In Re the Disciplinary Proceeding Against Selden , 107 Wash. 2d 246 ( 1986 )

Andersen, J.

Facts of Case

At issue here is the appropriate sanction for a lawyer who misappropriated funds from his law firm.

Respondent James P. Selden graduated from law school in 1980 and was admitted to the bar later that year. While in law school, and for a year thereafter, he worked for a title insurance company in Tacoma. On December 1, 1981, he left the company for employment as an associate with the Tacoma law firm of Betzendorfer, Deutscher and Gra-noski. Respondent's starting salary was $2,000 a month, which was what he had earned at the title company. Respondent had a number of debts at the time, and testified that Charles Granoski knew of those debts and that both Granoski and Joseph Betzendorfer promised him a bonus as an incentive to leave the title company. The two partners denied that they ever promised respondent a bonus, and nothing about any claimed right to a bonus was ever put into writing.

Respondent handled considerable business for the law firm during his first year. On December 1, 1982 he presented a report covering his first year at the firm in which he requested a salary increase of $l,000/month but made no mention of any bonus. Nor did he claim that any of the clients he had assisted were his, rather than the firm's, clients. The firm gave respondent the full $l,000/month raise he requested.

The law firm handled payments by clients as follows. When a check came through the mail, a secretary noted the payment on the client's ledger card and on the general account ledger or the trust account ledger. If the check were intended for the general account, the secretary endorsed it with the firm's stamp. If the check were made out to an individual attorney, that attorney endorsed it and the secretary then added the firm's stamp.

In the spring of 1983, the respondent began keeping some of the checks that were made payable to him. He took the checks at a time when resources at the firm were limited because two of the three partners were ill and unable to maintain regular work schedules. Respondent had recently divorced and had a number of resulting debts. From April until October 1983, he deposited approximately 30 checks from 20 clients in his own bank account. He took no client trust funds.

The firm learned that some of its funds were missing when some clients protested being billed twice. When confronted by the firm on November 10, 1983, the respondent at first tried to bluff but finally admitted taking some money. He called one of the partners that evening and said that he had taken about $2,000.

The firm began to check its records and found that some client ledger cards were missing. Respondent, who had taken the cards home, returned them. The firm also found that other client ledger cards had entries showing payment where respondent had admitted taking those payments. He denied making those entries, but later testified that he had told his secretary that certain bills were paid when he had actually kept those payments.

The firm requested the respondent's bank records and finally turned the matter over to the bar association. Respondent did not give his records to the firm, but he did eventually provide them to the bar association in response to a subpoena. After the bar association calculated that respondent had taken $6,810.40, he repaid the firm in full, after which the firm decided not to press criminal charges. The firm fired the respondent, however, and he was then hired by another Tacoma law firm. The respondent deposited the final check belonging to the law firm in his own account on November 21, 1983, which was after his misappropriations had been discovered and after he had been fired.

The bar association filed a formal complaint against the respondent on April 25, 1984, charging him with misappropriating funds and also with misrepresenting the extent of his misappropriations. A hearing was held on April 24, 1985. Bar counsel argued for disbarment, while respondent's attorney argued for dismissal of the complaint or, at most, a letter of censure or public reprimand. Respondent asserted then, as he still does, that he took only payments made by clients for whom he had done work and only because he deserved and had been promised a bonus. He added, however, that he knew what he had done was wrong, and said that it would not happen again. His psychiatrist, whom the respondent consulted eight times in 1984 and 1985, said that he had been rehabilitated.

The hearing officer did not accept the bonus rationalization, and recognized that respondent had violated several disciplinary rules. In his decision, however, he referred to what he termed mitigating factors, including respondent's rehabilitation. The officer recommended a 60-day suspension and assessed costs and restitution against respondent. The Disciplinary Board reopened the record to admit 11 letters of recommendation from attorneys and clients on respondent's behalf, but adopted the hearing officer's findings, conclusions and recommendations. One Board member abstained; two others dissented, urging that the respondent be suspended for 120 days.

Respondent filed a notice of appeal from his suspension in this court.¹ The bar association, in turn, sought discretionary review of the Board's decision,² asking for a more severe sanction. We granted the bar's request for discretionary review³ and joined it for hearing with respondent's appeal.

One ultimate issue is presented.

Issue

What is the appropriate sanction for an associate who misappropriates $6,810.40 in funds belonging to his law firm?

Decision

Conclusion. The months long course of respondent's repeated thefts from his employer, together with his efforts to conceal the extent of his defalcation, require that respondent be disbarred from the practice of law in this state.

Respondent initially challenges several of the hearing officer's findings and conclusions. Specifically, he challenges the findings that no bonus was promised, that he intended to deprive the firm of its funds, that he caused entries to be made on some ledger cards that indicated payment, and that he provided his bank account records only after they were subpoenaed. He also challenges the conclusions that he violated three disciplinary rules.

We have consistently held that we will not disturb factual findings made by a hearing officer upon conflicting evidence.⁴ The credibility and veracity of witnesses are best determined by the fact finder before whom the witnesses appear and testify.⁵

There was considerable testimony at the hearing regarding the bonus that the respondent claimed he expected. Two partners in the firm testified, however, that no bonus other than the firm's somewhat nominal Christmas bonus given to all employees was ever promised to the respondent. The hearing officer observed the witnesses, listened to their conflicting testimony and concluded that no bonus had been promised. That finding is well substantiated by the record and we will not disturb it. For that same reason, we will not alter the remaining findings of fact. Respondent's attempts to conceal his taking of money that did not belong to him makes the finding that he intended to deprive the law firm of those funds eminently reasonable. It also appears very likely that his responses to his secretary's inquiries to the effect that some bills had been paid was what led her to make payment entries on certain ledger cards when, in fact, respondent had kept the money. Finally, regardless of motive, respondent did not relinquish his bank records until they were subpoenaed. We sustain the hearing officer's findings.

Respondent also challenges the hearing officer's conclusions that he violated certain disciplinary rules. These challenges must fail if the challenged conclusions of law are supported by the findings of fact.⁶

Here, the finding that respondent misappropriated his firm's funds supports the conclusion that he violated CPR DR 1-102 (A) (3), prohibiting a lawyer from engaging in illegal conduct involving moral turpitude.⁷ That finding also supports the conclusions that respondent violated CPR DR 1-102 (A) (4), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, as well as CPR DR 1-102 (A) (6), prohibiting a lawyer from engaging in conduct that adversely reflects on his ability to practice law. The hearing officer also concluded that respondent's conduct in misrepresenting the extent of his wrongdoing to the firm, removing client ledger cards from the firm, and causing some cards to be altered, again violated CPR DR 1-102 (A) (4). These conclusions are fully supported by the findings of fact and will be sustained.

The issue thus becomes what sanction is appropriate. The ultimate responsibility for determining the nature of lawyer discipline rests with this court, not the Disciplinary Board.⁸ We do, however, give serious consideration to Disciplinary Board recommendations.⁹ We will ordinarily affirm the sanction recommended by the Disciplinary Board unless we can articulate specific reasons for adopting a different sanction.¹⁰

In In re Noble, 100 Wn.2d 88, 95, 667 P.2d 608 (1983), this court set forth a number of factors to be considered in evaluating the Board's recommendations. One consideration should be the purposes of attorney discipline. The purpose of disciplining an attorney is not primarily to punish the wrongdoer, but to curb disrespect for the profession, to maintain its honor and dignity, and to assure those who seek the services of an attorney that conduct involving dishonesty and lawlessness will not be tolerated.¹¹ The public's confidence in the legal profession must be preserved and attorneys must be deterred from engaging in similar misconduct.¹² In satisfying these objectives, the consequence of an attorney discipline case is to some extent unavoidably punitive.¹³

The Board's recommendation will be modified where we deem it insufficient to achieve the purposes of attorney discipline set forth above.¹⁴

We have grave doubts about the deterrent effect of a 60-day suspension for a sustained course of thievery resulting in a loss of $6,800. Even more important is the issue of whether a 60-day suspension will preserve confidence in the legal profession. Respondent stole 30 checks from his law firm from April to November, thus engaging in dishonest conduct over an 8-month period. He also took client ledgers home with him. The law firm partners had to explain to clients why they fired the respondent, and his present clients will be told why this court finds disciplinary action necessary.¹⁵ Such revelations reflect poorly, to say the least, upon the legal profession. In view of these considerations, a suspension is in our opinion patently inadequate to curb disrespect for the profession, to maintain its integrity and to assure potential clients that dishonesty and lawlessness by members of the bar will not be tolerated.

We have repeatedly emphasized that the appropriateness of a sanction is to be based on the particular facts of each case.¹⁶ Such facts are revealed when a second factor is considered: whether the sanction recommended by the Board is proportionate to the misconduct. Aggravating and mitigating factors are evaluated here, as are sanctions imposed in factually similar cases.¹⁷

The respondent argues that In re Rice, 99 Wn.2d 275, 661 P.2d 591 (1983) is factually similar. We disagree. In Rice, the Board recommended a 6-month suspension of a partner who allegedly misappropriated partnership fees.¹⁸ This court decided against imposing any sanction for several reasons.¹⁹ The court also noted among its "relevant concerns" that which primarily distinguishes Rice from this case: there was no finding Rice intended to permanently deprive the law firm of the disputed funds (in fact the evidence was to the contrary), and his behavior was not out of character with that law firm's loose accounting procedures.²⁰ The Rice court also held that it would "under no circumstances . . . involve itself in intrapartnership accounting disputes."²¹ We now add emphasis to this aspect of Rice: it stands for the proposition that when there has been no finding of fraud, this court will not entertain an accounting action in the guise of a disciplinary proceeding.

Rice is not applicable where, as here, an associate helps himself to law firm funds to which the associate is not entitled.²² Contrary to respondent's assertions, the clients whose payments he stole were not his clients. Respondent was an associate and the clients he worked for were the firm's clients. To characterize extensive and repeated thefts from that firm, misstatement of the amount taken and concealment of client ledgers as no more than an "intra-partnership accounting dispute" is an affront to the profession and its disciplinary procedures.

As noted in Rice, disbarment is the usual sanction for an attorney who misappropriates a client's funds.²³ We have in the past relied on mitigating factors to justify a lesser sanction than might otherwise have been imposed.²⁴ In the case at bar, the hearing officer and members of the Disciplinary Board recognized several mitigating factors: respondent had not previously been the subject of disciplinary proceedings; his record was good apart from April-December 1983; he was at the time under emotional and financial pressure centered around the dissolution of his marriage; he said he realized he had done wrong; he is now working for a law firm that gives him a high recommendation; he sought and received psychiatric treatment; and once the bar investigation had commenced, he cooperated with it.

We are not impressed by several of those factors. Many attorneys go through the stress of divorce without stealing from their law firms. An attorney's recognition that theft is wrong and his cooperation with a bar investigation do not merit great commendation. Indeed, we conclude that the aggravating factors present in this case are much more compelling than any of the mitigating factors listed by the Board. When the respondent did not receive the bonus he says he expected, he took the money in 30 separate installments over an 8-month period, covered up the takings and did not disclose his wrongdoing despite a number of opportunities to do so. He did this during a period of time when two of the partners suffered illnesses and the firm was shorthanded and vulnerable. When respondent was finally confronted with evidence of his thefts, he initially denied the takings, then later underestimated the amount he had taken by $4,800. Incredibly, he then stole yet additional funds after his firm discovered his misappropriations and fired him. We note here that this court imposed a 2-year suspension on an attorney who shoplifted $300 worth of merchandise in the course of 1 hour.²⁵ To order a 60-day suspension of an attorney who stole $6,800 over an 8-month period, and then went to considerable effort to cover up his theft, would be grossly disproportionate to sanctions imposed in previous cases and would make a mockery of the goals of attorney discipline²⁶

It is the conclusion of a majority of this court that it is necessary to disbar the respondent to protect the integrity of the legal profession and preserve the public's confidence in it.

The respondent, James P. Selden, is hereby disbarred from the practice of law in the State of Washington.

Durham, J., and James, J. Pro Tern., concur.

1 RLD 7.2(a).

2 RLD 7.3(a).

3 State bar counsel sought discretionary review in this case pursuant to authorization of the Board of Governors.

4 In re Denend, 98 Wn.2d 699, 704, 657 P.2d 1379 (1983); In re Little, 40 Wn.2d 421, 427, 244 P.2d 255 (1952).

5 In re Kuvara, 97 Wn.2d 743, 747, 649 P.2d 834 (1982); In re Witt, 96 Wn.2d 56, 57, 633 P.2d 880 (1981).

6 Denend, at 705.

7 See In re Saulnier, 97 Wn.2d 676, 677, 648 P.2d 433 (1982); In re Anderson, 73 Wn.2d 587, 588, 439 P.2d 981 (1968).

8 In re Noble, 100 Wn.2d 88, 95, 667 P.2d 608 (1983); In re Espedal, 82 Wn.2d 834, 838, 514 P.2d 518 (1973).

9 Noble, at 94; In re Nelson, 87 Wn.2d 77, 80-81, 549 P.2d 21 (1976).

10 Noble, at 95; In re McLeod, 104 Wn.2d 859, 865, 711 P.2d 310 (1985).

11 In re Greiner, 61 Wn.2d 306, 313, 378 P.2d 456 (1963); In re Case, 59 Wn.2d 181, 184, 367 P.2d 121 (1961).

12 See Noble, at 95; In re Salvesen, 94 Wn.2d 73, 76, 614 P.2d 1264 (1980).

13 Little, at 430.

14 See Noble, at 95; In re Durham, 41 Wn.2d 609, 612-13, 251 P.2d 169 (1952).

15 See RLD 8.1(a).

16 Nelson, at 81; In re Livesey, 85 Wn.2d 189, 193, 532 P.2d 274 (1975).

17 Noble, at 95.

18 In re Rice, 99 Wn.2d 275, 277, 661 P.2d 591 (1983).

19 Rice, at 277-78.

20 Rice, at 279.

21 Rice. at 279.

22 Respondent implies that, under Rice, a partner may take funds from his or her firm with no danger of retribution. Since the case before us does not involve a partner taking funds from a law firm in which he or she is a partner, we do not further address that aspect of the issue.

23 See, e.g., In re Denend; In re Cary, 90 Wn.2d 762, 585 P.2d 1161 (1978).

24 See Salvesen, at 77-79; In re Kumbera, 91 Wn.2d 401, 405, 588 P.2d 1167 (1979).

25 In re Saulnier, 97 Wn.2d 676, 677, 648 P.2d 433 (1982).

26 See, e.g., In re Saulnier; In re Rosellini, 97 Wn.2d 373, 646 P.2d 122 (1982).