| [23] |
In counts III through VI of the WSBA's complaint, Haskell was charged with conducting
a scheme whereby he falsely represented to a client, Farmers Insurance
Company (Farmers), that he had flown coach class rather than the more expensive first
class when he traveled on business for Farmers and, as a result, obtained greater
reimbursement from Farmers than he was entitled to receive. The hearing examiner found in
this regard that beginning in 1990, Farmers informed Haskell that it would reimburse him
only for coach class airfare and would no longer compensate him for first class tickets
when he traveled for that company. In 1991, Farmers began requiring Haskell to provide
receipts as documentation when he sought reimbursement for airfare. Despite these
admonitions from Farmers, on at least 11 occasions Haskell flew first class while
conducting business for Farmers.
|
| [24] |
Haskell, according to the findings, was able to conceal the fact that he traveled
first class on these occasions through the assistance of a travel agency. On the 11
occasions described above, the agency sent Haskell two invoices with the airline tickets
he purchased. One invoice showed that the ticket Haskell had purchased was for coach
class, and the other reflected that the ticket was for first class travel. The ticket
price set forth on both invoices represented the cost of first class travel. Haskell
presented Farmers with the invoice which indicated that he had purchased a coach class
ticket and obtained reimbursement for the amount indicated thereon.
|
| [25] |
The findings also indicate that on three other occasions, Haskell directed his staff
to purchase lower-priced, excursion fare, coach tickets from the travel agency and to send
an invoice to Farmers indicating that he had paid the full-fare, coach price. Haskell used
the excess amount of money paid to him by Farmers to pay for his and his wife's personal
expenses during these trips.
|
| [26] |
The hearing officer determined that this conduct violated RPC 8.4(a) (attempted
violation of RPC 8.4(c)); RPC 8.4(b) (criminal act that reflects adversely on a lawyer's
honesty or trustworthiness) through a violation of RCW 9A.56.030 (theft in the first
degree) and violation of 18 U.S.C. sec. 1341 (mail fraud); RPC 8.4(c); RPC 1.4(b); and RPC
5.3(c) (responsibilities regarding non-lawyer assistants). He concluded that Haskell was,
therefore, subject to discipline under RLD 1.1(a), RLD 1.1(i), and RLD 1.1(o).*fn4
|
| [27] |
III. Count VIII--Personal Expenses
|
| [28] |
Haskell was charged in count VIII with improperly charging personal expenses to
clients. The hearing officer found that in 1992 Haskell was in the process of building a
cabin near Coeur d'Alene, Idaho. Haskell, according to the findings, instructed an
assistant at his firm, Penny Lindstrom, to bill certain clients for telephone calls that
she made for Haskell regarding the cabin. Haskell also instructed Lindstrom to
"bury" charges for copies of blueprints for the cabin in a client's bill.
Despite the fact that the charges to clients for these personal expenses totaled
approximately $40.00 and were, according to the hearing officer, "de minimus in light
of the total amount billed to the client," the hearing officer concluded that
"that does not diminish the fact that Mr. Haskell's conduct was deceitful and
dishonest." Findings of Fact 180 at 20.
|
| [29] |
The hearing officer held that this conduct constituted violations of RPC 8.4(b); RPC
8.4(c); and RPC 1.5(a), and that Haskell was, thus, subject to discipline under RLD 1.1(a)
and RLD 1.1(i).
|
| [30] |
THE BOARD
|
| [31] |
After the hearing officer's findings were transmitted to the Board, Haskell requested
a hearing before the Board. Following the requested hearing, the Board unanimously adopted
the hearing officer's findings of fact and conclusions of law. By a vote of 10-1 the Board
recommended to this court that Haskell be sanctioned by disbarrment.*fn5 RLD 6.1. Haskell then appealed to this court pursuant to the
provisions of RLD 7.2.
|
| [32] |
ISSUES
|
| [33] |
I. Were the charges against Haskell proven by a clear preponderance of the evidence by
the WSBA?
|
| [34] |
II. Did the hearing officer become so involved in the prosecution of the case that the
hearing process became tainted, or gave the appearance of being unfair?
|
| [35] |
III. Is the punishment of disbarrment proportionate to Haskell's misconduct?
|
| [36] |
I.
|
| [37] |
Pursuant to RLD 4.11(b), counsel for the WSBA has the burden of establishing an act of
misconduct by a clear preponderance of the evidence. A clear preponderance of the evidence
is an intermediate standard of proof:
|
| [38] |
requiring greater certainty than `simple preponderance' but not to the extent required
under `beyond reasonable doubt.' This intermediate standard reflects the unique character
of disciplinary proceedings. The standard of proof is higher than the simple preponderance
normally required in civil actions because the stigma associated with disciplinary action
is generally greater than that associated with most tort and contract cases. Yet because
the interests in protecting the public, maintaining confidence, and preserving the
integrity of the legal profession also weigh heavily in these proceedings, the standard of
proof is somewhat lower than the beyond reasonable doubt standard required in criminal
prosecutions.
|
| [39] |
In re Discipline of Allotta, 109 Wn.2d 787, 792, 748 P.2d 628 (1988). This court will
not disturb a hearing officer's findings of fact if they are supported by a clear
preponderance of the evidence. In re Discipline of McMullen, 127 Wn.2d 150, 896 P.2d 1281
(1995). While the hearing officer's findings are not conclusive, they are entitled to
great weight, particularly "when the credibility and veracity of witnesses are at
issue." Allotta, 109 Wn.2d at 793-94.
|
| [40] |
In support of his general assertion that the WSBA did not prove its case by a clear
preponderance of the evidence, Haskell assigns error to 68 of the hearing officer's 181
findings of fact. He fails, however, to assail any specific finding of fact in the
argument portion of his brief. His argument on the sufficiency of the evidence issue
essentially consists of a general assertion that the burden of proof was not met with
regard to the alleged travel scheme, the alleged burying of personal expenses in clients'
bills, and the alleged expectations of the insurance companies that Haskell would
personally handle all legal matters. Haskell supports this argument by setting forth his
own version of the facts in detail with references to the record.*fn6
|
| [41] |
As we observed recently in In re Estate of Lint, 135 Wn.2d 518, 531- 32, 957 P.2d 755
(1998), an appellant's brief is insufficient if it contains merely a recitation of the
facts that are most favorable to the appellant. It is incumbent on counsel for the
appellant to present argument to the court why specific findings of fact "are not
supported by the evidence and to cite to the record to support that argument." Lint,
135 Wn.2d at 532; see RAP 10.3. Haskell has not done this.
|
| [42] |
For his failure to observe the Rules of Appellate Procedure, we could conclude simply
that the hearing officer's findings, which were adopted in their entirety by the Board,
are verities and decline to address Haskell's challenge to the evidence. However, in light
of this court's exclusive responsibility to administer the lawyer discipline system, and
in recognition of the fact that the Board has recommended the most serious sanction,
disbarrment, we will endeavor, notwithstanding the procedural shortcomings, to address
Haskell's claim that the WSBA failed to prove the misconduct by a clear preponderance of
the evidence.*fn7
|
| [43] |
Haskell first asserts that the WSBA "failed to prove by a clear preponderance of
the evidence that Mr. Haskell directed and participated in a scheme to provide phoney
invoices to Farmers Insurance in order to secretly bill for
first class air travel." Assignment of Error 1, Opening Br. of Resp't at 1. In
connection with this assertion, he assigns error to 39 of the hearing officer's findings
of fact and 8 of his conclusions of law.
|
| [44] |
Haskell's argument in this regard essentially boils down to an assertion that, while
the double-invoicing may have gone on, he had no knowledge of the system. While Haskell
testified that he did not knowingly engage in the alleged scheme, his testimony was
contradicted by substantial documentary evidence and testimony of his former secretary,
former legal assistant, the law firm's office manager, and three of his former law
partners. Although Haskell assails the testimony of the various witnesses as being driven
by various bad motives, the hearing officer was better able than are we to judge the
veracity of these witnesses. See McMullen, 127 Wn.2d at 162.
|
| [45] |
Haskell also claims that the WSBA failed to prove by a clear preponderance of evidence
"that Mr. Haskell directed his staff to `bury' certain phone call charges and
blueprint charges on charges to other clients." Assignment of Error 2, Opening Br. of
Resp't at 2. In connection with this assignment of error, he assigns error to four of the
hearing officer's findings of fact and five of his conclusions of law.
|
| [46] |
Haskell's argument in support of this assertion is very sparse, comprising less than 1
page of his 47-page brief. He says merely that the credibility of Ms. Lindstrom (Haskell's
former legal assistant) and Ms. Skobalski (Haskell's former secretary), the witnesses who
testified that he told them to do this, is "unreliable" and that he "denied
telling anyone to `bury' anything." Opening Br. of Resp't at 28. He attempts to
buttress this argument by suggesting that because the amount of these charges was
"trivial," why would he "risk everything he had worked so hard for to
`bury' some 80 cent phone calls?" Opening Br. of Resp't at 28.
|
| [47] |
Again, there was a dispute in the testimony. Even in the face of Haskell's novel
argument that his testimony is entitled to greater credibility because the amount of money
involved was trivial, we are inclined to accept the hearing officer's resolution of the
factual dispute.
|
| [48] |
Finally, Haskell claims that the WSBA "failed to prove by a clear preponderance
of the evidence that each of the insurance companies expected Mr. Haskell to personally
handle all of their matters and that Mr. Haskell knowingly participated in sending letters
to insurance companies to trick them into thinking that he had done the work."
Assignment of Error 4, Opening Br. of Resp't at 2. In connection with this assignment of
error, Haskell assigned error to 25 of the hearing officer's findings of fact.
|
| [49] |
His argument on this issue is even briefer than the preceding. He says essentially
that the insurance companies "would have known that Mr. Haskell would use associates
as he felt necessary" and that he "testified specifically to this effect."
Opening Br. of Resp't at 29. Unfortunately for Haskell, his testimony was refuted by much
documentary evidence, the testimony of insurance company representatives, and the
testimony of employees of Haskell's former firm. We cannot say that the hearing officer,
faced with this conflicting evidence, erred in resolving the conflict in favor of the WSBA
and, in finding in this regard, that the evidence was not of sufficient weight to meet the
appropriate evidentiary standard.
|
| [50] |
II.
|
| [51] |
Haskell asserts that the hearing officer became so involved in the prosecution of the
case that the proceeding was unfair or appeared unfair. Specifically, he contends that the
hearing officer erred in "entering the fray on the side of the prosecutor" and
"stepped out of his role as judicial officer." Assignment of Error 5, Opening
Br. of Resp't at 3, 31. This should not surprise us, Haskell's counsel suggests, because
of Washington's use of volunteer hearing officers who generally "have no judicial
experience" and, thus, are more likely to "step outside the boundaries dictated
by that role." Opening Br. of Resp't at 32.
|
| [52] |
While we do not agree with Haskell's counsel that the use of volunteer hearing
officers is a weak link in the disciplinary process, we do agree with his contention that
Haskell was entitled to a hearing before a hearing officer who was not only fair, but
appeared to be fair. Brister v. Council of City of Tacoma, 27 Wn. App. 474, 619 P.2d 982
(1980), review denied, 95 Wn.2d 1006 (1981). In determining if a proceeding appears to be
fair, the critical concern is how it would appear to a reasonably prudent and
disinterested person. See Chicago, Milwaukee, St. Paul, & Pac. R.R. Co. v. Human
Rights Comm'n, 87 Wn.2d 802, 557 P.2d 307 (1976).
|
| [53] |
Haskell calls to our attention two instances of conduct on the part of the hearing
officer which, he argues, demonstrate actual bias by the hearing officer and an appearance
of unfairness.*fn8 These alleged flaws in the
hearing process, Haskell contends, justify a new hearing for Haskell.
|
| [54] |
Haskell first calls our attention to the hearing officer's questioning of Judith
Martin, the owner of the travel agency which provided Haskell with double invoices. Martin
testified at the hearing that the sending of two invoices was a common practice in the
travel industry and that there were valid reasons for requests for double invoices. She
also indicated that she had never spoken to Haskell regarding the arrangement for two
invoices. After the WSBA's counsel and counsel for Haskell had questioned Martin, the
hearing officer proceeded to question Martin, asking her why she would prepare two
invoices for her clients, one which was correct and one that contained "false
information," and "how {she} could envision that to be proper." RP at
1245-48. Haskell characterizes the hearing officer's conduct in questioning Martin as a
"comment{} on the evidence" and suggests that the hearing officer proceeded to
"grill her about why she would allow false invoices." Opening Br. of Resp't at
35, 37. Haskell took particular umbrage at the hearing officer's use of the term
"false documents" in his questioning as "thought {sic} this was a proven
fact." Opening Br. of Resp't at 35. Haskell contends, additionally, that the hearing
officer "argued with the witness, made snide remarks and took on the role of
advocate." Opening Br. of Resp't at 35.
|
| [55] |
The WSBA responds that the hearing officer's questioning of Martin did not reveal any
bias against Haskell or deprive him of a fair hearing. While the WSBA acknowledged the
hearing officer's concession that he examined Martin with "force," it suggests
that it was not improper for the hearing officer to do so in light of the fact that the
hearing officer was "apparently troubled" by Martin's testimony that there was
nothing unusual about issuing invoices that contained incorrect information. Answering Br.
of WSBA at 28.
|
| [56] |
The second alleged instance of bias concerned a request by the hearing officer that a
witness, Patricia Froemming, retrieve some accounting records relating to travel expenses
and allocation of charges for personal expenses. Froemming, who was the bookkeeper for
Haskell's law firm, produced records in response to the hearing officer's request and
these records were admitted into evidence. Haskell asserts that it is not the role of the
hearing officer to generate evidence and that this action interjected the hearing officer
into the role of advocate, or, at a minimum, gave the appearance that he had become
involved in the case and in the "process of the creation of evidence for his own
consideration." Opening Br. of Resp't at 42.
|
| [57] |
The WSBA counters that Haskell failed to object at the time the hearing officer
requested that Froemming obtain certain records or when the records were introduced into
evidence. It asserts that "{a} party cannot appeal a ruling admitting evidence unless
the party makes a timely and specific objection to the admission of the evidence."
State v. Avendano- Lopez, 79 Wn. App. 706, 710, 904 P.2d 324 (1995), review denied, 129
Wn.2d 1007, 917 P.2d 129 (1996). The WSBA goes on to say that, in any case, it is entirely
appropriate for a hearing officer to request that additional evidence be provided. It
notes in this regard that this court has held that a trial judge has the discretion to
call witnesses on his or her own initiative. Ramsey v. Mading, 36 Wn.2d 303, 310, 217 P.2d
1041 (1950). The WSBA suggests that the hearing officer's request for documents was much
less of an intrusion into the prerogative of counsel than the calling of witnesses.
|
| [58] |
We are satisfied, after reviewing the record here, that the two incidents that Haskell
has called to our attention do not reveal that the hearing officer was biased or unfair or
that the incidents caused an appearance of unfairness. Both incidents involved the hearing
officer's conduct in directing questions to a witness. Haskell cites no authority for the
proposition that a hearing officer cannot ask questions of a witness or ask that evidence
be produced. We are satisfied that a hearing officer may do so as long as he or she
remains fair and impartial. Although one could perhaps be critical of the hearing
officer's forceful questioning of Martin on grounds that Martin's failure to recognize the
wrongfulness of her practice of issuing invoices containing false information was
irrelevant, since the propriety of her conduct was not an issue, the fact that she was
questioned about it hardly demonstrates that the hearing officer was biased or that he
bore any animus toward Haskell.
|
| [59] |
Haskell's suggestion that the hearing officer improperly commented on the evidence by
referring to the invoice as "false" is entirely without merit. In the first
place, the prohibition against commenting on evidence applies only in jury trials. Const.
art. IV, sec. 16. More importantly, there was no dispute about the fact that Martin's
agency provided Haskell's law firm with invoices that did not accurately reflect the
nature of the tickets that had been purchased. The hearing officer's characterization of
the invoice as "false" can, therefore, not be said to indicate bias or prejudice
toward Haskell.
|
| [60] |
Insofar as the other incident is concerned, the record indicates that the hearing
officer requested that witness Froemming retrieve documents to help refresh her memory
regarding how charges for travel expenses were allocated. In our view, the hearing
officer's request to be presented with records about which a witness had testified was a
reasonable exercise of his role as a factfinder, particularly in this type of hearing
where the rules of evidence are relaxed. RLD 4.11(c).
|
| [61] |
Finally, we agree with the WSBA that even if the actions of the hearing officer were
improper, they were isolated incidents that took place in a lengthy hearing and did not
detract from the overall fairness of the proceeding. As it notes, the hearing lasted nine
days and it generated over 2,000 pages of transcript. Although there may be instances
where a single incident or comment may be sufficient to lead a reasonably prudent person
to believe a proceeding is unfair, the two incidents that have been called to our
attention are not significant enough, whether viewed in isolation or against the whole
record, to justify a new hearing. Malave- Felix v. Volvo Car Corp., 946 F.2d 967, 973 (1st
Cir. 1991) ("Charges of bias should not be based on a few isolated comments, but
rather on the record as a whole.").
|
| [62] |
III.
|
| [63] |
Haskell, as we have observed, violated the Rules of Professional Conduct in numerous
ways. The WSBA has maintained throughout that he should be disbarred for this misconduct.
The hearing officer agreed with the WSBA and recommended that Haskell be disbarred. The
Board, by a vote of 10-1, accepted this recommendation. Although we do not lightly depart
from the Board's recommendation, we are not bound by it. RLD 2.1; In re Discipline of
Noble, 100 Wn.2d 88, 95, 667 P.2d 608 (1983). In the final analysis, this court retains
the ultimate responsibility for determining the nature of an attorney's discipline. In re
Discipline of Espedal, 82 Wn.2d 834, 838, 514 P.2d 518 (1973).
|
| [64] |
We will, however, adopt the Board's recommendation on a sanction unless we can
articulate a specific reason to depart from the Board's recommendation and we are
persuaded that the sanction is inappropriate after consideration of one or more of the
following factors:
|
| [65] |
1. The purposes of attorney discipline (sanction must protect the public and deter
other attorneys from similar misconduct);
|
| [66] |
2. The proportionality of the sanction to the misconduct (sanction must not depart
significantly from sanctions imposed in similar cases);
|
| [67] |
3. The effect of the sanction on the attorney (sanction must not be clearly
excessive);
|
| [68] |
4. The record developed by the hearing panel (sanction must be fairly supported by the
record and must not be based upon considerations not supported by the record); and
|
| [69] |
5. The extent of agreement among the members of the Board (sanction supported by
unanimous recommendation will not be rejected in the absence of clear reasons).
|
| [70] |
In re Discipline of Johnson, 114 Wn.2d 737, 752, 790 P.2d 1227 (1990) (summarizing
Noble, 100 Wn.2d at 95-96).
|
| [71] |
With these factors in mind we observe that the Board was one vote short of a unanimous
recommendation of disbarrment. While Haskell makes much of the fact that the dissenter was
a lay member of the Board, we are not persuaded that the vote of any one Board member is
more or less significant than the vote of any other member. Furthermore, even if we were
to attach more importance to votes of lay board members, the significance of the vote
pales in the face of the overwhelming vote in favor of disbarrment.
|
| [72] |
The WSBA contends that disbarrment of Haskell will fulfill the purposes of attorney
discipline (factor one) because it will send a strong message to other attorneys and the
public that the type of misconduct displayed by Haskell will not be tolerated. While we
agree with that general statement, we also believe that a significant suspension could
achieve the same goal and is less likely to be clearly excessive (factor three). Insofar
as whether the record developed by the hearing officer is fully supported by the record,
it can be fairly said that it supports disbarrment or suspension and it does not appear to
be based upon considerations outside the record (factor four).
|
| [73] |
This leads us to considerations of proportionality. In order to maintain consistency
in the setting of sanctions for violations of the Rules of Professional Conduct, we have
adopted the American Bar Association's Standards for Imposing Lawyer Sanctions (1986). In
re Discipline of Curran, 115 Wn.2d 747, 765, 801 P.2d 962, 1 A.L.R.5th 1183 (1990).
Pertinent to this consideration, the hearing officer found that the following Standards
were applicable:
|
| [74] |
4.11 Disbarrment is generally appropriate when a lawyer knowingly converts client
property and causes injury or potential injury to a client.
|
| [75] |
4.61 Disbarrment is generally appropriate when a lawyer knowingly deceives a client
with the intent to benefit the lawyer or another, and causes serious injury or potentially
serious injury to a client.
|
| [76] |
5.11 Disbarrment is generally appropriate when: (a) a lawyer engaged in serious
criminal conduct, a necessary element of which includes intentional interference with the
administration of justice, false swearing, misrepresentation, fraud, extortion,
misappropriation, or theft; or the sale, distribution or importation of controlled
substances; or the intentional killing of another; or an attempt or conspiracy or
solicitation of another to commit any of these offenses; or (b) a lawyer engages in any
other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that
seriously adversely reflects on the lawyer's fitness to practice.
|
| [77] |
7.1 Disbarrment is generally appropriate when a lawyer knowingly engages in conduct
that is a violation of a duty owed to the profession with the intent to obtain a benefit
for the lawyer or another, and causes serious or potentially serious injury to a client,
the public, or the legal system.
|
| [78] |
Findings of Fact 190 at 22.
|
| [79] |
Although not cited by the hearing officer, we note that the Standards also indicate
that "{s}uspension is generally appropriate when a lawyer knows or should know that
he is dealing improperly with client property and causes injury or potential injury to a
client," and that "{s}uspension is generally appropriate when a lawyer knowingly
engages in conduct that is a violation of a duty owed to the profession, and causes injury
or potential injury to a client, the public, or the legal system." American Bar
Ass'n, Standards for Imposing Lawyer Sanctions std. 4.12, at 27, std. 7.2, at 45 (1986).
|
| [80] |
Finally, the court is to examine the appropriate aggravating and mitigating
circumstances to better define the sanction. The hearing officer found the following
mitigating factors to be present: absence of prior disciplinary record; personal or
emotional problems, specifically self-inflicted stress; character or reputation;
unavoidable delay in the disciplinary proceedings; and some level of remorse with regard
to billings, although very late in the proceeding. He also found the following aggravating
factors: dishonest motive; pattern of misconduct; refusal to acknowledge wrongful nature
of conduct; and substantial experience in the practice of law.
|
| [81] |
Haskell argues that disbarrment is too extreme for the acts of misconduct he
committed. He maintains that while seven acts of misconduct were found, the actual dollar
amounts involved are "relatively small." Opening Br. of Resp't at 45. He also
stresses that no clients have complained.*fn9
Finally, he points to the mitigating factors of good character and lack of prior
disciplinary record.
|
| [82] |
The WSBA responds that disbarrment is a proportionate sanction. It points to the
aggravating factors of multiple acts of misconduct. It also compares Haskell's misconduct
to that which was before the court in two other cases: In re Discipline of Saulnier, 97
Wn.2d 676, 648 P.2d 433 (1982), and In re Discipline of Lavery, 90 Wn.2d 463, 466-67, 587
P.2d 157 (1978). Although it concedes that the sanction imposed in each of those cases was
less severe than what it recommends here (two-year suspension in Saulnier for a
shoplifting conviction and 90-day suspension in Lavery for acts of dishonesty), it
suggests that the misconduct in those cases was less significant and that Haskell's
conduct, therefore, justifies a harsher sanction.
|
| [83] |
After considering the entire record, we are inclined to impose a sanction of
suspension rather than disbarrment. While, arguably, disbarrment is a presumptive
sanction, we feel it is appropriate here to depart from the recommendation of the Board.
In reaching this determination, we have been little-influenced by mitigating and
aggravating factors which essentially cancel each other out. Neither do most of the five
Noble factors, noted above, assist us greatly. The factor that influences us most
significantly is proportionality. Although neither counsel has cited any decision of this
court that is close to this case factually, that is understandable since at the time of
argument there was no reported decision from this court dealing with initial-switching
such as we have here. Since that time, however, we have issued an opinion in an analogous
case, In re Discipline of Dann, No. 7552, slip op. (Wash. Aug. 13, 1998). The facts there
were that attorney Dann knowingly engaged in initial-switching of the sort engaged in here
by Haskell and for essentially the same reasons. It was also clear there that the
initial-switching was to the detriment of four clients. We upheld the Board's
recommendation that Dann be suspended from the practice of law for one year. In light of
our recent decision in Dann, and the fact that the Dann case resembles this case
factually, we are of the view that it furnishes an appropriate reason for us to depart
from the recommended sanction and impose a maximum suspension of two years. While Haskell
might argue that the sanction here should be one year as in Dann, such a contention would
overlook the additional misconduct related to his travel for Farmers Insurance,
the burying of expenses in client's bills, and the mitigating factors of delay and undue
publicity which were present in Dann and absent here. Although Dann did engage in an
additional act of misconduct as well,*fn10 it
was not as serious as the additional acts of misconduct on Haskell's part.
|
| [84] |
HOLDING(S)
|
| [85] |
After reviewing the record, we conclude that the hearing officer's findings of fact
that Haskell engaged in conduct that violated the Rules of Professional Conduct are
supported by a clear preponderance of the evidence. We also conclude that the hearing was
not tainted by the actions of the hearing officer. We hold, however, that the recommended
sanction of disbarrment is too extreme considering the sanction imposed in a similar case
and, thus, we impose the lesser sanction of suspension from the practice of law for two
years.
|
| [86] |
WE CONCUR:
|
|
|
|
Opinion Footnotes |
|
|
| [87] |
*fn1 The hearing officer concluded that the
burden of proof had not been met to support count VII, an allegation that Haskell had
obtained funds from his law firm by color or aid of deception.
|
| [88] |
*fn2 The difference between Haskell's rate
and that of the associates varied from $10 to $25 per hour.
|
| [89] |
*fn3 RLD 1.1 provides that: "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, . . . 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; and if the act constitutes a felony or misdemeanor, conviction thereof
in a criminal proceeding shall not be a condition precedent to disciplinary action, nor
shall acquittal or dismissal thereof preclude the commencement of a disciplinary
proceeding; ". . . . "(i) Violation of the Rules of Professional Conduct of the
profession adopted by the Supreme Court of the State of Washington."
|
| [90] |
*fn4 RLD 1.1(o) provides that a lawyer may be
subjected to the disciplinary sanctions for: "Attempting to commit an act, or
assisting another in committing or attempting to commit an act, which if completed would
be prohibited by this rule."
|
| [91] |
*fn5 Pio DeCano, II, a citizen member of the
Board, dissented from the majority's recommendation that Haskell be disbarred. He stated
in his MINORITY OPINION(S), "Based upon the record, while Respondent's conduct was
egregious and deserving of significant discipline, it does not rise to the disbarrment
level. Therefore, I would recommend that Respondent be suspended for two years."
Decision Papers at tab 3.
|
| [92] |
*fn6 Haskell did not assign error to many of
the hearing officer's findings relating to the alleged initial-switching.
|
| [93] |
*fn7 Haskell indicated in assignment of error
3 that the WSBA failed to prove its case "by a clear preponderance of the evidence,
much less by the greater standard of proof beyond a reasonable doubt." Opening Br. of
Resp't at 2. This no doubt is in response to the hearing officer's finding of fact 3, in
which the hearing officer indicated that he was aware that the proper burden of proof was
a clear preponderance, but that he applied the higher burden of proof beyond a reasonable
doubt in order to resolve any possible doubt "in Mr. Haskell's favor." Finding
of Fact 3 at 3.
|
| [94] |
*fn8 In his assignments of error, Haskell
claims only that the hearing officer erred in denying his motion for mistrial based on the
hearing officer's questioning of Judith Martin. In the issue pertaining to that assignment
of error and in the body of his brief, he broadens the claim of unfairness.
|
| [95] |
*fn9 We have recently rejected this same
argument. See In re Discipline of Dann, No. 7552, slip op. at 11 n.2 (Wash. Aug. 13,
1998).
|
| [96] |
*fn10 Dann also received a reprimand for
violating RPC 8.4(c) by "secretly tape recording a telephone conversation with
another attorney and, unbeknownst to that attorney, allowing a party interested in the
topic of conversation to listen in." Dann, slip op. at 8.
|
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