In re the Disciplinary Proceeding Against Whitney

155 Wash. 2d 451
CourtWashington Supreme Court
DecidedSeptember 29, 2005
DocketNo. 200,173-4
StatusPublished
Cited by57 cases

This text of 155 Wash. 2d 451 (In re the Disciplinary Proceeding Against Whitney) 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 Whitney, 155 Wash. 2d 451 (Wash. 2005).

Opinion

¶1 Alexander, C.J.

Attorney Joseph P. Whitney has appealed a recommendation of the Washington State Bar Association (WSBA) Disciplinary Board (Board) that he be disbarred for two acts of professional misconduct. The recommendation was based on the Board’s determination that Whitney violated various Rules of Professional Conduct (RPCs) by (1) testifying falsely under oath and (2) failing to cooperate fully and promptly with the WSBA disciplinary investigation of grievances against him. We adopt the Board’s recommended sanction and order Whitney disbarred.

I

¶2 Joseph P. Whitney was admitted to the practice of law in Washington in 1994. The record shows that diming and prior to 2001, Whitney accepted cases assigned to him by courts in Kitsap County, including appointments as a guardian ad litem (GAL).

¶3 In 2001, Whitney was appointed by the Kitsap County Superior Court to serve as a GAL for two children who were subjects of a contested family law matter between ex-spouses, Victor Cienega and Sheri Brookman (Cienega-Brookman modification trial). Whitney received an advance fee in the amount of $1,000 — $500 from each party — for services he was to render as a GAL. Due to the financial circumstances of the parties, Whitney agreed to serve as a GAL for the $1,000 advance and not seek any additional compensation for his services.

¶4 Whitney’s investigation led him to submit a written report to the superior court in which he touched on the [456]*456school activities of the parties’ two children. In February 2002, Whitney testified at the Cienega-Brookman modification trial and indicated that he had interviewed three teachers at the school both children attended. He provided information in his testimony which he claimed he had obtained from the teachers. The three teachers, Linda Dorn, Jayme Lyons, and Jessica Tuttle-Gallagher, testified at the trial that they had never met with or spoken to Whitney. In response to the apparent disharmony in the trial testimony, the superior court judge stated, “I think [the] teachers forgot that Joe Whitney called them,” and “I believe Mr. Whitney that he called them.” Ex. 1, at 15.

f5 In March 2002, Victor Cienega, the father of the children, filed a grievance with the WSBA alleging that Whitney had lied under oath in the proceeding in Kitsap County Superior Court. A month later, one of the teachers, Linda Dorn, filed a similar grievance with the WSBA against Whitney. Whitney did not respond to either grievance, later indicating that “he was ‘waiting for other grievances to be filed.’ ” Decision Papers (DP) at 10.

¶6 In September 2002, the WSBA warned Whitney that he would be compelled to attend a deposition and required to pay costs if he did not respond to the grievances. Despite this warning, Whitney failed to respond. He was, therefore, deposed on December 11, 2002. At his deposition, Whitney again testified that he had spoken to the three teachers.

¶7 In May 2003, a review committee of the Board concluded that there was sufficient evidence of unethical behavior on the part of Whitney to justify “a hearing ... on the allegations of the grievance [s].” Suppl. Clerk’s Papers at 4. Pursuant to Enforcement of Lawyer Conduct (ELC) 5.3(f), the review committee assessed a $500 attorney fee against Whitney for the costs related to the deposition which Whitney had been compelled to attend. The WSBA thereafter filed a formal complaint alleging that Whitney committed the following acts of professional misconduct:

[457]*457COUNT 1

In testifying falsely under oath in Kitsap County Superior Court, Respondent violated RPC 3.3(a)l, RPC 3.3(a)4, RPC 8.4(c) and RPC 8.4(d). In testifying falsely under oath at his WSBA deposition, Respondent violated RPC 8.4(b), RPC 8.4(c), RPC 8.4(d) and RPC 8.4(0.

COUNT 2

By failing to cooperate fully and promptly with disciplinary investigations of the Cienega and/or Dorn grievances, Respondent violated [ELC] 5.3(e), ELC 5.3(f) and Rules for Lawyer Discipline (RLD) 2.8(a) and RPC 8.4(Z) and is subject to discipline under ELC 5.3(f)[(3)] and RLD l.l(j) or RLD 2.8(b).

DP at 6. Whitney filed an answer to the complaint in which he asserted, as to count 1, that “[n]either Ms. Dorn nor Ms. Lyons contacted [him] to provide information.” Clerk’s Papers (CP) at 9. Whitney admitted his failure to cooperate, as alleged in count 2, but claimed that he “did not violate ELC 5.3(e) and[/]or ELC 5.3(f) and/or former RLD 2.8(a) and/or RPC 8.4(Z), and is not subject to discipline.” CP at 10.

¶8 The assigned hearing officer established January 12, 2004, as the date for the disciplinary hearing, and he ordered the parties to the proceeding to submit their list of potential witnesses to him by November 17, 2003. Pursuant to ELC 10.13(c), the WSBA filed a demand that Whitney produce certain documents at the disciplinary hearing.1

¶9 Six days before the scheduled hearing, Whitney’s counsel moved for a continuance in order to obtain additional time within which to prepare for the January 12 hearing.2 The hearing officer granted the motion and reset the hearing for March 22, 2004. He also entered a prehearing order, indicating that briefs were to be filed by March 1, 2004. Despite the continuance, Whitney failed to [458]*458present a brief and a list of potential witnesses as required by the prehearing order.

¶10 Whitney represented himself at the disciplinary hearing. At the outset of the hearing, he requested an additional continuance in order to obtain a complete transcript of the Cienega-Brookman modification trial. The hearing officer denied Whitney’s motion, concluding that it was untimely. Whitney then moved to dismiss the complaint against him, alleging that it was barred by principles of collateral estoppel. This motion was also denied. Whitney repeated his request for a continuance, this time claiming that the WSBA needed additional time to complete its investigation. The hearing officer denied this motion as well, concluding that Whitney did not have standing to seek a continuance on behalf of the WSBA.

f 11 At the hearing, Whitney again testified that he had spoken with the three teachers. He pointed to what he claimed were his notes of conversations with them. The teachers again testified that they had not spoken to Whitney and indicated, additionally, that they had information about the children that, in their opinion, would have been useful to the court.

¶12 Notwithstanding Whitney’s failure to file a list of witnesses, the hearing officer allowed Whitney to present three witnesses. One of them, Sheri Brookman, the mother of the children, testified that Whitney “had told her that if he lost [his disciplinary] case there would be a ‘mistrial’ in her custody case and that she could [lose] her children.” DP at 13. Although Whitney made an effort during redirect examination to get Brookman to acknowledge that he did not make that statement, Brookman insisted that he had. Another witness, Kimberly Wright, the mother of Brook-man, testified that “she did not hear [Whitney] say it would be a ‘mistrial’ ” but, rather, that “the opposing party (Cienega) would argue he did not get a ‘fair trial’ if this hearing went against [him].” Id.

¶13 At the conclusion of the hearing, the hearing officer entered findings of fact, conclusions of law, and recommen[459]*459dation.

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