In re Disciplinary Proceeding Against Placide , 190 Wash. 2d 402 ( 2018 )

FI L~E This opinion was hied for record
IN CLERKS OFFICE
•UPRBE COURT. STATE OF WASM!7IGT0N
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L CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter ofthe Disciplinary No. 201,639-1
Proceeding Against
CARLLENE M.PLACIDE, En Banc
an Attorney at Law.
Filed APR 1 2 2018
JOHNSON,J.—Attorney Carllene M. Placide appeals the unanimous
recommendation of the Washington State Bar Association Disciplinary Board
(Board)that she be disbarred from the practice oflaw. The misconduct charged
includes misappropriation, repeated lying, failure to deposit flat fees received from
clients into a trust account, failure to deliver property to which a third party was
entitled, and charging an unreasonable fee. We uphold the Board's unanimous
recommendation and disbar Placide.
Facts and Procedural History
Placide was admitted to the practice of law in 1999. In November 2006,
Placide joined the law firm of Dorsey & Whitney LLP as a "non-equity" partner
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
with base yearly compensation of $225,000. Decision Papers(DP)at 51 (Hr'g
Officer's Am. Findings of Fact, Conclusions of Law,& Recommendation
(AFFCLR)). Placide's practice emphasized labor and employment law and
immigration law. Dorsey had a firm policy stating that all compensation received
by Dorsey partners, associates, or other attorneys was property ofthe firm. That
policy states, in relevant part:
Checks for legal services should be made payable to the Firm, and in
any instance in which a check for legal or any other services
representing compensation which is the property ofthe Firm is made
payable to an individual payee, it should be endorsed immediately by
the individual payee to the order ofthe Firm and delivered to the
Finance Department with the Check for Deposit form. Similarly, any
cash or other property representing any such compensation should be
delivered immediately to the Finance Department with the appropriate
identification.
Office of Disciplinary Counsel's(GDC)Ex. A-109, at 20, Placide knew ofthese
policies and agreed to comply with them by signing the offer of employment letter.
For several years prior to 2011 and while a partner at Dorsey, she represented
individual immigration clients who hired her personally (outside clients) and who
paid her directly. She failed to disclose the existence ofthese clients to Dorsey.
Placide attempted to conduct conflict checks, but those attempts were "wholly
inadequate." DP at 53(AFFCLR). She retained the funds she received as
compensation from her outside clients instead of turning them over to Dorsey. She
represented outside clients on a flat fee basis, with fees and expenses paid in
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
advance, Placide's engagement letters or agreements with outside clients failed to
include the language required by RPC 1.5(f)(2) in order to designate such fees as
the lawyer's property on receipt. She failed to deposit funds she received from
outside clients in a trust account as required by RPC 1.5(f) and RPC 1.15A(c)(2);
she did not have an interest on lawyer's trust account and either retained or
deposited into a personal bank account all such payments. On at least one occasion,
Placide was unable to refund unearned fees to a client because she failed to deposit
and hold those funds in a trust account.
Placide occasionally used Dorsey's office space, equipment, e-mail,
letterhead, and the time and labor of Dorsey employees when working on outside
client matters. She attempted to conceal her representation of outside clients while
at Dorsey. In November 2011, Dorsey representatives learned about Placide's
outside clients. Dorsey's internal investigation revealed that Placide had received
more than $56,700 in fees from outside clients. At a November 8, 2011 meeting
with Dorsey representatives, Placide repeatedly denied representing outside clients.
Each time the Dorsey administrators presented Placide with an e-mail or other
document that showed her contact with outside clients, she would admit to
representing that client, but no others. Placide claims that "under the pressure of
the moment some of her statements were inaccurate but denies there was any intent
to deceive." Opening Br. of Appellant at 4-5.
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
Dorsey terminated its relationship with Placide around November 14, 2011.
The separation agreement shows that Placide agreed to repay Dorsey $50,923 by
December 30, 2012, a sum that included $56,700 in fees that Placide received from
outside clients and also certain benefits that Placide had already received from
Dorsey, less any November partnership income already paid to Placide. Dorsey
filed an ethics complaint against Placide, alleging that Placide operated her off-the-
books practice from Dorsey's Seattle office, made significant efforts to hide the
practice from others in the office, was dishonest, and violated trust account
procedures for unearned fees.
Placide did not complete the work she agreed to perform for client P.S., an
outside client, before her separation from Dorsey. P.S. paid a $2,500 flat fee to
Placide to perform work on an immigration matter. Dorsey attorneys completed the
work instead. After learning that other Dorsey attorneys had completed the work,
Placide asked P.S. if she should return his fee, and P.S. indicated that he wanted
Placide to give the fee to Dorsey. Placide nevertheless did not return those funds to
Dorsey, claiming that the funds were covered by the above-referenced separation
agreement.
Prior to November 2011, and while still a partner at Dorsey, Placide was in
contact with the law firm of Ogletree, Deakins, Nash, Smoak & Stewart regarding
potentially leaving Dorsey and joining Ogletree. Although Placide believes she
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
was terminated by Dorsey at least in part because Dorsey found out about her
intention to move her practice to Ogletree, the hearing officer found no evidence
that Dorsey was aware of Placide's contacts with that firm. Placide falsely told
Ogletree representatives that Dorsey had terminated her because it had learned of
her discussions about moving her practice to Ogletree. In December 2011, Placide
accepted employment with Ogletree as a shareholder. While Ogletree had no
written policy prohibiting shareholders from representing clients in legal matters
outside of the firm, it intended and expected its shareholders to provide legal
services exclusively for Ogletree clients. The hearing officer found that Placide
knew of this expectation but began representing outside clients as she had at
Dorsey, and had performed legal services for at least seven outside clients.
Placide received fees equal to at least $10,000 from outside clients while at
Ogletree, did not disclose those clients to Ogletree, and did not maintain a trust
account to hold those outside clients' payments. She deposited all fees into her
personal bank account. She did not perform conflict checks before representing
those clients; no evidence exists that her client engagement letters complied with
RPC 1.5(f)(2). Placide did not discuss with her outside clients, either at Dorsey or
Ogletree, whether their fees would be placed in a trust account, where the funds
would be deposited, or the fact that their flat fee arrangement did not alter the
client's right to terminate the client-lawyer relationship. In November 2012,
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
Dorsey notified Ogletree that it had filed an ethics complaint against Placide.
When Ogletree's general counsel contacted Placide to discuss the Dorsey ethics
complaint, Placide repeatedly lied, stating that Dorsey had approved her
representation of outside clients and that Dorsey terminated her because it became
aware ofthe discussions with Ogletree regarding potential employment.
Ogletree requested that Placide provide a copy of her Dorsey separation
agreement, reviewed Placide's Ogletree e-mails, and discovered that Placide had
performed legal services for at least seven or eight outside clients. Ogletree
representatives then met with Placide without disclosing the purpose of the
meeting in advance. At that meeting, Placide acknowledged that she knew she was
prohibited from representing outside clients while at Ogletree, initially denied
representing outside clients while at Ogletree, and then admitted to representing
outside clients when shown documentary evidence.
In January 2013, Placide and Ogletree entered into a settlement agreement,
in which Placide promised to pay to Ogletree a specified amount based on the
payments she received from her outside clients. The hearing officer noted that
Placide had made no payments pursuant to the agreed-upon schedule as ofthe time
ofthe disciplinary hearing.
The ODC charged Placide with eight counts of misconduct:
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
Count 1: "By unlawfully appropriating funds belonging to Dorsey,
Respondent violated RFC 8.4(b) by committing crimes oftheft(RCW
9A.56.040 and/or RCW 9A.56.050 and/or RCW 9A.56.060), and/or
violated RFC 8.4(c), and/or violated RFC 8.4(i)."
Count 2:"By misrepresenting the extent of her 'off-the-books'
practice to Dorsey personnel, Respondent violated RFC 8.4(c)."
Count 3:"By failing to deposit advance flat fees in trust, as is required
in the absence of a flat fee agreement that conforms with RFC
1.5(f)(2), Respondent violated RFC 1.15A(c)(2)."
Count 4:"By failing to return unearned portions of[client F.S.j's fee
on termination ofrepresentation and/or in failing to promptly return
unearned portions of Client A's fee, Respondent violated RFC
1.15A(f) and/or RFC 1.16(d)."
Count 5:"By keeping $2,500 in legal fees paid to her by [client F.S.]
without performing the work she agreed to perform on his behalf.
Respondent charged an umeasonable fee in violation of RFC 1.5(a)."
Count 6:"By unlawfully appropriating funds belonging to Ogletree,
Respondent violated RFC 8.4(b) by committing crimes oftheft(RCW
9A.56.040 and/or RCW 9A.56.050 and/or 9A.56.060), and/or violated
RFC 8.4(c), and/or violated RFC 8.4(i)."
Count 7:"By misrepresenting to Ogletree that she did not represent
outside clients while employed at Ogletree and/or the number of
outside clients she represented while at Ogletree, Respondent violated
RFC 8.4(c)."
Count 8:"By failing to deposit advance flat fees in trust, as is required
in the absence of a flat fee agreement that conforms with RFC
1.5(f)(2), Respondent violated RFC 1.15A(c)(2)."
DF at 37-38, 42, 43 (First Am. Formal Compl.(FAFC)).
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
Following the disciplinary hearing, Hearing Officer Carl Carlson entered his
findings of fact, conclusions oflaw, and recommendation, which he later amended.
The hearing officer found that Placide was not a credible witness in part based on
her denying any knowledge ofthe Dorsey policies about representing outside
clients or turning all fees for legal services over to the firm, her belief that she was
permitted to perform legal services for outside clients while at Ogletree, her efforts
to conceal those clients from both firms, and her denials of such representation
when questioned by Dorsey and Ogletree representatives.
For counts 1 and 6 (theft), the hearing officer concluded that Placide's legal
services she provided to outside clients did not become '"property of another,'"
and although her conduct in performing services for outside clients "breached her
contractual and fiduciary duties to her respective law firms," it did not constitute
"the theft of her services." DP at 68,69(AFFCLR). The hearing officer also found
that "the outside clients ... intended to hire [Placide] personally" and "intended to
pay their fees directly to [Placide]. . . with one exception,'' and that although the
firms "owned the contractual right to be paid all ofthe fees," the firms "did not
own the fees themselves before they were turned over to the firm." DP at 69
(AFFCLR)(emphasis added). The hearing officer concluded that Placide's "receipt
and retention offees for her legal services to outside clients breached her
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
contractual obligations and fiduciary duties to Dorsey and Ogletree, but did not
constitute the crime of theft." DP at 70(AFFCLR).
As related to the exception in count 1 (theft from Dorsey), the hearing
officer concluded that Placide "acted knowingly in committing the crime oftheft
by exerting unauthorized control over the $2,050 of client P.S.'s fee which was not
covered by Respondent[']s Settlement Agreement with Dorsey, and by
appropriating $2,050 of that fee which had been misdelivered to her." DP at 73
(AFFCLR). The hearing officer concluded that standard 5.L of the American Bar
Association's Standardsfor Imposing Lawyer Sanctions(1991 & Supp. 1992)
applied to Placide's actions, but concluded that the presumptive sanction is
suspension over disbarment per ABA Standards std. 5.12 because Placide's
"failure to turn $2,050 of Client P.S.'s fee over to Dorsey [could not] be
characterized as 'serious criminal conduct.'" DP at 74(AFFCLR).
For counts 1, 2, 6, and 7(dishonesty, deceit, misrepresentation), the hearing
officer concluded that Placide acted knowingly in committing conduct involving
^ ABA Standards std. 5.11 states that "[djisbannent is generally appropriate when:(a) a
lawyer engages in serious criminal conduct, a necessary element of which includes intentional
interference with the administration ofjustice, false swearing, misrepresentation, fraud,
misappropriation, extortion, or theft . ..; or(b) a lawyer engages in any other intentional conduct
involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the
lawyer's fitness to practice."
ABA Standards std. 5.12 states that "[sjuspension is generally appropriate when
a lawyer knowingly engages in criminal conduct which does riot contain the elements
listed in Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to
practice."
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
dishonesty, deceit, and misrepresentation. The hearing officer concluded that
Placide's conduct caused Dorsey and Ogletree actual and potential injury and that
Placide's "ongoing pattern of dishonesty, deceit and misrepresentations was so
extensive and consistent that it 'seriously adversely reflects on the lawyer's fitness
to practice.'" DP at 76(AFFCLR). The hearing officer applied ABA Standards std.
5.11(b) in concluding that the recommended sanction for these violations is
disbarment.
For counts 3 and 8 (trust account violations), the hearing officer found that
Placide, by failing to deposit client flat fee payments into a trust account and not
providing clients with the information and disclosures required by RFC 1.5(f)(2),
was negligent and violated RPC 1.15A(c)(2). The hearing officer concluded that
Placide's violations caused clients actual injury (inability to refund unearned fees)
and potential injury(exposure to risk ofinability to timely refund unearned fees).
The hearing officer applied ABA Standards std. 4.1 and concluded that the
presumptive sanction for these violations is a reprimand.
For count 4(failure to return property), the hearing officer concluded that
Placide knowingly failed to deliver $2,050 of client P.S.'s fee to Dorsey after client
P.S. told Placide to do so, causing Dorsey actual injury and thereby violating RPC
1.15A(f). The hearing officer further concluded that ABA Standards std. 4.12
10
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
(dealing improperly with client property) applied, and that the presumptive
sanction for this violation is suspension.
For count 5 (charging unreasonable fee), the hearing officer concluded that
Placide knowingly retained client P.S.'s $2,500 in fees without performing the
work to earn the fees, thereby charging an umeasonable fee in violation ofRPC
1.5(a). The hearing officer applied ABA Standards std. 7.2 in concluding that the
presumptive sanction is suspension.
The hearing officer considered the following aggravating factors set forth in
ABA Standards std. 9.22:(1) dishonest or selfish motive,(2)pattern of
misconduct,(3) multiple offenses,(4)false statements or other deceptive practices
during the disciplinary process,(5)refusal to acknowledge wrongful nature of
conduct,(6)substantial experience in the practice oflaw, and (7)indifference to
making restitution. The hearing officer concluded that the first factor considered—
dishonest or selfish motive—did not apply. The hearing officer found (1)Placide's
absence of a prior disciplinary record and (2) her timely good faith effort to make
restitution as applied to count 5 only, to be mitigating factors.
The hearing officer recommended that Placide be disbarred. The Board
voted unanimously to adopt the hearing officer's decision. The Board noted that
"the existence of a contractual or fiduciary duty between Placide and the partners
at Dorsey and/or Ogletree [was] not necessary to establish the violations and to the
11
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
Board's decision." Bd. Order Adopting Hr'g Officer's Decision (Board Order) at
1-2. The Washington State Bar Association(WSBA)then petitioned this court for
an interim suspension ofPlacide under ELC 7.2(a)(2), which we granted.
Placide now appeals. In her opening brief, Placide makes 11 assignments of
error.
Issues
1. Does Placide's conduct identified in counts 1 and 6 qualify as an
"intrapartnership dispute" not susceptible to the Board's or this court's disciplinary
authority?
2. Did the Board correctly determine that Placide knew about Dorsey's
and Ogletree's policies regarding representation of outside clients?
3. Did the Dorsey separation agreement release Placide from her
obligation to repay $2,050 she received from client P.S. for legal work not
performed?
4. Did the Board correctly determine that RCW 9A.56.020(1) applies to
the theft at issue in count 1?
5. Did the Board correctly determine that under RPC 1.5(a), Placide
charged an unreasonable fee by never performing legal services client P.S. was
entitled to receive?
6. Did counts 1 and 6 give Placide sufficient notice of the charges
against her?
7. Did the Board correctly determine that Placide engaged in conduct
involving dishonesty, fraud, deceit, or misrepresentation regardless of the existence
of policy manuals or firm policies at Dorsey and Ogletree?
8. Was the Board's recommendation of disbarment for counts 2 and 7
disproportionate?
12
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
9. Does the challenged aggravating factor offalse statements or other
deceptive practices during the disciplinary process apply?
10. Did the hearing officer properly exclude Placide's proposed
testimony about her conversation with the "Ethics Hotline" under APR 19(e)(5)?
11. Did the hearing officer apply the correct standard to determine the
presumptive sanctions for counts 1, 2, 6, and 7?
Analysis
Standard ofReview
This court is the definitive authority for attorney discipline. In re
Disciplinary Proceeding Against Kuvara, 149 Wash. 2d 237, 246,66 P.3d 1057
(2003). Unchallenged findings offact are verities on appeal. In re Disciplinary
Proceeding Against Marshall, 160 Wash. 2d 317, 330, 157 P.3d 859(2007)
{Marshall I). Where challenged, this court will uphold those findings provided they
are supported by substantial evidence.In re Disciplinary Proceeding Against
Guarnero, 152 Wash. 2d 51, 58, 93 P.3d 166(2004). We recognize "that the hearing
officer is in the best position to determine factual findings regarding a lawyer's
state of mind and his [or her] decision is given 'great weight' on review."In re
Disciplinary Proceeding Against Cramer, 165 Wash. 2d 323, 332, 198 P.3d 485(2008)(quoting/« re Disciplinary Proceeding Against Longacre, 155 Wash. 2d 723,
744, 122 P.3d 710 (2005)). We review conclusions oflaw de novo, and when the
Board is unanimous with regard to the recommended sanction, we will uphold its
13
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
decision absent a clear reason for departure. In re Disciplinary Proceeding Against
Fossedal, 189 Wn.2d222, 233, 399 P.3d 1169 (2017).
1. Placide's conduct does not qualify as an intrapartnership dispute, and her
reliance on In re Disciplinary Proceeding Against Rice^ to characterize it
as such is unavailing
Placide argues that her conduct at Dorsey and Ogletree stemmed from an
"intrapartnership accounting" dispute and argues that counts 1 and 6 should be
dismissed because "[b]ar proceedings are not the place for unhappy partners and
shareholders to fight about their contractual differences which was the point of
RiceP Opening Br. of Appellant at 15. She asserts that there is nothing inherently
improper about a partner/shareholder having outside clients and keeping the fees.
GDC responds that the inquiry's focus is on whether Placide's conduct
"violated the RPC, not whether it resulted in a dispute with her law partners."
Answering Br. of GDC at 22. It cites to In re Disciplinary Proceeding Against
Selden^ as well as out-of-state case law for the proposition that this court and
courts in other states have adjudicated similar violations and disbarred lawyers for
misappropriating funds from their law firms.
In Rice, a "member" of a law firm that was organized as a public service
corporation was suspended by the Board for "allegedly appropriat[ing] legal fees
2 99 Wash. 2d 275, 661 P.2d 591 (1983).
^ 107 Wash. 2d 246, 728 P.2d 1036(1986)(plurality opinion).
14
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
for his personal use without aecounting for use ofthose funds to his law firm
partners." Rice, 99 Wn.2d at 275-76. Rice's alleged misconduct involved taking
"monies paid to him as legal fees for work he had done for his personal use and
fail[ing] to account to the law firm for the receipt ofthese funds." Rice, 99 Wn.2d
at 276. This court disagreed with the Board's recommendation of suspension,"^
citing several factors:(1)the case did not involve "misappropriation of client
funds" but rather "internal problems of a law firm,"(2)there was "no showing that
Mr. Rice demonstrated an intent to permanently deprive the partnership ofthe
disputed funds," and (3)"according to the record ..., his behavior was not out of
character with the nature of the firm's accounting procedures." Rice, 99 Wn.2d at
277-79. We noted that Rice "acknowledged the truth of his takings, but maintained
that he intended to account for all the funds" at a later time. Rice, 99 Wn.2d at 277.
Placide relies on our pronouncement in Rice that "[t]his court under no
circumstances should involve itself in intrapartnership accounting disputes." Rice,
99 Wn.2d at 279. Placide's actions, however, are readily distinguishable from the
actions ofthe partner in Rice. Here, unlike in Rice, Placide did, in fact,
permanently deprive Dorsey and Ogletree of at least some of the disputed funds,
and the record amply demonstrates that her actions in taking on outside clients and
Rice was alleged to have violated two ofthe former Discipline Rules for Attorneys
(DRA): former DRA 1.1(a)(1982)(act involving moral turpitude, dishonesty or corruption) and
former DRA 1.1(i)(1982)(conduct involving dishonesty, fraud, deceit, or misrepresentation).
15
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
keeping those client fees were out of character with the nature of the firms'
accounting procedures. Placide does not show that she intended to account for all
the funds and has yet to do so. The findings pertaining to the charged conduct in
counts 1 and 6 are supported by substantial evidence and bear no resemblance to
the intrapartnership dispute in Rice.
ODC cites Selden for the proposition that we have in fact adjudicated similar
violations ofthe Rules of Professional Conduct. At issue in Selden was "the
appropriate sanction for a lawyer who misappropriated funds from his law firm."
Selden, 107 Wn.2d at 248. Selden was an associate with a Tacoma law firm when
he began keeping some of the client checks made payable to him and depositing
them into his own bank account in violation ofthe law firm's accounting
procedures. The firm discovered this practice when several clients protested being
billed twice. When confronted, Selden initially "tried to bluff but finally admitted
[to] taking some money." Selden, 107 Wn.2d at 249. He later repaid the firm in full
and admitted that "he knew what he had done was wrong," but "stole yet additional
funds after his firm discovered his misappropriations and fired him." Selden, 107
Wn.2d at 250, 256. This court concluded that "it [was] necessary to disbafi"
^ It is also noteworthy that in Selden, where we disbarred the attorney, the hearing officer
recommended a 60-day suspension, which the Board adopted, with one member abstaining and
two members dissenting and urging a 120-day suspension instead. Selden, 107 Wn.2d at 250.
16
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
[Selden] to protect the integrity ofthe legal profession and preserve the public's
confidence in it." Selden, 107 Wn.2d at 256.
We distinguished Rice and reiterated that in that case, the relevant concerns
were the lack of a finding that the attorney there intended to permanently deprive
the law firm ofthe funds and the fact that the attorney's behavior "was not out of
eharacter with that law firm's loose accounting procedures." Selden, 107 Wn.2d at
254. We also stated that Rice "stands for the proposition that when there has been
nofinding offraud, this court will not entertain an accounting action in the guise of
a disciplinary proceeding." Selden, 107 Wn.2d at 255. In Selden, we further noted
that although Selden appeared to imply that "under Rice, a partner may take funds
from his or her firm with no danger of retribution," that issue was not before us,
declining to address it. Selden, 107 Wn.2d at 255 n.22. We now hold that engaging
in extensive and repeated theft offirm funds is sanctionable attorney conduct,
regardless of whether an attorney is an associate, a partner, or a shareholder. ODC
correctly notes that under Rule 1.2 of the Rules for Enforcement of Lawyer
Conduct(EEC),Placide is '"subject to the disciplinary authority ofthis
jurisdiction'" as an attorney "'admitted to practice in this jurisdiction.'" Answering
Br. of ODC at 24(quoting EEC 1.2). Placide's conduct is therefore within the
purview ofthe attorney disciplinary proceedings.
17
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
2. The record supports the hearing officer's determination that Placide knew
about Dorsey and Ogletree policies regarding representation of outside
clients
Placide next contends that the hearing officer erroneously determined that
the Dorsey and Ogletree firm policies regarding representation of outside clients
created a fiduciary relationship, which required Placide to turn over fees earned
from outside clients. We agree with the Board's unanimous determination that the
existence of a contractual or fiduciary duty between Placide and the partners at
Dorsey and/or Ogletree is not necessary to establish the violations.
Placide does appear to challenge, however, the hearing officer's findings
that "she had actual knowledge" ofthe Dorsey policies or any knowledge "ofthe
expectations at Ogletree" regarding representation of off-the-books clients.
Opening Br. of Appellant at 16, 18."An attorney's knowledge may be inferred
from the facts."/n re Disciplinary Proceeding Against Preszler, 169 Wash. 2d 1, 20,
232 P.3d 1118 (2010). There appears to be substantial evidence in the record of
Placide's knowledge ofthe policies, practices, and expectations at Dorsey and
Ogletree, and even if there are several reasonable interpretations of the evidence,
evidence is substantial if it reasonably supports the finding. In re Disciplinary
Proceeding Against McGrath, 174 Wash. 2d 813, 818, 280 P.3d 1091 (2012). Here,
Placide had Dorsey policy manuals, which explicitly stated that all compensation
received by any lawyer for professional services was the property of Dorsey. ODC
18
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
Ex. A-109. Dorsey's partner manual similarly states that "all compensation
received by any partner for professional services is the property of the Partnership
and shall be turned over to the Partnership." ODC Ex. A-110. Kenneth Jorgensen,
an ethics partner at Dorsey, testified that "for most partners—frankly even
probably for associates—it goes without saying they understand that the fees
belong to the firm, and they are not to be representing clients outside the firm." 1
Verbatim Report ofProceedings(VRP)at 58-59. There was testimony that Placide
"was probably the only lawyer in the whole office that told her secretary not to
open packages that came for her," and that she took extraordinary measures to hide
her in-office activities from other Dorsey staff members. 1 VRP at 86; see 2 VRP
at 520. For example, Placide requested to have a printer installed in her office,
which at the time was highly unusual for Dorsey, whose lawyers' typical practice
was to print the document to a shared printer location and then retrieve it or have
staff print the document. Placide refiised to allow her secretary to organize her
office. Based on this evidence, the hearing officer could reasonably infer, and did
infer, that Placide took measures to conceal her off-the-books clients from Dorsey.
Likewise, from the fact that Placide had repeatedly lied^ about representing outside
clients during her November 8, 2011, meeting with the Dorsey representatives, the
^ Each time the Dorsey administrators presented Placide with an e-mail or other
document that showed her contact with outside clients, she would admit to representing that
client, but no others.
19
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
hearing officer could reasonably infer that Placide knew that what she was doing
was prohibited.
Similarly, at Placide's January 9, 2013, meeting with the Ogletree
representatives, she told the representatives that at Dorsey she was expressly
authorized to represent private clients, expressly admitted that she knew it was
wrong to represent off-the-books clients while at Ogletree and not turn over her
fees to the firm, and then repeatedly lied about representing private outside clients
while at Ogletree. ODC argues that the hearing officer could reasonably infer from
this testimony that Placide knew what she was doing was prohibited. We agree and
uphold the hearing officer's findings regarding Placide's knowledge ofthe
existence of the Dorsey and Ogletree policies addressing representation of off-the-
books clients as supported by substantial evidence.
3. The Dorsey separation agreement did not release Placide from her
obligation to repay $2,050 she received from client P.S. for legal work
she did not perform
Placide next asserts that her "[sjettlement" agreement with Dorsey resolved
all "client fee issues" and that because she had a "good faith belief that the firm did
not have a claim on [those] funds," she did not wrongfully exert unauthorized
control over the money. Opening Br. of Appellant at 3, 27. We disagree and affirm
the hearing officer's conclusion that the separation agreement did not release
Placide from her obligation to repay the funds.
20
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
The hearing officer concluded that Placide committed thefl^ and violated
RFC 8.4(b) by misappropriating the $2,050 paid to her by client P.S. ODC points
out that the hearing officer's conclusion that Placide committed theft, thereby
violating RPC 8.4(b), is supported by findings offact 49-52, and that those
findings are unchallenged and therefore verities on appeal. The hearing officer
established that client P.S. paid Placide $2,050 as a retainer and $450 as a
consultation fee to represent him in an immigration matter, for a $2,500 total fee.
Placide never completed the work; Dorsey completed the work instead, for which
it received no compensation. P.S. subsequently told Placide that Dorsey had
completed the work for him and that she should contact Dorsey about returning the
unearned fees he had paid her. Placide never returned the unearned fees. She now
relies on the separation agreement to argue that Dorsey had given up any claim to
the fees once it signed the separation agreement.
The "Separation Agreement and General Release" provides, in relevant part:
Effective upon payment ofthe sums specified in this Agreement,
Dorsey... hereby releases and discharges Placide ... from all
liability for all claims Dorsey may have against Placide arising from
or relating to any fact or event occurring prior to the time Dorsey
signed this Agreement.
^ Under RPC 8.4(b), it is professional misconduct for a lawyer to "commit a criminal act
that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other
respects." The hearing officer relied on RCW 9A.56.020(1)for the definition of"theft." The
applicability ofthe statute is discussed infra in Section 4 of this opinion.
21
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
ODC Ex. A-129, at 1-2(emphasis added). Placide never paid the sums specified in
the agreement and therefore cannot rely on its existence to argue that "Count 1 as it
relates to the P.S. fees must be dismissed since Placide did not misappropriate the
funds" and that "Count 4 cannot stand since the premise that the funds belonged to
a third party(Dorsey)is not accurate." Opening Br. of Appellant at 27, 28.
Furthermore, the release of a claim for theft, or for any other wrongful act, alone,
does not mean that the theft or other wrongful act did not occur. Placide never
informed Dorsey of her receipt ofthe P.S. fee, and we uphold the hearing officer's
determination that her belief that she was excused by the separation agreement
from turning the money over to Dorsey was not reasonable or credible.
4. The Board correctly determined that RCW 9A.56.020(1) applies to the
conduct charged in count 1
Placide next argues that she did not "wrongfully obtain or exert unauthorized
control over the property or services of another or the value thereof, with intent to
deprive him or her of such property or services" under RCW 9A.56.020(l)(a). She
also argues that she did not "appropriate lost or misdelivered property or services
of another, or the value thereof, with intent to deprive him or her of such property
or services" under RCW 9A.56.020(l)(c).
In addition to the separation agreement, discussed supra, Placide points to
the fact that "P.S. told Placide that he did not own the funds since he had received
22
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
the services he asked for"; that P.S. "would have no way of knowing what kind of
severance agreement Placide and Dorsey had"; and that "Placide believed that once
P.S. gave up any claim of ownership it then became a matter oflooking to the
Separation Agreement which provided that she did not owe Dorsey anything."
Opening Br. of Appellant at 26. Essentially, she attacks the hearing officer's
determination on the basis that the $2,050 was never abandoned or misdelivered by
P.S., and on the basis of lack of any intent on Placide's part to deprive Dorsey of
the fee.
As previously stated, findings offact will not be overturned based simply on
an alternative explanation of the facts or on a version of the facts previously
rejected by the hearing officer. In re Disciplinary Proceeding Against Marshall,
167 Wash. 2d 51, 67, 217 P.3d 291 (2009){Marshall II). Even if there are several
reasonable interpretations ofthe evidence, it is substantial if it reasonably supports
the finding. McGrath, 174 Wn.2d at 818. The hearing officer found Placide not to
be a credible witness. Placide's contention that she did not intend to deprive
Dorsey of the $2,050 fee that she did not earn and that P.S. suggested she contact
Dorsey about returning is an alternative explanation that, although plausible, does
little to counter the substantial evidence at issue. The evidence, as discussed supra,
points to the fact that the hearing officer's factual determinations were correct. The
hearing officer's legal conclusion, reviewed de novo, that Placide wrongfully
23
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
exerted unauthorized control over Dorsey's property or appropriated misdelivered
property belonging to Dorsey is therefore sound.
The remaining issue, however, is whether, for purposes ofRCW
9A.56.020(l)(a) and (c), the requisite element of intenthsiS been established.
Placide argues that she could not have intended to deprive Dorsey ofthe P.S. fee
for purposes of RCW 9A.56.020(l)(a) and (c) and that therefore ODC failed to
prove she had engaged in theft. Alternatively, Placide claims she is entitled to the
defense provided by RCW 9A.56.020(2)(a), which states that "In any prosecution
for theft, it shall be a sufficient defense that: ... The property or service was
appropriated openly and avowedly under a claim of title made in good faith, even
though the claim be untenable."
Placide contends that "she claimed the funds with the full knowledge of
them by firm" and that she "claimed [the funds] under the good faith belief that the
firm did not have a claim on the funds." Br. of Appellant at 27.
It appears that the hearing officer did not specifically examine the issue of
whether Placide intended to "wrongfully obtain or exert unauthorized control" or
intended to "appropriate lost or misdelivered property" for purposes of finding that
she committed a crime oftheft under RCW 9A.56.020(l)(a) and (c). To the extent
this was a legal determination, we conclude that that was error. The statutory
provision that the hearing officer used to conclude that Placide committed a crime
24
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
of theft clearly and explicitly lists "intent" as an element of the crime. The hearing
officer omitted entirely that portion of the statutory language when quoting the
statute he later relied on to conclude that Placide's actions constituted a criminal
act of theft.
"A person acts with intent or intentionally when acting with the objective or
purpose to accomplish a result that constitutes a crime." 11 Washington
Practice; Washington Pattern Jury Instructions: Criminal 10.01 (4th ed.
2016). It is unclear from the record whether the hearing officer's findings offact
and the record would support a factual finding that Placide acted intentionally as
provided under ROW 9A.56.020(l)(a) and (c) and the resulting legal finding that
Placide committed a crime oftheft. Without citing to the record, ODC argues that
"[t]he hearing officer could reasonably infer, and did infer, that [Placide] kept the
money with intent to deprive another ofthat money," and that "[i]t is abundantly
clear . .. that the hearing officer found [Placide's] dishonest and deceitful conduct
to be intentional." Answering Br. of ODC at 38, 45. While the hearing officer
could have reasonably inferred that Placide was "acting with the objective or
purpose to accomplish a result that constitutes a crime," he did not explicitly do so.
See DP at 70(AFFCLR). Because we "review conclusions oflaw de novo and
will uphold them ifthey are supported by the findings offact," Marshall I, 160
Wash. 2d 330, we conclude that the hearing officer's findings offact as to the
25
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
intentional nature ofthe alleged criminal act are insufficient or missing and decline
to uphold the hearing officer's legal conclusion that Placide's retention ofthe
$2,050 fee constituted theft,
ODC argues, however, that a hearing officer's recommendation can be
affirmed on any grounds supported by the record, citing to State v. Costich, 152
Wash. 2d 463, 98 P.3d 795 (2004).^ ODC now argues that although the hearing
officer determined otherwise, ODC did, in fact, prove that Placide committed theft
with respect to all the funds she misappropriated from Dorsey and Ogletree, and
that the hearing officer's conclusion otherwise was in error.
ODC first argues that the hearing officer's "conclusions rest on the
misconception that the thefts at issue in Counts 1 and 6 are thefts of[Placide's]
services." Answering Br. of ODC at 42. But the hearing officer explicitly discusses
"[Placide's] receipt and retention offees" as a separate ground the hearing officer
considered in determining whether or not Placide committed theft. DP at 70
(AFFCLR). Therefore, the hearing officer considered both the theft of services and
the theft of fees in arriving at the challenged conclusions.
ODC next argues that the hearing officer's "conclusions rest on the
misconception that the phrase 'property ... of another' in RCW 9A.56.020(1)
^ "This court may affirm a lower court's ruling on any grounds adequately supported in
the record." Costich, 152 Wn.2d at All (citing/n re Marriage ofRideoiit, 150 Wash. 2d 337, 358,
77P.3d 1174 (2003)).
26
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
'cannot be intended' to cover property that has not yet been delivered to the party
entitled to receive it." Answering Br. of ODC at 42(alteration in original)(citing
DP at 68,69(AFFCLR)). ODC relies on RCW 9A.56.010(23)(b) and (c) and states
that theft may be accomplished not only by taking the property or services of
another, but also by "appropriating property to one's own use where that property
has never been delivered to the party entitled to receive it." Answering Br. of ODC
at 43. Because ODC is in effect challenging the hearing officer's legal conclusion
based on an interpretation of a statute, we review the hearing officer's legal
determination de novo.
We agree with ODC and conclude that Placide's retention offees from
outside clients, regardless of whether those clients intended to pay them directly to
her, constitutes "theft" as defined by RCW 9A.56.020(l)(a). As ODC correctly
points out,"wrongfully obtains" or "exerts unauthorized control" are defined for
purposes of chapter 9A.56 RCW as not only "tak[ing] the property or services of
another," RCW 9A.56.010(23)(a), but also:
(b)Having any property or services in one's possession, custody
or control as bailee, factor, lessee, pledgee, renter, servant, attorney,
agent, employee, trustee, executor, administrator, guardian, or officer
of any person, estate, association, or corporation, or as a public officer,
or person authorized by agreement or competent authority to take or
hold such possession, custody, or control, to secrete, withhold, or
appropriate the same to his or her own use or to the use ofany person
other than the true owner or person entitled thereto', or
27
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
(c)Having any property or services in one'spossession, custody,
or control as partner, to secrete, withhold, or appropriate the same to
his or her use or to the use of any person other than the true owner or
person entitled thereto, where the use is unauthorized by the
partnership agreement.
RCW 9A.56.010(23)(emphasis added). The unambiguous language of the statute
suggests that a person may commit theft while possessing, having custody, or
control of property such as client fees, as an attorney or a partner, and
appropriating such property to one's own use even where such property has never
been delivered to the party entitled to receive it. Therefore, the hearing officer's
legal conclusion as to Placide's retention ofthe fees she received from outside
clients was incorrect. Any compensation received became the property of Dorsey
per the language of Dorsey's policies, i.e., that "'all compensation received by any
Dorsey partner, associate, or other attorney . ..[was] property ofthe firm.'" DP at
51 (AFFCLR);see ODC Ex. A-109. We conclude that Placide's actions meet the
legal definition of"wrongfully obtains" or "exerts unauthorized control" under
RCW 9A.56.020(l)(a) as to her retention of the fees paid to her by her off-the-
book clients while Placide was a partner at Dorsey, as there was an explicit policy
or agreement. Although there was no similar explicit agreement or provision with
regard to Ogletree, we nevertheless also conclude that Placide's actions meet the
legal definition of"wrongfully obtains" or "exerts unauthorized control" under
28
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
RCW 9A.56.020(l)(a) as to her retention ofthe fees paid to her by her off-the-
book clients while Placide was a shareholder at Ogletree as well.
However, similar to the P.S. $2,050 fee discussed supra, the hearing officer
never explicitly concluded that Placide intended to deprive Dorsey of the fees she
received from the outside clients. Unlike the $2,050 fee, because the hearing
officer found that Placide "intentionally mislead Dorsey as to the amounts she had
received" from her outside clients and that a clear preponderance shows that
Placide "was aware of Dorsey's [fee] policy" yet took steps to conceal those fees
and clients, as well as "intended to retain [the Ogletree] funds personally, without
disclosing them to Ogletree," the hearing officer could have reasonably concluded
that Placide acted intentionally. DP at 56, 51,62(AFFCLR). Therefore, as a matter
oflaw, Placide committed "theft" as defined in RCW 9A.56.020(l)(a) and thus
violated RPC 8.4(b) as charged in counts 1 and 6.
5. The hearing officer correctly determined that under RPC 1.5(a), Placide
charged an unreasonable fee by never performing legal services client
P.S. was entitled to receive
Placide next argues that the "finding of violation at Count 5 is based on the
premise that Placide charged an excessive fee since she kept the entire $2,500 P.S.
fee even though she did not do $2,500 worth of work." Opening Br. of Appellant at
28. Placide fails to rebut meaningfully the hearing officer's findings of fact or
conclusions oflaw on this point. She appears to contend that Dorsey had no claim
29
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
to the funds, even though the fact that Dorsey's lawyers completed the work on
P.S.'s matter is unchallenged. The hearing officer correctly determined that while
Placide did offer to return the fee to P.S., who declined the offer in favor of
Dorsey, Placide knew that the fee had not been earned by her, and the offer to
return the fee, alone, did not satisfy her obligation not to charge or to collect an
umeasonable fee. The hearing officer's conclusion that Placide therefore collected
$2,500 in legal fees from client P.S. is correct.
It appears from the record, however, that $450 of the fee was referred to in
Placide's engagement letter to P.S. as an "advanced paid consultation fee." ODC
Ex. A-102, at 1. The record indicates that Placide did consult P.S. See 3 VRP at
724(P.S. testifying that Placide "definitely did the consultation"). The record also
indicates that the rest ofthe work was performed by the Dorsey lawyers. We
conclude that substantial evidence in the record supports the finding only as to the
$2,050 portion of the fee retained by Placide ofthe amount she charged P.S. We
nevertheless uphold the hearing officer's legal conclusion that her retention ofthe
unearned portion ofthe fee violates RPC 1.5(a) as a charge of an unreasonable fee
for the work she never performed.
6. Counts 1 and 6 gave Placide sufficient notice ofthe charges against her
Placide next contends that "Counts 1 and 6 give her no notice much less
clear and specific charges regarding ongoing dishonesty by performing legal
30
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
services for outside clients and concealing those receipts from the firm" because
"they were not charged." Opening Br. of Appellant at 30. Specifically, Placide
argues that "those counts were limited to unlawful appropriation of fees in
violation ofRPC 8.4(c) so any findings of violations of Counts 1 and 6 other than
the P.S. fees were not charged and cannot serve as the basis of any rules violation."
Opening Br. of Appellant at 30-31. Placide's argument appears to stem from the
fact that the conduct charged in counts 1 and 6 was "committing crimes oftheft."
DP at 37,42(FAFC). She argues she has a due process right to be notified of clear
and specific charges against her and to be afforded an opportunity to anticipate,
prepare, and present a defense, citing to our decision in In re Disciplinary
Proceeding Against Romero, 152 Wash. 2d 124, 94 P.3d 939(2004).
As we have previously stated,"ELC 10.3(a)(3) explains [that the]'formal
complaint must state the respondent's acts or omissions in sufficient detail to
inform the respondent ofthe nature ofthe allegations of misconduct.'" Marshall I,
160 Wn.2d at 340. The formal complaint at issue is replete with specific detail as
to the respondent's acts or omissions regarding acts of dishonesty, deceit, and
misrepresentation.^ Furthermore, even though the wording ofthe language of
counts 1 and 6 is not ideal, it puts Placide on notice as to her conduct regarding
^ See, e.g., DP at 34, 35(FAFC)("Respondent made the misrepresentation to Dorsey
personnel to conceal from them the full extent of her 'off-the-books' practice."Respondent
intentionally misappropriated the $56,700 knowing that she was not entitled to the funds.").
31
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
unlawfully appropriating funds and violating RPC 8.4(c) in so doing. Including
RPC 8.4(c), of course, necessarily gives Placide sufficient notice as to the nature of
the allegations per its very language: that "[i]t is professional misconduct for a
lawyer to: . .. engage in conduct involving dishonesty, fraud, deceit or
misrepresentation." Placide was properly notified ofthe charges against her
regarding dishonesty, deceit, and misrepresentation.
7. The hearing officer correctly determined that Placide engaged in
conduct involving dishonesty, fraud, deceit, or misrepresentation regardless ofthe
existence of policy manuals or firm policies at Dorsey and Ogletree
Placide next argues that the Dorsey and Ogletree policies, manuals, and
intentions and expectations regarding partners and shareholders providing legal
services exclusively for the firms' clients "did not create a fiduciary duty which
required Placide to be 100% accurate when she had her meetings with the firms."
Opening Br. of Appellant at 3. As previously stated, the Board unanimously
adopted the hearing officer's decision and recommendation, noting that "the
existence of a contractual or fiduciary duty between Placide and the partners at
Dorsey and/or Ogletree is not necessary to establish the violations and to the
Board's decision." Board Order at 1-2.
The hearing officer's determination that Placide repeatedly and insistently
lied to Dorsey and Ogletree representatives when asked about the extent of her
legal services for outside clients, as well as the amount offees she received for
32
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
those services, is supported by substantial evidence in the record. Such evidence
includes testimony by Dorsey representatives Kenneth Jorgensen, Michael Droke,
and Kelli Kohout, and Ogletree representatives Charles Baldwin and Christopher
Mixon, that amply supports the hearing officer's conclusions. At both meetings,
when firm representatives confronted Placide with an e-mail or other document
that showed her contact with outside clients, she would admit to representing that
client, but no others, essentially, as the hearing officer concluded, repeatedly and
insistently Ijdng about the extent of her off-the-books practice and the amount of
fees received.
Placide's alternative explanation that she was flustered and pressured in
these surprise meetings is an alternative explanation at best and a continued effort
to mislead at worst. As previously stated, findings of fact will not be overturned
based simply on an alternative explanation ofthe facts or on a version of the facts
previously rejected by the hearing officer. Marshall II, 167 Wn.2d at 67. Even if
there are several reasonable interpretations of the evidence, that evidence is
substantial if it reasonably supports the finding, and circumstantial evidence is as
good as direct evidence. McGrath, 174 Wn.2d at 818. We therefore uphold the
Board's determination as to counts 2 and 7. We expressly reject Placide's
remaining arguments that an attorney can freely mislead and lie because she did
33
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
"not owe a duty of honesty of some sort," and that "no .. . contractual or
expectation duty" or "fiduciary duty" existed. Opening Br. of Appellant at 33-34.
8. The hearing officer's recommendation of disbarment for counts 2 and 7
was not disproportional
Placide next argues that the hearing officer's recommendation of disbarment
for counts 2 and 7 relating to lack of candor is "excessively disproportional
compared to the ChristopheA^'" case." Opening Br. of Appellant at 4. Placide
complains that in Christopher, the attorney "was found to have been dishonest
when she gave very clear testimony under oath in a trial," but that although "[s]he
was not found guilty of peijury," she "was found to have nonetheless not been
honest on the stand." Opening Br. of Appellant at 36-37. Placide essentially claims
that because here she lied not under oath but in private meetings, "[a]
recommendation of disbarment is wildly disproportional," and instead a reprimand
is the appropriate sanction. Opening Br. of Appellant at 37.
In reviewing proportionality,"we analyze whether a presumptive sanction is
proper by comparing the case at hand with other similarly situated cases in which
the same sanction was approved or disapproved."/« re Disciplinary Proceeding
Against Miller, 149 Wash. 2d 262, 285,66 P.3d 1069(2003). The attorney facing
discipline bears the burden of bringing cases to the court's attention that
In re Disciplinary Proceeding Against Christopher, 153 Wash. 2d 669, 105 P.3d 976(2005).
34
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
demonstrate the disproportionality of the sanction imposed.In re Disciplinary
Proceeding Against Kagele, 149 Wash. 2d 793, 821, 72 P.3d 1067(2003). Plaeide
cites only to Christopher.
In Christopher, the attorney, after realizing she forgot to submit an offer of
judgment to preserve her clients' right to an award of attorney fees, forged her
secretary's signature on a declaration of mailing and attached it to an offer of
judgment pleading that she backdated and mailed to opposing counsel. "She also
created a declaration in support of attorney fees, which stated that the offer of
judgment was a true and correct copy of[her clients'] offer to settle." Christopher,
153 Wn.2d at 674-75. Christopher was found to have "committed the criminal act
offorgery" as well as to have "intentionally made false statements under oath with
the intent to deceive the arbitrator and the parties." Christopher, 153 Wn.2d at 679.
Christopher argued that ABA Standards std. 5.11(b), at issue here, did not apply to
her conduct. We held ABA Standards std. 5.11(b) applied to her conduct, but
"after balancing the aggravating and mitigating factors and considering unanimity
and proportionality [determined that] a departure from the presumptive sanction is
justified." Christopher, 153 Wn.2d at 688.
In reviewing the applicable standard for imposing sanctions, we apply the
ABA Standards. The ABA Standards provide a two-step process to determine the
proper sanction after a finding oflawyer misconduct:(1)the presumptive sanction
35
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
is deteraiined by considering the ethieal duty violated, the lawyer's mental state,
and the extent ofthe actual or potential harm caused and (2) aggravating and
mitigating factors are weighed to determine whether a deviation is appropriate.
Kiivara, 149 Wn.2d at 252. As noted in Christopher, we then eonsider whether the
"faetors of unanimity and proportionality should alter the sanction." Christopher,
153 Wn.2d at 678 (citing ia/vara, 149 Wn.2d at 259).
The hearing officer determined, in relevant part:
[Placide's] violations ofRPC 8.4(e) alleged in Counts 2 and 7, in
misrepresenting the fact, extent and number of her outside client
representations, caused Dorsey and Ogletree
a. actual injury by concealing the extent of her breaches of
eontract and violations offiduciary duties, thereby
preventing the firms from recovering from her the amounts
she actually owed to them for those breaehes; and
b. potential injuiy, in that if[Placide] had sueceeded in
misleading them about her conduct, she would have
continued to engage in sueh eonduct eausing additional
actual and potential injuries deseribed.
DP at 75(AFFCLR). Unlike in Christopher," the Board unanimously agreed with
the hearing officer's recommendation that ABA Standards std. 5.11(b) applied to
eounts 2 and 7. But in Christopher, we relied on seven mitigating faetors to
eonclude that "the predominance of mitigating factors justifies a departure from
the presumptive sanetion [of disbarment]." Christopher, 153 Wn.2d at 686
In Christopher, we agreed with the divided 6-4 Board's recommendation that ABA
Standards std. 5.11(h) applied and that the presumptive sanction was disbarment.
36
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
(emphasis added). In contrast, here the hearing officer found two mitigating
factors, and the balance weighs in favor of disbarment. We therefore reject
Placide's proportionality argument.
9. The challenged aggravating factor of false statements or other deceptive
practices during the disciplinary process does not apply; the remaining
aggravating and mitigating factors support the hearing officer's and the
Board's unanimous recommendation of disbarment
Applying ABA Standards std. 9.22, the hearing officer found six
aggravating factors;(1) a pattern of misconduct,(2) multiple offenses,(3)false
statements or other deceptive practices during the disciplinary process,(4)refusal
to acknowledge the wrongful nature ofthe conduct,(5)substantial experience in
the practice oflaw, and (6)indifference to making restitution. The hearing officer
found two mitigating factors:(1) absence of a prior disciplinary record and (2)
timely good faith effort to make restitution as applied to count 5 only.
Placide challenges only one ofthe aggravating factors: false statements or
other deceptive practices during the disciplinary process. As to that factor, the
hearing officer found as follows: "Respondent repeatedly made false
representations offact in presenting questions posed to witnesses at the hearing,
while asking them to agree with her factual representations." DP at 79(AFFCLR).
Placide asserts that the hearing officer "based this on his findings . . . that four
times during her pro se examinations of witnesses she asked questions based on
37
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
premises which he claimed were contradicted by overwhelming evidence."
Opening Br. of Appellant at 37. Placide's concerns are warranted.
"Falsifying information during an attorney discipline proceeding is one of
the most egregious charges that can be leveled against an attorney." In re
Disciplinary Proceeding Against Whitt, 149 Wn.2d707,720, 72 P.3d 173 (2003).
The hearing officer concluded that Placide frequently included false or misleading
assertions in the form of questions she posed to witnesses, in effect testifying
herself. For example, in cross-examining a Dorsey witness, Kenneth Jorgensen, the
following colloquy ensued:
[Placide:] Do you recall at the end ofthe conversation where
after I discussed or we identified the non-firm clients, you made a
comment that said,"These non-firm clients, it's not—it's not a big
deal; but the fact that you're planning to leave and take members of
the firm, that's where your partners don't trust you."
Do you recall that?
[Jorgensen:] That couldn't have happened. We didn't know you
were going to Ogletree until you were there.
1 VRP at 110-11. Placide had insisted throughout the investigation that she was, in
fact, terminated by Dorsey in a retaliatory fashion.
Another example is representative of her style of questioning on cross-
examination of an Ogletree witness, Charles Baldwin:
[Placide:] Okay. During our meeting, what was supposed to be
our meeting in January, 2013, that occurred, do you recall how the
meeting was scheduled and organized?
38
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
[Baldwin:] I think the exchange of e[-]mails, maybe a phone call. I
don't remember exactly.
[Placide:] Do you recall, Mr. Baldwin, that I called the meeting,
that I repeatedly would ask you to come visit us in the Seattle office to
discuss the office plans for expansion and the support we needed from
Ogletree Deakins?
[Baldwin:] No. I know that's not true because the plans for this
meeting were set up after Chris Mixon did the investigation and we
found all the information about you receiving funds for work done on
behalf of firm clients.
3 VRP at 615. Placide had insisted throughout the investigation that the surprise
nature ofthe meetings had been a factor affecting her ability to respond with
precision when confronted with accusations of off-the-books representation.
While it is evident from the record that the form ofPlacide's questions posed
to witnesses may have been questionable at times and perhaps, in the eyes ofthe
hearing officer, misleading, reading the transcript reveals that Placide, at least in
several ofthe portions ofthe record cited to, was attempting to reveal on cross-
examination certain inconsistencies in the testimony of the Dorsey and Ogletree
witnesses.
GDC concedes that the presence ofthis aggravating factor does not
significantly matter. Citing to Romero, 152 Wn.2d at 136-37, where we said that
"[a]n attorney has a cognizable due process right... to be afforded an opportunity
to anticipate, prepare, and present a defense," Placide argues that "[i]n presenting a
defense the lawyer is entitled to present his/her theory of the defense[,] which
39
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
includes asking witnesses if they recall events a certain way." Opening Br. of
Appellant at 38. Attorney discipline proceedings are quasi-criminal in nature. In re
Ruffalo, 390 U.S. 544, 551, 88 S. Ct. 1222, 20 L. Ed. 2d 117(1968). As part of her
presentation of a defense, an attorney is entitled to challenge witnesses. We
therefore agree with Placide and conclude that there is not substantial evidence in
the record to suggest that Placide was making "false representations in the course
of her questions posed to witnesses at the hearing" as to the hearing officer's
factual finding. DP at 66(AFFCLR). To conclude otherwise might chill the right
of an attorney accused of misconduct to put the WSBA to a vigorous proof, as
Placide suggests. In Whitt, where this aggravator was found to apply, an attorney
submitted "fabricated documents" and falsified information, we stressed that
"[mjisrepresentations and fabrications during the disciplinary process reflect
adversely on the lawyer's ability to practice law, the public perception of the legal
system, and the judicial process as a whole." Whitt, 149 Wn.2d at 721. Placide's
questioning of adverse witnesses on cross-examination does not rise to the
requisite level. We therefore conclude that the aggravating factor in question was
improperly applied. The five remaining aggravators nevertheless still outweigh the
two mitigating factors and therefore support the hearing officer's and the Board's
recommendation of disbarment.
40
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
10. The hearing officer properly excluded Placide's proposed testimony
about her conversation with the "ethics hotline" under APR 19(e)(5)
Placide next argues that the hearing officer improperly excluded Placide's
proposed testimony concerning her alleged conversation with an ethics line
professional responsibility counsel regarding "her situation in 2012." Opening Br.
of Appellant at 39; see 1 VRP at 18. At the disciplinary hearing, Hearing Officer
Carl Carlson informed Placide that APR 19(e)(5)"expressly says that contact with
or information given or even the fact of contact with the Bar Association's ...
ethics line is not admissible in a proceeding like this." 1 VRP at 19. Carlson
granted ODC's motion in limine to exclude her proposed testimony over Placide's
objection that the proposed testimony went to her "frame of mind" and that the rule
was improperly weighed in favor ofthe WSBA. 1 VRP at 19. Placide now argues
that "[sjeeking advice from a recognized source of wisdom and following that
advice could tend to show good faith," and that, as "overbroad," the rule amounts
to "a denial of substantive due process." Opening Br. of Appellant at 40-41.
APR 19(e)(5) states:
Neither the making of an inquiry nor the providing ofinformation by
professional responsibility counsel under this rule creates a client-
lawyer relationship. Any information or opinion provided during the
course of an ethics inquiry is the informal, individual view of
professional responsibility counsel only. No information relating to an
ethics inquiry, including the fact that an inquiry has been made, its
content, or the response thereto, may be asserted in response to any
grievance or complaint under the applicable disciplinary rules, nor is
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In re Discipline ofPlacide (Carllene M.), No. 201,639-1
such information admissible in any proceeding under the applicable
disciplinary rules.
There is no dispute that the rule is directly applicable to Placide's proposed
testimony and that the hearing officer was obligated to follow it. The question of
the rule's constitutionality appears to be an issue of first impression, reviewed de
novo.In re Disciplinary Proceeding Against King, 168 Wash. 2d 888, 232 P.3d 1095(2010). We conclude that the application of APR 19(e)(5) does not violate
Placide's constitutional rights and consequently uphold the decision by the hearing
officer to exclude the testimony.
APR 19(e) was adopted by this court in 2007."The new provisions codified
the WSBA's practice of responding to inquiries about compliance with the Rules
of Professional Conduct(commonly known as the ethics hotline)," establishing
"the ground rules for advice given by the WSBA,[as well as] record-keeping
requirements, and ... rules of confidentiality." 2 KarlB.Tegland, Washington
Practice: Rules Practice: APR 19 author's cmt. at 314(8th ed. 2014). Placide
challenges the rule's application essentially as it pertains to her ability to introduce
evidence and present a defense.
In the criminal context, state and federal rule makers have broad latitude to
establish evidentiary rules excluding evidence. United States v. Scheffer, 523 U.S.
303, 308, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998). In the United States
42
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Supreme Court stated that "[s]uch rules do not abridge an accused's right to
present a defense so long as they are not 'arbitrary' or 'disproportionate to the
purposes they are designed to serve.'" Scheffer, 523 U.S. at 308 (quoting Rock v.
Arkansas, 483 U.S. 44, 58, 107 S. Ct. 2704, 97 L. Ed. 2d 37(1987); Michigan v.
Lucas, 500 U.S. 145, 149, 111 S. Ct. 1743, 114 L. Ed. 2d 205 (1991)). Because
attorney discipline is a quasi-criminal proceeding, similar considerations likely
apply.
Placide's argument is that a rule preventing her from offering her best
defense is arbitrary and capricious, with no rational basis for a blanket rule denjdng
her the right to put on her state-of-mind defense. ODC counters that the rule
"serves the legitimate and important interest of preventing a lawyer . .. from lying
about an ethics inquiry without the possibility of being contradicted'^ by the other
party to the communication." Answering Br. of ODC at 27. ODC points out that in
order to preserve the confidentiality of communications between an inquirer and
professional responsibility counsel, the latter is prohibited from making or
maintaining "any permanent record ofthe identity of an inquirer or the substance
of a specific inquiry or response," but "may keep records of the number of
inquiries and the nature and type of inquiries and responses." APR 19(e)(6). We
APR 19(e)(7) states that "[ejommunications between an inquirer and professional
responsibility counsel are confidential and shall be privileged against disclosure except by
consent of the inquirer or as authorized by the Supreme Court."
43
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
agree with ODC and conclude that APR 19(e)(5) is not arbitrary or
disproportionate to the purposes it is designed to serve, and does not violate
Placide's constitutional rights. Placide was not prevented from presenting any and
all evidence or testimony regarding her state of mind in 2012, but only that
evidence which the WSBA would have had no opportunity to verify or counter.
The evidence of Placide's ethics inquiry was therefore correctly excluded by the
hearing officer.
11. The hearing officer applied the correct legal standard to determine the
presumptive sanctions for counts 1, 2, 6, and 7 with respect to dishonesty,
deceit, and misrepresentation
Finally, Placide argues that the hearing officer erred in his application of
ABA Standards std. 5.11(b) to determine the presumptive sanction for Placide's
violation of RPC 8.4(c) as to counts 1, 2, 6, and 7 related to the hearing officer's
findings that "Respondent's ongoing pattern of dishonesty, deceit and
misrepresentations was so extensive and consistent that it 'seriously adversely
reflects on [her] fitness to practice.'" DP at 76(AFFCLR).
Placide points to the hearing officer's finding that in committing conduct
charged in counts 1, 2, 6, and 7,Placide acted "knowingly." DP at 74(AFFCLR).
ODC states that "[i]t is abundantly clear, however, that the hearing officer found
[Placide's] dishonest and deceitful conduct to be intentional," pointing to "the
many factual findings" ofthe hearing officer regarding Placide's lying and
44
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
concealment. Answering Br. of ODC at 45. ODC relies on the definition of a "lie"
to argue that as such, it is an intentionally false statement.
For purposes ofimposing lawyer sanctions, the ABA Standards define
"knowledge" as "the conscious awareness of the nature or attendant circumstances
of the conduct but without the conscious objective or purpose to accomplish a
particular result." ABA Standards Definitions at 17. The Standards define "intent"
as "the conscious objective or purpose to accomplish a particular result." ABA
Standards Definitions at 17. An attorney's state of mind may be inferred from the
facts. Preszler, 169 Wn.2d at 20."An attorney's mental state 'is a factual
determination and the officer's finding is given great weight.'" Preszler, 169
Wn.2d at 20-21 (quoting Longacre, 155 Wn.2d at 744). In determining whether a
factual finding is supported by substantial evidence, we look to the entire record.
Longacre, 155 Wn.2d at 735-36.
It is unclear from the record why the hearing officer found that Placide acted
only "knowingly" as opposed to "intentionally" with regard to counts 1, 2, 6, and 7
(dishonesty, deceit, and misrepresentation). It is clear, however, that the conclusion
that Placide acted "knowingly" does not fit the presumptive legal standard applied,
and, at most, the conduct charged fits ABA Standards std. 5.12, with a
presumptive sanction of suspension. We agree with ODC,however, to the extent
that the factual findings, including the hearing officer's finding that "[Placide]
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In re Discipline ofPlacide (Carllene M.), No. 201,639-1
intentionally mislead Dorsey as to the amounts she had received," DP at 56
(AFFCLR), support the conclusion that Placide's conduct was intentional as to
counts 1 and 2, and to the extent that the finding that Placide "intended to retain
[the Ogletree] funds personally, without disclosing them to Ogletree," DP at 62
(AFFCLR), supports the same conclusion as to counts 6 and 7. We conclude that
Placide acted intentionally and apply ABA Standards std. 5.11(b) with the
presumptive sanction of disbarment.
ODC argues that the hearing officer incorrectly determined that for counts 1
and 6(theft from Dorsey and Ogletree) the presumptive sanction for respondent's
violation of RPC 8.4(b) is suspension under ABA Standards std. 5.12. Because we
conclude that the conduct charged in counts 1 and 6 constitutes theft as discussed
in Section 4 ofthis opinion, and given the requisite factual findings of
intentionality by the hearing officer as to counts 1 and 6, we agree with ODC that
the correct legal standard is ABA Standards std. 5.11(a), which provides that
disbarment is the presumptive sanction when "a lawyer engages in serious criminal
conduct a necessary element of which includes .. . misappropriation, or theft."
Conclusion
We uphold the hearing officer's findings offact and conclusions oflaw with
the following exceptions: we(1) conclude that the hearing officer failed to
consider or establish intent for purposes ofrelying on RCW 9A.56.020(1)in
46
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
concluding that Placide committed theft as to client P.S. funds,(2) agree with ODC
that Placide's retention offees from outside clients, regardless of whether those
clients intended to pay them directly to her, constitutes "theft" as defined by RCW
9A.56.020(l)(a), and that the hearing officer erred in concluding otherwise,(3)
disagree with the hearing officer and ODC and conclude that the aggravating factor
offalse statements or other deceptive practices during the disciplinary process was
improperly applied,(4) conclude that the hearing officer's determination that
Placide acted "knowingly" does not fit the presumptive legal standard as applied to
counts 1, 2, 6, and 7 by the hearing officer, and (5)that because the record shows
that Placide engaged in intentional conduct in violating RPC 8.4(c), and committed
theft as charged in counts 1 and 6, conclude that the correct legal standards are
ABA Standards stds. 5.11(b) and 5.11(a), and the correct presumptive sanction is
disbarment.
Having considered the challenged findings and the correct presumptive
sanctions, having weighed the aggravating and mitigating factors to determine
whether a deviation from the presumptive sanctions is warranted, and having
considered factors of unanimity and proportionality,^"^ we agree with the Board's
13
See Kuvara, 149 Wn.2d at 252-53.
See Kuvara, 149 Wn.2d at 259 (citing In re Disciplinary Proceeding Against Noble,
100 Wash. 2d 88, 667 P.2d 608 (1983)).
47
In re Discipline ofPlacide (Carllene M.), No. 201,639-1
unanimous recommendation and disbar Placide.
WE CONCUR:
Q^tA?,p.
48