In Re the Disciplinary Proceeding Against Yamagiwa

650 P.2d 203, 97 Wash. 2d 773, 1982 Wash. LEXIS 1550

• Court: Washington Supreme Court
• Decided: August 26, 1982
• Docket: C.D. 8190
• Status: Published

Opinions

Brachtenbach, C.J.

In this case, respondent attorney Robert H. Yamagiwa transgressed a suspension order on a number of occasions and over an extended period of time. For this, he is disbarred.

Respondent Robert H. Yamagiwa, who practices law in Seattle, was suspended by this court on August 20, 1979, for failure to comply with APR 11, Continuing Legal Education (CLE) requirements. To date, nearly 3 years later, Yamagiwa has not certified that those requirements have been met.¹ Consequently, the suspension has never been lifted.

In 1981, a formal complaint was filed charging Yamagiwa with the violation of a number of the Discipline Rules for Attorneys. After a hearing at which respondent Yamagiwa was present and testified on his own behalf, the hearing panel officer found that the allegations had been proven and that Yamagiwa's conduct violated the following DRA provisions: (1) DRA 6.7(b) for failing to notify properly clients and attorneys for adverse parties of his suspension; (2) DRA 6.7(c) for acting as an attorney in a legal matter after entry of a suspension order; (3) DRA l.l(i) for violating CPR DR 1-102 (A) (4) which prohibits conduct involving dishonesty, fraud, deceit or misrepresentation; (4) DRA 2.6 for failure to cooperate in the bar association's investigation of the disciplinary complaints against him; and (5) DRA l.l(j) for both the willful violation of DRA 2.6 and the willful disregard of a subpoena of state bar counsel. As all these violations took place while Yamagiwa was suspended from practice, the hearing panel officer recommended that respondent be disbarred.

After considering the transcript of the hearing, as well as the statements in opposition and support of the hearing panel officer's findings filed by Mr. Yamagiwa and bar counsel respectively, the Disciplinary Board of the Washington State Bar Association unanimously adopted the findings, conclusions, and recommendation of the hearing panel officer. The Disciplinary Board added its own recommendation that Mr. Yamagiwa be disbarred.

This court reviews any order by the Disciplinary Board which recommends suspension or disbarment. DRA 6. Respondent Yamagiwa received notice of this review, but he filed no objections to the Board's recommendation. He filed no brief. He did not appear at the hearing before this court. In light of this inaction, one might assume that Mr. Yamagiwa does not wish to contest the Board's recommendation. Nonetheless, we have reviewed the record to ascertain whether the findings, conclusions and recommendation of the Board are supported by the evidence. We find that they are, and conclude that disbarment is the appropriate sanction in this instance.

I

DRA 6.7(a) requires that a disbarred or suspended attorney

promptly notify by registered or certified mail, return receipt requested, all clients being represented in pending matters ... of his or her disbarment or suspension and his or her consequent inability to act as an attorney . . . and shall advise said clients to seek legal advice elsewhere.

Mr. Yamagiwa admits that he did not send such letters to his clients when he was suspended. He would have us believe, however, that because he transferred his divorce cases to the other attorneys in his office and continued to represent only clients with immigration issues, he is somehow exempt from this notice requirement. Such is not the case. The rule is unequivocal. It is imperative both to protect the public and to preserve the dignity of the profession that clients be informed when an attorney is suspended and consequently lacks the authority to represent or advise them in legal matters. To ignore such a mandate is conduct unbefitting a professional.

DRA 6.7 is equally applicable to those who are suspended for failure to comply with CLE requirements as to those suspended for other reasons. This court is committed to a program of continuing education for attorneys, so that they might remain abreast of recent decisions and trends in the law and continue to develop their legal skills. At present, the requirement is only 15 credit hours per year. APR 11.2(a). If an attorney fails to meet the 15-hour requirement within the calendar year, he or she is automatically given another 4 months to make up the deficiency. APR 11.6(a). Moreover, before any disciplinary action is taken, the Board sends a written notice to the noncomplying attorney so he or she might petition for an extension of time to complete the requirements. It is only after this extended opportunity to comply has lapsed that disciplinary actions are initiated. There is no record indicating that Mr. Yamagiwa either petitioned for an extension of time or complied with the CLE requirements during the more than 8-month hiatus between the time he was required to have completed his 1978 CLE requirements and the date he was suspended.

Moreover, the basis for Mr. Yamagiwa's suspension is immaterial to our decision today. The sole issue before us is the proper disciplinary sanction for one who violates a suspension order.²

II

Mr. Yamagiwa's professional conduct changed very little after he was suspended. He merely refrained from using legal letterhead and changed the way the phone was answered; however, he did not notify his clients of his suspension and continued to represent them before the Immigration Service.

Mr. Yamagiwa contends that his activities before the Immigration Service did not constitute the practice of law. DRA 6.7(c) requires, however, that a suspended attorney "not accept any new retainer or engage as attorney for another in any case or legal matter of any nature." (Italics ours.) There is no doubt that immigration is a legal matter and that Mr. Yamagiwa necessarily drew from his knowledge of the law in advising and assisting his clients. In light of the fact that his clients were not notified of his restricted role, Mr. Yamagiwa's fine distinction between legal and immigration matters is indefensible.³

Ill

Other facts show that respondent engaged in conduct involving deceit or misrepresentation, thus violating CPR DR 1 — 102(A)(4) and DRA l.l(i).

In September 1980, a year after being suspended, Mr. Yamagiwa assisted a client named Gustavo Schagen in an immigration matter and also advised him on a misdemeanor theft charge. Respondent provided Mrs. Schagen with his professional card which read "Robert H. Yamagiwa, Attorney at Law." Understandably, Mr. Schagen believed that respondent was an attorney and was representing him as such in both the immigration matter and the criminal case. Mr. Yamagiwa proceeded to act as an attorney and negotiated with the prosecutor handling Mr. Schagen's case for a stipulation to stay prosecution. Mr. Yamagiwa billed Mr. Schagen for his services. He failed, however, to follow the case through or to return Mr. Schagen's numerous phone calls. Consequently, Mr. Schagen missed his court date and was forced to consult another attorney to have the stipulation properly entered.

Mr. Ayres, the prosecuting attorney, was also given the impression that Mr. Yamagiwa was a practicing attorney. Mr. Yamagiwa initiated two calls to Mr. Ayres to explain Mr. Schagen's situation to him and convince him that a stay of proceedings would be proper under the circumstances. Mr. Yamagiwa mentioned that he would not be representing Mr. Schagen in court, but he did not mention that he was suspended from the practice of law. Under these circumstances, it was logical for the prosecutor to assume that Mr. Yamagiwa was acting as an attorney, and it was deceitful for respondent not to tell him otherwise. See CPR DR 1-102(A)(4). When suspended, an attorney must notify the attorney for an adverse party of his suspended status. See DRA 6.7(b). Nothing less is expected of one in a continuing, suspended state.

Mr. Yamagiwa also misrepresented himself as an attorney in good standing on other occasions. In September 1979, while suspended, Mr. Yamagiwa took on a new client, represented her before the Immigration Service, then sent her a letter requesting $500 in attorney's fees. In November 1979, Mr. Yamagiwa requested from another potential client payment of $1,000 in attorney's fees, designated as a nonrefundable retainer. Also, in June 1980, Mr. Yamagiwa reviewed some documents prepared by an attorney in Oregon, and was paid for this service by a letter addressed to him as an attorney at law. Obviously, each of these individuals understood that Mr. Yamagiwa was an attorney in good standing when employing his services. These facts indicate that Mr. Yamagiwa overtly and covertly misrepresented himself as an attorney and deceived others regarding his status. Such conduct is a clear violation of the standard of conduct expected of those licensed to practice law. CPR DR 1-102(A)(4); CPR DR 3-101(B); DRA l.l(i).

IV

Finally, the Board's conclusions that Mr. Yamagiwa failed to cooperate in the bar association's investigation, and willfully disregarded a subpoena of the state bar counsel are also substantiated by the facts.

Respondent Yamagiwa received three letters from the bar association requesting a response to a disciplinary complaint concerning his practice during suspension. These letters were sent May 7, 1980; June 9, 1980; and June 23, 1980. No response from these letters had been received by July 1980, when respondent was served with a subpoena duces tecum and a notice of deposition. Although respondent was personally served, he failed to appear at the deposition.

A second disciplinary complaint against respondent was filed with the bar association in December 1980. Letters dated December 15, 1980; January 19, 1981; February 2, 1981; March 6, 1981; April 14, 1981; and April 16, 1981, were sent to respondent requesting a response. As of the date of the hearing, April 29, 1981, no written response to the complaint had been submitted.

DRA 2.6 states:

It shall be the duty and the obligation of an attorney who is the subject of a disciplinary investigation to cooperate with the Local Administrative Committee, State Bar Counsel or bar staff as requested, subject only to the proper exercise of his privilege against self-incrimination where applicable, by:

(a) Furnishing any papers or documents;

(b) Furnishing in writing a full and complete explanation covering the matter contained in such complaint; and

(c) Appearing before the Committee at the time and place designated.

Such requirements are necessary to enable the bar association to efficiently and effectively investigate complaints of attorney misconduct. Here, Yamagiwa failed to respond in a timely manner to any of the nine letters from the bar. His belated response to the first complaint, 3 months after the first letter was sent, postdated his failure to appear at his deposition. With reference to his deposition, Yamagiwa admitted that he was served with the subpoena, but claimed that he did not look at it at the time. He stated that " [s]everal days or a week or two after receipt, I looked at it and discovered the date had passed for the subpoena or the appearance."

Respondent Yamagiwa's defense has been that emotional and physical problems prevented him from cooperating with the bar. Obviously, the strength of such a defense depends primarily on the credibility and sincerity attributed to respondent's testimony. Apparently, such excuses were not persuasive to the hearing panel officer, for, after hearing the testimony, he found that Yamagiwa had willfully violated DRA 2.6 and willfully disregarded the subpoena. See DRA l.l(j). On this issue, we give credit to the triers of fact because they see and hear the witnesses and are thereby better able to weigh the evidence given and consider the credibility of the various witnesses. Peterson v. Department of Labor & Indus., 22 Wn.2d 647, 652, 157 P.2d 298 (1945).

The undisputed facts are that Yamagiwa, after he was suspended, faded to properly notify his clients of his suspension; gave his professional card, which stated he was an attorney, to a client; opened a new case and represented a client for which he charged "attorney fees;" and misled a number of clients and attorneys as to his status as an attorney in good standing. He also failed to respond to nine bar letters and failed to appear at his deposition in violation of a subpoena. These facts are sufficient to support the Board's findings that Yamagiwa violated the disciplinary rules discussed above.

V

We turn now to the question of the appropriate sanction to impose. Both the hearing panel officer and the Disciplinary Board recommended disbarment. These recommendations are given serious consideration by this court, In re Krogh, 85 Wn.2d 462, 536 P.2d 578 (1975), and we agree that disbarment is warranted by the facts of this case.

The primary purposes of disciplinary sanctions are to protect the public and to preserve confidence in the legal profession and judicial system. In re McNerthney, 95 Wn.2d 38, 41, 621 P.2d 731 (1980). Yamagiwa's transgressions seriously undermine both these premises. For example, Mr. Schagen thought Mr. Yamagiwa was an attorney and was representing him in his defense of criminal charges. As a result of Mr. Yamagiwa's misrepresentation of his status and his inaction, Mr. Schagen missed a court date, was verbally reprimanded by the judge, and was forced to hire another attorney. Moreover, as Mr. Yamagiwa failed to notify his clients of his suspension, it is unknown how many immigration clients were injured by their mistaken perception that Mr. Yamagiwa was providing them the full services of an attorney in good standing. Such deceptions have the continuing potential for injury to the public and necessarily tarnish the public's view of the legal profession.

In determining the correct sanction to impose, we have previously outlined five factors to be considered: (1) the seriousness and circumstances of the offense; (2) avoidance of repetition; (3) deterrent effect upon others; (4) maintenance of respect for the honor and dignity of the legal profession; and (5) assurance that those who seek legal services will be insulated from unprofessional conduct. In re Kumbera, 91 Wn.2d 401, 588 P.2d 1167 (1979). All these factors support our decision to disbar respondent.

Disregard of a suspension order is a serious offense. Here, respondent's failure to notify his clients demonstrates an initial disregard which was magnified by his subsequent misrepresentations. Also, we find his actions to be especially onerous because of the extended period of time over which they took place.

As Mr. Yamagiwa was already suspended at the time of these offenses, disbarment appears to be the only insurance against repetition. Such a severe sanction will also serve an important function of deterring others from violating a suspension sanction. Finally, one who misleads clients and attorneys as to his status as an attorney must be sanctioned to maintain respect for the legal profession and to protect the public from such unprofessional conduct. Thus, all these factors support the severe sanction of disbarment.

While we consider mitigating factors such as restitution, repentance and temporary personal disability in determining the proper discipline to impose (In re Kumbera, supra), such factors do not alter our conclusion here. Mr. Yamagiwa's emotional and physical problems can only partially excuse his failure to cooperate with the bar. He received letters requesting a response beginning in May 1980, but he did not even respond with a phone call until 3 months later. Also, his failure to appear for his deposition is, by itself, evidence of conduct unbefitting an attorney. But most importantly, these personal problems in no way excuse respondent's failure to notify his clients of his suspension and his misrepresentations of his status to clients and other attorneys. Respondent chose to misrepresent himself as an attorney and to engage in legal matters while suspended; for this he is disbarred.

The name of attorney Robert H. Yamagiwa shall be stricken from the roll of attorneys in this state. Costs of $450.76 are approved.

Stafford, Utter, Dolliver, Dimmick, and Pearson, JJ., concur.

1 Respondent Yamagiwa testified at the hearing on April 29, 1981, that he had completed his CLE requirements at that time, but had not turned in his certificate. Subsequently, in a letter dated June 6, 1981, respondent promised that his affidavit of compliance with the CLE requirements would be forthcoming within a week. No such certification has been received, thus casting doubt on the veracity of his statements.

2 The dissent attacks the CLE requirements and the sanctions imposed for violation thereof. Such arguments might have been pertinent at the time the suspension order was entered by this court, or they may serve to initiate a movement to change the rules in the future, but they are not germane to the issue presently before us.

3 Whether or not this conduct is tantamount to the unauthorized practice of law is a question that is not before us. Had Mr. Yamagiwa's clients been properly notified of his suspended status and chosen him nonetheless to assist them in a limited capacity in immigration matters, and had the Immigration Service understood that his role was so limited, the situation might be different. However, such is not the case before us.