Disciplinary Proceeding v. Noble

667 P.2d 608, 100 Wash. 2d 88, 1983 Wash. LEXIS 1650
CourtWashington Supreme Court
DecidedJuly 28, 1983
DocketNo. C.D. 5608
StatusPublished
Cited by103 cases

This text of 667 P.2d 608 (Disciplinary Proceeding v. Noble) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Disciplinary Proceeding v. Noble, 667 P.2d 608, 100 Wash. 2d 88, 1983 Wash. LEXIS 1650 (Wash. 1983).

Opinions

Pearson, J.

Before us in this case is a recommendation of the Disciplinary Board of the Washington State Bar Association that attorney William A. Noble be suspended for 90 days for misuse of a client's funds in violation of DRA 1.1(c) and CPR DR 9-102(A). We adopt the Board's recommendation, subject to two modifications.

These disciplinary proceedings resulted from a complaint by respondent's brother charging respondent with mishandling his father's estate, of which respondent was executor, and with failure to properly maintain a trust account for clients' funds.

Respondent graduated from the University of Washington and was admitted to practice in 1964. He operated a 1-man domestic practice. Prior to these proceedings, he had been twice censured, in 1975 and 1980, for neglect of legal matters.

Respondent's father died on November 27, 1978, and he was appointed executor and attorney for his father's estate. Under the terms of the will, respondent and his brother were to share equally in the estate. Respondent admitted that over the course of the probate he appropriated to his own use a total of $31,062.01 from the estate. His brother made inquiries about the distribution of the assets of the estate, and when these proved fruitless he filed a complaint with the bar association.

On August 10, 1980, pursuant to this complaint, respondent's books, records, and procedures were examined, and irregularities in his handling of client trust funds were discovered. At times, no trust account was maintained at all, records of the trust account were incomplete, client trust funds were commingled with general funds, and the trust account was occasionally allowed to fall into a negative [90]*90balance.

A formal complaint was filed against respondent and a disciplinary hearing was held on October 21, 1981. At that hearing, respondent admitted misappropriation of the trust funds. He claimed, however, in mitigation of his misconduct, that he was suffering from the disease of alcoholism, which had eroded his moral judgment. He presented, in addition to his own testimony, the testimony of his alcohol rehabilitation counselor, Mrs. Helen Mauldin. Respondent testified his alcoholic symptoms began as early as 1974 or 1975 and were recognized by him as such in 1977, when a stressful marital problem developed. His counselor explained that by the time she saw him in December of 1979 all of the "early middle stage" symptoms of alcoholism were present. The following testimony was received:

Q [Hearing panel officer] I want to be convinced that if alcohol is being advanced as a mitigating circumstance, if alcohol is in this case, I want to be truly convinced that the man is suffering from the disease, not just a sort of a chronic drinker.
A [Mrs. Helen Mauldin] All of the things I mentioned to date were present with Mr. Noble.
Q And what were they?
A Drinking oftener than intended and drinking more than intended. Drinking to relieve stress. Expressed need for alcohol, especially after a period without. Drinking alone. Loss of control of amount of drinking and time spent drinking. Family problems as a result of drinking. Feelings of guilt associated with drinking. And going to my Jellnek test, memory blackouts. That is the morning after, can't remember a part of the evening before. All of these were present in Mr. Noble's case.

The counselor also described at length the effect of alcoholism on its victim:

We know that alcohol is a depressant drug. One of the first areas that it works on is the frontal section of the brain, which is the seat of reasoning and judgment. So that is the first thing that is depressed by alcohol.
Continued use of alcohol, continued ingestion of it, leads to a situation where you have alcohol in the blood stream at all times which perpetuates this equation right [91]*91here. When you have this individual functioning ... on drug-affected emotion, with his reasoning powers you might say anesthetized,. . . the individual learns a whole new set of behaviors to deal with functioning this way.

Mrs. Mauldin also testified that the deterioration of the intellect and personality caused by excessive alcohol consumption is not reversed immediately the victim stops drinking. The effects of alcoholism persist for a substantial time after the victim achieves abstinence. Initially, there is a 90-day period following excessive drinking during which alcohol remains in the system and during which no improvement occurs. Only after a 90-day detoxification period do changes occur. In average cases a full recovery takes from 2 to 5 years. In Mr. Noble's case, Mrs. Mauldin testified that recovery was achieved after about 16 months of abstinence, by approximately March 1981.

The hearing officer concluded from this, and similar testimony, that although respondent deliberately took the money from his father's estate, motivated by financial need, his moral judgment at the time was impaired by alcohol. In his findings of fact, the hearing officer concluded:

[according to his testimony he was under extreme financial pressure to meet obligations, both personal and to maintain his business, and that his judgment was not only clouded but virtually lacking by reason of problems with alcohol which had resulted and progressed to the early middle stages of alcoholism by late 1979.

The hearing officer concluded further that respondent was motivated by financial need but that " [h]is judgment and his moral underpinnings were no doubt eroded to an extent by his use of alcohol and his alcoholism".

Respondent and Mrs. Mauldin also testified that respondent had abstained from alcohol for 18 months, despite the stress caused by the death of his daughter during that period. Mrs. Mauldin's testimony convinced the hearing officer that respondent had conscientiously applied himself to a rigorous rehabilitation program.

At the hearing, the bar association argued for disbarment [92]*92of respondent, and respondent's counsel recommended a letter of censure as the appropriate sanction, in light of the mitigating factors. The hearing officer concluded that respondent's appropriation to his own use of funds from his father's estate constituted a violation of DRA 1.1(a) (commission of an act involving moral turpitude, dishonesty, or corruption) and of CPR DR 9-102 (A) (failure to preserve the identity of funds and property of a client), but found a number of circumstances which he considered mitigated the violations:

1. Respondent's voluntary and demonstrated success in controlling the problem of alcoholism.

2. Respondent's reasonable cooperation with the bar association in this matter.

3. Respondent's willing acceptance of full responsibility for his actions.

4. A "very fine" attitude on the part of respondent.

5. The lack of a "pattern" of misuse of funds which so often appears in this type of disciplinary action.

Accordingly, the hearing officer recommended suspension for 3 months. The Disciplinary Board unanimously adopted the findings and recommendations of the hearing officer and assessed costs against respondent in the amount of $382.20. Before this court, the bar association agreed that 90 days' suspension was the minimum appropriate sanction.

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Bluebook (online)
667 P.2d 608, 100 Wash. 2d 88, 1983 Wash. LEXIS 1650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disciplinary-proceeding-v-noble-wash-1983.