In Re the Disciplinary Proceeding Against Witteman

737 P.2d 1268, 108 Wash. 2d 281, 68 A.L.R. 4th 677, 1987 Wash. LEXIS 1069

• Court: Washington Supreme Court
• Decided: June 4, 1987
• Docket: C.D. 4305
• Status: Published

Opinions

Andersen, J.

Facts of Case

In this lawyer discipline proceeding, the respondent Jeffrey M. Witteman was charged with seven acts of misconduct (counts 1 through 7). The hearing officer found that respondent had in fact committed these alleged violations and, based thereon and on respondent's prior disciplinary record (count 9), recommended disbarment. The Disciplinary Board unanimously agreed to strike two of these counts (counts 2 and 7) and by an 8 to 3 divided vote recommended that respondent be disbarred. We strike one additional count (count 1) and suspend respondent from the practice of law for 2 years, the maximum period of suspension authorized by the Rules for Lawyer Discipline.¹

The acts of misconduct which resulted in the commencement of this proceeding arose out of respondent's failure to pay a doctor's bill out of the settlement proceeds in a personal injury case and his mishandling of another personal injury case. A summary of these counts approved by the Disciplinary Board is as follows.²

Count 1. Respondent was censured for failing to pay a treating doctor's bills out of settlement proceeds after promising the doctor in writing that "we will protect your interests in connection with [this matter], in the event any settlement is obtained through our office." RLD l.l(i); CPR DR 1-102(A)(5). Respondent instead gave the proceeds to his client, who said she would pay the doctor, but she did not do so.

Counts 3-6. Respondent received a 90-day suspension for a series of violations in connection with a personal injury case arising out of an automobile accident. In count 3, he failed to name the injured client's husband as a party plaintiff although requested by the clients to do so. RLD l.l(i); CPR DR 6-101 (A)(3); CPR DR 7-101(A)(2). In count 4, he failed to obtain valid service on the defendant (who was an Oregon resident) or to use all lawful means in an effort to serve the defendant, such as using the service by publication statute and the service on nonresident motorists statute. RLD l.l(i); CPR DR 6-101(A)(l); CPR DR 6-101 (A)(3); CPR DR 7-101(A)(2); CPR DR 7-101(A)(3). In count 5, after the statute of limitations had run and the client's case had been dismissed, or was subject to dismissal, respondent went through an elaborate charade to conceal this fact including misrepresenting the legal status of the case to his clients until they personally examined the court file and discovered that their case had been dismissed. RLD l.l(i); CPR DR 1-102(A)(4). In count 6, he failed to file a brief as to why the case should not be dismissed after the trial court delayed ruling on a motion to dismiss pending receipt of same. RLD l.l(i); CPR DR 6-101(A)(3).

Count 8. In addition, respondent was reprimanded for failing to provide information concerning the foregoing, though twice requested in writing by bar counsel to provide the information. Respondent later complied with a subpoena duces tecum to this same effect. RLD l.l(j); RLD 2.8(a).

Count 9. As will be further discussed herein, respondent's prior disciplinary record is also pertinent to the disposition to be made in the present disciplinary proceeding. In accordance with RLD 4.12, the allegations in count 9 were proved at the hearing as follows:

1975 — Letter of censure for neglect of a legal matter and misrepresentation of the status of a client matter.

1981 — 30-day suspension for neglect, misrepresentation of the status of a client matter and for his criminal conviction for failure to file his federal income tax return. In re Witteman, 95 Wn.2d 936, 631 P.2d 961 (1981).

1984 — Reprimand for neglect of a client's legal matter.

There are two dispositive issues.

Issues

Issue One. Is a lawyer discipline proceeding a proper forum in which to resolve a fee dispute between an expert witness for the client and the client's attorney?

Issue Two. What is the appropriate sanction for respondent's violation of disciplinary rules in this case?

Decision

Issue One.

Conclusion. As a general rule, disputes concerning a bill or fees owed to an expert witness are not properly determinable in attorney discipline proceedings. In this case, count 1 of the complaint against respondent attorney involves such a dispute; therefore, we strike that count.

According to the findings of the hearing officer, respondent attorney contacted Dr. Douglas K. Held, a doctor of chiropractic who had treated his client, and requested a medical report. Before providing such a report, Dr. Held advised that he must first have a written statement from the respondent providing that Dr. Held's bill would be protected out of any settlement proceeds. While we are unaware of any legal basis for that demand, respondent provided this assurance. Dr. Held also required payment of $50 for his report and respondent paid it. Respondent ultimately paid his client's bill after Dr. Held filed a complaint with the bar association.

In the case of In re Fraser, 83 Wn.2d 884, 893, 523 P.2d 921 (1974), this court recognized "that the terms of a contract between attorney and client with regard to fees are not properly to be determined in a disciplinary proceeding" and that such disputes should properly be determined in civil proceedings. As therein pointed out, " [a]ny rule to the contrary would place the practicing attorney at the mercy of a scheming, malicious, or unreasonable client and could throw him into an arena where his very reputation and career were at stake purely out of whim, malice, or irrational motive." Fraser, at 892, quoting In re Greer, 61 Wn.2d 741, 748, 380 P.2d 482 (1963).

By analogy, we consider such a rule to be appropriate in cases such as the present one which involves a dispute between an expert witness and the attorney over the bill owed to the expert witness. The gross amount of the settlement paid in this case was $2,500 and the doctor's bill was $1,089.59. The client demanded that the net proceeds (after payment of the $625 attorneys' fees) be paid to her whereupon she would pay the doctor. Under the circumstances, this dispute was one for resolution in the civil courts, not in a lawyer discipline proceeding.

Issue Two.

Conclusion. We conclude that the proper sanction to be imposed herein is suspension for a period of 2 years, followed by a 2-year probationary period.

Aside from respondent's earlier conviction for failure to file an income tax return, respondent's problem is that over several years, in legal matters involving four separate clients, he got into trouble and then lied in an effort to conceal what had happened.

The factual conundrum in this case is how a lawyer who is professionally well regarded by judges and other lawyers in Vancouver, Washington, where respondent has practiced since 1969, has repeatedly gotten himself into the same type of predicament. The following excerpts are illustrative of the 22 affidavits of judges, lawyers and clients³ filed in respondent's support.

As one superior court judge in Clark County, who is also a past president of the Clark County Bar Association, states:

I have known Mr. Jeffrey M. Witteman for approximately 17 years both personally and professionally. I have had a first hand opportunity to observe his practice as a lawyer for approximately six years and since 1975 as a Superior Court Judge.

Mr. Jeffrey M. Witteman has made numerous appearances before me in both civil and criminal cases. He has tried numerous bench and jury trials in my department and argued many motions as well. I have always found him to be well prepared, courteous, timely and professional in his dealings with clients, witnesses, counsel, members of the jury, and the court.

Mr. Witteman has done a great deal of personal injury practice, both as plaintiff's and defense counsel, as well as retained and appointed felony defense before this court. I regard him as one of the better trial lawyers in the Clark County Bar and consider his court room demeanor to be well above average.

I am well acquainted with Mr. Witteman personally as well, and much of what I have said about him as a lawyer is reflected in my opinion of him as a person.

Another judge states:

I have known Mr. Jeffrey M. Witteman for approximately seventeen years, both personally and professionally. I have had the opportunity to observe his practice when I was a lawyer, as well as since being on the bench. He has appeared before me on numerous occasions, in both civil and criminal cases. Mr. Witteman has appeared in both bench and jury trials in my department, and has argued motions in relation to both civil and criminal cases on the Motions Docket.

Mr. Witteman is generally well-prepared; is always courteous; has been timely and professional in both his dealings with clients, witnesses, counsel, members of the jury, and the Court.

Mr. Witteman has acted under our appointed felony defense contract, as well as representing retained clients, and has achieved good results in the matters in which he has presented to either the Court or to a jury. I consider him to be a good trial attorney, and his courtroom demeanor is above average.

Yet a third superior court judge in Clark County adds:

Mr. Jeffrey Witteman has handled both criminal and civil cases in my courtroom over the past 15 years. He has handled those cases in an efficient and professional manner. He is courteous in the courtroom and presents himself well.

The State Bar hearing officer in this case, himself a former president of the State Bar Association, perhaps explained respondent's basic problem best. He put it this way:

I am sure that we all have had the fleeting thought as we are heading to the courthouse for a trial, we know we can't win, that a large truck would gently run over us so that we can get another delay of time before we have to face reality, but our professional responsibility is that we have to face reality and there is a complete showing of immaturity in the respondent in facing reality.[⁴]

In the recent case of In re Rentel, 107 Wn.2d 276, 282, 729 P.2d 615 (1986), in deciding the appropriate sanction in a lawyer discipline case, we observed that "we have recourse to the very helpful analytical framework proposed by the American Bar Association, ABA Standards for Imposing Lawyer Sanctions (Approved Draft, 1986).'' We then went on to state:

In determining how best to fulfill the purposes of bar discipline in any given disciplinary case, the ABA Sanctions Committee recommends that four questions be addressed. We commend this analysis. The questions are as follows:

1. What ethical duty did the lawyer violate?

2. What was the lawyer's mental state?

3. What was the extent of the actual or potential injury caused by the lawyer's misconduct?

4. Are there any aggravating or mitigating circumstances?

(Footnote omitted.) Rentel, at 283.

Following this analytical framework in the case before us, we observe that the ethical duty violated by respondent was the failure to exercise the requisite duty of diligence, competence and candor to his clients. As to respondent's mental state, this was initially negligence, but in connection with his extensive cover-up efforts became intentional. The extent of the injury caused was principally the loss of the clients' tort causes of action. Both aggravating and mitigating circumstances are present. The main aggravating circumstances are these: (1) respondent's extensive prior disciplinary record; (2) an inexcusable pattern of the same kinds of misconduct; and (3) respondent's initial failure to cooperate with the Bar. The principal mitigating circumstances are: (1) the respondent's good reputation among the bench and bar in the legal community in which he has practiced for many years; (2) the absence of any dishonest or selfish motives, at least prior to his cover-up efforts; and (3) the availability of restitution to his clients through malpractice insurance. Where, as here, a lawyer engages in a pattern of neglect and causes injury or potential injury to a client, either disbarment or suspension may be the appropriate sanction depending on the facts of the case.⁵

The following principles are also pertinent to our decision on sanctions.⁶ The ultimate decision regarding sanctions rests with this court and not the Disciplinary Board. Out of respect for the Board's expertise and experience over a wide range of disciplinary matters, however, we will ordinarily adopt the sanction recommended by the Disciplinary Board unless we are able to articulate specific reasons for adopting a different sanction. In this connection, we consider five factors in evaluating the Disciplinary Board's recommendations. These are whether the Board's recommended sanction: (1) is clearly insufficient to protect the public from future misconduct and to deter other attorneys from such misconduct; (2) is disproportionate to the misconduct as measured by sanctions imposed in similar cases; (3) affects the attorney too harshly or too leniently in light of the nature of the misconduct; (4) is not supported by the record; and (5) was recommended by a unanimous rather than a divided Disciplinary Board.

In the case before us, we will particularly refer to factors numbered 5 (Board unanimity), 4 (support in the record) and 2 (proportionality).

Three members of the Disciplinary Board filed well reasoned written dissents from the disbarment decision and recommended suspension instead. Because of this divided vote, we may somewhat more readily consider sanctions other than disbarment. ⁷

Further, as to the "support in the record" factor, the Board's disbarment recommendation was based in part on the count 1 findings and conclusions in the record as well as on "the lack of evidence of restitution or insurance to protect injured clients".⁸ For the reasons discussed in connection with Issue One, we have now stricken count 1 which the Board considered. Furthermore, the State Bar's brief filed herein concedes that "since bar counsel has stipulated to the existence of malpractice insurance, the Board erroneously viewed a lack of such insurance as an aggravating factor."⁹ Thus, count 1 is no longer in the case and, contrary to the Board's assumption, malpractice insurance does exist to cover the losses herein (a substantial factor in view of the public protection policy underlying the disciplinary rules).

The last of these factors we will examine is the "proportionality" of the sanction to the attorney's misconduct. In evaluating it, we will compare the Board's recommendation with the sanctions imposed in factually similar cases.¹⁰ In some cases we have found the sanction of disbarment to be appropriate because of the particularly extensive pattern of client neglect involved.¹¹ In other cases, we have concluded that suspension was an appropriate sanction for neglect of client matters entrusted to the attorney's care.¹²

The length of the suspension depends on the facts and circumstances of each case, including the aggravating and mitigating circumstances found to be present.¹³ As discussed above, respondent's disciplinary history shows that he neglected four clients and then made misrepresentations to them to cover up his neglect. The facts of this case (with count 1 stricken and the Board's finding of no errors and omissions insurance corrected) appear to us to be somewhat more proportional to our suspension cases¹⁴ than to our disbarment cases.¹⁵

The Rules for Lawyer Discipline contain the following provision:

SUSPENSION FOR CUMULATIVE DISCIPLINE

(a) Grounds. A lawyer may be suspended from the practice of law for a fixed period of time not exceeding 2 years upon accumulation of:

(1) Three or more censures and/or reprimands;

(2) Any combination of a suspension or disbarment plus one or more censures or reprimands.

RLD 5.4(a). The facts of this case bring it squarely within this cumulative discipline rule.

For the specific reasons articulated above, we conclude that a suspension under the cumulative discipline rule (RLD 5.4) is more appropriate than disbarment. Because of the serious aggravating factors hitherto discussed, the maximum suspension of 2 years will be imposed followed by a probationary period. As a condition to respondent's reinstatement, he shall establish to the bar that during his 2-year suspension he has maintained the continuing legal education requirements required of members of the bar, but with emphasis on law office management and procedures, along with maintaining and updating his knowledge of the law relating to the personal injury field in which he has primarily practiced.¹⁶ After returning to practice, respondent shall be subject to 2 years' probation.¹⁷ The special terms of that probation are that he will: be subject to the supervision of a suitable person appointed by the chairperson of the Board;¹⁸ establish a modern office "tickler" or "diary" system satisfactory to his supervisor; and make quarterly written status reports of his entire case load to his supervising attorney in the form and detail required by that attorney.¹⁹

Having decided this case on the basis stated, we do not address respondent's remaining assignments of error.

Respondent is ordered suspended from the practice of law for a period of 2 years (with credit for the time he has been suspended to date) and to pay the State Bar Association's costs herein. Upon readmittance to practice, respondent will be on probation for an additional 2-year period, subject to the special probation conditions set forth herein.

Pearson, C.J., and Dolliver, Callow, and Durham, JJ., concur.

1 RLD 5.1(b).

2 Reference herein to "counts" are to the counts in the hearing officer's supplemental findings of fact and conclusions of law. These, in turn, were keyed to the counts alleged in the formal complaint against respondent which was filed by state bar counsel. References are to the Rules for Lawyer Discipline (RLD) and to the Code of Professional Responsibility (CPR), 80 Wn.2d 1119, which is applicable herein (replaced by the Rules of Professional Conduct (RPC), effective September 1, 1985).

3 These 22 affidavits were filed pursuant to RLD 3.2(e) and are properly before us. Had bar counsel desired to file responding affidavits, this would have been permitted. See RLD 4.11(c)(3). The two letters from respondent's former law partners, attached to respondent's brief, are not properly before us and have not been considered. See In re Kennedy, 80 Wn.2d 222, 236-37, 492 P.2d 1364 (1972); In re Thacker, 35 Wn.2d 605, 619, 214 P.2d 507 (1950).

4 Initial "Findings, Conclusions and Recommendations of Hearing Officer", at 6.

5 See ABA Standards for Imposing Lawyer Sanctions §§ 4.41, 4.42 (Approved Draft, 1986).

6 In re Noble, 100 Wn.2d 88, 95, 667 P.2d 608 (1983).

7 Noble, at 96.

8 Order Modifying Hearing Panel Officer's Findings, Conclusions and Recommendation, at 3.

9 Answering Brief of State Bar Association, at 45-46.

10 Noble, at 95.

11 See In re Talbot, 107 Wn.2d 335, 728 P.2d 595 (1986) (neglect of six client matters and mishandling of client funds); In re Zderic, 92 Wn.2d 777, 600 P.2d 1297 (1979) (neglect of 10 client matters and mishandling of retainer fees).

12 See In re Johnson, 94 Wn.2d 659, 618 P.2d 1322 (1980) (60-day suspension for neglect of four estate matters); In re Yates, 90 Wn.2d 767, 585 P.2d 1164 (1978) (1-year suspension for neglect of four client matters); In re Nelson, 87 Wn.2d 77, 549 P.2d 21 (1976) (60-day suspension for neglect of four client matters); In re Vandercook, 78 Wn.2d 301, 474 P.2d 106 (1970) (30-day suspension for neglect of four client matters).

13 Johnson, at 663; see Noble, at 95.

14 See footnote 12.

15 See footnote 11.

16 See Standards § 2.7; Florida Bar v. Glick, 383 So. 2d 642, 643 (Fla. 1980).

17 See RLD 5.2(a).

¹⁸

19 See Florida Bar v. Neale, 432 So. 2d 50, 51 (Fla. 1983); In re Hessberger, 96 Ill. 2d 423, 431, 451 N.E.2d 821 (1983); In re Maragos, 285 N.W.2d 541, 547 (N.D. 1979).