In Re the Disciplinary Proceeding Against Clark

663 P.2d 1339, 99 Wash. 2d 702
CourtWashington Supreme Court
DecidedJune 23, 1983
DocketC.D. 7398
StatusPublished
Cited by23 cases

This text of 663 P.2d 1339 (In Re the Disciplinary Proceeding Against Clark) 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
In Re the Disciplinary Proceeding Against Clark, 663 P.2d 1339, 99 Wash. 2d 702 (Wash. 1983).

Opinions

[703]*703Dimmick, J.

In this disciplinary action we determine the proper sanction for an attorney's failure to cooperate with the Washington State Bar Association during the investigation of a complaint, when such misconduct is the sole basis for disciplinary action. In view of all the circumstances of this case, including the seriousness and frequency of Mr. Clark's prior discipline, we depart from the Disciplinary Board's recommendation of a 20-day suspension and suspend Del H. Clark from the practice of law for 60 days.

Mr. Clark was admitted to practice law in this state in 1972. We know nothing about his background, for possible mitigation consideration, as he did not file a brief in this matter or appear before us for oral argument. His bar association files, although sketchy, are before us as exhibits in this proceeding and disclose the following:

1. On December 7, 1974, Mr. Clark received a letter of admonishment regarding his lack of cooperation in the investigation of a complaint filed by a client, Mrs. Jack MacKenzie. The letter stated in part as follows:

While the Disciplinary Board has decided not to take further action on the fees charged [Mrs. MacKenzie's complaint], the Board is deeply concerned over your lack of cooperation with the Local Administrative Committee. Your attention is directed to Rule 2.6 of the Rules for Discipline of Attorneys. . . . Such conduct tends to undermine the confidence in the legal profession and your cooperation in insuring that such situations will not be permitted to occur again is required.

This letter of admonishment was introduced to show that Mr. Clark knew of his duty to cooperate and thus his failure to later comply with that duty was willful.

2. On January 21, 1977, Mr. Clark received a reprimand as a result of a complaint by a Mr. Brinkman. Mr. Clark stipulated to the receipt of the reprimand and admitted he neglected a legal matter in failing to perfect that client's appeal.

[704]*7043. On March 8, 1979, Mr. Clark received a letter of censure as a result of neglecting a legal matter for a Mr. Gulermovich. Mr. Clark also stipulated to this discipline and admitted that his client had a valid and meritorious defense to an action. Mr. Clark agreed that he had failed to answer or defend the matter on behalf of his client resulting in a default judgment against the client.

On December 10, 1980, as a result of a complaint by a Mr. Lopez, a letter was sent to Mr. Clark enclosing the complaint and requesting a written response. What followed thereafter is the course of conduct, or rather lack thereof, which gave rise to the present disciplinary action. The course of events is carefully laid out in the unchallenged findings of fact made by a hearing panel officer (HPO) after a hearing on June 10, 1982, at which Mr. Clark was present. Those findings are:

1.1 The Bar Association sent Mr. Clark a letter dated December 10, 1980, asking for his response to a complaint filed by Salvador E. Lopez. Mr. Lopez had been a client of Mr. Clark's. Mr. Clark states that he did not receive this letter.
1.2 The Bar Association sent Mr. Clark a second letter on March 23, 1981, requesting Mr. Clark's response to the Lopez complaint. The letter indicated that a subpoena would be served within ten days if no response had been received. Mr. Clark received this letter.
1.3 On April 3, 1981, Mr. Clark wrote to the Bar Association indicating that he had not received the Lopez complaint. The Bar Association responded on April 29, 1981, and sent Mr. Clark the material making up the Lopez complaint. Mr. Clark received the April letter from the Bar Association but did not respond.
1.4 A follow-up letter was sent by the Bar Association on June 1, 1981, requesting that Mr. Clark provide a written response to the Lopez complaint. That letter also indicated that a subpoena would be served on Mr. Clark if he did not respond within ten days. Mr. Clark received this letter but he did not respond.
1.5 On July 8, 1981, bar counsel issued a subpoena for Mr. Clark to appear at a deposition scheduled on July 30, 1981. Mr. Clark was served with this subpoena on July [705]*70513, 1981.
1.6 In lieu of that deposition, a meeting between state bar counsel and Mr. Clark was held on July 31, 1981. Mr. Clark presented bar counsel with a written response and was asked to provide additional information in connection with the investigation of the Lopez complaint. At that meeting, Mr. Clark agreed to send the additional information to bar counsel. Mr. Clark failed to provide that material to the bar office.
1.7 The Bar Association sent Mr. Clark a letter on September 11, 1981, requesting that he forward the material that had been discussed at the July, 1981, meeting. The letter also indicated that a subpoena would be forthcoming if no response was received. Mr. Clark received that letter and did not respond.
1.8 Bar counsel issued a second subpoena on September 25, 1981, scheduling another deposition for October 19, 1981. Mr. Clark received this subpoena at his house on October 3,1981.
1.9 Mr. Clark's wife called the Bar Association at his request on October 16, 1981, and indicated that Mr. Clark would be unable to appear at the October 19, 1981, deposition. A member of the bar staff granted a continuance for the deposition until October 22, 1981. On October 22, 1981, Mrs. Clark appeared at the offices of the Bar Association with written documents and a letter from Mr. Clark. Mr. Clark did not himself appear.
1.10 Bar counsel advised Mrs. Clark at the meeting of October 22, 1981, that Mr. Clark should appear at the Bar Association offices within the next few days. Bar counsel sent a follow-up letter to Mr. Clark indicating that his appearance was expected at the Bar Association. Mr. Clark received that letter and did appear to speak to bar counsel on October 26, 1981.
1.11 Mr. Clark was aware of the duties of cooperation with a bar investigation imposed by DRA 2.6 having received a letter of admonition regarding those duties on December 7, 1974.

Mr. Clark has filed no objections to these findings either before the Disciplinary Board or before this court and the transcript of the hearing clearly supports them.

From these findings of fact, the HPO concluded that in failing to timely provide bar counsel with the requested [706]*706material for the investigation of the Lopez complaint, Mr. Clark violated DRA 1.1(j) in that he willfully violated DRA 2.6. The HPO also concluded that in failing to appear for the scheduled deposition, Mr. Clark violated DRA 1.1 (j) in that he willfully disregarded a subpoena issued by bar counsel. The findings of fact support these conclusions.

Pursuant to the Discipline Rules for Attorneys complaints are to be investigated to determine whether the rules of professional conduct have been violated. If it is determined that such violations have occurred, a formal complaint is prepared and filed. During the investigation, bar counsel, if deemed necessary, may issue a subpoena requiring the attorney to appear at a deposition and produce documents. DRA 2.5(b)(2).

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663 P.2d 1339, 99 Wash. 2d 702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-disciplinary-proceeding-against-clark-wash-1983.