In Re the Disciplinary Proceeding Against Vetter

711 P.2d 284, 104 Wash. 2d 779, 1985 Wash. LEXIS 1296
CourtWashington Supreme Court
DecidedDecember 5, 1985
DocketC.D. 6318
StatusPublished
Cited by33 cases

This text of 711 P.2d 284 (In Re the Disciplinary Proceeding Against Vetter) 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 Vetter, 711 P.2d 284, 104 Wash. 2d 779, 1985 Wash. LEXIS 1296 (Wash. 1985).

Opinions

Pearson, J.

The Disciplinary Board of the Washington State Bar Association has unanimously recommended that respondent attorney William V. Vetter be disbarred for acts of misconduct involving trust account violations, as well as numerous acts of dishonesty, misrepresentation, and concealment. We adopt that recommendation.

Respondent has challenged virtually every finding of fact and conclusion of law made by the hearing officer and adopted by the Board. He challenges the severity of the sanction as well, arguing that a 2-year suspension is appropriate. However, a careful review of the record shows the findings of fact and conclusions of law to be amply supported by the evidence. Measured against the factors enumerated in In re Noble, 100 Wn.2d 88, 667 P.2d 608 (1983), the sanction of disbarment is justified in this case.

I

As a preliminary matter, respondent argues that CPR DR 5-102(A) requires that the entire bar association counsel staff withdraw from its representation of the bar in attorney discipline matters whenever one of its attorneys will testify on behalf of the bar association. He charges that bar counsel's failure to disqualify itself has denied respondent a fair hearing, as well as violated CPR DR 5-102(A).

The bar association argues that Vetter waived this issue before the Disciplinary Board and therefore may not raise the question before this court. Vetter stated in a written statement submitted to the Disciplinary Board that he did not wish "to challenge at this stage the conclusion as to the [781]*781use of Bar counsel in the proceeding ..." (Italics ours.) We do not agree that Vetter waived the issue by this statement.

First, we note that the appropriate forum for resolution of the question which involves an alleged conflict between the Code of Professional Responsibility and RLD 2.6(b), promulgated by this court, is the Supreme Court. The Disciplinary Board would have no binding authority on the question.

Furthermore, we hesitate, in a disciplinary proceeding, to hold that an attorney waived an issue without strong evidence of such a waiver. Here, the "waiver" is equivocal; arguably, Vetter merely intended to reserve the issue for appeal to the appropriate body.

Finally, because the issue is one which may arise in the future, we choose to exercise our discretion to respond to the issue, regardless of whether Vetter waived it below. See In re McGlothlen, 99 Wn.2d 515, 663 P.2d 1330 (1983).

CPR DR 5-102(A), the rule of disqualification and imputed disqualification, states:

If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in CPR DR 5-101 (B)(1) through (4).

The bar counsel attorney who investigated the charges against respondent and later testified against him properly withdrew from representation of the bar association. Another bar counsel attorney represented the bar at respondent's hearing. The issue here is whether the entire bar counsel staff was required to withdraw under CPR DR 5-102 (A).

We hold the entire bar counsel staff does not have to disqualify itself from representing the bar in these circumstances. First, the bar counsel staff acts as an arm of this court in carrying out its responsibility to discipline the [782]*782attorneys of this state. This court has directed the bar counsel to both investigate attorney discipline matters and represent the bar association in all disciplinary proceedings. RLD 2.6(b).

Secondly, the underlying rationales for the rule of imputed disqualification do not apply to bar counsel representing the bar association in attorney discipline matters. The part of CPR DR 5-102 (A) relating to imputed disqualification was intended to apply where an attorney possesses confidential information about the adverse party because of a prior attorney-client relationship. Because of the intimate working relationships, that information is imputed to the attorney's co-workers, thus requiring the disqualification of the entire legal staff to avoid the potential use of confidential information to the disadvantage of a former client. See Borden v. Borden, 277 A.2d 89 (D.C. 1971); State v. Mercer, _Mont._, 625 P.2d 44 (1981); State v. Martinez, 89 N.M. 729, 557 P.2d 578 (Ct. App.), cert. denied, 90 N.M. 8 (1976); State v. Hayes, 473 S.W.2d 688 (Mo. 1971); Greenebaum-Mountain Mortgage Co. v. Pioneer Nat'l Title Ins. Co., 421 F. Supp. 1348 (D. Colo. 1976). The rule is also intended to prevent the appearance of impropriety that inheres in the situation where an attorney has represented a party and then later opposes that party.

Clearly, these rationales do not apply to the bar association's investigative officers operating at the direction of this court. No confidential information can possibly be at issue in an attorney discipline matter where the attorney being investigated is obligated to reveal all pertinent information. RLD 2.8. Furthermore, the appearance of impropriety is not a serious consideration in attorney discipline cases where the general public has little, if any, direct interest in the process. Unlike a public prosecutor, bar counsel's actions affect only attorneys who have voluntarily subjected themselves to regulation by this court. Thus, CPR DR 5-102(A) does not require bar counsel to disqualify its entire staff whenever one of its attorneys is to testify on behalf of the bar association.

[783]*783Finally, allowing the bar association to investigate and testify as well as to represent the bar association does not deprive an attorney of a fair hearing. Minimal danger exists that the testimony of bar counsel will be given undue weight based on his official position, since the hearing examiners are capable of properly weighing the testimony of bar counsel. Thus, respondent has not shown any bias or unfairness in this case that would warrant a new hearing.

II

We turn now to an examination of the evidence in this case. The acts of professional misconduct by respondent relate to his handling of only one case, the Rachael Coyne estate. The following background information on the Coyne estate is essential to an understanding of the considerable difficulties respondent encountered in probating this estate.

Bernard and Rachael Coyne had experienced marital difficulties for some time prior to her death; at times, the couple had been estranged. They were, however, married when Mrs. Coyne died.

Mrs. Coyne died intestate in July 1978, leaving her husband, Bernard, and her mother, Grace Henry, as her sole heirs. The estate consisted entirely of the separate property of Mrs.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Disciplinary Proc. Against Huynh
555 P.3d 398 (Washington Supreme Court, 2024)
In re the Disciplinary Proceeding Against Wickersham
310 P.3d 1237 (Washington Supreme Court, 2013)
In re the Disciplinary Proceeding Against Starczewski
306 P.3d 905 (Washington Supreme Court, 2013)
In re the Disciplinary Proceeding Against Van Camp
171 Wash. 2d 781 (Washington Supreme Court, 2011)
In the Matter of Disciplinary Proceeding Against Van Camp
257 P.3d 599 (Washington Supreme Court, 2011)
In Re Disciplinary Proceeding Against Poole
193 P.3d 1064 (Washington Supreme Court, 2008)
In re the Disciplinary Proceeding Against Poole
164 Wash. 2d 710 (Washington Supreme Court, 2008)
In Re Dornay
161 P.3d 333 (Washington Supreme Court, 2007)
In re the Disciplinary Proceeding Against Dornay
160 Wash. 2d 671 (Washington Supreme Court, 2007)
Cummings v. Guardianship Services
110 P.3d 796 (Court of Appeals of Washington, 2005)
Cummings v. GSS
110 P.3d 796 (Court of Appeals of Washington, 2005)
In Re Disciplinary Proceeding Against Christopher
105 P.3d 976 (Washington Supreme Court, 2005)
In re the Disciplinary Proceeding Against Christopher
105 P.3d 976 (Washington Supreme Court, 2005)
In Re Disciplinary Proceeding Against Whitt
72 P.3d 173 (Washington Supreme Court, 2003)
In re the Disciplinary Proceeding Against Whitt
72 P.3d 173 (Washington Supreme Court, 2003)
Nguyen v. STATE HEALTH MED. QUALITY ASSUR.
29 P.3d 689 (Washington Supreme Court, 2001)
Nguyen v. Department of Health
144 Wash. 2d 516 (Washington Supreme Court, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
711 P.2d 284, 104 Wash. 2d 779, 1985 Wash. LEXIS 1296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-disciplinary-proceeding-against-vetter-wash-1985.