155 Wash. 2d 723 | Wash. | 2005
Lead Opinion
Clayton E. Longacre appeals the Washington State Bar Association (WSBA) Disciplinary Board’s (the Board) findings that he committed three acts of misconduct and its recommendation that he be suspended for 60 days and required to attend 30 hours of continuing legal education (CLE) courses. He contends on appeal that (1) the WSBA did not prove the alleged misconduct by a clear preponderance of the evidence and (2) that the recommended sanction of suspension is too harsh, asking instead for a reprimand. Longacre also appeals the Board’s denial of his motion for additional proceedings. The WSBA also appeals, arguing that (1) the Board erred in reversing the hearing officer’s finding of a pattern of misconduct, (2) the Board erred in determining that Longacre’s misconduct was merely negligent rather than knowing, (3) the Board erred in concluding that restitution was not appropriate in this case, and (4) the Board erred in imposing a 60-day suspension rather than a six-month suspension as recommended by the hearing officer.
¶2 We hold that the WSBA proved all three counts of misconduct but that it did not establish a pattern of misconduct or a knowing state of mind, and we impose a 60-day suspension and 30 additional hours of CLE courses. We also affirm the Board’s denial of additional proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
A. The Charges
¶3 Longacre was admitted to the practice of law in the state of Washington in 1992. He worked in criminal defense in both King and Kitsap Counties. In 2002, the WSBA filed a formal complaint charging Longacre with three counts of attorney misconduct. The charges against Longacre arose
B. The Hearing
¶4 As an initial matter, the facts in this matter are heavily disputed. As noted by the hearing officer:
The evidence presented was at times conflicting and contradicting. In evidence was the transcript from a prior proceeding before Judge William Howard concerning a Motion for a New Trial after William Joseph Jones III was convicted on the Third Amended Information. There are inconsistencies between the testimony of both Respondent and Mr. Jones between that proceeding and the testimony offered herein. In resolving the inconsistencies and differences between the testimony of each witness the Hearing Officer has thoroughly considered any motivation of each witness with respect to each proceeding; the passage of time between the two hearings, as well as between the events in question and the testimony given with respect thereto; and finally the credibility of each witness based on the ability to observe, and in the case of Mr. Jones listen, to the testimony and to evaluate the demeanor of each witness.
Answering Br. of the WSBA, App. 1 (Findings of Fact, Conclusions of Law, and Hr’g Examiner’s Recommendation) (FOF and COL), at 3. With that caveat, the following
¶5 On May 1, 2000, Tripp and two other hoys were arrested for drive-by shooting. Tripp was arraigned the next day in Kitsap County Superior Court and at that time was represented by Tom Weaver. Tripp received a copy of the original information prior to his arraignment. Weaver discovered a conflict in representing Tripp and recommended Longacre as a replacement. After briefly conversing with Tripp and Tripp’s father, Longacre was hired to represent Tripp. The hearing officer found that during this brief meeting, Longacre did not discuss the original information with Tripp.
¶6 Longacre met with Tripp in jail around May 3 or 4, 2000. Longacre and Tripp discussed Tripp’s version of the events surrounding the arrest, but the hearing examiner found that Longacre did not advise Tripp of the sentencing range for the pending charges nor did he go over the contents of the original information.
¶7 Tripp planned to pursue a military career, so he wanted to avoid a felony conviction.
¶8 Deputy Prosecuting Attorney Kevin “Andy” Anderson (DPAAnderson) was assigned to the case on May 11, 2000, and amended the information to include drive-by shooting, assault in the second degree, and a firearm enhancement allegation. Based on the amended information, DPAAnder-son prepared a plea agreement and faxed the amended information and the plea agreement to Longacre on May 11, 2000. The plea agreement articulated the sentencing range of 74-84 months for both counts, including 36 months added for the firearm allegation. In exchange for a guilty plea to the above two counts, DPAAnderson offered a sentencing recommendation of 62 months and an agreement not to file further charges (including additional counts of assault in the second degree with firearm enhancements and/or as
¶9 On May 26, 2000, DPA Anderson sent a letter to Longacre in which he warned Longacre of the current standard range and that he would amend the information to include four counts of assault in the first degree (or alternatively four counts of assault in the second degree), all to include firearm enhancements, in addition to one count of drive-by shooting. The collective bottom sentencing range, DPAAnderson stated, would be nearly 51 years. DPA Anderson urged Longacre to thoroughly consider the 62-month offer. The hearing officer found that Longacre did not convey the information from the May 26, 2000 letter to his client.
¶10 The hearing officer found that on June 13, 2000, DPAAnderson advised Longacre by letter that he would be making a 57-month plea offer to one of Tripp’s codefendants and that he would extend the same offer to Tripp. The hearing officer found that Longacre did not communicate this offer to his client.
f 11 During a psychological evaluation at Western State Hospital on June 23, 2000, Tripp told Thomas Danner, PhD, that he believed he could be facing up to 46 months.
¶12 DPAAnderson advised Longacre by letter on July 3, 2000 that, based on Tripp’s apparent choice to go to trial rather than agree to a plea, he was going to arraign Tripp on a second amended information with increased charges (based on the charges articulated in the May 26, 2000 letter). The hearing examiner found, and Longacre did not challenge, that Longacre did not share this correspondence with Tripp.
f 13 Tripp was arraigned on the second amended information on July 12, 2000. The information charged four counts each of assault in the first degree and assault in the second degree, all with firearm enhancements, and one count of drive-by shooting. These were the same charges DPA Anderson indicated he would pursue in his May 26,
¶14 On August 28, 2000, Tripp went to trial on the second amended information and was convicted of four counts of assault in the second degree with a firearm finding and drive-by shooting. The presentence report included a standard range of 221-246 months based on the convictions.
f 15 The hearing officer found that before sentencing, Longacre approached Weaver (Tripp’s prior attorney) and discussed Tripp’s case. Based on that conversation, Weaver concluded that Longacre had not fully advised Tripp of the offers made by DPA Anderson prior to trial, nor had Longacre understood the consequences of losing the trial. Weaver indicated that these acts could rise to the level of ineffective assistance of counsel and that Longacre should consider withdrawing to allow Weaver to make such a defense in a motion for a new trial. Longacre moved to withdraw on September 12, 2000, and an order approving withdrawal was issued September 19, 2000.
¶16 Weaver then took over as counsel for Tripp and filed a motion for a new trial. Visiting Judge William Howard ordered a new trial, concluding that Longacre’s representation of Tripp was ineffective. Judge Howard found that Longacre had provided incorrect sentencing information to Tripp, including the proper range and the effect of firearm enhancements (concurrent versus consecutive).
¶17 Tripp pleaded guilty to a third amended information charging three counts of assault in the second degree and drive-by shooting (without firearm enhancements) on December 15, 2000. On January 5, 2001, Tripp was sentenced to 57 months pursuant to a plea agreement.
f 19 The hearing officer concluded that Longacre committed the first two counts of charged misconduct but not the third. The hearing officer determined that Longacre “failed to fully communicate to Tripp the sentencing range he faced and thus the risks of going to trial on the first and second amended charging documents and further did not communicate the plea offers received from DPAAnderson to Tripp.” FOF and COL at 9. Additionally, Longacre “failed to calculate properly the sentence ranges for the charges and failed to understand that the firearm enhancements would run consecutively rather than concurrently.” Id. With respect to count III, the hearing officer concluded that because Longacre’s conduct was not “in an official or advocatory role or conduct physically interfering with the enforcement of the law,” it was not conduct “ ‘prejudicial to the administration of justice’ under RPC 8.4(d).” Id. at 11 (citing In re Disciplinary Proceeding Against Curran, 115 Wn.2d 747, 801 P.2d 962 (1990)).
¶20 Having found that the first two counts of charged misconduct were committed, the hearing officer next considered the presumptive sanctions. The hearing officer found that with respect to count I (failure to diligently represent Tripp), the presumptive sanction was a reprimand and concluded there was no basis to depart from that sanction based on aggravating or mitigating factors. On count II (failure to communicate sentence implications and plea offers), the hearing officer determined that Longacre’s actions were “negligent and not intentional,” but because Longacre “demonstrated a pattern of behavior in failing to communicate with his client, failing to advise him of the standard sentence range penalties he faced if the matter went to trial, and fail[ing] to communicate the plea offers,”
¶21 Although the hearing officer did not expressly identify any facts as aggravating or mitigating factors, he made FOF 32 that Longacre had no prior disciplinary record (which is a mitigating factor), and FOF 33 that, while Longacre admitted that he did not correctly calculate the sentencing ranges Tripp faced, he generally denied any further wrongdoing (which the Board later considered to be an aggravating factor). The hearing officer only referenced mitigating and aggravating factors generally in deciding not to deviate from the presumptive sanction for count I.
¶22 The hearing officer recommended that Longacre be suspended for 6 months, placed on probation under Rules for Enforcement of Lawyer Conduct (ELC) 13.8 for a period of 24 months during which period of time he obtain 30 hours of CLE credits in the area of criminal law and procedure, and ordered to pay $9,000 in restitution to his former client (the amount Longacre allegedly received from Tripp’s father to represent Tripp).
C. The Board
¶23 Longacre filed a notice of appeal with the Board. He disputed 15 of the FOF and the first 2 of the 3 COL, as well as the hearing officer’s presumptive sanctions and recommendation. He also requested additional proceedings to supplement the record.
¶24 The Board approved and adopted the hearing officer’s FOF and COL with some amendments and denied Longacre’s request for additional proceedings. The Board determined that, contrary to the hearing officer’s conclusion, the WSBA did not establish a pattern of neglect with respect to Longacre’s failure to advise his client of the plea offers and potential sentences. Therefore, the presumptive sanction for count II would be a reprimand rather than suspension under ABA Standards std. 4.43. Also in contrast
f 25 Longacre appealed the Board’s decision to this court. Before this court, Longacre assigns error to FOF 4, 5, 9,12, 14,15,16, 24, 29, 30, and 33 as adopted by the Board;
¶26 The WSBA filed a petition for discretionary review. The WSBA assigned error to the Board’s determination that there was no pattern of neglect and that Longacre’s state of mind was negligent rather than knowing; therefore, the presumptive sanction for count II was a reprimand rather than suspension, restitution was not appropriate, and the recommended sanction was 60 days rather than six months. This court granted the WSBA’s petition and consolidated the matter with Longacre’s appeal.
A. Did the WSBA prove all three counts of misconduct by a clear preponderance of the evidence?
B. If the WSBA proved misconduct, what is the appropriate sanction?
C. Did the Board err in denying Longacre’s motion for additional proceedings?
III. ANALYSIS
¶27 This court bears the ultimate responsibility for lawyer discipline in Washington. In re Disciplinary Proceeding Against Anschell, 141 Wn.2d 593, 607, 9 P.3d 193 (2000).
A. Whether the WSBA proved all three counts of misconduct by a clear preponderance of the evidence
Factual Findings
¶28 Longacre assigns error to many of the facts found by the hearing examiner and adopted by the Board, arguing that the WSBA failed to prove them by a clear preponderance of the evidence. A challenged finding of fact will not be overturned if it is supported by a clear preponderance of the evidence and unchallenged findings of fact are accepted as true. 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). “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 Haskell, 136 Wn.2d 300, 310, 962 P.2d 813 (1998) (quoting In re Disciplinary Proceeding Against Allotta, 109 Wn.2d 787, 793-94, 748 P.2d 628 (1988)). In determining whether a
¶29 Assignments of Error Two and Three: Longacre first
¶30 To try and convince the court that these findings were not supported by substantial evidence, Longacre first cites Tripp’s testimony at the disciplinary hearing where Tripp claimed he never received the original information. Longacre then compares the testimony to DPA Anderson’s testimony that in-custody defendants receive a copy of their
¶31 Assignments of Error Five and Six: Longacre next assigns error to FOF 16, 29, and 30,
¶32 To refute the hearing officer’s findings, Longacre again cites extensively to the record but his reasoning for doing so is unclear. Much of the testimony Longacre refers to involves statements that, while he did not remember specifically advising Tripp of any particular information or sentencing range, it would have been his practice to do so and, therefore, he must have done so. Longacre also opines that the fact that his client indicated during his psychological evaluation that he believed he was facing 46 months
¶33 Further, even if the topic of a plea offer or sentencing had come up, Longacre could still have fallen short of effectively communicating with his client by failing to explain the plea offer or sentencing information and its ramifications. The rest of Longacre’s arguments seem to be pointing out the inconsistencies within Tripp’s and Tripp’s father’s testimonies, as well as between those testimonies and Longacre’s own statements. This is insufficient to overcome the fact that the hearing officer relied upon substantial testimony to support its FOF. Huddleston, 137 Wn.2d at 568 (“ ‘[Substantial, albeit disputed, testimony’is sufficient to support challenged findings of fact.” (alteration in original) (quoting Denend, 98 Wn.2d at 704)).
¶34 Assignment of Error Four: Longacre next assigns error to FOF 12, 14, 15, and 30, arguing that he did in fact convey all plea offers to Tripp and his father as well as DPA Anderson’s threats to increase the charges. In finding that Longacre failed to convey plea offers to his client, the hearing officer relied on testimony given both at the disciplinary hearing and at the previous motion for a new trial. See TR at 55, 58-60, 82-83, 85, 189-90; Ex. 2, at 10-12, 16-19, 21-22, 35, 45-46 (Longacre’s memory failure regarding communications with Tripp at motion for a new trial), 64-67 (testimony of Tripp).
f35 Longacre first argues that his memory failures at the motion for a new trial hearing should be understand
¶36 Longacre continues to cite to testimony excerpts of Tripp, Tripp’s father, and Longacre, but the passages he cites do not directly support his arguments. For example, he cites to Tripp’s father’s testimony in which Tripp’s father recalls Longacre mentioning a plea agreement with a range of around 58 months to him and his wife after just coming out of a conference with Tripp. But the fact that Longacre had just left a conference with Tripp and proceeded to tell Tripp’s parents of the 57-month figure does not mean the same information would have been communicated to Tripp.
¶37 Although there is some conflicting testimony, there is substantial evidence in the record to support the hearing officer’s FOF. The hearing officer’s findings are entitled to great weight. Haskell, 136 Wn.2d at 310. We decline to alter the FOF as adopted by the Board.
Conclusions of Law
¶38 The court will uphold the hearing officer’s COL if they are supported by the FOF. Huddleston, 137 Wn.2d at
1. Count I: Duties of diligent and competent representation
¶39 The hearing officer’s conclusion that Longacre violated his duty to provide diligent and competent representation is supported by substantial facts in the record. “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” RPC 1.1. Counsel must also “act with reasonable diligence and promptness in representing a client.” RPC 1.3. “In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.” RPC 1.2(a). The record reflects that Longacre did not properly calculate the penalties Tripp faced — nor did he effectively communicate such information to Tripp — at several stages of the proceedings. He also failed to empower his client with the ability to accept or reject plea offers by failing to adequately inform him of the offers and the penalties he faced if he were to go to trial. Although not dispositive, a superior court judge has already determined that Longacre’s representation of Tripp was ineffective, such that Tripp was entitled to a new trial.
¶40 We sustain the hearing officer’s conclusion as adopted by the Board that Longacre’s representation of Tripp was neither diligent nor competent.
2. Count II: Duty to communicate
¶41 Ample testimony in the record supports the conclusion that Longacre failed to communicate with his client in violation of RPC 1.4. The duty to communicate requires a lawyer to keep his or her clients “reasonably informed about the status of a matter,” and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the represen
¶42 We sustain the hearing officer’s conclusion as adopted by the Board that Longacre violated his duty to communicate with his client.
3. Count III: Duty to refrain from conduct prejudicial to the administration of justice
¶43 RPC 8.4(d) provides that “[i]t is professional misconduct for a lawyer to . . . [ejngage in conduct that is prejudicial to the administration of justice.” The hearing officer found that the WSBA failed to prove the facts necessary to sustain its charge that Longacre violated RPC 8.4(d) because Longacre’s “conduct was not conduct in an official or advocatory role or conduct physically interfering with the enforcement of the law,” but the Board modified this COL. FOF and COL at 11. The Board determined that the hearing officer “misapplied” In re Disciplinary Proceeding Against Curran, 115 Wn.2d 747, 801 P.2d 962 (1990), and that “Mr. Longacre violated a practice norm established by the U.S. Supreme Court and adopted in Washington.” Answering Br. of the WSBA, App. 2 (Disciplinary Bd. Order), at 2 (citing Santobello v. New York, 404 U.S. 257, 260-61, 92 S. Ct. 495, 498, 30 L. Ed. 2d 427 (1971) (“The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential component of the administration of justice.”); State v. James, 48 Wn. App. 353, 739 P.2d 1161 (1987)).
¶44 In Curran, this court noted “conduct deemed prejudicial to the administration of justice has generally been conduct of an attorney in his official or advocatory role or conduct which might physically interfere with enforcing the law.” 115 Wn.2d at 764. The court went on to cite with approval Professor Hazard’s opinion that “conduct prejudi
¶45 We sustain the Board’s conclusion that Longacre engaged in conduct that was prejudicial to the administration of justice.
B. Issues relating to the appropriate sanction
¶46 “This court retains ultimate responsibility for determining the proper measure of discipline,” however the court does give “serious consideration” to the Board’s recommendation. In re Disciplinary Proceeding Against McLeod, 104 Wn.2d 859, 865, 711 P.2d 310 (1985).
In determining appropriate attorney disciplinary sanctions, the court engages in a two-step process utilizing the ABA Standards. First, the presumptive sanction is determined 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. Second, the court considers any aggravating or mitigating factors that may alter the presumptive sanction or affect the duration of a suspension.
In re Disciplinary Proceeding Against Cohen, 149 Wn.2d 323, 338, 67 P.3d 1086 (2003).
f 47 The Board found that for each count, the presumptive sanction was a reprimand. In finding that the presump
1. Whether Longacre’s lack of diligence and communication was negligent or knowing
¶48 The hearing officer found that Longacre’s “failure to communicate to Tripp the full risks of going to trial on the charges and the plea offers received was not intentional, but negligent.” FOF and COL at 10. The Board did not disturb this conclusion. The WSBA argues on appeal that the hearing officer and the Board ignored the state of mind between negligent and intentional — knowing—and that because Longacre acted knowingly, the presumptive sanction for violations of RPC 1.2, 1.3, and 1.4 should be suspension rather than reprimand. See ABA Standards std. 4.42(a) (“Suspension is generally appropriate when ... a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client. . . .”).
¶49 The ABA Standards define “ ‘[i]ntent’ ” as “the conscious objective or purpose to accomplish a particular result,” “ ‘[kjnowledge’ ” as “the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result,” and “ ‘[n]egligence’ ” as “the failure of a lawyer to heed a substantial risk that circumstances exist
¶50 In finding that Longacre behaved negligently rather than intentionally, it is unclear whether the hearing officer considered the possibility that Longacre acted knowingly. But the hearing officer did clearly make a factual finding that Longacre’s behavior was negligent and the Board affirmed that finding. The WSBA’s arguments are suggestive that Longacre acted knowingly but are not sufficient to overcome the deference due to the hearing officer’s determination of negligence.
¶51 Because the hearing officer was in the best position to make the determination and the record does not strongly suggest Longacre’s actions were knowing rather than merely negligent, we leave this finding undisturbed.
2. Whether the WSBA established a pattern of neglect such that the presumptive sanction for count II should have been suspension rather than a reprimand
f 52 The WSBA argues that the Board erred in rejecting the hearing officer’s determination that the record established a pattern of neglect. Under ABA Standards std. 4.42(b), when “a lawyer engages in a pattern of neglect and causes injury or potential injury to a client,” suspension is “generally appropriate.” The Board stated that because Longacre conveyed one plea agreement and some sentencing information to his client, his actions were inconsistent and, therefore, a pattern of neglect did not exist.
¶54 While we cannot determine from the record the precise number of instances constituting Longacre’s failure to communicate, the fact that such failure occurred is clear. However, the insufficiency of the record with regard to the number of instances leaves us unable to determine as a matter of law that Longacre was engaged in a pattern of neglect. We affirm the Board’s conclusion that Longacre was not engaged in a pattern of neglect.
3. Whether the Board’s conclusions of aggravating and mitigating factors were correct
¶55 Longacre argues that, in addition to Longacre’s lack of prior discipline, the Board should have also adopted as mitigating factors “Mr. Longacre’s extensive well respected criminal trial history without any similar complaints, his absence of dishonest motive, [and] his timely good faith effort to get Trip [p] appellate counsel.” Resp’t’s Br. at 45. Longacre does not provide any citation to the record that supports these claims.
f 56 Longacre also assigned error to the Board’s finding of aggravating factors (substantial experience in the practice of law, failure to acknowledge wrongful conduct, and multiple offenses), arguing that he “should not be faulted for believing in his position, and that should not be confused with a lack of remorse.” Id. But the Board recommended a suspension rather than reprimand because of the multiple violations, not because of the other aggravating factors it noted. Further, the remaining two aggravating factors are supported in the record.
¶[57 We adopt the Board’s proposed aggravating and mitigating factors.
4. Proper sanction
¶58 The WSBA asks the court to impose at least a six-month suspension, while Longacre argues that, at most, he should receive a reprimand. The hearing officer recommended a six-month suspension, 30 hours of additional CLE credits, restitution, and probation. The Board recommended a 60-day suspension and 30 hours of additional CLE credits. As previously noted, this court retains ultimate control over the proper sanction.
¶59 Suspension: Because we have declined to find a pattern of neglect or a knowing state of mind, the presumptive sanction for each count is a reprimand. ABA Standards stds. 4.43, 4.53, 5.23. The Board found that, although the presumptive sanction for each count was a reprimand, the multiple violations aggravated the sanction to a suspension. The ABA Standards recognize in its theoretical frame
¶60 On several occasions, we have entered 60-day suspensions based on the Board’s recommendation. See, e.g., In re Disciplinary Proceeding Against Lopez, 153 Wn.2d 570, 106 P.3d 221 (2005); In re Disciplinary Proceeding Against Carmick, 146 Wn.2d 582, 48 P.3d 311 (2002). When the Board is unanimous in its recommended sanction, this court is reluctant to reject its recommendation. In re Disciplinary Proceeding Against Cohen, 150 Wn.2d 744, 763, 82 P.3d 224 (2004).
¶61 Restitution: A lawyer subject to discipline “may be ordered to make restitution to persons financially injured by the respondent’s conduct.” ELC 13.7(a). Restitution has been ordered in cases where a lawyer failed to properly communicate with and diligently represent his or her client. See Cohen, 150 Wn.2d at 764; Anschell, 141 Wn.2d at 619-20.
|62 The hearing officer specifically found that “[a]s a result of [Longacre’s] failure to properly communicate the standard range sentences to Tripp and his failure to communicate the plea agreements to Tripp, Tripp was deprived of his right to participate meaningfully in the proceedings and faced a possible sentence of 221 months, as opposed to a 57 month sentence.” FOF and COL at 10. The Board did not alter this finding, but it rejected the hearing officer’s imposition of restitution because it determined that Tripp and his father received value from Longacre’s representation.
¶64 In sum, we impose upon Longacre 30 hours of additional CLE courses and a 60-day suspension. We decline to order restitution.
C. Whether the Board erred in denying Longacre’s motion to supplement the record
¶65 On March 24, 2004, after briefing before the Board was complete, Longacre filed a “Motion Requesting Additional Proceedings” under ELC 11.11. Longacre was attempting to oifer the testimony of Tripp’s father’s from the motion for a new trial hearing. Longacre could have introduced this testimony within the normal time frame for introducing evidence at his disciplinary hearing. The Board unanimously denied Longacre’s request. Longacre claims the testimony is necessary because credibility of the witnesses is at issue and to prevent “an absolute miscarriage of justice.” Resp’t’s Br. at 47.
¶66 As the WSBA points out, Longacre’s motion was untimely under ELC 11.11, which allows parties to request an additional hearing within the contents of their briefs filed pursuant to ELC 11.8 (briefs for review involving suspension or disbarment recommendation) or 11.9 (briefs for review not involving suspension or disbarment recommendation). As the hearing officer recommended suspension, 11.8(c) provided the timeline for briefing. Longacre did not request additional proceedings in his briefing pursuant to ELC 11.8. Further, Longacre did not satisfy the basis from which additional proceedings may be allowed
IV. CONCLUSION
¶67 We impose a 60-day suspension and 30 additional hours of CLE courses as recommended by the Board. We also affirm the Board’s denial of Longacre’s motion for additional proceedings.
Alexander, C.J., and C. Johnson, Bridge, and Owens, JJ., concur.
Longacre has challenged several FOF before the Board and on appeal before this court. The merit of those challenges will be discussed within the analysis portion of this opinion where applicable.
Although Longacre also assigns error to FOF 19, he did not appeal that finding before the Board, so we decline to address it here. In re Disciplinary Proceeding Against Kuvara, 149 Wn.2d 237, 246, 66 P.3d 1057 (2003) (hearing officer’s FOF not assigned error are verities on appeal if they were adopted by the Board).
Longacre also assigns error to FOF 4, in which the hearing officer found that a codefendant pleaded guilty at his arraignment on May 2, 2000. The correct date, Longacre argues, is May 8, 2000. This fact has no bearing on the disciplinary charges against Longacre, hut it does appear from the transcript of the disciplinary hearing that the hearing officer took judicial notice that the codefendant pleaded guilty on May 8, 2000.
In conjunction with this argument, Longacre also assigned error to FOF 19, but, as noted previously, it was not challenged to the Board and therefore is a verity on appeal.
The vote on this issue was 8-2.
The court asked Longacre during oral argument to provide citation to the record in support of his claim that he argued for these mitigating factors below. Longacre responded by citing to TR at 175-78. These pages consist of the testimony of DPA Anderson and Thomas Weaver (Tripp’s prior counsel and counsel on the motion for a new trial). They are irrelevant to the mitigating factors that Longacre proposes.
The dissent would allow an attorney to successfully argue for the first time before this court that the Board should have considered several mitigating factors, despite the fact that the attorney provides no support when making such arguments to this court. The dissent would have us conduct an independent search of the record to find support for claims that Longacre himself made no attempt to prove (reputation, absence of dishonest or selfish motive, and timely good faith effort to rectify consequences), and one that Longacre never even asserted (cooperative attitude during proceedings). The attorney appealing recommended discipline has the responsibility to provide factual and legal authority to support the claims being made.
We need not consider whether the recommended sanction is proportionate to Longacre’s misconduct or to sanctions imposed against other attorneys because Longacre has not brought “forward cases to try to persuade us that the recommended sanction is disproportionate.” See Anschell, 149 Wn.2d at 517.
Dissenting Opinion
(dissenting) — Clayton Longacre was charged with three counts of misconduct with respect to the same client, violating RPC 1.1, 1.2(a), 1.3, 1.4, and 8.4(d). The presumptive sanction for these violations is a reprimand according to the American Bar Association’s Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) (ABA Standards). However, the Disciplinary Board of the Washington State Bar Association (the Board) recommended, and the majority approves, a 60-day suspension and a requirement that Longacre attend 30 hours of con
¶71 The majority declines to examine Longacre’s mitigation arguments because, it says, Longacre failed to explicitly argue mitigating factors to the hearings officer or the Board.
¶72 In lawyer discipline matters the hearings officer begins by determining whether the WSBA disciplinary counsel has produced facts that prove, by a preponderance, the charged violations. The hearings officer then determines the lawyer’s mental state and the degree of harm, or potential harm, caused by the violations and arrives at the presumptive sanction. Mitigating or aggravating circumstances may alter the presumptive sanction. In this case the hearings officer did not identify or weigh any mitigating or aggravating circumstances. Rather, in his findings of fact the hearings officer stated that “Respondent has no prior
¶73 Under Washington’s disciplinary scheme, these findings of fact are reviewed for substantial evidence by the Board. ELC 11.12(b). The Board also reviews conclusions of law and recommendations de novo. Id. Here, the Board modified the hearings officer’s findings of fact and conclusions of law by determining that the WSBA failed to prove that Longacre engaged in a pattern of neglect but that the WSBA did establish that Longacre’s actions were conduct prejudicial to the administration of justice. Decision Papers (DP) at 4 (Bd. Order re Findings of Fact and Conclusions of Law). These changes to the hearing officer’s findings altered the presumptive sanction from suspension to reprimand. Then, the Board “adopted” three aggravating factors and one mitigating factor that it extracted from the record: “substantial experience in the practice of law, failure to acknowledge wrongful conduct and multiple offenses” and “no prior discipline.” DP at 4. The Board recommended suspension, despite the presumption, primarily because of the “multiple violations” aggravating factor. It limited the suspension to 60 days, however, because the presumptive sanction was reprimand. Id.
¶74 As noted, the majority accepts the Board’s recommendation and imposes a 60-day suspension upon Long-acre, with the additional requirement that he attend 30 hours of CLE courses in the field of criminal law, because it says that Longacre failed to argue for the mitigating factors that he raises in this review and because the majority holds that the multiple offenses aggravator found by the Board is appropriate in this case. However, the majority fails to recognize that Longacre is not required to argue the specific factors listed in the ABA Standards std. 9.32 before the hearings officer or the Board in order to raise them on appeal.
¶76 Moreover, because of the sensitive nature of disciplinary proceedings, which may strip a lawyer of his professional license or permanently stigmatize and scar his professional reputation, the court should strive to fully examine the record in order to ensure a just and fair outcome. See, e.g., In re Disciplinary Proceeding Against Allotta, 109 Wn.2d 787, 792, 748 P.2d 628 (1988); see also Bang D. Nguyen v. Dep’t of Health, 144 Wn.2d 516, 527, 29 P.3d 689 (2001).
f77 Longacre contends that the Board should have considered his “extensive well respected criminal trial history without any similar complaints, his absence of dishonest motive, [and] his timely good faith effort to get Trip[p] appellate counsel.” Resp’t’s Br. Objecting in Part to Bd.’s Decision (Resp’t’s Br.) at 45. These three mitigating factors, plus an additional one, are supported by the record and
¶78 The first mitigating factor discounted by the majority is ABA Standards std. 9.32(d), a “timely good faith effort to make restitution or to rectify consequences of misconduct.” Longacre explicitly argued before the hearings officer that he had done everything possible to secure appellate counsel for his client, Tripp, and to track relevant Supreme Court cases that supported a new trial for his client, even after he had been replaced by Mr. Weaver as Tripp’s lawyer and even though Longacre knew that he would not receive additional fees from Tripp. Tr. of Hr’g (Tr.) at 281, 291-94, 299-300. Longacre even attempted to contact Tripp and inform him that new case law significantly improved his chances at trial,
¶79 Next, although the Board found that Longacre had “significant experience in the practice of law,” it ignored evidence of Longacre’s “character or reputation,” a mitigating factor under ABA Standards std. 9.32(g). Mr. Jones, Sr., testified to Longacre’s reputation when he explained that another attorney recommended Longacre, stating that Longacre “was a good attorney, you probably want to talk to him.” Tr. at 98. Additionally, Longacre described his own reputation several times throughout his testimony. Tr. at 233 (“I had the highest win rate for some reason in the public defender’s office up there as well as in this whole region.”); Tr. at 234 (“So I gained a reputation before I got out of law school of doing exceptional trial work.”); Tr. at 262-63 (“Because in the jail, these people think I’m a miracle-maker sometimes when they hear about the different people that I’ve won acquittals on.”). Because the Board
¶80 Another mitigating factor described in ABA Standards std. 9.32(b) is “absence of a dishonest or selfish motive.” Longacre raises this argument on appeal to this court, but the majority again disposes of it by simply stating that Longacre waived his right to have these mitigating circumstances examined. Although the record does not contain any explicit testimony, i.e., Longacre was never asked why he failed to communicate the prosecutor’s offer to his client, it can be easily inferred from his testimony before the hearings officer and in his briefs to the Board that Longacre believed the plea offers were so outrageous and unfair that they could not be viewed as serious offers. This does not excuse him from his duty to inform his client of the plea offers, but it does show that he was motivated by the desire to get the best deal for his client and not from selfish or dishonest considerations.
¶81 Next, Longacre’s extensive testimony and willingness to be cross-examined must be seen as evidence of his “full and free disclosure to [the] disciplinary board or cooperative attitude toward [the] proceedings.” ABA Standards std. 9.32(e). Longacre was not accused of failing to cooperate with the hearings officer or board, and there is no reason to deny him this mitigating factor.
f 82 Even accepting the aggravating factors adopted by the Board, the balance of mitigating to aggravating factors points in favor of the presumptive sanction of reprimand, not an increase to suspension. However, the “multiple offenses” and “failure to acknowledge wrongful conduct” aggravating factors are also suspect. The Board’s finding of “multiple offenses” as an aggravating factor and the majority’s adoption of that finding is dubious in light of similar cases. This particular factor is especially important here, as the Board and majority rely upon it as the reason for increasing the sanction to suspension from the presumptive
¶83 In Warzyn, the disciplined attorney defrauded an innkeeper, engaged in multiple acts of “obtain [ing] cash and merchandise, goods, and services by means of false and bogus checks,” 624 P.2d at 1072, and obtained “payment for professional services to be rendered” which he later failed to fully perform. Id. The court noted that the attorney’s misconduct was not the result of a single transgression and that he engaged in misconduct over an extended period of time. Id. at 1073.
f 84 In Ballard, the attorney was charged with 34 counts of misconduct spanning 34 clients and seven years of practice. The attorney was found to have committed 32 of the 34 charged counts by the hearing panel and review board. The charges were so numerous, the court grouped them into general categories in order to describe them. 35 Cal. 3d at 279. The attorney “failed to perform [properly the duties] for which he was employed,” id., “violated rule 8-101 in his handling of funds held in trust for six individual clients,” id. (footnote omitted), refused to “refund the unearned portion of advanced fees upon being discharged or withdrawing from employment,” id. at 280, and “violated several miscellaneous disciplinary provisions.” Id.
¶85 Similarly, recent cases in which this court approved “multiple offenses” as an aggravating factor involved circumstances in which an attorney either engaged in multiple acts violating several ethical rules with one client or violated several rules with respect to multiple clients. See, e.g., In re Disciplinary Proceeding Against Lopez, 153 Wn.2d 570, 580, ¶ 19, 106 P.3d 221 (2005) (finding multiple offenses because the attorney missed four deadlines and
¶86 Longacre’s conduct does not warrant a “multiple offenses” aggravator. Longacre has not violated ethical rules with respect to multiple clients. Instead, he was charged with three counts of misconduct with respect to the same client, violating RPC 1.1, 1.2(a), 1.3, 1.4, and 8.4(d). While found to have engaged in five separate ethical rules violations, this disciplinary action is primarily based on Longacre’s alleged failure to communicate to his client one or more plea offers from the prosecutor and “miscalculations” surrounding these plea offers. The third count alleging conduct prejudicial to the administration of justice stems from the same conduct. Furthermore, it is unclear how many transgressions Longacre actually committed. Majority at 745. The Board rejected a finding that Longacre engaged in a “pattern of neglect” because the evidence did not support it. The Board found that “Mr. Longacre did provide one plea agreement and some sentencing implications to his client, but not others.” DP at 4. Since the hearings officer found only two plea offers, the necessary implication is that Longacre failed to convey, at most, only one offer to his client.
¶87 Longacre’s conduct, as limited and discrete as it was, viewed as a whole, does not rise to the level of egregiousness justifying a finding of “multiple offenses.” In virtually any attorney discipline case, multiple counts are commonly charged simply because most discrete behaviors violate more than one RPC. Surely the ABA Standards and this court never intended that all attorneys charged with multiple counts of misconduct be subject to the “multiple offenses” aggravating factor. The test for “multiple offenses” must require something more. More importantly, “multiple
¶88 The Board also found as an aggravating factor that Longacre failed to acknowledge his wrongful conduct. The majority simply noted that it was the multiple offenses rather than the other aggravating circumstances that caused the Board to recommend suspension instead of the presumptive reprimand. Majority at 746. If this aggravating factor is irrelevant, the majority has little reason to affirm it. Moreover, Longacre argued that he “should not be faulted for believing in his position, and that should not be confused with a lack of remorse.” Resp’t’s Br. at 45.
¶89 Finally, there are facets of this case that the majority does not discuss, which I find significant. For example, Longacre’s client, Tripp, did not initiate this complaint or join in as a complainant after it was filed. Rather, the record shows that this grievance was filed by the complaining prosecutor after he was sued by a different client represented by Longacre in a civil matter. Resp’t’s Br. at 46. While no findings of fact were entered regarding this claim, it should still cause the court to pause and consider the nature of the complaints in this case. Additionally troubling is the fact that this disciplinary action, in part, stems from statements Longacre made during a hearing for a new trial based on ineffective assistance of counsel. If subpoenaed, a defense attorney must testify fully to the actions he or she took while representing the client. Anything less would impact the trial court’s ability to make a full assessment of the facts and render a just decision. This court should be concerned that when the prosecutor initiates a bar complaint based on testimony related to a claim of ineffective assistance of counsel, the threat of bar discipline may well have a chilling effect in future cases of this kind. Full and complete testimony is necessary for a just decision. This goal
¶90 The purpose of attorney discipline is primarily to protect the public and maintain public confidence and trust in the legal system and secondarily to deter other lawyers from similar behavior. In re Disciplinary Proceeding Against Noble, 100 Wn.2d 88, 95, 667 P.2d 608 (1983). According to the findings of fact and conclusions of law that this court has accepted, Longacre violated several ethical duties to his client, Mr. "Tripp” Jones III. However, a suspension, even for only 60 days, is not warranted by the facts of this case and is unfair and excessive given the multiple mitigating factors that have not been considered and the questionable aggravating factors relied upon by the Board.
¶91 The Board’s recommendation should be rejected and Longacre should be reprimanded, not suspended. I respectfully dissent.
Sanders and Chambers, JJ., concur with Madsen, J.
Longacre did explicitly argue one mitigating factor to the hearing officer, Transcript of Hearing at 300 (arguing ABA Standards std. 9.32(d)), but the others he now urges were not expressly raised as mitigating factors.
Longacre suggested that State v. Cronin, 142 Wn.2d 568, 14 P.3d 752 (2000) and State v. Roberts, 142 Wn.2d 471, 14 P.3d 713 (2000) created a rule that allowed him to prove that the jury instruction for accomplice Lability was incorrect, which Longacre believed gave his client a “much better chance.” Tr. at 292.
My concern is not limited to cases involving ineffective assistance of counsel. This court recently reviewed a petition for review involving a trial prosecutor’s violation of a pretrial order excluding certain testimony. Presumably the prosecutor may be subject to discipline for violating the trial court order, should defense counsel file a complaint. I am not convinced that our disciplinary system was intended to be used by disgruntled adversaries, as occurred in this case.
Concurrence Opinion
(concurring) — I concur with the majority that attorney Longacre’s conduct merits a 60-day suspension. This conclusion is largely predicated on Longacre’s own explanation to Judge William Howard of his conduct, leading that judge to order a new trial based on a finding of ineffective representation of counsel.
¶69 I largely agree with the dissent in its general analysis of aggravating or mitigating circumstances. The court need not rely on such factors today since a 60-day suspension is clearly warranted.