matter, RPC 1.15(a)(2), states:
(a) Except as stated in section (c), a lawyer shall not represent a client or, where representation has commenced, shall, notwithstanding RCW 2.44.040, withdraw from representation of a client if:
(2) The lawyer’s physical or mental condition materially impairs his ability to represent the client;....
Thus, if a lawyer suffers from a physical or mental condition that affects his representation of a client, RPC 1.15(a)(2) requires the lawyer to withdraw.
Other than his own testimony, the only evidence that Cohen presented to support his claim that his physical and mental conditions required his withdrawal was a letter from his physician. The letter stated:
I am the primary care physician and an internist caring for Mr. Cohen over the last 10 to 15 years. He has recently been found to have hyperlipidemia and elevated blood pressure. It is my opinion that Mr. Cohen’s health requires him to decrease his workload dramatically. I have recommended and continue to recommend a number of modalities including a significantly reduced work schedule for the next three months. He is receiving appropriate treatment for his current illness.
On a different level, he is also undergoing a significant time of personal stress, and other significant issues, exacerbated by a recent death in the family.
Ex. 41. The hearing officer concluded that “this letter lacks sufficient specificity to be accorded weight, particularly absent any opportunity to be subject to cross-examination.” R. at 11, Findings of Fact (FOF) 55. The Board affirmed the hearing officer’s conclusion. DP at 1.
We generally require expert testimony in disciplinary proceedings to establish medical facts that cannot be discerned by a layperson. In re Disciplinary Proceeding Against Petersen, 120 Wn.2d 833, 869, 846 P.2d 1330 (1993). For example, in Petersen the attorney claimed depression as a mitigating circumstance. We held that expert testimony was required because “[a]lthough some symptoms may be observable by lay witnesses, the entire diagnostic process involves medical matters which cannot be evaluated by the observation of lay witnesses.” Id. at 871.
Here, Cohen did not produce any expert testimony to establish the medical facts of his alleged physical and mental conditions. See Petersen, 120 Wn.2d at 871. Moreover, we agree with the hearing officer that the letter from Cohen’s physician carries little weight given its lack of specificity about his conditions. The physician’s letter fails to mention many of the health problems claimed by Cohen during his own testimony at the disciplinary proceeding. In regard to the two conditions it does mention, hyperlipi-demia and high blood pressure, it fails to discuss how long Cohen suffered from the conditions and what type of treatment, if any, he pursued. Because Cohen fails to provide any expert testimony or specific details about his conditions and treatments, he cannot argue that RPC 1.15(a) mandated his withdrawal.
Since Cohen cannot convincingly claim that RPC 1.15(a)(2) or any other events under RPC 1.15(a) mandated his withdrawal, the permissive withdrawal provisions in RPC 1.15(b) govern. RPC 1.15(b) states that a lawyer may withdraw “if withdrawal can be accomplished without material adverse effect on the interests of the client.” Here, the WSBA established that Cohen withdrew less than a month before trial and that Erickson could not find another attorney to take his case. Erickson also suffered financial consequences since he paid Cohen for at least some of his legal fees. Thus, Cohen’s last-minute withdrawal clearly had a material adverse financial effect on Erickson and effectively denied him his day in court. Therefore, we hold that the hearing officer correctly concluded that Cohen violated RPC 1.15(b), 1.3, and 1.4 when he withdrew from Erickson’s case one month before the scheduled trial.
The American Bar Association’s Standards for Imposing Lawyer Sanctions
The Presumptive Sanction
Here, the hearing officer found several ethical violations. He concluded that Cohen violated RPC 1.3 and 3.2 by failing to represent Erickson diligently and failing to expedite the litigation consistent with Erickson’s interests.
Additionally, the hearing officer found that Cohen acted knowingly. R. at 14, CL 68. The Standards defines “knowledge” as “the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result.” Standards at 17. Ample evidence exists to support the hearing officer’s conclusion given that Cohen knew his decisions to continue, dismiss, transfer to arbitration, and withdraw from Erickson’s case would have the effect of delaying Erickson’s suit. Accordingly, we find that the hearing officer correctly concluded and the Board properly affirmed that Cohen acted with knowledge.
The record also indicates that Cohen caused actual harm to his client. Despite Erickson’s repeated pleas for quick resolution of his case, Cohen significantly delayed Erickson’s suit several times through no fault of Erickson and without Erickson’s knowledge or consent. Further, Erickson called Cohen frequently but was unable to speak to Cohen, and Cohen rarely returned his calls. R. at 13, FOF 61. When Cohen withdrew, Erickson could not find another attorney to take his case. R. at 13, FOF 59, 60. In effect, Cohen’s actions deprived Erickson of his day in court. Thus, Erickson suffered actual harm.
Given that the WSBA established that Cohen knowingly failed to perform services for Erickson which resulted in injury and/or engaged in a pattern of neglect, the hearing officer determined that suspension served as the presumptive sanction for counts I and II pursuant to Standards std.
Aggravating and Mitigating Circumstances
Next, we must consider aggravating and mitigating circumstances. The hearing officer evaluated the aggravating and mitigating circumstances pursuant to Standards stds. 9.22 and 9.32. Eight aggravating factors existed: prior disciplinary offenses, dishonest or selfish motive, pattern of misconduct,
First, Cohen objects to the Board’s reliance on his 1970’s and 1990’s disciplinary offenses when it considered his yearlong suspension. Cohen’s Br. at 28. He contends the offenses are too remote. However, the similarity of the past misconduct with the current matter makes these previous matters highly relevant. In fact, we considered the previous matters as an aggravating factor when we determined his sanction in Cohen I last year. Cohen I, 149 Wn.2d at 340. Therefore, we affirm the Board’s decision to consider Cohen’s 1970’s and 1990’s offenses as evidence of a pattern of misconduct, an aggravating factor.
In addition, since confusion exists about the impact of pending disciplinary actions like Cohen I on determinations of appropriate attorney sanctions, we recognize that some guidance from this court is necessary. Accordingly, we
Cohen also disputes the hearing officer’s conclusion that he acted with a selfish motive, an aggravating factor, when he decided to withdraw from Erickson’s case. Cohen’s Br. at 28-29. Rather, Cohen claims that he adhered to his duty under RPC 1.15(a)(2). Given that we have rejected Cohen’s claims that he offered sufficient evidence to demonstrate existence of a physical or emotional condition and the absence of other reasons for withdrawal, we also reject Cohen’s argument that he acted in the best interests of his client when he withdrew because of his alleged health problems. Therefore, we affirm the hearing officer’s finding that Cohen acted with a selfish motive.
A six-month suspension is the accepted minimum term of suspension. Cohen I, 149 Wn.2d at 339. In Cohen I, we found that “[t]he minimum suspension is appropriate in cases where there are both no aggravating factors and at least some mitigating factors, or when the mitigating factors clearly outweigh the aggravating factors.” Id. In this case, aggravating factors overwhelmingly outweigh the mitigating factors. This justifies a period of suspension above the minimum term. Moreover, even if we were to strike the aggravating factors that Cohen contests, aggravating factors still outweigh mitigating factors. We agree that suspension higher than the minimum is appropriate.
Lastly, we consider the Board’s decision to refuse Cohen credit for the suspension that he received for his
The Noble Factors
Additionally, this court considers the revised Noble factors of degree of unanimity and proportionality. Kuvara, 149 Wn.2d at 259; see also Noble, 100 Wn.2d at 95-96 (adopting five factors to consider when evaluating the Board’s sanction recommendation). Here, the Board was almost unanimous in its decision, voting 11 to 1 to recommend a one-year suspension. Given the degree of unanimity, we should hesitate to grant a lesser sanction. See Noble, 100 Wn.2d at 94.
“Under proportionality review, we analyze whether a presumptive sanction is proper by comparing the case at hand with other similarly situated cases in which the same sanction was approved or disapproved.” In re Disciplinary Proceeding Against Miller, 149 Wn.2d 262, 285, 66 P.3d 1069 (2003). In In re Disciplinary Proceeding Against Kagele, 149 Wn.2d 793, 821, 72 P.3d 1067 (2003), we stated that the attorney facing discipline bears the burden of bringing cases to the court’s attention that demonstrate the disproportionality of the sanction imposed. Cohen points to various Washington State Bar News disciplinary notices to support his argument of disproportionality. Cohen’s Br. at 30-32. However, these notices do not provide the degree of specificity necessary to permit a meaningful comparison with Cohen’s case, particularly as they do not mention the attorneys’ previous disciplinary records.
We find our discussion and application of proportionality in Anschell, 141 Wn.2d at 615-19, most instructive. In Anschell, the Board recommended that Anschell receive a two-year suspension because his misconduct had resulted in serious harm to his client and because he had a prior
Similar to Anschell, the nature of the harm in this case and Cohen’s past disciplinary offenses support a one-year suspension. First, although the harm to Erickson did not rise to the level of loss of legal immigration status suffered by the client in Anschell, Cohen effectively deprived Erickson of his day in court, a significant harm. Further, Cohen committed similar misconduct numerous times. Therefore, in consideration of Cohen’s prior disciplinary offenses, his offense in Cohen I, and the harm Erickson suffered, we hold that Cohen’s one-year suspension was proportional to cases where we have imposed such a penalty.
IV
Conclusion
We affirm the hearing officer’s and Board’s findings that Cohen violated the RPCs by failing to act diligently and in the best interests of his client, failing to communicate adequately with his client, and withdrawing from the representation without valid medical reasons to the detriment of his client. Given the facts of this case and Cohen’s prior disciplinary record, the Board’s recommendation of a one-year suspension with restitution should be affirmed.
The hearing officer found Cohen was motivated to pursue arbitration by a desire to avoid trying the case in January 2000.
Erickson was unaware of his potential liability for attorney fees at trial de novo until contacted by King County.
In his briefs to the Board and this court, Cohen disputed the hearing officer’s finding that he failed to conduct discovery on Erickson’s behalf and that he voluntarily dismissed Erickson’s lawsuit for personal reasons. Cohen’s Br. at 7. However, he conceded these findings before this court at oral argument. These findings, in part, justified the hearing officer’s conclusion that the WSBA proved counts I and II of its complaint against Cohen.
Cohen also argues that the WSBA did not prove count III because the WSBA bears the burden of showing that he did not actually suffer from physical and
(1991 & Supp. 1992).
Standards std. 4.42 states:
Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client, or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.
Standards std. 7.2 states:
Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.
This court has determined a pattern of misconduct exists when an attorney has committed multiple violations involving multiple clients over an extended period. In re Disciplinary Proceeding Against Brothers, 149 Wn.2d 575, 586, 70 P.3d 940 (2003).
In addition to his misconduct in Cohen I, Cohen’s fall disciplinary record includes the following offenses:
(1) In 1972, he received a censure for failing to communicate, giving his client false information about his case, and failing to cooperate in WSBA’s investigation.
(2) In 1973, he received a reprimand for neglecting a legal matter by failing to attend hearings on the client’s behalf.
(3) In 1990, he received two admonitions for not communicating with his clients, not timely sending relevant documents to his clients, and failing to act with diligence.
(4) In 1990, he received an admonition for failing to comply with a court order requesting that a pretrial order be filed, which resulted in the dismissal of his client’s case with prejudice.
(5) In 1990, he received an admonition for failing to keep his clients reasonably informed about two cases, in particular failing to advise them that their cases had been dismissed. Ex. 55.
We have previously held that the hearing officer and Board may take a pending disciplinary action into account in a second disciplinary action provided that the attorney was aware of the first action. Brothers, 149 Wn.2d at 586. Other states have also considered pending disciplinary actions to determine whether a pattern of misconduct existed. See, e.g., In re Brown, 184 Ariz. 480, 484 n.3, 910 P.2d 631 (1996); In re Wilson, 715 N.E.2d 838, 841-42 (Ind. 1999); In re Disciplinary Action Against Bailey, 527 N.W.2d 274, 276 (N.D. 1995).
