In re the Disciplinary Proceeding Against Dynan , 152 Wash. 2d 601 ( 2004 )

Owens, J.

Allstate Insurance Company (Allstate) retained Mark J. Dynan in three different lawsuits to represent people insured by the company. Dynan requested attorney fees in these suits under RCW 4.84.250 and/or Mandatory Arbitration Rules (MAR) 7.3. Dynan submitted declarations for attorney fees and copies of bills sent to Allstate in support of his motions for attorney fees. The declarations stated that the bills attached were true and correct billings for Dynan’s time and services. However, the attached bills were not those sent to Allstate. Dynan’s office whited out the actual hourly rate, $100-$120, and replaced it with a reasonable attorney fee, $150 per hour, before he submitted the bills to the court. Dynan’s knowing alteration of the bills and submission of false declarations to the court constitute falsification and misrepresentation of evidence. The presumptive sanction for false swearing is disbarment. However, in light of our proportionality analysis, as well as our rejection of one of the Disciplinary Board’s (Board) aggravating factors in favor of the corresponding mitigating factor, we depart from the Board’s recommendation of a nine-month suspension and hold that Dynan is suspended for six months.

STANDARD OF REVIEW

In disciplinary proceedings, the Supreme Court has “plenary authority” and the court’s discretion is limited only by the evidence before it. In re Disciplinary Proceeding Against Whitt, 149 Wn.2d 707, 716, 72 P.3d 173 (2003). The court will treat unchallenged findings of fact as verities on appeal and a challenged finding of fact will not be overturned if it is supported by a clear preponderance of the evidence. See In re Disciplinary Proceeding Against Kuvara, 149 Wn.2d 237, 246, 66 P.3d 1057 (2003); In re Disciplinary Proceeding Against Anschell, 149 Wn.2d 484, 503, 69 P.3d 844 (2003); State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994); Rules for Lawyer Discipline (RLD) 4.11(b) (stating disciplinary council must prove misconduct “by a clear preponderance of the evidence”).¹ A clear preponderance of the evidence is an intermediate standard between simple preponderance in a civil suit and reasonable doubt in a criminal action. In re Disciplinary Proceeding Against Halverson, 140 Wn.2d 475, 486, 998 P.2d 833 (2000). The court reviews conclusions of law de novo and will uphold those conclusions if they are supported by the findings of fact. Whitt, 149 Wn.2d at 716-17; In re Disciplinary Proceeding Against Boelter, 139 Wn.2d 81, 90, 985 P.2d 328 (1999).

FACTS

Although Dynan assigns error to the Board’s modification of the hearing officer’s findings of fact, Dynan specifically challenges only the Board’s modified finding of fact 12, which is supported by a clear preponderance of the evidence. See Resp’t’s Br. at 4, 16.² Therefore, we adopt the Board’s modified findings of fact.³ Although the Board’s modified findings of fact include findings on six cases, the Washington State Bar Association (WSBA) filed complaints regarding Dynan’s conduct in only three Pierce County Superior Court cases: Le v. Hedberg, No. 97-2-12023-9 (Hedberg); Han v. Allstate Insurance Co., No. 95-2-06251-8 (Han)] and Walls v. Walls, No. 95-2-11451-8 (Walls). See R. Before the Disciplinary Board at 831-37 (Third Amended Formal Complaint); Disciplinary Board Decision Papers [hereinafter Decision Papers] at 8-10 (Disciplinary Board Order, Findings of Fact 34-50 (findings regarding three additional cases)). Similar conduct in the three additional cases supports a pattern of misconduct, which is an aggravating factor. See In re Disciplinary Proceeding Against Anschell, 141 Wn.2d 593, 615, 9 P.3d 193 (2000) (explaining how a pattern of misconduct may be established). However, it is unnecessary for us to consider these cases because Dynan’s actions in Hedberg, Han, and Walls already constitute a pattern of misconduct. Therefore, our discussion will be limited to Hedberg, Han, and Walls. See infra note 24.

Dynan, representing Allstate and Allstate insurees, submitted sworn declarations to the court in support of his motion for attorney fees in Hedberg, Han, and Walls pursuant to MAR 7.3 or RCW 4.84.250 between 1997 and 1999. Report of Proceedings (RP) (Dec. 5, 2001) at 33 (Han, MAR 7.3), 35 (Hedberg, RCW 4.84.250), 36-37 (Walls, RCW 4.84.250). All three declarations used similar language. In Hedberg the declaration stated “[attached hereto as Tab No. 1 are true and correct billings for my time and services expended on this matter.” Ex. 1. The declaration in Walls used identical language, substituting Tab No. 1 with Tab No. 3. Ex. 15. In Han two declarations were submitted. The first stated, “[a]ttached hereto are copies of the past bills sent to the insurance company.” Ex. 5. The second stated, “[attached hereto are true and correct copies of all billing charges.” Ex. 8.⁴ The billings attached to all of the above declarations were copies of the actual bills sent to Allstate with the original hourly billing rate, $100-$ 120, whited out and $150⁵ typed in its place. See RP (Dec. 5, 2001) at 54-55 (Dynan admitting to the alterations).⁶ Dynan also submitted billing statements using the $150 hourly billing rate to Paul Apple, his opposing counsel in Han and Hedberg. Exs. 1, 2, 11; RP (Dec. 4, 2001) at 21-25. Although the Board determined that Dynan knowingly filed the declarations and altered billings with the court, it also concluded that Dynan did not believe the actual fee amount was material to a reasonable attorney fee award and Dynan did not intend to deceive the court.⁷

No attorney fees were paid out in Hedberg and Walls because Hedberg settled and the attorney fee award in Walls was overturned on appeal. In Han, attorney fees were granted and the plaintiff paid approximately $3,449 more than Dynan’s actual fees.⁸ These higher fees were not recouped by Dynan, but were paid to Allstate.

Based on the above conduct, the WSBA filed complaints against Dynan regarding declarations and bill submissions made to the court in Hedberg, Han, and Walls. The WSBA accused Dynan of four counts of misconduct based on violations of Rules of Professional Conduct (RPC) 3.3(a)(1) and (4), 3.4(b), and 8.4(c) and (d). On December 4-5, 2001, hearing officer Gayle T. McElroy heard the case. McElroy determined that the WSBA had not proved the charges by a preponderance of the evidence, but found that Dynan’s conduct was negligent and potentially could cause harm. Subsequently, she ordered Dynan censured. The WSBA appealed the hearing officer’s decision and the Board disagreed with the hearing officer. The Board modified McElroy’s findings of fact and conclusions of law and concluded that all four counts were proved by a preponderance of the evidence. After conducting a proportionality analysis, the Board recommended a nine-month suspension. We depart from the Board and hold that the appropriate sanction is a six-month suspension.

ISSUES

1. Did the WSBA prove all four counts of misconduct based on the violation of RPC 3.3(a)(1) and (4), 3.4(b), and 8.4(c) and (d) by a preponderance of the evidence?

2. If the WSBA proved misconduct, is the appropriate sanction a nine-month suspension?

ANALYSIS

Our court has determined that the American Bar Association’s Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) (ABAStandards) should guide our bar disciplinary cases. Halverson, 140 Wn.2d at 492. Under the ABA Standards, after misconduct is found the court performs a two prong analysis. Id. at 492-93. First, the court determines the presumptive sanction based on the ethical duty violated, the attorney’s mental state, and the extent of actual or potential harm caused by the conduct. Id. The court then considers aggravating and mitigating factors, which may decrease or lengthen the presumptive sanction. Id. at 493; see ABA Standards stds. 9.22, 9.32. Finally, the court will adopt the Board’s recommended sanction unless the sanction departs significantly from sanctions imposed in other cases or the Board was not unanimous in its decision. In re Disciplinary Proceeding Against Miller, 149 Wn.2d 262, 277-78, 285-86, 66 P.3d 1069 (2003).⁹

A. Ethical Violations/Misconduct

Dynan challenges the Board’s conclusions of law finding him guilty of all four counts of misconduct, and argues the WSBA did not prove the misconduct by a clear preponderance of the evidence.¹⁰ We uphold the Board’s conclusions of law because they are supported by the Board’s unchallenged, modified findings of fact, and these findings of fact do not support the hearing officer’s conclusions of law.^{* 11} Therefore, we determine the WSBA proved misconduct by a preponderance of the evidence.

1. Count I — RPC 3.3(a)(1)¹²

RPC 3.3(a)(1) states “[a] lawyer shall not knowingly make a false statement of material fact or law to a tribunal.” The Board’s modified findings of fact show Dynan knowingly submitted material and false declarations and attached billings in support of his motions for attorney’s fees.¹³ Therefore, the Board correctly concluded that Dynan’s conduct constituted a violation of RPC 3.3(a)(1).

a. Materiality

Dynan argues that an attorney does not have to provide documentation of his actual fee rate to the court because the actual rate may not be the reasonable rate and is therefore not material to a determination of a reasonable fee award. Dynan further asserts that an attorney’s actual rate is not material to a fee award because the purpose of fee awards is to penalize the opposing party and this may be accomplished by a reasonable fee greater than the actual fee charged. Dynan relies on the lodestar method of calculating fees, the context of his fee arrangement, and the overall purpose of fee shifting statutes to support his “immaterial” argument.

We recognize there are instances where an attorney’s actual fee may be less than a reasonable fee, that one purpose of fee shifting statutes is to penalize certain parties, and that the lodestar method may not specifically require an attorney to submit his actual billing rate.¹⁴ However, Dynan’s arguments focusing on the materiality of the undisclosed actual fee are inapposite because the real issue is whether statements Dynan submitted to the court (e.g., the declarations including a false rate) are material. Whether a false statement is material is a matter of law for this court, not Dynan, to decide. See RCW 9A.72.010(1) (defining materially false statements in the perjury context and stating that whether a statement is material is a matter of law for the court to determine); see also State v. Dial, 44 Wn. App. 11, 14, 720 P.2d 461 (1986) (stating in a perjury case that the materiality of a false statement is a matter of law). “Material facts are generally those facts upon which the outcome of the litigation depends in whole or in part.” In re Disciplinary Proceeding Against Carmick, 146 Wn.2d 582, 600, 48 P.3d 311 (2002); see also RCW 9A.72.010(1) (defining a materially false statement in the perjury context as any false statement “which could have affected the course or outcome of the proceeding”). Therefore, if the submitted declarations stating a false rate would affect or determine the fee award, the declarations are material.

Judge Terry D. Sebring, the presiding judge in the Han case where fees were awarded, testified that typically when a lawyer wants a fee award that is higher than his actual fee the lawyer discloses this to the court. RP (Dec. 4, 2001) at 114-15, 119-20; see also RP (Dec. 4, 2001) at 56-57, 168 (two Washington lawyers testifying to this practice).¹⁵ He testified that he assumed the rate in the billing submitted to the court was accurate, that changing the actual rate was inappropriate, and that factual misstatements are not acceptable. RP (Dec. 4, 2001) at 116,119-21. Further, Judge Sebring awarded Allstate attorney fees based on the amount requested in the declaration, which used the false $150 hourly rate. See Ex. 8 (Dynan’s declaration); Ex. 9 (award of attorney fees). Based on this evidence, we hold that the declaration Dynan submitted to the court was material to the determination of a fee award in Han, and the submitted declarations in Hedberg and Walls would have been material to the fee award if an award had been granted.

b. Falsity

Dynan parses out his declarations and argues that the declarations do not contain false statements because he stated only that the rates were reasonable, not true and correct, and the rates in the attachments are reasonable. We disagree with Dynan’s attempt to deconstruct his declarations and instead interpret each declaration as a whole. It is reasonable for a judge to read a declaration stating “attached hereto . . . are true and correct billings for my time and services expended on this matter,” followed by a statement reciting the fee as reasonable, and assume that if the time and services are true and correct, the billing rate is as well.¹⁶ Here that was not the case. Dynan concedes that he altered billing statements and attached those statements to a declaration stating the billing as true and correct. Therefore the declaration was false.

2. Counts II and III — RPC 3.3(a)(4), 3.4(b)¹⁷

RPC 3.3(a)(4) forbids knowingly offering false evidence to a tribunal. RPC 3.4(b) forbids falsifying evidence in regard to fairness due an opposing party or opposing counsel. As discussed above, each declaration, read as a whole, states that the billings are true and correct even though the submitted billings were altered. By altering the actual bills and then submitting them to the court with a declaration stating the bills to be true and correct, Dynan falsified evidence and then offered this evidence to the court. Further, opposing attorney Paul Apple received a copy of Dynan’s pleadings in Hedberg, which included Dynan’s declaration and falsified, altered billings. RP (Dec. 4, 2001) at 21-25. As opposing counsel in Han, Apple also received a letter regarding Dynan’s motion for attorney fees in Han that referenced an attached current billing statement, which reflected a $150 hourly rate instead of Dynan’s actual rate. Ex. 11. The Board correctly concluded that these actions violated RPC 3.3(a)(4) and 3.4(b).

3. Count IV — RPC 8.4(c) and (d)¹⁸

RPC 8.4(c) states that “[i]t is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” RPC 8.4(d) provides that “[i]t is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.” The Board correctly determined that Dynan’s knowing misrepresentation of his actual hourly rate violated these provisions.

To determine an RPC 8.4(c) violation, the court must decide “whether the attorney lied. No ethical duty could be plainer.” In re Disciplinary Proceeding Against Dann, 136 Wn.2d 67, 77, 960 P.2d 416 (1998). Various explanations as to why lying occurred may mitigate the charge, but this does not change the truth of the underlying charge. Id. Dynan has tried to explain why he altered bills and submitted them to the court, but his motivation is inapposite. Reading each declaration as a whole, with the attached billings, proves Dynan misrepresented the billings as true and correct and misled the court, violating RPC 8.4(c).

Under RPC 8.4(d), an attorney may prejudice the administration of justice if he engages in conduct in his official capacity or advocatory role that violates practice norms or engages in conduct that physically obstructs justice. In re Disciplinary Proceeding Against Curran, 115 Wn.2d 747, 764, 801 P.2d 962 (1990); Kuvara, 149 Wn.2d at 255-56. Dynan argues that he did not prejudice the administration of justice because the court plays an active role in determining attorney fees and if the $150 hourly rate was not reasonable the court could reject it. He bases his arguments on the lodestar method of calculation and documentation required under that method.

Where a fee shifting statute does not specify how fees are to be calculated the lodestar method may be used. Brand v. Dep't of Labor & Indus., 139 Wn.2d 659, 666, 989 P.2d 1111 (1999); see also Mahler v. Szucs, 135 Wn.2d 398, 432-33, 957 P.2d 632, 966 P.2d 305 (1998) (suggesting use of lodestar method to calculate fee award pursuant to MAR 7.3). Under the lodestar method the court multiplies the number of hours expended by a reasonable rate to determine a reasonable fee. Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 597, 675 P.2d 193 (1983). The attorney must inform the court of the number of hours worked, the type of work performed, and the category of the attorney performing the work. Id.

Although Bowers does not specifically state that the attorney must provide the court with his actual billing rate, several witnesses testified that during a fee award determination, it is the normal practice for an attorney to present his actual rate and then argue for a higher rate if the actual rate is not reasonable. RP (Dec. 4, 2001) at 56-57, 114-15, 119-20, 168. This practice allows the court to reach a reasonable attorney fee based on actual and true evidence, adjusting the rate for other variables. See Bowers, 100 Wn.2d at 597 (noting that the actual rate of billing may not be reasonable and may be adjusted based on several factors). Dynan, in his official capacity, violated practice norms by not providing the court with his actual rate. Further, even if the submitted rate was reasonable, Dynan’s misrepresentations prejudiced the administration of justice by preventing the court from determining an attorney fee award based on true evidence.

B. Mental State

Since Dynan’s misconduct, based on several ethical violations, was proved by a preponderance of the evidence, we must determine Dynan’s mental state during commission of the violations.¹⁹ A lawyer may act with intent, knowledge, or negligence. In re Disciplinary Proceeding Against McMullen, 127 Wn.2d 150, 169, 896 P.2d 1281 (1995); ABA Standards std. 3.0 & commentary at 25. We agree with the Board and hold Dynan acted with knowledge.

An attorney acts with knowledge if he acts with “ ‘the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result.’” McMullen, 127 Wn.2d at 169 (quoting ABA Standards, Definitions at 7). Dynan argues that he acted only negligently by providing the court with motives for his actions. However, what Dynan fails to recognize is that even if the court concedes that he did not act with the objective of deceiving the court and unintentionally created ambiguity, this does not change his mental state while he executed his misconduct. Dynan was consciously aware that he was not providing the court with true evidence when he signed the declarations and submitted altered billings. Therefore, Dynan acted knowingly, not negligently.

C. Injury

An attorney’s misconduct may cause injury if the conduct results in actual or potential harm to a client, the public, the legal system, or the legal profession. See ABA Standards std. 3.0, Definitions at 7 (defining actual and potential injury). Although an attorney award based on the $150 hourly rate may have been reasonable, in Han the court assumed the rate presented was accurate. RP (Dec. 4, 2001) at 120. The courts in Hedberg and Walls also may have assumed the accuracy of the rates. Had these courts been provided with truthful evidence, they may have determined that the fee award should be based on the actual billing rate instead of the submitted billing rate. An award based on the actual rate would have decreased Han’s payment by approximately $3,449.²⁰ Although the Board determined Dynan’s conduct caused actual harm to one party and potential harm to other parties, we agree with the hearing officer and determine that it is more appropriate to categorize the harm to Han, Hedberg, and Walls as potential harm. Decision Papers at 12 (Disciplinary Board Order); R. Before the Disciplinary Board at 8-9 (Findings of Fact and Conclusions of Law). “Potential” more accurately describes the harm involved because even if the judges in all three cases had been presented with Dynan’s actual rate, each judge may have chosen to use the $150 reasonable rate. See Carmick, 146 Wn.2d at 588, 603-04 (stating that potential harm occurred where it was not clear that a party would have received the full amount of interest on unpaid child support absent attorney misconduct). Therefore, Dynan’s conduct caused potential harm.

D. Presumptive Sanctions

In light of Dynan’s ethical violations, mental state, and the resulting potential harm, we conclude that under the ABA Standards the presumptive sanction is disbarment. The ABA Standards provide that the presumptive sanction for serious criminal conduct that includes interference with the administration of justice, false swearing, misrepresentation, or fraud is disbarment. ABA Standards std. 5.11. Following these standards, the presumptive sanction for counts I and II is disbarment as these counts involve false swearing under oath in an official proceeding, a criminal violation. RCW 9A.72.020.²¹ The presumptive sanction for count III, involving serving false billings on opposing counsel, is reprimand. ABA Standards std. 5.13.²² The presumptive sanction for count IV, generally encompassing Dynan’s misrepresentations to the tribunal and opposing counsel, is suspension. ABA Standards std. 6.12.²³ Because the final sanction should be consistent with the most serious violation, the appropriate presumptive sanction is disbarment. Anschell, 149 Wn.2d at 502.

E. Mitigating and Aggravating Factors

Since we have determined that the presumptive sanction is disbarment, we must consider any aggravating and mitigating factors that may increase or decrease this sanction. See ABA Standards stds. 9.22, 9.32 (listing aggravating and mitigating factors). Dynan offers several mitigating factors and challenges most of the Board’s aggravating factors. We agree with three of the aggravating factors the Board found present: a pattern of misconduct, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in practicing law. Decision Papers at 13 (Disciplinary Board Order). We also agree that Dynan’s absence of a disciplinary record is a mitigating factor. Id. However, we find that Dynan lacked a dishonest or selfish motive and add absence of a dishonest or selfish motive as a mitigating factor. We will address each challenged aggravating factor and suggested mitigating factor in turn.²⁴

The Board determined that Dynan had a dishonest or selfish motive. Decision Papers at 13 (Disciplinary Board Order). However, this conclusion is not supported by the record or the Board’s modified findings of fact. The Board states that Allstate, and not Dynan, received and benefited from the higher fee award in the Han case. Id. at 10 (Finding of Fact 51). Further, in its discussion of an appropriate presumptive sanction, the Board states that Dynan did not act with an intent to deceive the court. Id. at 12. Additionally, the record shows that Dynan did not intend to deceive the court, did not intend to benefit himself, and did not receive a direct or indirect benefit from his actions. RP (Dec. 5, 2001) at 10-14, 56-57. In light of the record and the Board’s modified findings of fact, we determine that Dynan did not have a dishonest motive because he lacked an intent to deceive the court, and Dynan did not have a selfish motive because he did not intend to benefit, and did not benefit, from the altered affidavits.

Regarding the second challenged aggravating factor, we agree with the Board that Dynan refuses to acknowledge his wrongful conduct. Although Dynan admits his declarations were sloppy, he does not acknowledge that his actions constitute falsification of evidence prejudicial to the administration of justice. RP (Dec. 5, 2001) at 23-24, 30. Dynan merely provides the court with rationalizations for his conduct. See Resp’t’s Br. at 34-35, 39, 42 (stating that the actual fees are immaterial, the purpose of fee shifting statutes is served even if a fee award is not based on the actual attorney fee, and no actual harm resulted from Dynan’s actions). While explanations of an attorney’s behavior may help the court understand why the misconduct occurred, reasoning away the misconduct does not constitute acknowledgment of misconduct. See generally Anschell, 149 Wn.2d at 513-14 (discussing rationalizations in the context of acknowledgment of wrongful conduct).

Addressing suggested, additional mitigating factors, Dynan argues that he fully cooperated with the investigation. Although the ABA Standards list this as a mitigating factor, the court has held that it is not. Whitt, 149 Wn.2d at 721; ABA Standards std. 9.32(e). Dynan and the dissent also point out that that he has changed his practices regarding attorney fee declarations eliminating the chance of repetitive misconduct. RP (Dec. 5, 2001) at 23-24; Dissent at 629-31. However, “[e]nding misconduct does not erase ... that misconduct which has already occurred.” Dann, 136 Wn.2d at 83-84; see also Boelter, 139 Wn.2d at 103.²⁵ As the dissent notes, even where an attorney is rehabilitated, “the legal system itself has not been redeemed.” In re Disciplinary Proceeding Against Kennedy, 97 Wn.2d 719, 722-23, 649 P.2d 110 (1982) (upholding a 60-day suspension even though Kennedy practiced for four years after the misconduct occurred without incident, the court found little chance of further misconduct, and the court believed that Kennedy had been rehabilitated); Dissent at 630-31. Here, Dynan ceased his conduct only after opposing attorney Apple questioned his practices, and we decline to find that Dynan’s ending of the misconduct is an additional mitigating factor. RP (Dec. 5, 2001) at 23).²⁶

The aggravating factors slightly outweigh the mitigating factors. However, based on a proportionality analysis, disbarment is inappropriate and a six-month suspension is the proper sanction.

F. Proportionality and Unanimity

The court will adopt the Board’s recommended sanction unless the sanction is not proportionate or the Board was not unanimous in its decision. Miller, 149 Wn.2d at 277-78, 285-86. Proportionate sanctions are those which are “ ‘roughly proportionate to sanctions imposed in similar situations or for analogous levels of culpability.’” Anschell, 141 Wn.2d at 615 (quoting In re Disciplinary Proceeding Against Gillingham, 126 Wn.2d 454, 469, 896 P.2d 656 (1995)). After conducting a proportionality analysis, and in light of our general rule that suspensions should be no less than six months in length, we hold that a six-month suspension is an appropriate sanction.

Four cases involving bill alterations and/or misrepresentations to clients and/or the court are similar to Dynan’s case.²⁷ In Dann, an attorney engaged in initial-switching on prebilling work-in-progress statements, which gave one person credit for work performed by another. Dann, 136 Wn.2d at 71-72. This resulted in the overbilling of two clients. Id. at 78-79. Dann also secretly taped a phone conversation with another attorney and allowed an interested party to listen to the conversation. Id. at 76, 81. Dann, who previously had not been disciplined, received a one-year suspension. Id. at 82, 87.

In Haskell, a similar situation occurred. An attorney, who had an absence of a disciplinary record, substituted his initials and billing rate for the initials and rate of the associate who actually did the work. This resulted in overcharging a client by $3,136. Haskell also engaged in additional misconduct relating to travel expenses and burying expenses in clients’ bills. Although the presumptive sanction was disbarment, based on a proportionality analysis Haskell received a two-year suspension. In re Disciplinary Proceeding Against Haskell, 136 Wn.2d 300, 305, 308-09, 320-22, 962 P.2d 813 (1998). In Boelter, an attorney with no disciplinary record received a six-month suspension for including false misrepresentations in a letter to a client, violating RPC 8.4(c) and 1.5, even though he claimed the conduct was only unintentional and negligent. In re Disciplinary Proceeding Against Boelter, 139 Wn.2d 81, 88, 92, 94, 101-02, 106-07, 985 P.2d 328 (1999).

Finally, the attorney in Carmick violated RPC 3.3(f) and 3.5(c) “in his ex parte conduct before a tribunal by misrepresenting to the trial judge that all parties were aware of the requested ex parte order and had approved it.” Carmick, 146 Wn.2d at 600. Carmick also violated RPC 4.2 “by contacting a party he should have known was represented by counsel.” Id. Carmick, who had a prior disciplinary offense, received a 60-day suspension. Id. at 587, 605.

Like Dann and Haskell, Dynan altered billing statements. However, Dynan’s conduct was not merely misrepresentation of information. Dynan knowingly falsified evidence and submitted this evidence to the court and opposing counsel. Dynan did not cease his conduct until contacted by Paul Apple. Further, while no actual harm occurred to clients, the prospect of potential harm to the court system and opposing counsel was very high. More-over, Dynan’s conduct prevented the court from considering evidence material to an attorney fee determination and prejudiced the administration of justice. Comparing Dynan’s conduct with that of the attorneys’ in the altered billings and misrepresentation cases, and following our precedent that a suspension generally should not be less than six months, we hold that a six-month suspension is appropriate. See Halverson, 140 Wn.2d at 495 (noting that a six-month to three-year suspension is the appropriate range for suspensions).

Eight members voted for a nine-month suspension, one member abstained, and one member was in favor of a shorter suspension. Decision Papers at 3 (Disciplinary Board Order). Even where a recommendation is unanimous, the court may depart from the recommendation if there are clear reasons for doing so. See Miller, 149 Wn.2d at 285 (noting that the court hesitates “ ‘to reject a unanimous recommendation in the absence of clear reasons for doing so’” (quoting In re Disciplinary Proceeding Against Noble, 100 Wn.2d 88, 96, 667 P.2d 608 (1983))). Here, our proportionality analysis, along with our conclusion that Dynan lacked a selfish or dishonest motive, provides a sound basis for departing from the Board’s recommendation. Therefore, we hold that a six-month suspension is appropriate, and decline to adopt the Board’s recommended nine-month suspension.

CONCLUSION

Dynan knowingly altered bills and submitted false declarations to the court in support of his motions for attorney fees. Dynan also submitted documents reflecting the $150 per hour attorney fee to opposing counsel. Although he did not intend to deceive the court, Dynan falsified evidence, misrepresented his billing rate, submitted this evidence to the court and opposing counsel, and prejudiced the administration of justice. The presumptive sanction for false swearing is disbarment. However, based not only on our proportionality analysis but also on our transformation of one of the Board’s aggravating factors into a mitigating factor, we depart from the Board’s recommendation and hold that a six-month suspension is appropriate.

Alexander, C.J., and Ireland, Bridge, Chambers, and Fairhurst, JJ., concur.

1 The RLDs were superseded by the Rules for Enforcement of Lawyer Conduct (ELC) on October 1, 2002. The RLDs were applied to all proceedings in this case, which was ordered to hearing prior to October 1, 2002. See ELC 16.1.

2 Finding of fact 12 states that Paul Apple, the plaintiff’s lawyer in Le v. Hedberg, Pierce County Superior Court No. 97-2-12023-9, asked Dynan if the billing rate in his declarations was the true billing rate. Dynan told Apple it was not, a mistake had been made, and he would correct it, but the case settled before a correction was made. Decision Papers at 5 (Disciplinary Board Order). Apple and Dynan’s testimony support this finding. Report of Proceedings (RP) (Dec. 4, 2001) at 25-29 (Apple’s testimony of the events in finding of fact 12); RP (Dec. 5, 2001) at 30-32 (Dynan’s testimony explaining the fees were not the actual fees and he would correct it).

3 See former RLD 6.7(e) (stating that the Board may modify the hearing officer’s findings of fact). Additionally, it should be noted that any time a finding of fact is referenced it should be assumed that we are referring to the Board’s modified findings of fact, as the hearing officer did not number her findings of fact or conclusions of law. See R. Before the Disciplinary Board at 3-9 (Findings of Fact and Conclusions of Law).

4 Although the Han declarations are slightly different from those in Hedberg and Walls, they are included in the term “declaration” throughout the opinion because they portray the same information and misconduct as the other declarations: “the billings attached are true and correct,” when in reality the billings are altered.

5 It should be noted that Dynan’s chosen hourly rate of $150 was reasonable and he was not trying to enhance his fee by arguing that a current rate or a historic fee adjusted for inflation should be used instead of the rate at the time services were rendered. See RP (Dec. 4, 2001) at 140,157 (testimony supporting $150 as a reasonable hourly rate); Fisher Props., Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 377-78, 798 P.2d 799 (1990) (explaining that fee enhancement will not be extended beyond civil rights litigation); Decision Papers at 11-12 (Disciplinary Board Order) (explaining that reasonableness of the fee was not argued and fee enhancement is not the real issue in this case).

6 Although Dynan’s staff, and not Dynan himself, actually whited out the correct billing rate, the staff did so at Dynan’s direction. RP (Dec. 5, 2001) at 54-55. Whether Dynan is responsible for his staff’s actions is not in issue. See RPC 5.3. Therefore, throughout this opinion, we will refer to Dynan’s actions and/or the staff’s actions interchangeably (e.g., Dynan altered the billing statements).

7 Dynan does not assign error to finding of fact 53, which states that he acted knowingly, but he argues he acted negligently. Resp’t’s Br. at 16, 40-43. However, this finding is supported by a preponderance of the evidence, so we will uphold it. See infra section B (discussing Dynan’s mental state).

8 Finding of fact 23 states that Dynan’s client received $12,675 in attorney fees resulting in Han paying $3,449 more than Dynan’s actual fees. However, the overpayment should be viewed as an approximation because exhibit 9 shows the actual fee award was for $13,501.64.

9 Although the court previously considered five factors (the Noble factors), only proportionality and Board unanimity currently are considered in light of the adoption of the ABA Standards and the ELCs, even in cases applying the RLDs. In re Disciplinary Proceeding Against Noble, 100 Wn.2d 88, 667 P.2d 608 (1983); see Miller, 149 Wn.2d at 275 n.17, 278 n.20.

10 Dynan argues that appropriate conclusions of law may not he reached because the hearing officer did not appropriately set out her findings of fact. However, regardless of how the hearing officer set out her findings of fact, we uphold the Board’s conclusions of law where they are supported by the Board’s modified findings of fact, which are appropriately set out.

11 We recognize that finding of fact 12 was directly challenged and finding of fact 53 was indirectly challenged, but as noted above, both are supported by a preponderance of the evidence. See supra notes 2, 7.

12 “Count I: By knowingly making a false statement of material fact to a tribunal in the form of false declarations that he filed with the tribunal in the Hedberg and/or Han and/or Walls cases, Mr. Dynan violated RPC 3.3(a)(1).” Decision Papers at 4 (Disciplinary Board Order).

13 The mental element of Dynan’s misconduct will be discussed after each ethical violation is addressed because Dynan’s mental state for all violations was knowing.

14 See infra p. 617 for a discussion on the lodestar method.

15 Mr. Apple testified that sometimes attorneys ask for fee awards without submitting proof of the fee and in this case the actual fee may be lower than the reasonable fee. RP (Dec. 4, 2001) at 57-58. However, the court should provide a record for the basis of its fee award and should require the attorney to provide documentation of his fees when it is feasible for the attorney to do so. See Mahler v. Szucs, 135 Wn.2d 398, 434-35, 957 P.2d 632, 966 P.2d 305 (1998) (requiring the court to provide an adequate record for its fee award decisions).

16 Several witnesses testified that they would assume or expect the billings were accurate or unaltered. RP (Dec. 4, 2001) at 119-20, 173-75, 224-25.

17 “Count II: By knowingly offering altered itemized bilbng records as evidence in the Hedberg and/or Han and/or Walls cases, Mr. Dynan violated RPC 3.3(a)(4). Count III: By serving false declarations and/or false itemized billing records on opposing counsel in the Hedberg and/or Han and/or Walls cases, Mr. Dynan violated RPC 3.4(b).” Decision Papers at 4 (Disciphnary Board Order).

18 “Count IV: By misrepresenting to the tribunal and/or opposing counsel the true hourly rate he charged in the Hedberg and/or Han and/or Walls case, Mr. Dynan violated RPC 8.4(c) and (d).” Decision Papers at 4 (Disciplinary Board Order).

19 Dynan’s mental state is relative to the presumptive sanction and to conclusively deciding whether a violation of RPC 3.3(a)(1) and (4) occurred. A violation of these rules does not occur unless the lawyer acts with knowledge. See supra pp. 612-13, 615-16.

20 See supra note 8.

21 Counts I and II are considered together because these counts involve Dynan’s false declarations to the court and the altered billings attached to the declarations. Further, although the Han declarations may be the only declarations technically made under oath under the criminal law, this is enough to constitute serious criminal conduct, and the issue of whether all declarations constitute criminal conduct is not before us. See RCW 9A.72.010(2), .020, .085; Exs. 5, 8.

22 Reprimand is appropriate when a lawyer knowingly engages in conduct involving misrepresentations, which reflect on his fitness to practice law. ABA Standards std. 5.13.

23 Suspension is appropriate “when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.” ABA Standards std. 6.12 at 40.

24 Two aggravating factors, substantial experience practicing law and pattern of misconduct, will not be discussed. Dynan did not challenge substantial experience practicing law as an aggravating factor. Resp’t’s Br. at 44-45. Regarding a pattern of misconduct, Dynan mentions that all violations are based on the same conduct, but he does not specifically challenge this aggravating factor. Id. Further, as discussed above, Dynan’s actions in Hedberg, Han, and Walls clearly establish a pattern of misconduct: Dynan committed RPC violations against the Pierce County Superior Court in at least three cases over an extended period of time and against opposing counsel, Paul Apple. See Anschell, 141 Wn.2d at 615 (explaining how a pattern of misconduct may be established where there are multiple RPC violations against separate clients over an extended period of time).

25 The dissent tries to distinguish this case from Dann by noting that Dynan, unlike Dann, stopped falsifying evidence on his own accord. Dissent at 629-31. However, Dynan stopped his misconduct only after opposing attorney Paul Apple questioned his practices. RP (Dec. 5, 2001) at 23. Further, the fact that Dann did not initiate the end to the misconduct seems secondary to the court’s conclusion that ending misconduct does not erase the misconduct. See Dann, 136 Wn.2d at 83-84.

26 Dynan urges the court to accept his good character or reputation as an additional mitigating factor. Several witnesses, including judges, testified as to Dynan’s ethical character. RP (Dec. 4, 2001) at 70, 92-93, 116-17, 121, 131, 161, 163-64, 183, 190-91, 207, 216-17. Whether or not we adopt this factor is inconsequential because it is not enough to alter the sanction.

27 The dissent discusses two other cases resulting in discipline less than a suspension: In re Disciplinary Proceeding Against Miller, 99 Wn.2d 695, 663 P.2d 1342 (1983), and In re Disciplinary Proceeding Against Grubb, 99 Wn.2d 690, 663 P.2d 1346 (1983). Dissent at 631 n.33. Neither case is persuasive in our proportionality analysis because both involve charges dissimilar to those against Dynan. In Miller, an attorney who had previously been reprimanded was reprimanded and censured for failure to represent a client or withdraw and for attempting to defraud and deceive a casino. 99 Wn.2d at 696, 701. The attorney in Grubb had a previous censure and received a reprimand for losing client property given in exchange for a nonrefundable retainer. 99 Wn.2d at 690-91, 694. Dynan’s actions are significantly different: falsifying evidence, submitting false evidence to the court and opposing counsel, misrepresenting evidence, and prejudicing the administration of justice. Therefore, Miller and Grubb do not convince us that censure or reprimand is an appropriate sanction for Dynan.

* Judge J. Robin Hunt is serving as a justice pro tempore of the Supreme Court pursuant to Const, art. IV, § 2(a).