In re the Disciplinary Proceeding Against Longacre

155 Wash. 2d 723
CourtWashington Supreme Court
DecidedNovember 10, 2005
DocketNo. 200,116-5
StatusPublished
Cited by52 cases

This text of 155 Wash. 2d 723 (In re the Disciplinary Proceeding Against Longacre) 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 Longacre, 155 Wash. 2d 723 (Wash. 2005).

Opinions

¶1 Fairhurst, J.

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 [728]*728out of conduct that occurred in 2000 while Longacre was representing William Joseph Jones III (Tripp) in a criminal trial and in general alleged that Longacre failed to communicate several plea offers to his client and inform him of the correct sentencing ranges he faced if he were to be convicted at trial. Count I alleged that Longacre violated Rules of Professional Conduct (RPC) 1.2(a), 1.3, and/or 1.1 by failing to represent Tripp effectively and diligently in the criminal proceeding. Count II alleged that Longacre violated RPC 1.2(a) and/or 1.4 by failing to communicate to Tripp the potential sentencing implications Tripp was facing in his criminal proceeding and by failing to convey written information Longacre had received from the prosecutor, including plea offers. Count III alleged that Longacre violated RPC 8.4(d) by engaging in conduct prejudicial to the administration of justice. Longacre denied the misconduct.

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 [729]*729recitation of fact is largely taken from the hearing officer’s FOR1

¶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[730]*730sault in the first degree). The hearing officer found that Longacre did not discuss this proffered plea agreement with Tripp.

¶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.

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