In re the Disciplinary Proceeding Against Heard , 136 Wash. 2d 405 ( 1998 )

Sanders, J.

(dissenting) — The majority’s affirmation of discipline against Attorney James A. Heard rests on two doubtful propositions: (1) we review factual findings of the Disciplinary Board rather than findings made by the hearing examiner who actually received the evidence and had the opportunity to judge the credibility of the witnesses before him; and (2) an attorney may be disciplined for an act of “moral turpitude” without necessity to prove that the act also “reflects disregard for the rule of law.” RLD 1.1(a).

Factual Findings of Hearing Examiner, Not Disciplinary Board, Are Dispositive

The facts as recounted by the majority, and the Disciplinary Board, are not the facts found by the hearing examiner. The examiner,¹¹ an experienced practitioner appointed by the Disciplinary Board to receive and evaluate this evidence, found, as a matter of fact, Bar counsel had simply failed to prove its various claims of misconduct by “a clear preponderance of the evidence.” RLD 4.11(b); In re Discipline of Allotta, 109 Wn.2d 787, 792, 748 P.2d 628 (1988). This is not surprising as we have previously held the requisite standard of proof is a high one where

Every doubt should be resolved in his [the attorney’s] favor, and only upon a clear preponderance of the evidence that the acts charged have been done, and were prompted by improper motives, should disciplinary action be taken. The privilege— and it is a privilege, not a right—to practice his profession cannot be lost to the practitioner upon slight evidence.

In re Discipline of Little, 40 Wn.2d 421, 430, 244 P.2d 255 (1952).

The hearing examiner conducted a thorough hearing over the course of two days. Both sides were represented by counsel. Numerous witnesses, including Katrina Menz and James Heard, testified and were cross-examined.

The examiner detailed his factual findings in 28 numbered paragraphs beginning: “All witnesses who testified were credible. Memories, however, differed among the several witnesses to many of the 5 and 6 year old events.” Clerk’s Papers (CP) at 151 (Hearing Officer’s Findings of Fact, ¶ 1). He also found Heard negotiated “with exemplary skill” (CP at 155, ¶ 19) and “for the substantial benefit of his client” (CP at 155, ¶ 21). Regarding the alleged sexual affair, the examiner was simply not factually persuaded that it indeed occurred (CP at 157, ¶ 27).

The Disciplinary Board, however, reversed the hearing examiner, not only striking his Findings of Fact but substituting its own. The Board did so without ordering the proceedings reopened for additional evidence notwithstanding RLD 6.5, which explicitly allows for the reopening of proceedings with the caveat that no additional evidence may be considered by the Board unless the proceedings are reopened.

The question is therefore whether we are to accept for the purpose of review the hearing examiner’s factual findings rather than those of the Board. But the majority asserts it was perfectly proper for the Disciplinary Board, in its appellate capacity (having never heard a witness), not only to vacate the hearing examiner’s findings of fact but also to substitute its own (Majority at 413-14).

Citing In re Discipline of Johnson, 118 Wn.2d 693, 703, 826 P.2d 186 (1992)), the majority states, “We give greater weight to the Board’s conclusions than to those of the hearing examiner.” Majority at 414 n.4. But Johnson says nothing of the kind. It simply holds we defer to the Board’s suggested punishment in cases where the hearing examiner and the Board recommend different punishments for the same violation. See Johnson, 118 Wn.2d at 703 (“While the hearing officer imposed only two reprimands and a censure, the Board majority imposed a 6-month suspension and the 5-person dissent recommended a 60-day suspension in conformity with bar disciplinary counsel’s initial recommendation. While we accord greater weight to the conclusions of the Board than to the recommendation of the hearing officer with regard to the recommended sanction, the ultimate responsibility for determining the nature of discipline nevertheless rests with this court.”) (footnotes omitted). Johnson does not even suggest, much less hold, the Board may override the hearing examiner’s findings of insufficient evidence.

Our long-standing rule requires appellate bodies not to disturb the hearing examiner’s findings of fact, particularly when made upon conflicting evidence. In Little, a lawyer discipline matter, and the seminal case on this point, we held:

The evidence upon these issues was in sharp conflict. In proceedings of this nature, we have applied the rule that we will not ordinarily disturb the factual findings of a trial committee made upon conflicting evidence. The trial committee, before whom the witnesses appeared, was in a better position to judge their veracity and candor, and evaluate their testimony, than is either the board of governors or this court. We cannot say, from the record, that the evidence clearly preponderates against the trial committee’s findings, and we will, therefore, accept them. The conclusion follows that the charges against respondent on this ground of complaint have not been sustained.

In re Discipline of Little, 40 Wn.2d 421, 427, 244 P.2d 255 (1952) (citation omitted).

The rule we enunciated in Little—according due deference to the fact finder—remains good law. See In re Discipline of Witt, 96 Wn.2d 56, 57, 633 P.2d 880 (1981) (“The credibility and veracity of a witness obviously are best determined by the fact finder. We have long acknowledged that in disciplinary proceedings.”) (citing Little). Fursuant to this general rule we must accept the hearing examiner’s findings that the Bar Association failed to carry its burden.

The majority, however, subverts the rule by stating this court will “not disturb the Board’s findings if they are supported by the clear preponderance of the evidence.” Majority at 414 (citing In re Discipline of Allotta, 109 Wn.2d at 792; In re Discipline of Curran, 115 Wn.2d 747, 759, 801 P.2d 962, 1 A.L.R.5th 1183 (1990); and In re Discipline of McMullen, 127 Wn.2d 150, 161-62, 896 P.2d 1281 (1995)). If such is indeed the rule, it is so only where the Board adopts the facts found by the hearing examiner. The cases relied upon by the majority simply do not support the broad assertion that the Board may simply disregard the hearing examiner’s factual findings that the testimony presented failed to establish the offense by a clear preponderance of the evidence.

Indeed, the first case cited by the majority, In re Discipline of Allotta, nowhere even alludes to the proposition advanced by the majority. Nevertheless Allotta does state: “The hearing officer’s findings of fact, while not conclusive, are nonetheless entitled to considerable weight. This is especially true when the credibility and veracity of witnesses are at issue. . . . The court does not attempt to substitute its evaluation of the credibility of witnesses for that of the hearing officer.” 109 Wn.2d at 793-94 (citations omitted).

The second case cited by the majority, In re Discipline of Curran, 115 Wn.2d 747, does not support the majority’s claim either. To the contrary, Curran states (at the precise page cited by the majority), “In evaluating a disciplinary charge this court will not disturb the hearing examiner’s finding of facts if supported by evidence.” 115 Wn.2d at 759 (citing In re Discipline of Felice, 112 Wn.2d 520, 525, 772 P.2d 505 (1989)).

In turn Felice unambiguously holds, “This court will not disturb a hearing examiner’s findings of fact made upon conflicting evidence.” 112 Wn.2d at 525. That is exactly our case as this hearing examiner made his findings on conflicting evidence.

The third case cited by the majority, In re Discipline of McMullen, 127 Wn.2d 150, likewise suggests we should not overturn the hearing examiner’s findings. McMullen holds,

When evaluating an attorney discipline charge, this court does not disturb a hearing examiner’s findings of fact if supported by the clear preponderance of the evidence. . . . This court is not to substitute its evaluation of the credibility of the witnesses over that of the hearing examiner. However, the conclusions of the Disciplinary Board regarding the proper sanction are accorded greater weight than those of the hearing examiner.

127 Wn.2d at 161-62 (citations omitted).

At the threshold we are not concerned with the recommended sanction because, if there is no professional misconduct, there is no sanction. Rather we review the hearing examiner’s factual findings. Precedent, and reason, require we defer to factual findings made by the trier of fact.¹² The hearing examiner took two days of evidence and concluded that the Bar Association failed to prove the charges by the applicable evidentiary standard. The examiner has no duty to believe the complainant. In fact, as the trier of fact, the hearing examiner was duly entitled to give whatever weight he deemed appropriate to any testimony received and was certainly entitled to disbelieve any witness’s testimony in its entirety even if that testimony was not directly contradicted. Plancich v. Williamson, 57 Wn.2d 367, 370, 357 P.2d 693, 92 A.L.R.2d 559 (1960) (“a trial court’s refusal to find a fact will not be disturbed on appeal, even though the defendant’s testimony on which a finding was requested was not directly contradicted.”) (citing Dundon v. Dundon, 83 Conn. 716, 76 A. 1008 (1910)).

The majority not only errs when it defers to the Disciplinary Board, which ignored the factual findings of the hearing examiner, but compounds its error by allowing the Board to substitute its own supposed facts for those actually found by the trier of fact. The governing rule is universal that an appellate body may not substitute its judgment for that of the trier of fact. See Goodman v. Boeing Co., 75 Wn. App. 60, 82, 877 P.2d 703 (1994) (“An appellate court may not substitute its evaluation of the evidence for that made by the trier of fact.”) (citing Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 263, 840 P.2d 860 (1992)), aff’d, 127 Wn.2d 401, 899 P.2d 1265 (1995); Hosea v. City of Seattle, 64 Wn.2d 678, 683, 393 P.2d 967 (1964) (“If the record, evidentiary pattern, can be said to reasonably support the jury’s determination, this should end the matter in terms of the review function of the appellate court. We are not to substitute our choice of values and judgment for that of the jury.”) (citing McLeod v. Grant County Sch. Dist., 42 Wn.2d 316, 255 P.2d 360 (1953)). This rule applies with added force to cases where the trier of fact determines that the prosecution has failed to carry its burden of proof in criminal and quasi-criminal proceedings. In re Ruffalo, 390 U.S. 544, 551, 88 S. Ct. 1222, 20 L. Ed. 2d 117, modified on other grounds, 392 U.S. 919, 88 S. Ct. 2257, 20 L. Ed. 2d 1380 (1968) (attorney disciplinary actions are “adversary proceedings of a quasi-criminal nature” and the attorney subject to discipline is entitled to due process of law).

In such situations the trier of fact’s determination that the prosecution has failed to meet its burden ends the inquiry, and the appellate court may not reassess the credibility of testimony given to second-guess he who has actually viewed the evidence firsthand. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990) (“Credibility determinations are for the trier of fact and cannot be reviewed on appeal.”).

Therefore I conclude that the Disciplinary Board and the majority err in overturning the factual determinations made by the hearing examiner and err again when crediting the Disciplinary Board with the prerogative to substitute its own. On this basis, if no other, I would reinstate the hearing examiner’s dismissal of the charges because the examiner is in the uniquely best position to judge whether the charges have been proved to the requisite factual standard.

Moral Turpitude

But if required for disposition, I would also disagree with the majority’s legal conclusion that the Bar’s allegation of sexual contact, even if proved on its face, constitutes a clear violation of the rules governing attorney discipline, as we rejected just such a bright-line rule several years ago and it is legally erroneous, if not patently unfair, to apply a rule without first adopting it.

At most under the current rules attorney-client sex is prohibited only if it violates some other rule set out in our Rules of Professional Conduct or the Rules for Lawyer Discipline; however, there is no violation under these facts.

Other jurisdictions are in accord. For example the West Virginia high court refused to find an attorney-client sexual relation in violation of the rules. Musick v. Musick, 192 W. Va. 527, 453 S.E.2d 361 (1994). The court explained,

Since no existing provision of the West Virginia Rules of Professional Conduct specifically prohibits a lawyer/client sexual relationship, we find that a lawyer’s conduct of engaging in sexual relations with a client is not, in and of itself, a breach of professional responsibility at this time.

453 S.E.2d at 364.¹³

Similarly, in Edwards v. Edwards, 165 A.D.2d 362, 567 N.Y.S.2d 645 (1991) the New York court was faced with a situation where attorney-client sex had occurred yet concluded it did not violate any particular rule and was therefore not subject to sanction. Relying on New York precedent on point, the court summarized, “In none of these cases was it the sexual relationship per se which constituted a breach of professional responsibility but rather the attorney’s attempt to exploit the professional relationship to gain unsolicited sexual favors.” Id. at 367. The court continued by holding because there was no evidence that the attorney took advantage of the attorney-client relationship, or violated any other rule, there was no violation. Id.

In contrast are a few cases where attorney-client sex may involve alleged violation of some other rule. Compare, for example, In re McBratney, 320 S.C. 416, 465 S.E.2d 733 (1996), in which attorney sexual relations with client prejudiced terms of divorce settlement; however, here there is no allegation, nor even suggestion, this alleged act affected the representation. In fact by the time the single sexual act allegedly occurred the settlement had been finalized and further professional services were unnecessary.

The only rule arguably applicable is RLD 1.1 which provides:

A lawyer may be subjected to the disciplinary sanctions or actions set forth in these rules for any of the following:

(a) The commission of any act involving moral turpitude, dishonesty, or corruption, or any unjustified act of assault or other act which reflects disregard for the rule of law, whether the same be committed in the course of his or her conduct as a lawyer, or otherwise ....

While the majority looks to itself, the practitioner must look to the rule. RLD 1.1(a) is qualified in two important respects: first, in pertinent part, it applies to acts of moral turpitude; second, it references acts which “reflect[ ] disregard for the rule of law.”

As we recently explained, acts of moral turpitude usually involve evil intent. State v. Bash, 130 Wn.2d 594, 607, 925 P.2d 978 (1996).¹⁴ But none was found here.

Moreover “moral turpitude” is vague and overly broad absent at least some nexus to the practice of law which is the only justification for any of these rules in the first place.

That nexus is also required by the very text of the rule which requires us to connect the act of moral turpitude with a finding that it “reflect [ ] disregard for the rule of law.” RLD 1.1(a). Requiring such a link serves a rational purpose because, arguably, an attorney who acts with disregard for the rule of law may to that extent demonstrate unfitness to uphold the law which he practices. Cf. In re Discipline of Curran, 115 Wn.2d 747, 766, 801 P.2d 962, 1 A.L.R.5th 1183 (1990) (“RLD 1.1(a) speaks to the standards governing discipline in order to encourage obedience to the law. We decline to interpret this rule as speaking to conduct tending to embarrass the bar.”). Thus, for example, in In re Discipline of Kerr, 86 Wn.2d 655, 548 P.2d 297 (1976) an attorney was disciplined for attempted subornation of perjury as an act of moral turpitude, which indeed reflects a disregard for the rule of law.

The majority, however, ignores that part of the text of RLD 1.1 which expressly references “disregard for the rule of law.” And it abandons our rules altogether by following a medical discipline case, Haley v. Medical Disciplinary Bd., 117 Wn.2d 720, 742, 818 P.2d 1062 (1991), which rests on a rule wholly inapplicable even on its face to the legal profession. The rule there at issue applied only to health professionals, not attorneys, and does not qualify that the act must indicate a “disregard for the rule of law.”¹⁵

However much one may frown on Heard’s alleged act of attorney-client sex under these circumstances, it simply does not ‘‘reflect[ ] disregard for the rule of law,” and there is no claim to the contrary. The alleged sex was consensual between adults and completely lawful. If the complainant was marginally mentally impaired due to her injuries, there is no finding that impairment rendered her incompetent to consent to sexual intercourse. As a matter of fact the examiner specifically found “no guardian was ever appointed for Katrina Menz,” CP at 153 (Findings of Fact, ¶ 14); whereas, the guardian ad litem was appointed narrowly for the litigation, not generally for the person.

Requiring proof of the necessary relationship between moral turpitude and disregard for the rule of law also sets a clearer standard, is more capable of prediction and provides fairer notice to the practitioner than the ad hoc, post hoc pronouncements of the majority.

If, as many believe, any sex outside marriage is evidence of “moral turpitude,” as are many deviations from the heterosexual norm also so considered, the majority lacks any principled basis to limit its moral insight to sex merely with clients. Indeed, the clear language of the rule (“whether the same be committed in the course of his or her conduct as a lawyer . . . .”) dispels any such limitation by its text, and I can see no practical reason to limit this holding in practice beyond those objections I previously stated. If it is our duty to uplift the moral character of our fellow practitioners in all respects, we certainly have our work cut out. This rule, as the majority construes it, has no limits. Nor has it rudder or anchor, but plenty of sail to get us out to sea.

Dolliver, J., concurs with Sanders, J.

11 Attorney Ed Lane.

12 The majority also cites In re Discipline of Lynch, 114 Wn.2d 598, 789 P.2d 752 (1990) for the proposition the Disciplinary Board may strike the factual findings of the hearing examiner and substitute its own. Majority at 413-14. However, Lynch does not recognize such broad authority in the Board. There the Board took additional evidence on administrative appeal, entering two new findings of fact based on new evidence, and also struck one finding of fact which was irrelevant. Id. at 608. We affirmed the Board because the two added findings were based on additional evidence taken directly by the Board, agreeing with the conclusion that the stricken finding was indeed irrelevant. Thus, while Lynch may be understood to allow the Board in certain cases to make additional findings based on new evidence and strike entered findings which are irrelevant, it does not allow the Board to simply ignore all the examiner’s findings and replace those with new ones based on the same evidence previously considered by the examiner. But in the case now before us the Board did not take additional evidence nor were the findings stricken by the Board even claimed to be irrelevant— admittedly they went to the heart of the case.

13 See also Sanders v. Gore, 676 So. 2d 866, 872-73 (La. Ct. App. 1996) (“Ms. Sanders also alleges an abuse of the attorney/client relationship. Although this court finds Mr. Gore’s actions ethically reprehensible, Louisiana law does not prohibit sexual relationships between attorneys and their clients.”).

14 In State v. Bash, 130 Wn.2d 594, 606-07, 925 P.2d 978 (1996), we explained:

An associated principle is that crimes which involve moral turpitude are malum in se and have been held to require a mental element, some level of “guilty knowledge,” even if the statute does not specify that element. State v. Turner, 78 Wn.2d 276, 280, 474 P.2d 91, 41 A.L.R.3d 493 (1970). In contrast, statutory crimes which are mala prohibita, if properly enacted within the police power, are often upheld without proof of an evil intent, and even without any mental element at all. Id. at 280.

15 RCW 18.130.180, the rule governing health professionals, provides:

The following conduct, acts, or conditions constitute unprofessional conduct for any license holder or applicant under the jurisdiction of this chapter:

(1) The commission of any act involving moral turpitude, dishonesty, or corruption relating to the practice of the person’s profession, whether the act constitutes a crime or not.