140 Wash. 2d 475 | Wash. | 2000
Lead Opinion
In this Washington State Bar Association (WSBA) disciplinary case, this Court must determine (1)
FACTS
Lowell K. Halverson has been a member of the WSBA in private practice since 1968, concentrating on family law for the last 20 years. He has lectured and published extensively in this area. From 1990-91, Halverson served as president of the WSBA.
Although Halverson has been married to his wife, Diane, since 1964, he admits that since the early 1970s he has had consensual sexual relationships with six different female clients. Five of these clients retained Halverson as their attorney before the sexual relationship began. The most recent of these relationships was with Liisa Wickersham, the grievant in this action. Halverson first met Wicker-sham in 1989 when Wickersham accompanied a friend to Halverson’s office. At this point, Wickersham was married to an attorney, Neil Sarles.
During this office visit, Halverson gave Wickersham and her friend a personality questionnaire that he regularly used with clients; he also asked Wickersham if she might like to work in his office on a special project involving artwork. Following this meeting, Wickersham worked at Halverson’s office for a few months until early in 1990.
Wickersham retained Halverson as her attorney in May 1991, at which time Halverson administered another
Later in July while at Halverson’s office, Wickersham confided to him that she was “attracted to [her] attorney.” Report of Proceedings (RP) at 509. Shortly thereafter, following a successful court appearance, Halverson took Wickersham on a tour of photographs displayed at the Rainier Club in Seattle. According to Halverson, while on the tour, Wickersham suggested that they get a room, but Wicker-sham denies this occurred.
Both agree, however, that after the tour they went to a restaurant on the waterfront where they expressed a mutual attraction and discussed Halverson’s “ground rules” for a potential relationship: Halverson’s wife could not find out about the affair and there could be no bonding between Halverson and Wickersham’s young daughter. According to Halverson, he explained to Wickersham that a potential relationship between them would not be of any significance to the pending divorce action if these “ground rules” were followed. Wickersham herself recognized the need for them to be discreet because of Halverson’s high profile as president of the WSBA.
Halverson, however, did not advise Wickersham of the possible ramifications if the relationship were to become known. For example he did not tell her that, if Sarles were to discover the relationship, he would most likely become less willing to compromise in the divorce proceeding and that this would increase the complexity and cost of the dissolution and could impact the custody determination. Neither did Halverson advise Wickersham that either his wife’s or Sarle’s discovery of the affair could lead to his withdrawal as her attorney.
Halverson and Wickersham agreed to see each other within the next few weeks when Halverson’s wife left on a
On January 1, 1992, Halverson’s wife discovered the affair. Within a few days, Halverson withdrew as Wicker-sham’s attorney because he felt that he had lost his objectivity and could no longer keep his roles separate, particularly in view of his wife’s position as his office manager. Halverson temporarily moved out of his home and continued his personal relationship with Wickersham for several weeks. In mid-February, however, Halverson told Wickersham that he was returning to his wife.
Meanwhile, Halverson provided Wickersham with the names of several other attorneys who could take over her case. Although Wickersham wanted Halverson to continue as her attorney, he refused, and Wickersham, thus, hired another attorney, Eric Watness, to complete her dissolution. Halverson transferred the balance of Wickersham’s account to Watness and wrote off her outstanding bill to him. There is no evidence that Halverson at any time revealed any client confidences or otherwise used information obtained from Wickersham.
Wickersham did not tell Watness about her relationship with Halverson until almost three months after she retained him. Watness believed Wickersham was “at times anxious, particularly fixated on the relationship between herself and Mr. Halverson, at times unable to focus off of that and onto resolution of issues, development of facts, that sort of thing.” RP at 576. Nonetheless, Watness also testified that Wickersham assisted him on her case “in an intelligent and competent way.” RP at 573. Watness represented Wickersham until September 1992, when her case settled and a decree of dissolution was entered. Over
A year later in October 1993, Wickersham complained to the WSBA about Halverson’s conduct and, in 1994, filed a civil lawsuit. Wickersham’s civil suit against Halverson settled in 1995 by sealed agreement for a substantial sum and with no admission of liability. Wickersham’s former husband subsequently sued Wickersham and received one-half of the settlement.
The WSBA filed a formal complaint against Halverson in February 1997. Following proceedings in December 1997 and February 1998, the hearing officer issued findings of fact and conclusions of law and recommended a sanction consisting of six months’ suspension and two years’ probation with the conditions that Halverson disclose to female clients the purpose of his discipline and continue treatment with his mental health physician.
Halverson appealed the hearing officer’s decision to the Board. The 14-member Board unanimously upheld the hearing officer’s findings of fact and conclusion that Halverson violated RPC 1.7(b). By split decision, the Board rejected the hearing officer’s conclusions that Halverson violated RPC 1.8(b) and 1.13(a) but did not violate RPC 1.4(b), and approved the hearing officer’s conclusions that Halverson violated RPC 2.1 but did not violate RLD 1.1 and 2.8. Also by split decision, the Board approved the hearing officer’s recommended sanction.
Halverson appealed the Board’s decision to this Court challenging four of the hearing officer’s factual findings and the Board’s adverse conclusions of law. He also claims that the sanction was too harsh. The WSBA in turn assigned error to the Board’s conclusions that no violations of RPC 1.8(b) and 1.13 and RLD 1.1 occurred, and to the Board’s failure to impose a harsher sanction. Based on these facts, we will address Halverson’s challenges to the factual findings and the parties’ respective challenges to
ANALYSIS
I. FACTUAL FINDINGS
Halverson challenges several of the Board’s factual findings. He claims that both Finding of Fact 28
Halverson claims that Finding of Fact 29
Generally, in bar discipline cases, this Court does not review unchallenged factual findings made by the hearing officer and unanimously affirmed by the Board; they are accepted as verities. See In re Discipline of Johnson, 118 Wn.2d 693, 701, 826 P.2d 186 (1992) (citing In re Discipline of Curran, 115 Wn.2d 747, 759, 801 P.2d 962, 1 A.L.R.5th 1183 (1990)). Even when unanimously approved findings are challenged as they are here, we will not disturb them if supported by the clear preponderance of the evidence. See In re Discipline of McMullen, 127 Wn.2d 150, 161-62, 896 P.2d 1281 (1995) (citing, inter alia, Curran, 115 Wn.2d at 759).
Although the hearing examiner’s findings are not conclusive, they are entitled to considerable weight, particularly when the credibility and veracity of witnesses are at issue. McMullen, 127 Wn.2d at 162 (citing In re Discipline of Allotta, 109 Wn.2d 787, 793-94, 748 P.2d 628 (1988)). This Court will not substitute its evaluation of the credibility of the witnesses over that of the hearing examiner. McMullen, 127 Wn.2d at 162 (citing Allotta, 109 Wn.2d at 794).
Here, each of the challenged findings is supported by a clear preponderance of the evidence. Regarding Finding of Fact 28, Halverson offers no authority or citation to the
As to the power imbalance, an experienced family law practitioner testified to the inherent power imbalance in a dissolution attorney-client relationship. In addition, Dr. Laura Brown, a psychologist who studies sexual relationships between clients and professionals, testified that Halverson’s administration of personality tests to Wickersham “added a more psychological aura to what he was doing” and, therefore, increased “the risk of harm because the power differential was greater.” RP at 157. According to Dr. Brown, Halverson’s status as Wickersham’s former employer further contributed to a power differential.
As to Finding of Fact 33, the testimony that Wickersham received a “fair outcome” in her dissolution proceeding does not undermine the substantial testimony from mental health professionals that as a result of Halverson’s conduct, Wickersham suffered personal harm in the form of depression and anxiety. RP at 342. In addition, Wickersham’s relationship with Halverson had an adverse impact upon her relationship with her former husband. In the years following the divorce, Wickersham described the relationship as “brutally adversarial; abusive and emotionally and financially difficult.” RP at 339. Further, after her relationship with Halverson, Wickersham was unable to trust her new attorney.
Regarding Finding of Fact 29, the statement about the quasi-therapeutic nature of the attorney-client relationship in a dissolution action is based on the testimony of at least two experts and on Halverson’s own book on divorce law, which was admitted as an exhibit. Thus, even if the first part of the finding is a generalization, it is one supported by the clear preponderance of the evidence. See Para-Medical Leasing, Inc. v. Hangen, 48 Wn. App. 389, 397, 739 P.2d 717 (1987) (a factual finding is a “determination from the evidence of the case” (citation omitted)). Halverson’s argument, therefore, must fail.
Further, Halverson’s book, Divorce in Washington: A Humane Approach,
Where the evidence conflicted as to the potential effect of the Wickersham/Halverson affair upon Wickersham’s dissolution proceeding, the hearing officer was entitled to credit the testimony of those experts who testified that the affair increased the legal risks to Wickersham. See In re Discipline of Felice, 112 Wn.2d 520, 525, 772 P.2d 505 (1989) (court will not disturb hearing examiner’s findings of fact made upon conflicting evidence). Finally, Halverson’s argument that Wickersham should have known the harm that might result from the relationship is irrelevant as to the issue of his knowledge of the risks that his conduct imposed upon his client.
II. LEGAL CONCLUSIONS
In a bar disciplinary case, challenges to conclusions of law will fail if the conclusions are supported by the factual findings. Curran, 115 Wn.2d at 759. “Pursuant to RLD 4.11(b), counsel for the WSBA has the burden of establishing an act of misconduct by a clear preponderance
Unlike in a civil malpractice suit for damages, a disciplinary proceeding does not require a showing of actual harm. “[A] lawyer may be disciplined even if the misconduct does not cause any damage. The rationale is the need for protection of the public and the integrity of the profession.” Hizey v. Carpenter, 119 Wn.2d 251, 262, 830 P.2d 646 (1992) (quoting 1 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 1.9, at 33 (3d ed. 1989)). With these principles in mind, we address the parties’ respective challenges to the Board’s conclusions of law.
A. Violation of RFC 1.7(b)
“RPC 1.7(b) generally prevents a lawyer from representing a client if that representation will be materially limited by the lawyer’s own interests unless the lawyer reasonably believes the representation will not be affected and the client consents in writing.” McMullen, 127 Wn.2d at 164 (emphasis added). Halverson concedes no written consent was obtained, but argues that this was merely a technical violation of the rule. We disagree.
It was not objectively reasonable for Halverson to believe that the representation would not be adversely affected by the sexual relationship, nor did Halverson disclose to Wick
Halverson should have known that discovery of the affair could worsen the relationship between Wickersham and Sarles and, thus, unnecessarily complicate the dissolution proceeding. Further, Halverson should have known that the affair could impact the custody determination of Wickersham’s daughter. Finally, Halverson should have known that discovery of the affair by his wife might lead to his withdrawal as Wickersham’s attorney. Thus, Halverson’s subjective belief that the relationship would not adversely affect the representation was not objectively reasonable.
In any event, Halverson did not disclose any of these risks to Wickersham before commencing the relationship. Rather, the “ground rules” discussed at the start of the relationship focused primarily on Halverson’s own interests: keeping the relationship secret from his wife and avoiding any emotional bonding with Wickersham’s daughter. Under these circumstances, the Board properly affirmed the hearing officer’s conclusion that Halverson violated RPC 1.7(b).
B. Violation of RPC 1.4(b) — Duty to Communicate
Pursuant to RPC 1.4(b), “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” We agree with the Board that the same failures to disclose supporting the conclusion that Halverson violated RPC 1.7(b) also support the conclusion that he violated RPC 1.4(b).
“In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” RPC 2.1.
As recently noted by the Court of Appeals in a criminal case where the defendant claimed ineffective assistance of counsel, a lawyer who “commences a sexual relationship with the client during the course of the representation . . . creates significant but needless risks that emotions arising from the relationship will impair ... his or her ability to ‘exercise independent professional judgment’ . . . .” State v. Stough, 96 Wn. App. 480, 486 & n.21, 980 P.2d 298, review denied, 139 Wn.2d 1011 (1999) (quoting RPC 2.1). Although we do not adopt a per se rule that a lawyer who commences a sexual relationship with a client always fads to exercise independent professional judgment, we find that under the circumstances here Halverson violated RPC 2.1
Halverson did not exercise independent professional judgment when he failed to (1) advise Wickersham of the potential ramifications the affair might have on the dissolution or his ability to represent her; (2) advise Wicker-sham of his published professional opinion that persons involved in a dissolution should be discouraged from getting involved in a new sexual relationship; and (3) take precautions to avoid pregnancy or discuss with Wicker-sham the consequences of such event. Thus, we affirm the Board’s conclusion that Halverson violated RPC 2.1.
D. No Violation of RPC 1.8(b) — Duty to Avoid Using Information Related to Representation of a Client to Client’s Disadvantage
Pursuant to RPC 1.8(b), “A lawyer who is representing a
Further, an unchallenged factual finding states: “There is no evidence that [Halverson] at any time divulged any client confidences of [Wickersham].” CP at 674. Consequently, the Board properly concluded that Halverson did not violate RPC 1.8(b). See Johnson, 118 Wn.2d at 701 (unchallenged factual findings are accepted as verities on appeal); Curran, 115 Wn.2d at 759 (challenges to a hearing examiner’s conclusion of law will fail if conclusions are supported by factual findings).
E. No Violation of RPC 1.13(a) — Duty to Maintain Normal Client-Lawyer Relationship with Client Under an Impairment/Disability
RPC 1.13(a) provides:
When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
Here, there was no evidence that Wickersham suffered from a mental disability either during her sexual relationship with Halverson or subsequently. Although there was evidence that Wickersham had difficulty focusing on the dissolution after Halverson withdrew as her attorney, there was no evidence that during the course of Halverson’s representation Wickersham had an impaired ability to make adequately considered decisions. In fact, her new attorney testified that she assisted him on her case “in an intelligent and competent way.” RP at 573. Thus, the Board properly concluded that although emotionally vulnerable, Wickersham did not suffer from the type of impairment or disability covered by RPC 1.13(a).
RLD 1.1 provides in pertinent part:
A lawyer may be subjected to the disciplinary sanctions or actions set forth in these rules for any of the following:
(a) The commission of any act involving moral turpitude, dishonesty, or corruption, or any unjustified act of assault or other act which reflects disregard for the rule of law, whether the same be committed in the course of his or her conduct as a lawyer, or otherwise, and whether the same constitutes a felony or misdemeanor or not ....
The WSBA argues that Halverson’s acts constituted moral turpitude citing In re Discipline of Heard, 136 Wn.2d 405, 963 P.2d 818 (1998); Heinmiller v. Department of Health, 127 Wn.2d 595, 903 P.2d 433, 909 P.2d 1294 (1995); and Haley v. Medical Disciplinary Bd., 117 Wn.2d 720, 818 P.2d 1062 (1991). Halverson claims that these cases are distinguishable. We agree.
Heard states that: “Despite the absence of an express rule banning attorney-client sexual relations, an attorney’s sexual relations with a client can constitute ‘moral turpitude,’ justifying the imposition of disciplinary sanctions.” 136 Wn.2d at 419. Heard’s client was a 23-year-old woman who suffered from a mental disability as a result of injuries from a motorcycle accident, and who also had drug and alcohol problems. All of this was known to Heard. Nonetheless, during the course of settlement negotiations, Heard went to the client’s home, took her to two cocktail lounges where they both consumed alcohol, had her drive his vehicle while intoxicated, and then took her to his apartment where they had consensual sexual relations. Heard, 136 Wn.2d at 409-12.
This Court concluded that “Heard’s use of his professional position to exploit a vulnerable young woman constituted moral turpitude within the meaning of RLD 1.1.” Heard, 136 Wn.2d at 422-23 (footnote omitted). However, this Court also made clear that not all attorney-client sexual conduct violates RLD 1.1:
*491 By our opinion, however, we do not announce a general rule regarding attorney-client sexual conduct. This issue may be addressed in the normal course of the judicial rule-making or decision-making process. However, where an attorney so blatantly misuses his professional status to exploit a client’s vulnerability, the Board is entirely justified in finding the conduct to be an act of moral turpitude under RLD 1.1.
Heard, 136 Wn.2d at 423 n.9.
Heard was based on Haley, a case involving a physician-patient sexual relationship. There, Haley, a 66-year-old surgeon, operated on a 16-year-old patient and, thereafter, over the next two years provided the girl with alcohol and engaged in a sexual relationship with her. Haley, 117 Wn.2d at 722-25. Haley was given a 10-year stayed suspension on grounds his acts constituted moral turpitude.
This Court also followed the Haley holding in Heinmiller, where we found a social worker’s sexual relationship with a former patient that began one day after the conclusion of counseling constituted moral turpitude. 127 Wn.2d at 604-06. The finding of moral turpitude in Heinmiller rested on expert testimony establishing bright-line rules in the social work profession prohibiting counselor-patient sexual relations for a period of time even after the discontinuance of therapy. See Heinmiller, 127 Wn.2d at 605.
Here, the aggravating factors present in Heard and Haley do not exist. Wickersham was not a juvenile. She did not suffer from a mental disability or a drug and alcohol addiction. Halverson did not supply her with intoxicants. Thus, Halverson did not “blatantly misuse[ ] his professional status to exploit [his] client’s vulnerability . . . .” Heard, 136 Wn.2d at 423 n.9.
Further, unlike in Haley and Heinmiller, a bright-line
III. SANCTION
We will first discuss the standards that the Board
A. Sanction Standards
The American Bar Association’s Standards for Imposing Lawyer Sanctions (1991 ed. & Supp. Feb. 1992) (hereafter ABA Standards) govern bar discipline cases in Washington. In re Discipline of Boelter, 139 Wn.2d 81, 99, 985 P.2d 328 (1999); Johnson, 118 Wn.2d at 701; In re Discipline of Lynch, 114 Wn.2d 598, 610, 789 P.2d 752 (1990). After a finding of lawyer misconduct, the Board engages in a two-step process to determine the proper sanction.
First, the Board must determine a presumptive sanction by considering (1) the ethical duty violated; (2) the lawyer’s mental state; and (3) the extent of the actual or potential harm caused by the misconduct. Johnson, 118 Wn.2d at 701; ABA Standards Std. 3.0. As to mental state, the Board must determine whether the lawyer acted intentionally, knowingly, or negligently. McMullen, 127 Wn.2d at 169 (citing ABA Standards Std. 3.0 and commentary). In deciding the extent of the actual or potential harm, the Board should
Second, the Board considers whether there are aggravating or mitigating factors
Here, as discussed above, the Board properly determined that Halverson violated his duties to avoid conflicts of interest, RPC 1.7(b); to communicate material information, RPC 1.4(b); and to exercise independent professional judgment, RPC 2.1, but did not commit ethical violations with respect to the remaining charges. Thus, when the Board determined its recommended sanction it considered the relevant ethical violations.
As to the Board’s consideration of the actual or potential harm, it is not clear from the record whether the Board considered the actual or potential injury to the legal profession from Halverson’s conduct. The record, however, demonstrates that the Board properly considered the substantial personal harm actually suffered by Wickersham as well as the potential for her legal injury.
In light of the above factors, particularly the determination that Halverson acted knowingly, the Board properly concluded that suspension should be the presumed sanction, as opposed to disbarment or a mere reprimand. The ABA Standards state: “Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client.” ABA Standards Std. 4.32; see also ABA Standards Std. 7.2 (suspension is presumed sanction for knowing violation of duty to the legal profession).
Washington’s Rules for Lawyer Discipline provide that
This six month to three year range of suspensions is based upon the commentary to Standard 2.3 of the ABA Standards, which states in pertinent part:
While the Model Rules for Lawyer Disciplinary Enforcement (see MRLDE 25) currently provide for suspensions of less than six months, short-term suspensions with automatic reinstatement are not an effective means of protecting the public. If a lawyer’s misconduct is serious enough to warrant a suspension from practice, the lawyer should not be reinstated until rehabilitation can be established. . . .
In reality, a short-term suspension functions as a fine on the lawyer, and fines are not one of the recommended Sanctions in the MRLDE.
The amount of time for which a lawyer should be suspended, then, should generally be for a minimum of six months. . . . The specific period of time for the suspension should be determined after examining any aggravating or mitigating factors in the case.
ABA Standards Std. 2.3 (1991 ed. & Supp. Feb. 1992) (emphasis added).
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.
We next consider whether the Board properly examined the mitigating and aggravating factors to decide whether such factors warranted an alteration of the presumed sanction, Johnson, 118 Wn.2d at 701, and, if not, what affect such factors should have on the length of suspension. See ABA Standards Std. 2.3, at 8 (rules), 20-21 (commentary). Here, the Board concluded that the aggravating and mitigating factors effectively cancelled each other out.
As aggravating factors, the Board found that Halverson had (1) substantial experience in the practice of law, yet he had (2) engaged in a pattern of misconduct; (3) committed multiple offenses (4) against a vulnerable victim; and (5) refused to acknowledge wrongdoing. As mitigating factors, the Board found that Halverson (1) had no prior disciplinary record; (2) suffered from depression during the affair with Wickersham; (3) has an excellent professional reputation; (4) has taken rehabilitative steps; and (5) has been otherwise sanctioned through negative publicity.
While we find that the Board properly considered all of these aggravating and mitigating factors,
B. Standards for Washington State Supreme Court’s Review
This Court has the exclusive responsibility to determine what discipline should be imposed for a lawyer’s acts of misconduct. In re Discipline of Heard, 136 Wn.2d 405, 423, 963 P.2d 818 (1998) (citing, inter alia, In re Discipline of Felice, 112 Wn.2d 520, 526, 772 P.2d 505 (1989)); RLD 2.1. Thus, we are not bound by the Board’s sanction recommendation. Heard, 136 Wn.2d at 423. Where such recommendation is insufficient to protect the public and the administration of justice or to preserve the integrity of the legal profession, we will modify it.
Regarding the first factor, the purposes of sanctions for lawyer misconduct are to: (1) protect the public and the administration of justice; (2) preserve the integrity of the legal profession and to maintain public confidence therein; (3) deter the offending lawyer from further unethical conduct, and where appropriate to rehabilitate the lawyer; and (4) deter all members of the profession from unethical conduct. ABA Standards Std. 1.1 and commentary; McMullen, 127 Wn.2d at 163; Allotta, 109 Wn.2d at 792.
Under the circumstances here, we are persuaded that a six-month suspension is inadequate to maintain public confidence in the integrity of the legal profession and deter others from such conduct. As a frequent lecturer and extensive publisher in the family law area, and as the past president of the WSBA, other attorneys as well as the public looked to Halverson for advice. His book demonstrates not only that he knew of the serious psychological and legal risks entering into a new sexual relationship presented to a dissolution client but that he specifically advised others
His practice of using personality questionnaires increased his clients’ perceptions of him as a personal counselor or quasi-therapist and engendered their trust. Yet, Halverson violated the trust Wickersham placed in him by taking advantage of her status as his dissolution client for his own sexual gratification.
What seems most lacking in the Board’s sanction determination is the fact that Halverson engaged in a pattern of misconduct. By his own admission, he has engaged in a sexual relationship with six clients. We find the contradiction between Halverson’s published professional advice and status in the legal community, and his personal conduct particularly damaging to the integrity of the legal profession.
Furthermore, a minimal six-month suspension in this high profile case would fail to inform the public and warn other attorneys that this Court takes such misconduct seriously. See In re Discipline of Kennedy, 97 Wn.2d 719, 723, 649 P.2d 110 (1982) (“as a function of preserving public confidence, punishment of an attorney is sometimes necessary to deter others and to indicate our legal system’s intolerance of [mis]conduct”). Thus, we find that the first factor — the purposes of attorney discipline — warrants increasing the suspension to one year.
As to the proportionality factor, this Court has stated: “The principle of consistency alone . . . cannot determine the length of the suspension” and “Consistency within a jurisdiction is more important than consistency between jurisdictions.”
The conduct in Heard was much more egregious than here; in fact, we recognized that there were arguable grounds for Heard’s disbarment. Heard, 136 Wn.2d at 425. Heard not only had sexual relations with a much more vulnerable client than Wickersham but also violated several rules of professional conduct “by negotiating a settlement agreement with worthless interests included, advising his client to sign it, and then keeping all the cash proceeds of the settlement without the client’s consent or without rendering the client a final accounting.” Heard, 136 Wn.2d at 409. Thus, although a two-year suspension or disbarment would not be proper for Halverson, a one-year suspension does not constitute a disproportionate sanction.
As to the effect of the sanction on Halverson, we acknowledge that it is substantial. However, when we weigh the hardship imposed on Halverson against the serious nature of his misconduct, the sanction is not excessive.
The considerations that this Court relies upon to support its one-year suspension are amply supported by the record. Finally, although we recognize that none of the Board members recommended a suspension longer than six months, we emphasize that this Court, and not the Board, is ultimately responsible for determining the nature of lawyer discipline.
CONCLUSION
In conclusion, we uphold all the Board’s factual findings, its conclusions of law, and the conditions of the two-year probationary period. We increase the recommended term of suspension from six months to one year to adequately serve the purposes of attorney discipline.
Finding of Fact 28 states:
Ms. Wickersham depended on Respondent while he was her attorney to help her obtain temporary living arrangements, custody of her child with sufficient child support and maintenance. She also depended upon Respondent for a favorable property settlement which was important for her economic well being. This dependence created a large power imbalance between Ms. Wicker-sham and Respondent.
Clerks Papers (CP) at 673.
Finding of Fact 33 states:
In the instant case, Ms. Wickersham has suffered personal harm from Respondent’s conduct. In addition, Ms. Wickersham was harmed by having to change attorneys during the dissolution proceeding. The change of attorneys required additional time on the part of Ms. Wickersham. It required her to establish a new relationship with another attorney. Further, Ms. Wickersham suffered a temporal [sic] inability to focus on her dissolution after the relationship with Respondent ended which made the dissolution more difficult for Ms. Wickersham and her new attorney.
CP at 674.
Finding of Fact 29 states:
Unlike many legal areas, dissolution practice requires some degree of intimacy between lawyer and client. Attorneys practicing dissolution law are not only attorneys but to some extent are personal counselors or quasi therapists. Respondent enhanced this feeling on the part of dissolution clients, both through his administration of a personality sorter and through the personal advice in his book.
CP at 673.
Finding of Fact 32 states:
Respondent knew or should have known from his sexual relationships with other clients in the past that by engaging in sexual relationships with clients, those clients were being exposed to greater risks of emotional harm. Further, Respondent should have known that his sexual relationships with clients created greater legal risks for his clients in their pending dissolution proceeding[s],
CP at 674.
Lowell K. Halverson & John W Kydd, Divorce in Washington: A Humane Approach (1985).
Washington State Bar Ass’n, Family Law Deskbook § 3.9 (1989).
RPC 1.7(b) provides:
A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) The client consents in writing after consultation and a full disclosure of the material facts (following authorization from the other client to make such a disclosure). When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
Justice Sanders’ concurrence/dissent argues that we incorrectly affirm the Board’s ruling regarding RPC 1.4(b) because, among other reasons, the Board improperly “ignore[d] the examiner’s findings and replace[d] those with new ones based on previously considered evidence.” Dissent at 511 (citing In re Discipline of Lynch, 114 Wn.2d 598, 608, 789 P.2d 752 (1990)). This is a misreading of Lynch. See 114 Wn.2d at 607-08 (RLD 6.7(d) “specifically grants the Board authority to adopt, modify or reverse findings, conclusions, or recommendations of the hearing officer.”); accord In re Discipline of Heard, 136 Wn.2d 405, 413-14, 963 P.2d 818 (1998) (Board’s modified findings of fact upheld because they were “amply supported by the record” (citing, inter alia, RLD 6.7(e) and In re Lynch, was based upon reasonable inferences drawn from the examiner’s findings of fact 114 Wn.2d at 607-08)). Here, the Board’s decision was completely proper as it
Halverson notes that Haley is distinguishable because it involved a bright-line statutory rule prohibiting physician-patient sexual contact. See RCW 18.130.180(24). Although this statute does create a bright-line rule, the Haley court held it inapplicable because the young woman was a former patient. 117 Wn.2d at 730-31.
In this section of our opinion, we assume the hearing officer must apply the same standards as the Board, but refer only to the Board.
Mitigating factors include:
(a) absence of a prior disciplinary record; (b) absence of a dishonest or selfish motive; (c) personal or emotional problems; (d) timely good faith effort to make restitution or to rectify consequences of misconduct; (e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (f) inexperience in the practice of law; (g) character or reputation; (h) physical disability; (i) mental disability or chemical dependency including alcoholism or drug abuse . . .; (j) delay in disciplinary proceedings; (k) imposition of other penalties or sanctions; (1) remorse; (m) remoteness of prior offenses.
ABA Standards Std. 9.32 (1991 ed. & Supp. Feb. 1992). Aggravating factors include:
(a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; (j) indifference to making restitution; (k) illegal conduct including voluntary use of controlled dangerous substances.
ABA Standards Std. 9.22 (1991 ed. & Supp. Feb. 1992).
Compare ABA Standards Std. 4.33 (reprimand is presumed sanction for lawyer’s negligence regarding conflict of interest), Std. 4.31(b) (disbarment is presumed sanction when lawyer intends to benefit himself in conflicted representation), and Std. 7.3 (reprimand is generally appropriate for negligent violation of a duty to the legal profession).
We acknowledge that in some cases decided before 1986 this Court approved of suspensions less than six months without articulating specific mitigating circumstances, but we note that such cases were decided before the ABA Joint Committee on Professional Standards prepared the ABA Standards and before this
We note that the record supports consideration of additional factors not explicitly relied upon by the Board, for example, selfish motive as an aggravating factor and a good faith effort to rectify at least some of the consequences of the misconduct as a mitigating factor. We do not believe, however, that these additional factors would have changed the Board’s ultimate conclusion that the aggravating and mitigating factors cancelled each other out.
See Curran, 115 Wn.2d at 774 (a lawyer’s excellent professional reputation is not a proper mitigating factor when the lawyer’s misconduct is not directly related to professional activity (citing In re Discipline of McGrath, 98 Wn.2d 337, 344-45, 655 P.2d 232 (1982))).
In so stating, we 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 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.
In the following cases, this Court increased the Board’s recommended sanction finding it inadequate to serve the purposes of attorney discipline or disproportionate to sanctions imposed for similar misconduct: In re Discipline of
We do not consider sanctions imposed in sexual misconduct cases from other jurisdictions because the range of such sanctions in relation to the misconduct is highly inconsistent. Compare, e.g., In re Lewis, 262 Ga. 37, 415 S.E.2d 173 (1992) (three-year suspension imposed where attorney commenced sexual relationship •three years before being retained in divorce action even though no harm to client appeared to have resulted) with In re McBratney, 320 S.C. 416, 465 S.E.2d 733 (1996) (90-day suspension imposed where attorney gave domestic relations client
See Selden, 107 Wn.2d 246 (ordering disbarment although no member of the Board recommended more than a 120-day suspension).
Concurrence in Part
(concurring and dissenting) — While I agree with the majority’s conclusion upholding the Disciplinary Board’s (Board) approval of all findings of fact, and its substantive conclusions of law, I dissent from the majority’s escalation of respondent’s suspension in disregard of the Board’s recommended sanction.
Importantly, neither the hearing examiner, who presided over the testimony in this case, nor any of the 15 lawyer and layperson Board members recommended a suspension greater than six months. While I agree with the majority we are not bound by the Board’s recommendation, we have said:
The only body in the state to consider the full spectrum of disciplinary matters from the most trivial to the most serious is the Disciplinary Board. It is appropriate, therefore, that we give serious consideration to the recommendations of the Disciplinary Board. As the only body to hear the full range of disciplinary matters, the Board has the opportunity to develop unique experience and perspective in the administration of sanctions. We should not lightly depart from recommendations shaped by this experience and perspective.
In re Discipline of Noble, 100 Wn.2d 88, 94, 667 P.2d 608 (1983); see In re Discipline of Johnson, 114 Wn.2d 737, 751-52, 790 P.2d 1227 (1990).
Ultimately, the sanction this court imposes is designed to protect the public and deter further misconduct, and not to punish. In re Discipline of Hankin, 116 Wn.2d 293, 298, 804 P.2d 30 (1991) (citing Noble, 100 Wn.2d at 95). Here, the majority concludes the Board properly determined that suspension is the presumptive sanction, and that the aggravating and mitigating factors are equal. Majority at 492-97; see In re Discipline of Haskell, 136 Wn.2d 300, 321, 962 P.2d 813 (1998) (holding approximately equal number of aggravating and mitigating factors cancel each other out). Nevertheless, the majority then asserts that some factors are more equal than others and doubles the Board’s highest recommended sanction. Majority at 497, 500. In so doing, the majority relies most heavily on the pattern of prior sexual misconduct by Halverson, see majority at 500, despite the fact only Halverson’s relationship with Wickersham is currently before this court.
By incorrectly ascribing such significance to matters
This is the first time this court has held a consensual sexual relationship between attorney and client by itself may violate the Rules of Professional Conduct.
Compounding the problem is the majority’s erroneous labeling of six months as the presumptive minimum suspension that may be issued in this jurisdiction. Majority at 495. This is directly contradicted by our own court rules. Washington’s Rules of Lawyer Discipline estabhsh a maximum suspension of two years, but no minimum. RLD 5.1(b); see also RLD 8.1 (differentiating between responsibilities of lawyers suspended for less than 60 days and lawyers suspended for greater than 60 days).
Prior reported decisions of this court are also replete with examples of suspensions totaling less than six months. E.g., In re Discipline of Gillingham, 126 Wn.2d 454, 469, 896 P.2d 656 (1995) (60-day suspension); In re Discipline of Johnson, 118 Wn.2d 693, 708, 826 P.2d 186 (1992) (60-day suspension); In re Discipline of Burtch, 112 Wn.2d 19, 29, 770 P.2d 174 (1989) (45-day suspension); In re Discipline of McLeod, 104 Wn.2d 859, 865, 711 P.2d 310 (1985) (90-day suspension); Noble, 100 Wn.2d at 98 (90-day suspension); In re Discipline of Kennedy, 97 Wn.2d 719, 723, 649 P.2d 110 (1982) (60-day suspension); In re Discipline of Orton, 97 Wn.2d 243, 245, 643 P.2d 448 (1982) (Stafford, J., concurring) (arguing for more severe sanction of 60 days). Finally, orders of this court continue to reflect numerous suspensions of less than six months. E.g., In re Discipline of Brothers, No. 09653 (Wash. Supreme Ct. Dec. 6, 1999) (order approving stipulation to suspension).
Our holding here that this type of conduct can violate
I would defer to the Board’s determinations in this case and adopt its recommended six-month suspension.
In Noble, this court developed its current standard of review of Board attorney discipline decisions. Noble, 100 Wn.2d at 95-96. Since Noble, the majority of cases have either chosen to follow the Board’s recommended sanction or impose a lesser sanction. See, e.g., In re Discipline of Heard, 136 Wn.2d 405, 425, 963 P.2d 818 (1998) (adopting recommended two-year suspension); In re Discipline of Dann, 136 Wn.2d 67, 87, 960 P.2d 416 (1998) (adopting recommended one-year suspension); In re Discipline of McLendon, 120 Wn.2d 761, 775, 845 P.2d 1006 (1993) (adopting recommendation of Board dissenters to issue one-year suspension rather than disbarment suggested by Board majority); In re Discipline of Johnson, 118 Wn.2d 693, 705, 826 P.2d 186 (1992) (adopting sanction between 60 days [suggested by Board dissenters] and six months [suggested by Board majority]); In re Discipline of Hankin, 116 Wn.2d 293, 310, 804 P.2d 30 (1991) (adopting recommended one-year suspension); In re Discipline of Allotta, 109 Wn.2d 787,
While the case of “Jane Doe E” was to be considered during the proceedings, Ms. E consistently refused to comply with subpoenas and never offered testimony.
Heard, 136 Wn.2d 405, is distinguishable for the obvious reasons set forth by the majority.
See, e.g., In the Disciplinary Proceedings Against Lowell Halverson, No. 1518 (WSBA Disciplinary Bd. Order Sept. 30, 1998); Clerk’s Papers at 863-66, 864 n.5 (discussing court declining to adopt per se rule prohibiting attorney-client sexual relations); Clerk’s Papers at 891 (Wiggins, J., dissenting) (encouraging court to adopt per se rule); Clerk’s Papers at 894 (Kilpatrick, J., concurring) (discussing uncertainty surrounding court’s treatment of proposed per se rule and application of existing rules).
Concurrence Opinion
(concurring in part, dissenting in part) — I dissent from the majority’s determination that Lowell Halverson violated his duty to communicate or failed to exercise independent professional judgment and did not render candid advice. Further, because Halverson acted negligently and not knowingly, I conclude that a reprimand is a sufficient sanction.
Standard of Proof in Attorney Discipline Cases is High
Although the majority recognizes counsel for the Washington State Bar Association (WSBA) must prove allegations of misconduct by a clear preponderance of the evidence, Majority at 485-86, the majority does not appear to appreciate the weight of the burden placed on the accuser:
Every doubt should be resolved in his [the attorney’s] favor, and only upon a clear preponderance of the evidence that the acts charged have been done, and were prompted by improper motives, should disciplinary action be taken. The privilege— and it is a privilege, not a right — to practice his profession cannot be lost to the practitioner upon slight evidence.
In re Discipline of Little, 40 Wn.2d 421, 430, 244 P.2d 255 (1952). Further, the trier of fact’s determination that the
Findings of Fact
By upholding certain challenged findings of fact, the majority demonstrates its paternalistic perception of female dissolution clients. The majority opines “Wickersham depended upon Halverson,” Majority at 484, and claims a “power imbalance” Halverson allegedly exercised in his representation of female dissolution clients. Majority at 484. These views are more in the nature of conclusions than facts. See Para-Medical Leasing, Inc. v. Hangen, 48 Wn. App. 389, 397, 739 P.2d 717 (1987). Conclusions are reviewed de novo. City of Redmond v. Central Puget Sound Growth Management Hearings Bd., 136 Wn.2d 38, 46, 959 P.2d 1091 (1998). However these conclusions are neither supported by the facts of this case nor based on human experience:
The tenacious image of the vulnerable, needy, childlike woman is nowhere more prevalent than in the discussion of a female divorce client. Having lost her husband, she is described as emotionally unstable, feeling unattractive, and anxious to receive the attention and approval of another man. One judge mused about the vulnerability of the female divorce client:
We conjure up with ease the client entering her lawyer’s office. Her marriage has collapsed and she is concerned about her failed relationship. Perhaps she has been rejected by her spouse. More often than not, she has serious financial problems which may present her with areas of stress with which she has not previously been required to cope. Her children may be severely disturbed over the failed marriage and the pulling and tugging by the parents which is generally attendant to these situations. As she walks through the door of the office, at last she finds someone who cares about her problem, someone who will protect her legally and someone whom she can trust.
Viewing female dissolution clients as “victims” who need the support, assistance and guidance of their powerful male attorneys is degrading because it undermines women’s right of independent self-determination. Moreover it does not accurately portray the dynamics of an attorney-client relationship.
*508 While rules governing attorney-client sex appear to control male sexuality — by disciplining attorneys who engage in the sexual relationships, the vast majority of whom are male— they indirectly control female sexuality by denying self-determination to female clients who desire a dual relationship with an attorney.
Mischler, supra, at 235. Thus, characterizing Halverson’s client as a defenseless victim subject to the overwhelming power of her attorney is inaccurate, not supported by the record, and inconsistent with the legal entitlements of all concerned.
The majority also improperly focuses on the emotional harm which purportedly befell Halverson’s client as a result of their affair. “[A]s a result of Halverson’s conduct, Wickersham suffered personal harm in the form of depression and anxiety.” Majority at 484. While this may be true, broken hearts and personal disappointments are not the proper subjects of an attorney discipline proceeding which must focus on state licensure requirements. The Illinois Appellate Court reasoned in an analogous situation:
[T]o allow an action for legal malpractice based upon the fact that an intimate relationship occurred between the attorney and his client during the course of the legal relationship, when supported only by damages such as mental anguish, shame, humiliation, injury to feelings, defamation, or some unspecified injury to character, would be tantamount to allowing a claim for seduction, alienation of affections, or criminal conversion to proceed under less strict standards than required by statute for actions of this type, merely by virtue of the fact that the parties involved happened to have met in the context of a legal relationship.
Suppressed v. Suppressed, 206 Ill. App. 3d 918, 565 N.E.2d 101, 106 n.3, 151 Ill. Dec. 830 (1990). While we may consider actual or potential harm caused by the violation of an ethical duty to determine a presumptive sanction, it is not proper to consider personal harm unrelated to the violation of an attorney’s ethical duty to faithfully represent the
RPC 1.7(b) — Duty to Avoid Conflicts of Interest
As an initial matter, I am not persuaded that a consensual sexual relationship between an attorney and his client— initiated by the client — inherently creates a potential conflict of interest.
A sexual relationship with a client, however, does not inherently create a contrary interest. As long as the intimate relationship remains intact, the interests of the attorney and client are not incompatible per se. Indeed, they are strongly aligned. The personal relationship may strengthen the representation, increasing the zeal with which the attorney approaches the case.
Mischler, supra, Reconciling Rapture, Representation, and Responsibility at 228 (footnote omitted).
And if, as the majority concludes, Halverson unreasonably. believed that a sexual relationship with his client would not affect the representation, his failure to obtain his client’s written consent after full disclosure is irrelevant. Rule of Professional Conduct 1.7(b) makes clear that a lawyer shall not represent a client unless the lawyer both: (1) reasonably believes the representation will not be adversely affected, and (2) obtains written client consent after fully disclosing the material facts. RPC 1.7(b). Thus, the majority’s statement “nor did Halverson disclose to Wickersham the risks involved or the material implications of the sexual relationship upon the dissolution proceeding,” Majority at 486-87, is beside the point as Halverson’s violation of RPC 1.7(b) could not have been avoided even if
RPC 1.4(b) — Duty to Communicate
Without analysis, the majority holds: “We agree with the Board that the same failures to disclose supporting the conclusion that Halverson violated RPC 1.7(b) also support the conclusion that he violated RPC 1.4(b).”
As an initial matter, the hearing officer found no violation of this rule. Accordingly, there are no findings of fact to explain what Halverson failed to disclose to enable his client to make informed decisions regarding the representation. As the hearing officer comprehensively chronicled even irrelevant facts (finding of fact 21 states “[djuring sexual intercourse, the couple did not utilize birth control”), it is consistent to presume the hearing officer would have made explicit findings detailing what Halverson improperly failed to disclose — had Halverson failed to communicate necessary matters to his client. Not only did the hearing officer refuse to find facts indicating Halverson violated RPC 1.4(b), the facts actually found by the hearing officer suggest Halverson did not violate RPC 1.4(b).
14. Ms. Wickersham knew that Respondent was married. The couple discussed the need for an agreement that Respondent’s wife not find out about any relationship between them.
15. Respondent advised Ms. Wickersham that their intimate re*511 lationship would need to be separate from the lawyer-client relationship. Respondent also advised that he desired his contact with Ms. Wickersham’s minor child to be kept to a minimum and that he not “bond” with the child.
Findings of Fact, Conclusions of Law and Order for Further Hearing at 6 (WSBA Disciplinary Board, Jan. 8, 1998) (emphasis added). Although the Board may be allowed in certain cases to make additional findings based on new evidence taken on administrative appeal, the Board is not allowed to ignore the examiner’s findings and replace those with new ones based on previously considered evidence. See In re Discipline of Lynch, 114 Wn.2d 598, 608, 789 P.2d 752 (1990). Accordingly, the WSBA has failed to prove Halverson violated RPC 1.4(b) by any measure of evidence— much less a clear preponderance.
In addition to the absence of findings to prima facie satisfy the requisite elements of proof, the Board’s conclusion that Halverson violated RPC 1.4(b) is based on the erroneous premise that Halverson should have obtained his client’s informed, written consent prior to beginning their sexual relationship. See Opinion at 16 (WSBA Disciplinary Board, Oct. 5, 1998). As explained above, Halverson’s conceded failure to obtain his client’s informed consent is immaterial as Halverson violated RPC 1.7(b) by fading to recognize the representation could be adversely affected by a sexual relationship with his client.
Further the majority’s unquestioning deference to the Board’s conclusion that Halverson violated RPC 1.4(b) is misguided when the underlying purposes of RPC 1.4(b) are considered. The American Bar Association’s (ABA) annotation of Model Rules of Professional Conduct explains:
The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.
Annotated Model Rules of Professional Conduct Rule 1.4 cmt. at 53 (2d ed. 1992). This comment illustrates the
Rule 1.4(b) has a slightly different focus, specifically the client’s right to participate, as set forth in Rule 1.2(a). Since the client has the right to make strategic decisions, he must be given the information necessary for informed decision making.
1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 1.4:101, at 83 (2d ed. Supp. 1991).
A review of the record demonstrates that Halverson clearly complied with the directive of RPC 1.4(b). Before becoming involved with his client, Halverson advised her against rushing into any new relationships and informed her that doing so could jeopardize her position in the dissolution. Report of Proceedings (RP) at 321-22. Halverson “talked about the ethical part of getting involved with a client,” RP at 328, and told his client he should not begin a sexual relationship with her. RP at 329-30. And Halverson also advised his client to tell the truth if ever asked about their relationship. RP at 527. This evidence demonstrates Halverson did in fact provide his client with sufficient information to facilitate her informed decision making. Accordingly, I would affirm the hearing officer’s conclusion Halverson did not violate RPC 1.4(b).
RPC 2.1 — Duty to Exercise Independent Professional Judgment
The majority also finds Halverson did not exercise independent professional judgment in violation of RPC 2.1.
ABA Formal Opinion 92-364 carefully delineates how a sexual relationship can violate RPC 2.1:
The lawyer must evaluate the client’s situation, objectively and reasonably, fairly considering all possible courses of action.
It can be difficult, however, to separate sound judgment from the emotion or bias that may result from a sexual relationship. A lawyer involved in a sexual and emotional relationship with a client may encounter particular difficulty in providing “the straightforward advice” which “often involves unpleasant facts and alternatives that a client may be disinclined to confront.” Rule 2.1 comment. Because of a desire to preserve the relationship, the lawyer may “be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.” Id. Thus, a lawyer who engages in a sexual relationship with a client during the course of representation risks losing the objectivity and reasonableness that form the basis of the lawyer’s independent professional judgment.
ABA Comm, on Ethics and Professional Responsibility Formal Op. 92-364, at 7 (1992) (emphasis added). The ABA opinion thus simply describes the risks of an attorney-client sexual relationship and cautions that such relationships “may” violate professional obligations. But as Charles Wiggins explains in his dissent:
There is no evidence that Halverson was deterred from giving or failed to give Wickersham “straightforward advice” or candid advice “unpalatable to the client.” Nor is there any evidence that Halverson could not render or failed to render independent professional judgment.
Wiggins Dissent at 10. In fact, the evidence is to the con
Sanction
The majority concludes that because “Halverson acted knowingly, the Board properly concluded that suspension should be the presumed sanction, as opposed to disbarment or a mere reprimand.” Majority at 494. However, the majority’s conclusion Halverson acted “knowingly” is inconsistent with its earlier analysis.
The majority concludes Halverson violated RPC 1.7(b) (conflict of interest) for the following reasons:
Halverson should have known that discovery of the affair could worsen the relationship between Wickersham and Sarles and, thus, unnecessarily complicate the dissolution proceeding. Further, Halverson should have known that the affair could impact the custody determination of Wickersham’s daughter. Finally, Halverson should have known that discovery of the affair by his wife might lead to his withdrawal as Wickersham’s attorney. Thus, Halverson’s subjective belief that the relationship would not adversely affect the representation was not objectively reasonable.
Majority at 487 (emphasis added). Nevertheless, the majority concludes
the evidence clearly establishes that Halverson was aware that his entry into a sexual relationship with Wickersham during her dissolution proceedings exposed her to serious psychological and legal risks.
Majority at 494 (emphasis added). I disagree. The hearing
32. Respondent knew or should have known from his sexual relationships with other clients in the past that by engaging in sexual relationships with clients, those clients were being exposed to greater risks of emotional harm. Further, Respondent should have known that his sexual relationships with clients created greater legal risks for his clients in their pending dissolution proceeding.
Findings of Fact, Conclusions of Law and Order for Further Hearing, supra, at 8 (emphasis added). This language that Halverson “should have known” — used by both the hearing officer and the majority opinion in describing Halverson’s violation of RPC 1.7(b) — indicates that Halverson was simply negligent in determining the representation of his client would not be materially limited by his own interests. The following is the applicable ABA standard to determine Halverson’s presumed sanction:
Reprimand is generally appropriate when a lawyer is negligent in determining whether the representation of a client may be materially affected by the lawyer’s own interests, or whether the representation will adversely affect another client, and causes injury or potential injury to a client.
ABA Standards for Imposing Lawyer Sanctions Std. 4.33 (1991). The ABA Standards define “negligence” as “the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation.” ABA Standards, Definitions at 7. The majority reasons that “Halverson’s subjective belief that the relationship would not adversely affect the representation was not objectively reasonable.” Majority at 487. If we use that reasoning, it is clear Halverson acted negligently, not knowingly. Thus, a reprimand should be the presumed sanction for Halverson’s misconduct.
In In re Discipline of Haskell, 136 Wn.2d 300, 962 P.2d 813 (1998), we departed from the presumptive sanction of disbarment and imposed a sanction of suspension, despite equal aggravating and mitigating factors. “In reaching this determination, we have been little-influenced by mitigating and aggravating factors which essentially cancel each other out.” Id. at 321. The majority ignores this precedent and fails to cite any authority for the proposition that “an approximately equal number of aggravating and mitigating factors” warrants an upward departure from a presumptive sanction. This illustrates the “majority’s decision appears more an attempt to punish Halverson than to follow our disciplinary standards.” Concurrence/dissent at 503 (Johnson, J.).
Conclusion
No one disputes that Lowell Halverson acted wrongly, fool*517 ishly, and hurtfully when he entered into a sexual relationship with Lisa Wickersham. It was a grievous wrong and grievously has Halverson answered for it. The task before this [court], however, is not to pass moral judgment on Halverson, but to determine whether he violated any of the Rules of Professional Conduct, and if so, the appropriate sanction to protect the public and to deter future wrongdoing by Halverson and others.
Wiggins Dissent at 1. Although Halverson’s conduct arguably violated RPC 1.7(b), it did not violate RPC 1.4(b) or RPC 2.1. And as both the hearing officer and the majority acknowledge Halverson “should have known” better, the appropriate sanction under these circumstances is a reprimand.
Reconsideration denied July 6, 2000.
Counsel for the WSBA perpetuates this outdated stereotype, arguing: “Mr. Halverson was a very prominent, successful, powerful lawyer, a President of the Bar Association. Ms. Wickersham was a much younger, a woman without a college degree, with a young child, who was intimidated by her attorney husband, and who was terrified of losing custody of her baby daughter.” Disciplinary Counsel’s Resp. Br. at 14.
Not only did Halverson settle his client’s civil suit for an undisclosed “substantial sum” of money, Halverson provided his client with over $13,000 of free legal work — described by Wickersham’s second attorney as work of “excellent” quality — which greatly aided Halverson’s client in obtaining a good outcome. Report of Proceedings at 574-76.
By the same token Halverson has no doubt sustained severe emotional distress which might have cost him his marriage hut for the grace of his wife.
RPC 1.4(b) provides: “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
RPC 2.1 provides:
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
I would hardly impose a professional duty upon an attorney to tell an adult mother that intercourse may result in conception.
In doubling the Board’s recommended sanction, the majority finds relevant that Halverson’s personal conduct contradicted his published professional advice and considered his “status in the legal community” of particular importance. Majority at 499. The practical result of the majority’s logic is that lawyers may now be sanctioned for personal conduct falling below their own personal standards, although not necessarily below the standards for professional discipline set by this court by rule. Further, attaching relevance to a lawyer’s status punishes lawyers for becoming active in the legal community and encourages the Bar to target “high profile” attorneys for discipline to make an example of those who have risen to the top of their profession through exemplary service to their clients. If anything, these factors should be considered in mitigation of a sanction, not aggravation.
