In Re the Disciplinary Proceeding Against Witteman ( 1987 )

Brachtenbach, J.

(dissenting) — I dissent and would adopt the recommendation of the Disciplinary Board for disbarment.

The majority first dismisses count 1 on the ground that "disputes concerning a bill or fees owed to an expert witness are not properly determinable in attorney discipline proceedings." Majority, at 285. The plain facts are: (1) Witteman made a commitment of his client's funds without the client's authority; (2) the lawyer promised, in writing, that "we will protect your interests in connection" with the doctor's bill (the propriety of the doctor's request is irrelevant); (3) the lawyer violated that written promise and made no effort to resolve the conflict when he had an opportunity to do so; (4) the lawyer repeatedly neglected the matter over a period of 2 years 3 months; (5) the lawyer lied to the doctor's office about the matter; and (6) the lawyer fulfilled his promise only after a complaint was made to the bar.

The facts on count 1 are not disputed. The claim was settled in May 1983, the net funds were disbursed to the client in violation of the lawyer's written guaranty. In October, Witteman represented to the doctor's staff that the case was still pending, even though it had been settled 5 months earlier. He blames this on confusion with another case. Despite some 32 phone calls from the doctor's staff, and repeated billings, Witteman did nothing, except lie, until a complaint was made to the bar. The bill was finally paid in August 1985, 27 months after the case was settled.

The majority, at 285, cites as authority In re Fraser, 83 Wn.2d 884, 523 P.2d 921 (1974), for the proposition that attorney-client fee disputes are not to be resolved in a disciplinary proceeding. That is a correct statement but it has nothing to do with this case. That principle does not, or certainly should not, protect an attorney from the consequences of making an unauthorized promise of his client's funds, violating that promise, lying about the matter, and then neglecting the matter. Yet, that is what the majority condones. I agree with the hearing officer that Witteman's conduct involved dishonesty and misrepresentation. Count 1 should be upheld.

In determining the sanctions the majority cites three mitigating factors. Majority, at 289.

First is the lawyer's good reputation among the bench and bar in his legal community. The only "evidence" on this factor is not properly before the court; presumably the majority refers to affidavits filed by Witteman. The majority states that the affidavits were filed pursuant to RLD 3.2(e) and are properly before us. See footnote 3.

RLD 3.2(e) relates to an answer to the mandatory petition for suspension, after a recommendation of disbarment. The affidavits were filed at that stage as an effort to meet the attorney's burden to avoid suspension pending the hearing on the underlying disciplinary proceedings. Despite those affidavits Witteman was suspended on June 12, 1986.

Recognizing that these affidavits were not part of the record in the disciplinary proceedings, Witteman moved to supplement the record in the main disciplinary case. That motion was passed to the hearing on the merits. The majority brings them into the main record by virtue of the fact they were filed in an earlier, interim action.

Witteman moved to supplement because of his failure to produce any proof before the hearing officer concerning his fitness to practice law. He contends that he had no notice that in the hearing his fitness to practice was in question. His contention is indicative of his adherence to the rules of the game. Paragraph 43 of the formal complaint explicitly alleges that the charged misconduct was in violation of RLD 1.1 (p) which prohibits conduct demonstrating unfitness to practice law. Despite that notice Witteman presented no evidence at the disciplinary hearing. As alleged in the complaint the bar relied upon the pending charges, plus his prior record, to demonstrate the alleged unfitness.

Witteman, and now the majority, attempt to deny the bar an opportunity to meet the evidence which Witteman advances through the affidavits. These affidavits are often conclusory; those few which contain facts stand unchallenged by the bar since the bar is precluded from such opportunity by the tactics employed by Witteman and endorsed by the majority.

This use of the affidavits by the majority to mitigate the sanction is particularly ironic since those affidavits failed to convince this court that Witteman should not be suspended pending a hearing. At the motion stage this court determined that Witteman should be suspended because his continuation of practice pending the hearing would result in "substantial harm, loss or damage to the public." Order of June 12, 1986.

The majority contends that RLD 4.11(c)(3) permitted the submission of counter affidavits. That section relates to the hearing process. It proves my very point, that Witteman gave no proof subject to cross examination. If Witteman had met this issue at the time and in the proceeding, the evidence could have been met as contemplated by the rules. The majority permits the attorney to take a chance on the outcome and then submit evidence by affidavit without a right of challenge, other than by affidavit, which is also not subject to cross examination — hardly the way to get at the truth.

The affidavits were insufficient in June. Now the majority deems them adequate to constitute one of three mitigating factors. They are now adequate enough to help the majority overcome the reasoned findings and recommendation of the hearing officer and eight members of the Disciplinary Board.

The next mitigating circumstance relied on by the majority is the absence of any dishonest or selfish motives. Majority, at 289. The majority states the proposition, no facts, just a conclusion. Witteman's mendacity carries its own badge of dishonesty. The selfish motive of using dishonesty to cover his acts of ethical violations is apparent. Clearly Witteman misrepresented matters solely for his own benefit.

The dissents in the disciplinary proceedings recognize the absence of this mitigating factor. Dissenting Board member Schultz states that the conduct "appears to be accompanied by willfulness, deceit and gross negligence." Dissenter Goodwin states that Witteman's carelessness and neglect were "followed by dishonest and untrue statements in an effort to conceal the errors he had made." The third dissenter adopted Goodwin's views.

If count 1 is allowed to stand, the Disciplinary Board would impose a letter of censure; on counts 3 through 6, the Board recommends suspension for 90 days and a reprimand on count 8. Thus, over a period of 11 years Witteman has accumulated the following:

1. Letter of censure for neglect and misrepresentation;

2. Thirty-day suspension for neglect, misrepresentation and a criminal conviction;

3. Reprimand for neglect of a client's legal matter;

4. Letter of censure for an act involving dishonesty and engaging in conduct prejudicial to the administration of justice;

5. Suspension for 90 days for neglect, intentional failure to carry out a contract of employment, handling a matter when he knew or should have known that he was not competent to handle, intentional prejudice or damage to a client, conduct involving dishonesty, fraud, deceit or misrepresentation and failure to cooperate.

6. A reprimand on count 8 for failure to cooperate in the investigation of a complaint.

Interestingly, the majority does not mention the aggravating factors which may justify an increase in the discipline to be imposed. The ABA Standards for Imposing Lawyer Sanctions § 9.22, at 64 (Approved Draft, 1986) lists 10 aggravating factors. Eight of those aggravating factors are present here. They are:

(a) prior disciplinary offenses;

(b) dishonest or selfish motives;

(c) a pattern of misconduct;

(d) multiple offenses;

(e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency;

(g) refusal to acknowledge wrongful nature of conduct;

(i) substantial experience in the practice of law;

(j) indifference to making restitution.

The existence of most of these factors is apparent from the facts and record. Bad faith obstruction of the proceedings is clear. At the outset Witteman failed or refused to answer bar staff inquiries after a client complaint. A second inquiry was ignored. Pertinent files were produced only after a subpoena duces tecum was issued.

As to remorse, Witteman produced nothing at the hearing. Not until the Board issued its decision did Witteman even acknowledge the question of his remorse. In a June 1986 affidavit, 6 months after the hearing, Witteman stated that he does feel a great degree of remorse as to the Kohrdt matter only. He states that he is at a loss to determine any factual basis in the record below other than his failure to appropriately articulate such remorse to the Board. He states that at the initial hearing remorse was never raised and, therefore, he did not have an opportunity to state his feelings. He obviously does not understand his function as a respondent. Given an opportunity to make a statement to the hearing officer, he chose to stand on his response to the original complaint. That response was a one line denial of everything alleged.

Concerning restitution, the record is unclear except as to the fact that damages to clients Kohrdt were not paid until Witteman was sued. Payment to the doctor, count 1, was made only after a complaint was made to the bar and then some months after he promised the bar it would be paid immediately. Witteman finally paid the doctor as he had promised to do years earlier.

This payment is somewhat akin to restitution. Here again his attitude toward professional ethics is apparent. He had promised in writing to pay the bill out of settlement proceeds. His explanation was "I guess I didn't consider it my obligation" other than to remind the client it had to be paid — a sad commentary on the integrity of a member of the bar.

Restitution should be of marginal influence in any event. The lawyer is simply paying the client for wrongs which should not have happened.

Witteman's conduct over a period of 11 years clearly shows a repetitive pattern of neglect and misrepresentation. He obviously does not learn from his serious mistakes. Enough effort, time, expense and frustration has been spent by involved clients, the bar, Disciplinary Board members, hearing officers and this court.

The majority apparently recognizes that Witteman will pose a potential danger to the public even after a 2-year suspension. He will be on probation for 2 years. For 2 years we require local supervision over Witteman, including overseeing his diary system and receipt of quarterly written status reports of his entire case load.

At the least, I would add to the majority's conditions of suspension and probation. As a condition to reinstatement after the 2-year suspension, I would require certification, under oath, of compliance with the majority's conditions, including a specific statement that he has not practiced law during suspension. Further, as a condition of reinstatement, I would require Witteman to pass the ethics portion of the State Bar examination. During probation, his quarterly reports should include any complaints from his clients about his handling of their legal matters.

I would follow the recommendation of the experienced, distinguished hearing officer and the eight members of the Disciplinary Board and disbar.

Utter, J., concurs with Brachtenbach, J.

Reconsideration denied September 4, 1987.