152 Wash. 2d 601 | Wash. | 2004
Lead Opinion
Allstate Insurance Company (Allstate) retained Mark J. Dynan in three different lawsuits to represent people insured by the company. Dynan requested attorney fees in these suits under RCW 4.84.250 and/or Mandatory Arbitration Rules (MAR) 7.3. Dynan submitted declarations for attorney fees and copies of bills sent to Allstate in support of his motions for attorney fees. The declarations stated that the bills attached were true and correct billings for Dynan’s time and services. However, the attached bills were not those sent to Allstate. Dynan’s office whited out the actual hourly rate, $100-$120, and replaced it with a reasonable attorney fee, $150 per hour, before he submitted the bills to the court. Dynan’s knowing alteration of the bills and submission of false declarations to the court constitute falsification and misrepresentation of evidence. The presumptive sanction for false swearing is disbarment. However, in light of our proportionality analysis, as well as our rejection of one of the Disciplinary Board’s (Board) aggravating factors in favor of the corresponding mitigating factor, we depart from the Board’s recommendation of a nine-month suspension and hold that Dynan is suspended for six months.
STANDARD OF REVIEW
In disciplinary proceedings, the Supreme Court has “plenary authority” and the court’s discretion is limited only by the evidence before it. In re Disciplinary Proceeding Against Whitt, 149 Wn.2d 707, 716, 72 P.3d 173 (2003). The court will treat unchallenged findings of fact as verities on appeal and a challenged finding of fact will not be overturned if it is supported by a clear preponderance of the evidence. See In re Disciplinary Proceeding Against Kuvara, 149 Wn.2d 237, 246, 66 P.3d 1057 (2003); In re Disciplinary Proceeding Against Anschell, 149 Wn.2d 484, 503, 69 P.3d 844 (2003); State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994); Rules for Lawyer Discipline (RLD) 4.11(b) (stating disciplinary council must prove misconduct
FACTS
Although Dynan assigns error to the Board’s modification of the hearing officer’s findings of fact, Dynan specifically challenges only the Board’s modified finding of fact 12, which is supported by a clear preponderance of the evidence. See Resp’t’s Br. at 4, 16.
Dynan, representing Allstate and Allstate insurees, submitted sworn declarations to the court in support of his motion for attorney fees in Hedberg, Han, and Walls pursuant to MAR 7.3 or RCW 4.84.250 between 1997 and 1999. Report of Proceedings (RP) (Dec. 5, 2001) at 33 (Han, MAR 7.3), 35 (Hedberg, RCW 4.84.250), 36-37 (Walls, RCW 4.84.250). All three declarations used similar language. In Hedberg the declaration stated “[attached hereto as Tab No. 1 are true and correct billings for my time and services expended on this matter.” Ex. 1. The declaration in Walls used identical language, substituting Tab No. 1 with Tab No. 3. Ex. 15. In Han two declarations were submitted. The first stated, “[a]ttached hereto are copies of the past bills sent to the insurance company.” Ex. 5. The second stated, “[attached hereto are true and correct copies of all billing charges.” Ex. 8.
No attorney fees were paid out in Hedberg and Walls because Hedberg settled and the attorney fee award in Walls was overturned on appeal. In Han, attorney fees were granted and the plaintiff paid approximately $3,449 more than Dynan’s actual fees.
Based on the above conduct, the WSBA filed complaints against Dynan regarding declarations and bill submissions made to the court in Hedberg, Han, and Walls. The WSBA accused Dynan of four counts of misconduct based on violations of Rules of Professional Conduct (RPC) 3.3(a)(1)
ISSUES
1. Did the WSBA prove all four counts of misconduct based on the violation of RPC 3.3(a)(1) and (4), 3.4(b), and 8.4(c) and (d) by a preponderance of the evidence?
2. If the WSBA proved misconduct, is the appropriate sanction a nine-month suspension?
ANALYSIS
Our court has determined that the American Bar Association’s Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) (ABAStandards) should guide our bar disciplinary cases. Halverson, 140 Wn.2d at 492. Under the ABA Standards, after misconduct is found the court performs a two prong analysis. Id. at 492-93. First, the court determines the presumptive sanction based on the ethical duty violated, the attorney’s mental state, and the extent of actual or potential harm caused by the conduct. Id. The court then considers aggravating and mitigating factors, which may decrease or lengthen the presumptive sanction. Id. at 493; see ABA Standards stds. 9.22, 9.32. Finally, the court will adopt the Board’s recommended sanction unless the sanction departs significantly from sanctions imposed
A. Ethical Violations/Misconduct
Dynan challenges the Board’s conclusions of law finding him guilty of all four counts of misconduct, and argues the WSBA did not prove the misconduct by a clear preponderance of the evidence.
1. Count I — RPC 3.3(a)(1)
RPC 3.3(a)(1) states “[a] lawyer shall not knowingly make a false statement of material fact or law to a tribunal.” The Board’s modified findings of fact show Dynan knowingly submitted material and false declarations and attached billings in support of his motions for attorney’s
a. Materiality
Dynan argues that an attorney does not have to provide documentation of his actual fee rate to the court because the actual rate may not be the reasonable rate and is therefore not material to a determination of a reasonable fee award. Dynan further asserts that an attorney’s actual rate is not material to a fee award because the purpose of fee awards is to penalize the opposing party and this may be accomplished by a reasonable fee greater than the actual fee charged. Dynan relies on the lodestar method of calculating fees, the context of his fee arrangement, and the overall purpose of fee shifting statutes to support his “immaterial” argument.
We recognize there are instances where an attorney’s actual fee may be less than a reasonable fee, that one purpose of fee shifting statutes is to penalize certain parties, and that the lodestar method may not specifically require an attorney to submit his actual billing rate.
Judge Terry D. Sebring, the presiding judge in the Han case where fees were awarded, testified that typically when a lawyer wants a fee award that is higher than his actual fee the lawyer discloses this to the court. RP (Dec. 4, 2001) at 114-15, 119-20; see also RP (Dec. 4, 2001) at 56-57, 168 (two Washington lawyers testifying to this practice).
b. Falsity
Dynan parses out his declarations and argues that the declarations do not contain false statements because he
2. Counts II and III — RPC 3.3(a)(4), 3.4(b)
RPC 3.3(a)(4) forbids knowingly offering false evidence to a tribunal. RPC 3.4(b) forbids falsifying evidence in regard to fairness due an opposing party or opposing counsel. As discussed above, each declaration, read as a whole, states that the billings are true and correct even though the submitted billings were altered. By altering the actual bills and then submitting them to the court with a declaration stating the bills to be true and correct, Dynan falsified evidence and then offered this evidence to the court. Further, opposing attorney Paul Apple received a copy of Dynan’s pleadings in Hedberg, which included Dynan’s declaration and falsified, altered billings. RP (Dec. 4, 2001) at 21-25. As opposing counsel in Han, Apple also received a letter regarding Dynan’s motion for attorney fees in Han that referenced an attached current billing statement, which reflected a $150 hourly rate instead of Dynan’s
3. Count IV — RPC 8.4(c) and (d)
RPC 8.4(c) states that “[i]t is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” RPC 8.4(d) provides that “[i]t is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.” The Board correctly determined that Dynan’s knowing misrepresentation of his actual hourly rate violated these provisions.
To determine an RPC 8.4(c) violation, the court must decide “whether the attorney lied. No ethical duty could be plainer.” In re Disciplinary Proceeding Against Dann, 136 Wn.2d 67, 77, 960 P.2d 416 (1998). Various explanations as to why lying occurred may mitigate the charge, but this does not change the truth of the underlying charge. Id. Dynan has tried to explain why he altered bills and submitted them to the court, but his motivation is inapposite. Reading each declaration as a whole, with the attached billings, proves Dynan misrepresented the billings as true and correct and misled the court, violating RPC 8.4(c).
Under RPC 8.4(d), an attorney may prejudice the administration of justice if he engages in conduct in his official capacity or advocatory role that violates practice norms or engages in conduct that physically obstructs justice. In re Disciplinary Proceeding Against Curran, 115 Wn.2d 747, 764, 801 P.2d 962 (1990); Kuvara, 149 Wn.2d at 255-56. Dynan argues that he did not prejudice the administration of justice because the court plays an active role in determining attorney fees and if the $150 hourly rate was not reasonable the court could reject it. He bases his arguments on the lodestar method of calculation and documentation required under that method.
Although Bowers does not specifically state that the attorney must provide the court with his actual billing rate, several witnesses testified that during a fee award determination, it is the normal practice for an attorney to present his actual rate and then argue for a higher rate if the actual rate is not reasonable. RP (Dec. 4, 2001) at 56-57, 114-15, 119-20, 168. This practice allows the court to reach a reasonable attorney fee based on actual and true evidence, adjusting the rate for other variables. See Bowers, 100 Wn.2d at 597 (noting that the actual rate of billing may not be reasonable and may be adjusted based on several factors). Dynan, in his official capacity, violated practice norms by not providing the court with his actual rate. Further, even if the submitted rate was reasonable, Dynan’s misrepresentations prejudiced the administration of justice by preventing the court from determining an attorney fee award based on true evidence.
B. Mental State
Since Dynan’s misconduct, based on several ethical violations, was proved by a preponderance of the evidence, we must determine Dynan’s mental state during commis
An attorney acts with knowledge if he acts with “ ‘the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result.’” McMullen, 127 Wn.2d at 169 (quoting ABA Standards, Definitions at 7). Dynan argues that he acted only negligently by providing the court with motives for his actions. However, what Dynan fails to recognize is that even if the court concedes that he did not act with the objective of deceiving the court and unintentionally created ambiguity, this does not change his mental state while he executed his misconduct. Dynan was consciously aware that he was not providing the court with true evidence when he signed the declarations and submitted altered billings. Therefore, Dynan acted knowingly, not negligently.
C. Injury
An attorney’s misconduct may cause injury if the conduct results in actual or potential harm to a client, the public, the legal system, or the legal profession. See ABA Standards std. 3.0, Definitions at 7 (defining actual and potential injury). Although an attorney award based on the $150 hourly rate may have been reasonable, in Han the court assumed the rate presented was accurate. RP (Dec. 4, 2001) at 120. The courts in Hedberg and Walls also may have assumed the accuracy of the rates. Had these courts been provided with truthful evidence, they may have determined that the fee award should be based on the actual
D. Presumptive Sanctions
In light of Dynan’s ethical violations, mental state, and the resulting potential harm, we conclude that under the ABA Standards the presumptive sanction is disbarment. The ABA Standards provide that the presumptive sanction for serious criminal conduct that includes interference with the administration of justice, false swearing, misrepresentation, or fraud is disbarment. ABA Standards std. 5.11. Following these standards, the presumptive sanction for counts I and II is disbarment as these counts involve false swearing under oath in an official proceeding, a criminal violation. RCW 9A.72.020.
E. Mitigating and Aggravating Factors
Since we have determined that the presumptive sanction is disbarment, we must consider any aggravating and mitigating factors that may increase or decrease this sanction. See ABA Standards stds. 9.22, 9.32 (listing aggravating and mitigating factors). Dynan offers several mitigating factors and challenges most of the Board’s aggravating factors. We agree with three of the aggravating factors the Board found present: a pattern of misconduct, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in practicing law. Decision Papers at 13 (Disciplinary Board Order). We also agree that Dynan’s absence of a disciplinary record is a mitigating factor. Id. However, we find that Dynan lacked a dishonest or selfish motive and add absence of a dishonest or selfish motive as a mitigating factor. We will address each challenged aggravating factor and suggested mitigating factor in turn.
Regarding the second challenged aggravating factor, we agree with the Board that Dynan refuses to acknowledge his wrongful conduct. Although Dynan admits his declarations were sloppy, he does not acknowledge that his actions constitute falsification of evidence prejudicial to the administration of justice. RP (Dec. 5, 2001) at 23-24, 30. Dynan merely provides the court with rationalizations for his conduct. See Resp’t’s Br. at 34-35, 39, 42 (stating that the actual fees are immaterial, the purpose of fee shifting statutes is served even if a fee award is not based on the actual attorney fee, and no actual harm resulted from Dynan’s actions). While explanations of an attorney’s behavior may help the court understand why the misconduct occurred, reasoning away the misconduct does not constitute acknowledgment of misconduct. See generally Anschell, 149 Wn.2d at 513-14 (discussing rationalizations in the context of acknowledgment of wrongful conduct).
The aggravating factors slightly outweigh the mitigating factors. However, based on a proportionality analysis, disbarment is inappropriate and a six-month suspension is the proper sanction.
The court will adopt the Board’s recommended sanction unless the sanction is not proportionate or the Board was not unanimous in its decision. Miller, 149 Wn.2d at 277-78, 285-86. Proportionate sanctions are those which are “ ‘roughly proportionate to sanctions imposed in similar situations or for analogous levels of culpability.’” Anschell, 141 Wn.2d at 615 (quoting In re Disciplinary Proceeding Against Gillingham, 126 Wn.2d 454, 469, 896 P.2d 656 (1995)). After conducting a proportionality analysis, and in light of our general rule that suspensions should be no less than six months in length, we hold that a six-month suspension is an appropriate sanction.
Four cases involving bill alterations and/or misrepresentations to clients and/or the court are similar to Dynan’s case.
In Haskell, a similar situation occurred. An attorney, who had an absence of a disciplinary record, substituted his initials and billing rate for the initials and rate of the
Finally, the attorney in Carmick violated RPC 3.3(f) and 3.5(c) “in his ex parte conduct before a tribunal by misrepresenting to the trial judge that all parties were aware of the requested ex parte order and had approved it.” Carmick, 146 Wn.2d at 600. Carmick also violated RPC 4.2 “by contacting a party he should have known was represented by counsel.” Id. Carmick, who had a prior disciplinary offense, received a 60-day suspension. Id. at 587, 605.
Like Dann and Haskell, Dynan altered billing statements. However, Dynan’s conduct was not merely misrepresentation of information. Dynan knowingly falsified evidence and submitted this evidence to the court and opposing counsel. Dynan did not cease his conduct until contacted by Paul Apple. Further, while no actual harm occurred to clients, the prospect of potential harm to the court system and opposing counsel was very high. More-over, Dynan’s conduct prevented the court from considering evidence material to an attorney fee determination and prejudiced the administration of justice. Comparing Dynan’s conduct with that of the attorneys’ in the altered billings and misrepresentation cases, and following our precedent that a suspension generally should not be less than six months, we hold that a six-month suspension is appropriate. See Halverson, 140 Wn.2d at 495 (noting that a six-month to three-year suspension is the appropriate range for suspensions).
CONCLUSION
Dynan knowingly altered bills and submitted false declarations to the court in support of his motions for attorney fees. Dynan also submitted documents reflecting the $150 per hour attorney fee to opposing counsel. Although he did not intend to deceive the court, Dynan falsified evidence, misrepresented his billing rate, submitted this evidence to the court and opposing counsel, and prejudiced the administration of justice. The presumptive sanction for false swearing is disbarment. However, based not only on our proportionality analysis but also on our transformation of one of the Board’s aggravating factors into a mitigating factor, we depart from the Board’s recommendation and hold that a six-month suspension is appropriate.
Alexander, C.J., and Ireland, Bridge, Chambers, and Fairhurst, JJ., concur.
The RLDs were superseded by the Rules for Enforcement of Lawyer Conduct (ELC) on October 1, 2002. The RLDs were applied to all proceedings in this case, which was ordered to hearing prior to October 1, 2002. See ELC 16.1.
Finding of fact 12 states that Paul Apple, the plaintiff’s lawyer in Le v. Hedberg, Pierce County Superior Court No. 97-2-12023-9, asked Dynan if the billing rate in his declarations was the true billing rate. Dynan told Apple it was not, a mistake had been made, and he would correct it, but the case settled before a correction was made. Decision Papers at 5 (Disciplinary Board Order). Apple and Dynan’s testimony support this finding. Report of Proceedings (RP) (Dec. 4, 2001) at 25-29 (Apple’s testimony of the events in finding of fact 12); RP (Dec. 5, 2001) at 30-32 (Dynan’s testimony explaining the fees were not the actual fees and he would correct it).
See former RLD 6.7(e) (stating that the Board may modify the hearing officer’s findings of fact). Additionally, it should be noted that any time a finding of fact is referenced it should be assumed that we are referring to the Board’s modified findings of fact, as the hearing officer did not number her findings of fact or conclusions of law. See R. Before the Disciplinary Board at 3-9 (Findings of Fact and Conclusions of Law).
Although the Han declarations are slightly different from those in Hedberg and Walls, they are included in the term “declaration” throughout the opinion because they portray the same information and misconduct as the other declarations: “the billings attached are true and correct,” when in reality the billings are altered.
It should be noted that Dynan’s chosen hourly rate of $150 was reasonable and he was not trying to enhance his fee by arguing that a current rate or a historic fee adjusted for inflation should be used instead of the rate at the time services were rendered. See RP (Dec. 4, 2001) at 140,157 (testimony supporting $150 as a reasonable hourly rate); Fisher Props., Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 377-78, 798 P.2d 799 (1990) (explaining that fee enhancement will not be extended beyond civil rights litigation); Decision Papers at 11-12 (Disciplinary Board Order) (explaining that reasonableness of the fee was not argued and fee enhancement is not the real issue in this case).
Although Dynan’s staff, and not Dynan himself, actually whited out the correct billing rate, the staff did so at Dynan’s direction. RP (Dec. 5, 2001) at 54-55. Whether Dynan is responsible for his staff’s actions is not in issue. See RPC 5.3. Therefore, throughout this opinion, we will refer to Dynan’s actions and/or the staff’s actions interchangeably (e.g., Dynan altered the billing statements).
Dynan does not assign error to finding of fact 53, which states that he acted knowingly, but he argues he acted negligently. Resp’t’s Br. at 16, 40-43. However, this finding is supported by a preponderance of the evidence, so we will uphold it. See infra section B (discussing Dynan’s mental state).
Finding of fact 23 states that Dynan’s client received $12,675 in attorney fees resulting in Han paying $3,449 more than Dynan’s actual fees. However, the overpayment should be viewed as an approximation because exhibit 9 shows the actual fee award was for $13,501.64.
Although the court previously considered five factors (the Noble factors), only proportionality and Board unanimity currently are considered in light of the adoption of the ABA Standards and the ELCs, even in cases applying the RLDs. In re Disciplinary Proceeding Against Noble, 100 Wn.2d 88, 667 P.2d 608 (1983); see Miller, 149 Wn.2d at 275 n.17, 278 n.20.
Dynan argues that appropriate conclusions of law may not he reached because the hearing officer did not appropriately set out her findings of fact. However, regardless of how the hearing officer set out her findings of fact, we uphold the Board’s conclusions of law where they are supported by the Board’s modified findings of fact, which are appropriately set out.
We recognize that finding of fact 12 was directly challenged and finding of fact 53 was indirectly challenged, but as noted above, both are supported by a preponderance of the evidence. See supra notes 2, 7.
“Count I: By knowingly making a false statement of material fact to a tribunal in the form of false declarations that he filed with the tribunal in the Hedberg and/or Han and/or Walls cases, Mr. Dynan violated RPC 3.3(a)(1).” Decision Papers at 4 (Disciplinary Board Order).
The mental element of Dynan’s misconduct will be discussed after each ethical violation is addressed because Dynan’s mental state for all violations was knowing.
See infra p. 617 for a discussion on the lodestar method.
Mr. Apple testified that sometimes attorneys ask for fee awards without submitting proof of the fee and in this case the actual fee may be lower than the reasonable fee. RP (Dec. 4, 2001) at 57-58. However, the court should provide a record for the basis of its fee award and should require the attorney to provide documentation of his fees when it is feasible for the attorney to do so. See Mahler v. Szucs, 135 Wn.2d 398, 434-35, 957 P.2d 632, 966 P.2d 305 (1998) (requiring the court to provide an adequate record for its fee award decisions).
Several witnesses testified that they would assume or expect the billings were accurate or unaltered. RP (Dec. 4, 2001) at 119-20, 173-75, 224-25.
“Count II: By knowingly offering altered itemized bilbng records as evidence in the Hedberg and/or Han and/or Walls cases, Mr. Dynan violated RPC 3.3(a)(4). Count III: By serving false declarations and/or false itemized billing records on opposing counsel in the Hedberg and/or Han and/or Walls cases, Mr. Dynan violated RPC 3.4(b).” Decision Papers at 4 (Disciphnary Board Order).
“Count IV: By misrepresenting to the tribunal and/or opposing counsel the true hourly rate he charged in the Hedberg and/or Han and/or Walls case, Mr. Dynan violated RPC 8.4(c) and (d).” Decision Papers at 4 (Disciplinary Board Order).
Dynan’s mental state is relative to the presumptive sanction and to conclusively deciding whether a violation of RPC 3.3(a)(1) and (4) occurred. A violation of these rules does not occur unless the lawyer acts with knowledge. See supra pp. 612-13, 615-16.
See supra note 8.
Counts I and II are considered together because these counts involve Dynan’s false declarations to the court and the altered billings attached to the declarations. Further, although the Han declarations may be the only declarations technically made under oath under the criminal law, this is enough to constitute serious criminal conduct, and the issue of whether all declarations constitute criminal conduct is not before us. See RCW 9A.72.010(2), .020, .085; Exs. 5, 8.
Reprimand is appropriate when a lawyer knowingly engages in conduct involving misrepresentations, which reflect on his fitness to practice law. ABA Standards std. 5.13.
Suspension is appropriate “when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.” ABA Standards std. 6.12 at 40.
Two aggravating factors, substantial experience practicing law and pattern of misconduct, will not be discussed. Dynan did not challenge substantial experience practicing law as an aggravating factor. Resp’t’s Br. at 44-45. Regarding a pattern of misconduct, Dynan mentions that all violations are based on the same conduct, but he does not specifically challenge this aggravating factor. Id. Further, as discussed above, Dynan’s actions in Hedberg, Han, and Walls clearly establish a pattern of misconduct: Dynan committed RPC violations against the Pierce
The dissent tries to distinguish this case from Dann by noting that Dynan, unlike Dann, stopped falsifying evidence on his own accord. Dissent at 629-31. However, Dynan stopped his misconduct only after opposing attorney Paul Apple questioned his practices. RP (Dec. 5, 2001) at 23. Further, the fact that Dann did not initiate the end to the misconduct seems secondary to the court’s conclusion that ending misconduct does not erase the misconduct. See Dann, 136 Wn.2d at 83-84.
Dynan urges the court to accept his good character or reputation as an additional mitigating factor. Several witnesses, including judges, testified as to Dynan’s ethical character. RP (Dec. 4, 2001) at 70, 92-93, 116-17, 121, 131, 161, 163-64, 183, 190-91, 207, 216-17. Whether or not we adopt this factor is inconsequential because it is not enough to alter the sanction.
The dissent discusses two other cases resulting in discipline less than a suspension: In re Disciplinary Proceeding Against Miller, 99 Wn.2d 695, 663 P.2d 1342 (1983), and In re Disciplinary Proceeding Against Grubb, 99 Wn.2d 690, 663 P.2d 1346 (1983). Dissent at 631 n.33. Neither case is persuasive in our proportionality analysis because both involve charges dissimilar to those against Dynan. In Miller, an attorney who had previously been reprimanded was reprimanded and censured for failure to represent a client or withdraw and for attempting to defraud and deceive a casino. 99 Wn.2d at 696, 701. The attorney in Grubb had a previous censure and received a reprimand for losing client property given in exchange for a nonrefundable retainer. 99 Wn.2d at 690-91, 694. Dynan’s actions are significantly different: falsifying evidence, submitting false evidence to the court and opposing counsel, misrepresenting evidence, and prejudicing the administration of justice. Therefore, Miller and Grubb do not convince us that censure or reprimand is an appropriate sanction for Dynan.
Judge J. Robin Hunt is serving as a justice pro tempore of the Supreme Court pursuant to Const, art. IV, § 2(a).
Dissenting Opinion
(dissenting) — I concur in the majority’s threshold determination that the presumptive sanction for false swearing is disbarment. But I strongly disagree with the majority’s analysis of (1) the aggravating and mitigating factors, (2) the proportionality of the sanction, and (3) the effect of the less-than-unanimous Board recommendation. In my view, suspending Dynan from practicing law for six months is excessive. Therefore, I respectfully dissent.
As the majority states, this court (1) “determines the presumptive sanction based on the ethical duty violated, the attorney’s mental state, and the extent of actual or potential harm caused by the conduct”; and (2) “considers aggravating and mitigating factors, which may decrease or lengthen the presumptive sanction.” See majority at 611 (citing In re Disciplinary Proceeding Against Halverson, 140 Wn.2d 475, 492-93, 998 P.2d 833 (2000)). As the majority also notes, “In disciplinary proceedings, the Supreme Court has ‘plenary authority’ and the court’s discretion is limited only by the evidence before it.” See majority at 607 (citing In re Disciplinary Proceeding Against Whitt, 149 Wn.2d 707, 716, 72 P.3d 173 (2003)).
This court will not adopt the presumptive sanction if it is not proportionate to those imposed in similar situations or for similar conduct. In re Disciplinary Proceeding Against Miller, 149 Wn.2d 262, 277-78, 66 P.3d 1069 (2003). Moreover, lack of unanimity of the Board is also grounds for departing from its recommended sanction. See majority at 625; Miller, 149 Wn.2d at 285-86.
I. Aggravating Factors
The majority adopts three of the four aggravating factors the Board found: (1) a pattern of misconduct, (2) refusal to accept the wrongful nature of the conduct, and (3) substantial experience in practicing law. See majority at 620. Of these three, Dynan challenges only the second: refusal to
The majority posits that because Dynan rationalized his submission of $150 per hour attorney fees as a reasonable rate and an acceptable practice, he has failed to acknowledge his misconduct. In support, the majority cites In re Disciplinary Proceeding Against Anschell, 149 Wn.2d 484, 513-14, 69 P.3d 844 (2003).
In contrast to Dynan’s three billing submissions, Anschell committed 11 ethical violations involving three matters. In the first case, this court found that Anschell committed the following ethical violations with respect to a current client who was deported: (1) conflict of interest for representing the client without consent from a former client, who had informed the Immigration and Naturalizations Service (INS) that the current client had fraudulently acquired permanent resident status;
In a different deportation case, Anschell committed the following ethical violations: (1) lack of diligence for failing to contact his client about the deportation proceedings, failing to file a response brief in the case, and never
In another matter, while acting as an escrow agent, Anschell failed (1) to deposit a client’s $27,763 check promptly into his (Anschell’s) IOLTA account (Interest on Lawyer Trust Account), showing lack of diligence and failure to maintain identity of client funds; (2) to disburse funds from the firm’s IOLTA account; and (3) to keep necessary records or to perform necessary accounting. Id. at 497.
Anschell “admitted” wrongdoing in these three cases, but he insisted that he caused no harm to the first deportation client or the escrow clients. Id. at 513. Moreover, he blamed the two deportation clients for his own shortcomings, arguing that “Bolusan was responsible for her own problems,” id. at 513-14, and that it was “Barakat’s responsibility to contact [Anschell] and provide instructions; otherwise, he, Anschell, had no obligation to do anything despite the fact [that] he was attorney of record.” Id. at 514.
This court rejected Anschell’s arguments about the first deportation client and the escrow matter as a “rationalization” and disparaged Anschell’s “complete disregard for the need to properly maintain his trust account and preserve client funds.” Id. As for Anschell’s blaming his second deportation client, this court found that Anschell’s “belated concession [of wrongdoing] appears solely aimed at countering this aggravating factor, rather than a true acknowledgement of wrongful conduct.” Id.
I respectfully decline to find, as the majority does, that under Anschell, Dynan has failed to acknowledge his wrongful conduct. See majority at 621. In my view, the principle underlying Anschell is that perfunctory or disin
Dynan’s case is factually and qualitatively distinct. Contrary to the Board’s finding (and unlike Anschell), Dynan did acknowledge that his actions in these matters could have been potentially misleading. Moreover, he stopped this method for submitting reasonable attorney fee requests to the court as soon as he learned about the problem. And most significantly, unlike Anschell, Dynan never tried to blame anyone else for his actions; he merely tried to explain in his own defense at the disciplinary proceedings why he had altered and adjusted his actual discounted billings to reflect what he considered to be a reasonable rate of $150 per hour, believing this was acceptable practice.
I disagree with the majority’s finding that Dynan provided only “rationalizations for his conduct.” See majority at 621. The record shows that Dynan simply attempted to explain his behavior during the disciplinary proceedings, without trying to shirk his responsibility.
II. Mitigating Factors
The majority rejects Dynan’s assurance that he has changed his practices and, thus, eliminated the possibility
Dann was a partner in a small law firm, 136 Wn.2d at 71, who switched the initials of the attorney working on various tasks (1) so that he could charge clients a higher rate, 136 Wn.2d at 78-79; and (2) to conceal the identity of the attorney working on a client’s project where the client had specifically told Dann he did not want that particular attorney on his case. 136 Wn.2d at 72. Dann’s partners openly discussed the initial-switching and decided to discontinue the practice. One partner sent an e-mail to all partners, including Dann, “warning of ‘major league trouble’ if the initial-switching practice continued and was discovered.” Id. In spite of his partners’ admonition, Dann continued to switch attorneys’ initials on billings illegally; unlike Dynan, he did not act to end his misconduct. Id. at 84.
In stark contrast, as soon as Dynan learned of the problem, he ceased his practice of altering discounted client billings to reflect a reasonable attorney fee of $150 per hour for submission to the court. The majority minimizes this distinction and instead quotes from Dann that “ ‘[ejnding misconduct does not erase . . . that misconduct which has already occurred.’ ” See majority at 622. Although true, this quote hinders, rather than aids, our analysis. By focusing on the discontinued misconduct, it ignores what should be a major factor in determining an appropriate sanction, namely the qualitative difference between an attorney like Dynan, who took the initiative to correct his unintentional misrepresentation, and an attorney like Dann, who intentionally and defiantly continued his illegal practice in order to deceive his clients and to collect more fees.
I am mindful that Dynan’s self-initiated ceasing of his questioned billing practice does not absolve him of responsibility for his misconduct. And I agree with the majority
III. Proportionality
The majority notes that this court will not adopt the Board’s recommendation where “the sanction is not proportionate.” See majority at 623. The majority then quotes AnschelVs definition of “proportionate sanctions” as “those which are ‘ “roughly proportionate to sanctions imposed in similar situations or for analogous levels of culpability.”’ Anschell, 141 Wn.2d at 615.” See majority at 623. Yet in my view, the majority is doing the opposite by imposing on Dynan a sanction that is grossly disproportionate to sanctions this court has imposed in similar situations for even greater levels of culpability and harm to the administration of justice. Other attorneys facing discipline for more egregious actions,
In reducing the Board’s recommended suspension from nine to six months, the majority cites “our precedent that a suspension generally should not be less than six months,” citing Halverson, 140 Wn.2d at 495. Majority at 624. This court noted in Halverson that this general six-month mini
This court further noted, however, that there are exceptions to this general rule, allowing a “minimal suspension” “where the mitigating factors clearly outweigh any aggravating factors.” Halverson, 140 Wn.2d at 497.
As this court explained in footnote 16 in Halverson,
[W]e do not mean to suggest that the ABA Standards require a specific sanction for any particular lawyer misconduct. In fact, quite the opposite is true. The background section of the ABA Standards states: “[T]he Sanctions Committee recognized that any proposed standards should serve as a model which sets forth a comprehensive system of sanctions, but which leaves room for flexibility and creativity in assigning sanctions in particular cases of lawyer misconduct.” ABA Standards Preface at 1. The methodology section further states: “[0]ne will look in vain for a section of this report which recommends a specific*634 sanction for, say, improper contact with opposing parties who are represented by counsel..., or any other specific misconduct.” ABA Standards, Preface at 3. Finally, the theoretical framework section states: “The standards thus are not analogous to criminal determinate sentences, but are guidelines which give courts the flexibility to select the appropriate sanction in each particular case of lawyer misconduct.” ABA Standards, Theoretical Framework at 6.
Halverson, 140 Wn.2d at 497 n.16 (emphasis added). Dynan’s case calls for such “flexibility and creativity in assigning sanctions”; no purpose is served here by unquestioned adherence to a general six-month suspension.
Just two years ago, for example, this court exemplified such flexibility when it imposed only a two-month suspension against a lawyer who had been recently disciplined and whose conduct caused more harm to the administration of justice than did Dynan’s. In re Disciplinary Proceeding Against Carmick, 146 Wn.2d 582, 48 P.3d 311 (2002). Carmick made false statements to the trial court to facilitate an ex parte order releasing to his client court-held interest due on past child support without prior notice to the opposing party, who was legally entitled to the money. 146 Wn.2d at 596. He blatantly misled the trial court by representing that he had informed both the opposing party and her attorney that he would be presenting the order for the court to sign and that they had approved the order. Id.
Not only did Carmick substantially mislead the trial court, but also he violated another rule of professional conduct, RPC 4.2: (1) He communicated with the opposing party (his client’s ex-wife) directly, without the knowledge or consent of her counsel; (2) he falsely told the opposing party that her attorneys were not available for her to consult because they were either in trial or on vacation; and (3) he persuaded her to settle for only $5,000 of the $12,000 his client owed her, without telling her that $11,000 was already on deposit with the court and available to her. Instead, he implied that if she did not settle, she would likely recover even a smaller amount. Id. at 589-90, 598.
Comparing Dynan’s misconduct with Carmick’s should lead us to conclude that Dynan should receive a lesser sanction than Carmick received, not the trebled sanction the majority imposes. Dynan submitted to the trial court a request for reasonable attorney fees, supported by client billings with hourly rates altered to reflect a reasonable rate rather than his billed discounted rate. But Carmick knowingly made false, ex parte misrepresentations to persuade the trial court to release money to which the opposing party, not his client, was entitled. This court found that
Carmick’s conduct during the ex parte proceeding . . . [was] the most serious of the violations .... While we consider all alleged violations of the RPCs with great seriousness, we view misrepresentations to the court in ex parte proceedings with particular disfavor. The duty of candor in an ex parte proceeding directly influences the administration of justice. We cannot, and will not, tolerate any deviation from the strictest adherence to this duty. In the simplest terms, an attorney in an ex parte proceeding who knowingly misrepresents to a judge the*636 ex parte order is known to the opposing party and approved by that party shall be subject to discipline.
Id. at 594-95 (emphasis added; footnotes omitted).
In contrast, Dynan did not directly contact or deceive an opposing party represented by counsel. Dynan did not present the trial court with an ex parte order without notice to the opposing party. Nor did Dynan intend to deceive or falsely assure the court that he had given such notice and that the opposing party had approved the ex parte order.
The majority cites three other cases in support of its six-month suspension of Dynan from the practice of law: Dann, 136 Wn.2d at 70; In re Disciplinary Proceeding Against Haskell, 136 Wn.2d 300, 962 P.2d 813 (1998); and In re Disciplinary Proceeding Against Boelter, 139 Wn.2d 81, 985 P.2d 328 (1999). But these cases are not factually “similar” as the majority asserts. See majority at 623-24.
As more thoroughly explained in section II of this dissent (Mitigating Factors), a critical distinction between Dann and Dynan is that Dynan immediately initiated corrective action once his unintentional misrepresentation was brought to his attention, whereas Dann intentionally continued his illegal misrepresentations in order to deceive his clients and to collect higher fees even after his partners admonished him to stop.
Similar to Dann, Haskell also purposefully falsified client billings by substituting his initials for those of the lower-hourly-rate attorneys who had actually done the work. Haskell did this to disguise that he had not personally worked on these cases as the clients had specifically requested and expected. 136 Wn.2d at 305-06. Haskell also fraudulently billed clients for personal expenses, which the hearing officer found violated RPC 8.4(b) (criminal act that reflects adversely on a lawyer’s honesty or trustworthiness) through a violation of RCW 9A.56.030 (theft in the first degree) and violation of 18 U.S.C. § 1341 (mail fraud). Haskell, 136 Wn.2d at 308-09. In contrast, Dynan did not mislead, steal from, or harm his client in any way; rather, he tried to benefit his client.
This court will not disturb a hearing officer’s findings of fact if they are supported by a clear preponderance of the evidence. In re Discipline of McMullen, 127 Wn.2d 150, 896 P.2d 1281 (1995). While the hearing officer’s findings are not conclusive, they are entitled to great weight, particularly “when the credibility and veracity of witnesses are at issue.” [In re Disciplinary Proceeding Against] Allotta, 109 Wn.2d [787,] 793-94[, 748 P.2d 628 (1988)].
136 Wn.2d at 310. Yet here in Dynan’s case, the majority departs from the hearing officer’s findings, which are both supported by a clear preponderance of the evidence and based, at least in part, on the hearing officer’s assessment of the witnesses’ credibility and veracity.
Boelter also defrauded a client by billing unreasonable fees and extorted the client by threatening to reveal the client’s confidences in a suit to collect these fees, a practice that this court described as “outrageous.” Boelter, 139 Wn.2d at 93. In addition, Boelter asked a law firm associate to destroy some pertinent records during the pendency of the disciplinary proceedings against him. As the hearing officer in Boelter noted,
“[T]here was injury to the client who not only overpaid for the services rendered, but was forced to hire other counsel to defend himself from the lawyer who was threatening to use confidential information against the client. .. . [T]he legal system was injured as well in that a lawsuit [was] filed alleging a debt of $1,803.97 when the actual amount of the debt should have been $186.48.”
139 Wn.2d at 101 (citation omitted).
In contrast, Dynan did not threaten to breach a client’s confidence in order to collect unreasonable fees for himself; nor did he cause harm to his client, as Boelter did to his client, who had to hire another attorney to represent him against Boelter. Dynan sought only to collect reasonable attorney fees for his client from the losing party in a
Even though Dynan’s conduct falls within the disciplinary code’s definition of misrepresentation to the court, RPC 3.3(a)(1), in my view, his misrepresentations had far less negative impact on the administration of justice than did Carmick’s intolerable deviation from his strict duty of candor in an ex parte proceeding.
IV. Conclusion
I would find that Dynan’s mitigating factors significantly outweigh his aggravating factors, both qualitatively and quantitatively, and reject the Board’s nonunanimous recommendation of a nine-month suspension as grossly disproportionate and unnecessary to achieve the disciplinary code’s objectives. Accordingly, I would reprimand Dynan.
Madsen and Sanders, JJ., concur with Hunt, J. Pro Tern.
After modification, further reconsideration denied November 30, 2004.
Dynan also challenges the Board’s finding of dishonest or selfish motive as a fourth aggravating factor. The majority, however, correctly finds that “Dynan lacked a dishonest or selfish motive,” removes it as an aggravating factor, and adds the “absence of a dishonest or selfish motive as a mitigating factor.” Majority at 620.
Anschell was disbarred.
The former client and his ex-wife (the new client’s aunt) informed the INS about the new client in order to obtain immunity for themselves in connection with their own involvement in the scheme to secure the new client’s legal status. Anschell, 149 Wn.2d at 491.
See also In re Disciplinary Proceeding Against Dann, 136 Wn.2d 67, 81, 960 P.2d 416 (1998) (this court found attorney refused to acknowledge wrongful conduct where attorney was “remorseless” and briefs were “full of animus” toward the whistle-blower associate who initiated the bar investigation).
To find otherwise would effectively chill an attorney’s ability to defend himself and his livelihood in disciplinary proceedings. Under the majority’s application of Anschell, any attorney who tries to explain his actions would he failing to acknowledge the wrongfulness of his actions, thereby adding an aggravating factor to the sanction determination.
When the recommended sanction in attorney discipline cases is less than suspension, no party has a right of appeal. See Rules for Enforcement of Lawyer Conduct (ELC) 12.3(a); former RLD 7.2(a). Thus, there are few reported cases with a sanction less severe than suspension.
Some cases resulting in only a reprimand involve attorney misconduct more destructive to the administration of justice than Dynan’s conduct here. These cases, however, involve deceit of clients or others rather than misrepresentations to the court. See, e.g., In re Disciplinary Proceeding Against Miller, 99 Wn.2d 695, 663 P.2d 1342 (1983); In re Disciplinary Proceeding Against Grubb, 99 Wn.2d 690, 693, 663 P.2d 1346 (1983).
This court found that “Miller seems to regard the law as a ‘bag of tricks’ which he may use at his pleasure to deceive and mislead others,” and that Miller’s explanations to the contrary were “utterly without ethical justification and completely reprehensible.” Id. at 701. The court concluded that Miller’s activities were “an egregious violation of the Code of Professional Responsibility.” Id. Yet this court held that the appropriate sanction for Miller — who had earlier been reprimanded for entering into an unauthorized settlement agreement — was another reprimand. Id. at 696, 701.
In Grubb, the attorney had (1) taken a client’s ring worth $24,000 to secure a $500 nonrefundable retainer; (2) failed to give a receipt; (3) failed to return the ring when the client discharged him soon thereafter; (4) failed to put the ring in a secure place; (5) took it home and showed his wife; (6) “lost it”; (7) did not tell his former client for two years about the loss; and (8) led his former client to believe that he still had possession of the ring, which was a blatant lie. 99 Wn.2d at 691-92. Grubb had previously been censured for neglecting a legal matter. Id. at 690-91.
This court rejected the board’s unanimous recommendation that Grubb receive a 60-day suspension, recognizing that
[t]he hearing officer found that Grubb was contrite and that the likelihood of recurrence was “quite slim”. The only remaining concern is the quantum of punishment necessary to assure the public that professional misconduct will not be lightly regarded. We believe a reprimand will satisfy this test. A 60-day suspension would be extremely harsh and out of proportion to the severity of the offense. Grubb’s record before the Washington State Bar Association now stands at two censures and one reprimand. We trust he has learned from his mistakes, and will not repeat them.
Id. at 693-94 (emphasis added).
Although these cases do not involve misrepresentations to the tribunal, they are nonetheless serious violations. And, unlike Dynan, the attorneys in these cases had both previously been sanctioned for their conduct, yet in both matters, this court determined that reprimand was a sufficient and proportionate sanction.
The American Bar Association’s Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) (ABA Standards).
In re Disciplinary Proceeding Against Halverson, 140 Wn.2d 475, 495-96, 998 P.2d 833, 845 (2000):
Although six months is the generally accepted minimum term of suspension, this Court has occasionally imposed a shorter term of suspension when a less severe suspension is warranted by specific mitigating circumstances or when aggravating circumstances justify a more severe sanction than a letter of censure. See, e.g., [In re Disciplinary Proceedings Against] Johnson, 118 Wn.2d [693], 697, 705, [826 P.2d 186 (1992)] (60-day suspension appropriate where attorney voluntarily reaffirmed contractual obligations to client in bankruptcy proceedings; court declined to impose six-month suspension because it would have “drastic effect” upon Johnson’s ability to continuing repaying his clients); In re Discipline of Felice, 112 Wn.2d 520, 772 P.2d 505 (1989) (30-day suspension rather than mere censure appropriate for neglect of guardianship duties where attorney had substantial experience, refused to acknowledge wrongdoing and where client was 86 years old and incompetent).
(Emphasis added) (footnote omitted).
See Carmick, 146 Wn.2d at 590:
The WSBA alleged three counts of misconduct. Count I alleged Carmick violated RPC 4.1(a) and RPC 8.4(c) by misrepresenting through omission [the opposing party’s] ability to collect the interest due from [his client]. Count II alleged Carmick violated RPC 3.3(f), 3.4(c), 3.5(b), 4.1(a), and 8.4(d) by making misrepresentations to the superior court in his motion for an ex parte order to disburse funds and by failing to serve notice on the parties of the ex parte motion and order. Count III alleged Carmick violated RPC 4.2 by contacting [the opposing party] whom he knew, or should have known, was represented by counsel.
This court noted in Carmick,
The WSBA, contending Carmick’s actions were intended to further a scheme to defraud [the opposing party] of $6,000, asserts Carmick’s actions were knowing or intentional. The Disciplinary Board found in committing these violations Carmick was knowing or negligent.
We conclude Carmick’s misrepresentation that [the opposing party] and Butler [opposing party’s attorney] knew of the ex parte order was knowing since Carmick knew as he made the statement he had not sent either of them notice before his appearance. Similarly, when Carmick assured the superior court Butler had authorized Carmick’s contact directly with [the opposing party], he knew he had not consulted with Butler at any time during the proceedings.
146 Wn.2d at 602-03.
At most, I would significantly shorten his suspension below that of Carmick’s two-month suspension.
