In re Disciplinary Proceedings Against Cottingham ( 2018 )

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Disciplinary No. 201,704-5
Proceeding Against
En Banc
DAVID CARL COTTINGHAM,
Filed Ml I 6 2018
an Attorney at Law.
WIGGINS, J.—Attorney David C. Cottingham embarked on a five-year
boundary line dispute against his neighbor. His pursuit involved two lawsuits, four
judicial appeals, two administrative appeals, countless motions, years of delay,
unnecessary and wasteful expenditure of judicial resources, injury to his neighbors,
and nearly $60,000 in sanctions for OR 11 violations. As a result, the Office of
Disciplinary Counsel (GDC) charged Cottingham with violating the Rules of
Professional Conduct (RPC). At the conclusion of the proceedings, the Washington
State Bar Association (WSBA) Disciplinary Board (Board) recommended that
Cottingham be suspended for 18 months. Cottingham appealed. We affirm the Board
and suspend Cottingham for 18 months.
FACTS
David Cottingham has practiced law since he was admitted to the bar in 1979
and has had no record of prior discipline. Cottingham and his wife own two lots on
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Lake Whatcom, where they have lived since 1989. in 2006, Ronald J. and Kaye L.
Morgan purchased a lot that shared a property boundary with the Cottinghams' land.
When the Morgans purchased the lot, laurel bushes were growing near the boundary
line, planted there by Cottingham before 1995. In 2007, the Morgans removed eight
laurel bushes along the common boundary.
The First Lawsuit and the Trial
In June 2009, Cottingham and his wife filed a lawsuit against the Morgans,
seeking title by adverse possession to a portion of the Morgans' property where the
laurel bushes had been. The Morgans filed counterclaims, seeking to quiet title
consistent with the platted boundary lines. The case went to trial in late 2010.
Cottingham represented himself pro se and appeared as counsel for his wife. The trial
judge held that Cottingham had adversely possessed 292.3 square feet of the
Morgans' property and that the Morgans had wrongfully removed the laurel bushes.
The judge also found that the adversely possessed land was necessary to the
Morgans' use and enjoyment of their lot and comparatively insignificant and
unnecessary to the Cottinghams' use and enjoyment of their land. The judge
condemned the land in favor of the Morgans and ordered the Morgans to pay the
Cottinghams the fair market value of the land as well as trebled damages for the laurel
bushes. The Morgans attempted to pay but Cottingham declined, so the Morgans
deposited the full amount into the court registry.
After trial, Cottingham initiated and pursued repetitive and baseless legal
challenges in an attempt to change the trial court's decision and to interfere with the
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Morgans' use and enjoyment of their home. Cottingham's "court filings were often, but
not always, unintelligible, rife with typographic and grammatical errors . . . ." Hr'g
Officer's Findings of Fact, Conclusions of Law, Mitigating Facts & Recommended
Sanction (Recommendation) at 15.
The Appeals
In early 2012, after the trial court entered its decision, Cottingham appealed to
the Court of Appeals. Before the first appeal had been completed, Cottingham filed a
separate motion for discretionary review in the Court of Appeals, challenging a trial
court order that required Cottingham to release a lis pendens on the Morgans'
property. The Court of Appeals denied discretionary review, noting that the appeal was
untimely and challenged issues not properly before the court. Cottingham filed a
motion to modify, which the Court of Appeals held to be untimely and frivolous. The
Court of Appeals sanctioned Cottingham $500.
While the first and second appeals were pending, Cottingham filed two
administrative appeals, challenging Whatcom County's 2006 decision to issue the
Morgans a building permit and its 2012 decision to issue a final occupancy certificate.
The Second Lawsuit and Another Appeal
While the first, second, and administrative appeals were pending, Cottingham
filed a second lawsuit against the Morgans under the Land Use Petition Act (LUPA),
chapter 36.70C RCW. The trial court dismissed the LUPA lawsuit with prejudice and
held that the lawsuit was frivolous, was "not supported by any fact or law or reasonable
argument for any extension of existing law," and was "filed at least in part to harass
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and/or annoy [the] Morgans." The trial court noted that Cottingham's pleadings were
"chaotic, convoluted" and "required a substantial amount of time to understand and
thoughtfully respond." Accordingly, the court held that Cottingham had violated OR
11, sanctioning him just over $25,000 in attorney fees and costs for the violation.
Cottingham appealed the dismissal of the LUPA petition to the Court of Appeals.
The LUPA lawsuit served as the basis for ODC's count 2, a violation of RPC
3.1, against Cottingham. The hearing officer found that the LUPA lawsuit "was
frivolous and filed to harass the Morgans." Recommendation at 7-8. In support, the
hearing officer noted that LUPA review "is limited to judicial review of the 'final
determination by a local jurisdiction's body or officer with the highest level of authority
to hear [land use] appeals.'" Id. (alteration in original)(quoting RCW 36.70C.020(2)).
Cottingham "was aware that there had been no such determination." Id.
Court of Appeals Decisions and a Return to the Administrative Appeals
In 2013, the Court of Appeals affirmed the trial court on all grounds in the first
appeal. Cottingham filed a petition for review with this court. We denied review.
In 2014, the Court of Appeals affirmed the decision of the LUPA trial court on
all grounds, including the trial court's decision to award fees for the CR 11 violation.
The Court of Appeals also sanctioned Cottingham an additional $16,683 for filing a
frivolous appeal. The court noted that "[a]n appeal is frivolous if it is so totally devoid
of merit that there is no reasonable possibility of reversal" and held that the filing was
frivolous because "this appeal presents no debatable issues." Cottingham v. Morgan,
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No. 70218-1-1, slip op. at 13 (Wash. Ct. App. Apr. 28, 2014) (unpublished),
http://courts.wa.gov/opinions/pdf/702181 .pdf.
The disciplinary hearing officer also found that the appeal was frivolous and
was pursued to harass the Morgans, noting that the arguments Cottingham put forth
were "without legal authority or good faith basis." Recommendation at 11.
In its decision upholding the dismissal of Cottingham's LUPA petition, the Court
of Appeals also declared that Cottingham had abandoned his administrative appeals.
Two days later, Cottingham attempted to resurrect the administrative appeals. After a
series of proceedings, a hearing examiner dismissed the administrative appeals with
prejudice. The attempted resurrection of the administrative appeals served, at least in
part, as the basis for ODC's count 4 against Cottingham. The hearing officer noted
that Cottingham's attempt to resurrect the administrative appeals falsely stated that
the land-use issues remained unresolved and that the Court of Appeals had remanded
the case to the superior court. Recommendation at 11-12. The hearing officer found
that the "filing and pursuit of the administrative appeal after the Superior Court had
determined the issues and the Court of Appeals had affirmed was legally and factually
unsupported and was made with the conscious objective of interfering with the
Morgans' use and enjoyment of their premises." Recommendation at 17(Conclusion
of Law (CL) D).
More Motions
Less than two months later, Cottingham again attempted to challenge the
boundary line decision. He sought leave to file a CR 60(b) motion alleging that the
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Morgans' trial testimony was false. The trial court denied the motion and found that
the "motion and allegations contained therein are not supported in law or fact." The
trial court found that Cottingham violated OR 11 and sanctioned him $7,500. This
motion served as the basis for ODG's count 1, a violation of RPC 3.1, against
Cottingham. The hearing officer found that "[t]he motion was frivolous and was filed to
perpetuate inconvenience and harassment of the Morgans" because "[f]actual
support, legal support and relevance were almost entirely lacking." Recommendation
at 12.
In December 2014, the trial court quieted title in the Morgans and removed the
cloud on the title. Despite his lack of success and the sanctions against him,
Cottingham continued the campaign. In December 2014, he filed a motion for
reconsideration of the Supplemental Order Quieting Title. The trial court found that the
motion violated CR 11 and sanctioned Cottingham $2,500. This motion served as the
basis for count 3, a violation of RPC 3.1, against Cottingham. The hearing officer
agreed, quoting the largely unintelligible language of the motion and noting that it "was
frivolous and was intended to harass the Morgans." Recommendation at 13.
In February 2015, Cottingham filed a notice of appeal with the Court of Appeals,
seeking to reverse the Supplemental Order Quieting Title and the order denying
reconsideration. In March 2015, Cottingham moved to recall the mandate issued one
year earlier. The court denied the motion, found that the motion was frivolous and
ordered Cottingham to pay $1,500 to the Morgans '"for having to respond to a frivolous
motion.'" Recommendation at 15.
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In August 2015, Cottingham finally moved for the release of the funds that the
Morgans had paid into the court registry, and the trial court released the funds to him.
Disciolinarv Proceedings
Cottingham's five-year pursuit to change the trial court's decision regarding the
boundary line resulted in over 700 filings and sanctions totaling $58,115.80. These
sanctions were not imposed at the outset; in fact, Cottingham's initial lawsuit was not
frivolous. Rather, the judges and hearing officers found violations and imposed
sanctions only as each stage of the litigation progressed. Cottingham had ample
warning that his arguments were unavailing and his continued pursuit was frivolous.
On November 9, 2015, GDC formally charged Cottingham with five counts of
violating the Rules of Professional Conduct. The complaint alleged:
Count 1 . . . By moving to reconsider, vacate the judgment, or grant a
new trial after the first appeal, which motions were frivolous. Respondent
violated RFC 3.1 (frivolous litigation).
Count 2 . . . By filing the LUPA petition, which was frivolous. Respondent
violated RFC 3.1.
Count 3 . . . By filing the motion to reconsider after the trial court quieted
title to the Morgans, which was frivolous. Respondent violated RFC 3.1.
Count 4 . . . By filing one or more appeals that were frivolous and/or by
attempting to pursue the administrative appeals after he abandoned
them. Respondent violated RFC 3.1.
Count 5 . . . By pursuing litigation and/or appeals before the trial court,
the court of appeals, and/or the Whatcom County hearing examiner with
intent to harass and/or annoy the Morgans, Respondent violated RFC
4.4 (using means that have no substantial purpose other than to burden
a third person) and/or 8.4(d)(conduct prejudicial to the administration of
justice).
Formal Compl. at 5-6 (formatting omitted). Cottingham denied the charges.
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At the outset of the hearing, ODC moved to prevent Cottingham from
challenging or relitigating the correctness of the underlying court rulings or arguing
that they were erroneously made. Cottingham agreed and did not challenge the
motion. He stipulated that within the disciplinary proceedings, he was not entitled to
relitigate the underlying decisions or argue that those decisions were erroneous. The
hearing officer found,"The court rulings on all substantive issues in the litigation giving
rise to this complaint were legally and factually correct." Recommendation at 16.
The hearing officer found that Cottingham violated RPCs 3.1, 4.4(a), and 8.4(d)
by knowingly and intentionally filing frivolous pleadings, inconveniencing and injuring
the Morgans, and interfering with the administration of justice by consuming
substantial judicial time and resources without justification.
The hearing officer found four aggravating factors (selfish motive, pattern of
misconduct, multiple offenses, and substantial experience in the law), and three
mitigating circumstances (no prior disciplinary record, uncontradicted testimony of
good character and reputation, and satisfaction of all sanctions ordered against him).
Guided by the American Bar Association's Standards for Imposing Lavi/yer
Sanctions, the hearing officer recommended that Cottingham be suspended from
practicing law for 18 months. On September 27, 2017, the Disciplinary Board
unanimously adopted the hearing officer's recommendation. Cottingham appealed
the suspension to this court. We now uphold the Board's unanimous decision and
suspend Cottingham from practicing law for 18 months.
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ANALYSIS
I. Standard of Review
The Washington State Supreme Court Is the definitive authority for attorney
discipline in Washington, in re Discipiinary Proceeding Against Kuvara, 149 Wn.2d
237, 246, 66 P.Sd 1057 (2003). Unchallenged findings of fact are verities on appeal.
In re Disciplinary Proceeding Against Marshall, 160 Wn.2d 317, 330, 157 P.3d 859(2007). If the findings are challenged, this court will uphold findings of fact that are
supported by substantial evidence. In re Disciplinary Proceeding Against Guarnero,
152 Wn.2d 51, 58, 93 P.3d 166 (2004). We review conclusions of law de novo, and
when the Board is unanimous with regard to the recommended sanction, we will
uphold its decision absent a clear reason to depart from it. In re Disciplinary
Proceeding Against Fossedai, 189 Wn.2d 222, 233, 399 P.3d 1169 (2017).
II. Findings of Facts and Conclusions of Law
A. Findings of Fact
An attorney challenging the evidence in front of this court must "present
argument to the court why specific findings of fact 'are not supported by the evidence
and . . . cite to the record to support that argument.'" In re Disciplinary Proceeding
Against Haskeli, 136 Wn.2d 300, 311, 962 P.2d 813 (1998)(quoting In re Estate of
Lint, 135 Wn.2d 518, 532, 957 P.2d 755 (1998)); see in re Disciplinary Proceeding
Against Whitney, 155 Wn.2d 451, 466-67, 120 P.3d 550 (2005)(declining to address
challenges to findings that were insufficiently briefed). A challenging party must
provide in its opening brief a separate assignment of error for each finding of fact
being challenged. RAP 10.3(a)(4).
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Here, Cottingham does not assign error to any specific finding of fact made by
the hearing officer and adopted by the Board. Unchallenged findings offact are verities
on appeal. Marshaii, 160 Wn.2d at 330. Thus, we view as true the facts found by the
hearing officer and adopted by the Board.
Additionally, at the beginning of these proceedings, Cottingham stipulated that
he was not entitled to relitigate the underlying property line issues or argue that the
decisions by the trial and appeals courts were erroneous. The hearing officer found
that "[t]he court rulings on all substantive issues in the litigation giving rise to this
complaint were legally and factually correct." Recommendation at 16.
B. Conclusions of Law
Based on the findings of fact, the hearing officer and the Board concluded that
Cottingham violated RFC 3.1, RFC 4.4(a), and RFC 8.4(d) by intentionally and
knowingly filing frivolous pleadings with the intent to harass and annoy his neighbors.
Cottingham assigns error to the conclusions of law regarding counts 1 through 5 and
argues that he did not violate RFC 3.1, 4.4(a), or 8.4(d).
1. RFC 3.1 and RFC 4.4(a)
RFC 3.1 states, "A lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis in law and fact for doing so that is
not frivolous." RFC 4.4(a) states, "In representing a client, a lawyer shall not use
means that have no substantial purpose other than to embarrass, delay, or burden a
third person." This rule prohibits "conduct that has no substantial purpose other than
to harass someone." Annotated Model Rules of Frof'l Conduct r. 4.4 (Am. Bar
Ass'n 8th ed. 2015).
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Here, Cottingham claims that his pleadings were not frivolous because the trial
court's decision improperly and harmfully subdivided the Morgans' lot and that error
must be corrected through administrative action. The hearing officer rejected this
argument and instead found that Cottingham filed multiple frivolous pleadings with the
intent to harass the Morgans.
A frivolous position is one that a lawyer of ordinary competence would
recognize as being devoid of merit, in re Discipiinary Proceeding Against Jones, 182
Wn.2d 17, 41, 338 P.2d 842 (2014). Further, findings of motivation are given great
weight on review. Id. at 42. "[Mjotivation is difficult to prove" and so "the hearing officer
will generally rely on circumstantial evidence" when making a conclusion regarding
motivation, id. at 41.
Here, the findings of fact support the hearing officer's conclusion that
Cottingham's actions were frivolous and carried out with intent to harass and annoy
the Morgans. Cottingham repeatedly filed motions and appeals that had no basis in
law or fact and had already been decided by various trial and appellate courts.
Cottingham's filings consistently failed in the courts and were repeatedly declared
frivolous. This put Cottingham on notice of the meritless, frivolous, and sanctionable
nature of his challenges. In re Disciplinary Proceeding Against Sanai, 177 Wn.2d 743,
769, 302 P.3d 864 (2013) (holding that a lawyer who repeatedly filed pleadings in
multiple courts, all of which failed and many of which resulted in sanctions, was on
notice of their frivolous nature). Even so, Cottingham continued his crusade and
relentlessly pursued litigation intending, at least in part, to harass and annoy the
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Morgans. For these reasons, we adopt the hearing officer and Board's conclusions
that Cottingham violated RPC 3.1, and RFC 4.4(a).
2. RPC 8.4(d)
RPC 8.4(d) states that "[i]t is professional misconduct for a lawyer to: . . .
engage in conduct that is prejudicial to the administration of justice." This rule applies
to "violations of practice norms and physical interference with the administration of
justice." in re Discipiinary Proceeding Against Curran, 115 Wn.2d 747, 766, 801 P.2d
962 (1990). Conduct that is prejudicial to the administration of justice is generally
conduct carried out by an attorney in an official or advocatory role. In re Discipiinary
Proceeding Against Conteh, 175 Wn.2d 134, 149, 284 P.3d 724(2012). And, as ODC
correctly points out, the "[pjursuit of frivolous litigation frustrates the administration of
justice by consuming substantial amounts of judicial resources and thereby violates
practice norms." Answering Br. of the ODC at 39-40.
Cottingham's pleadings—repetitive, devoid of merit, and done with intent to
harass his neighbors—were made in his role as an advocate for himself and his wife
and were outside practice norms in violation of RPC 8.4(d). Thus, the unchallenged
findings of fact support the hearing officer's conclusions of law that Cottingham
engaged in conduct prejudicial to the administration of justice. We adopt the hearing
officer and Board's conclusions that Cottingham violated RPC 8.4(d).
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ill. Remaining Arguments
Cottingham challenges the Board's decision on a variety of other grounds.''
Many of his arguments contend that the disciplinary charges against him must be
dismissed due to irregularities and errors in the underlying proceedings. He also
claims that ODC violated his due process and First Amendment rights. U.S. Const.
amend. I. We conclude that all of these arguments are without merit.
A. Validity of the underlying proceedings
At the outset of the disciplinary proceedings, Cottingham stipulated that he is
not entitled to contest the underlying trial and appellate court rulings. At the conclusion
of the hearing, the hearing officer found that "[t]he court rulings on all substantive
issues in the litigation giving rise to this complaint were legally and factually correct."
Recommendation at 16. Thus, substantive arguments regarding the underlying
proceedings are not properly before us, except to the extent that they help inform us
as to the frivolousness of Cottingham's pleadings. See Neilson v. Vashon Island Sch.
DIst. No. 402, 87 Wn.2d 955, 958, 558 R2d 167(1976)(where a party indicates that
an issue has been withdrawn from contest, the party waives the necessity of proof of
that issue by the opposing party).
'Cottingham provided nothing more than headings in support of his first eight objections.
We do not address these objections because
"[wjhere no authorities are cited in support of a proposition, the court is not
required to search out authorities, but may assume that counsel, after diligent
search, has found none. Courts ordinarily will not give consideration to such
errors unless it is apparent without further research that the assignments of
error presented are well taken."
State V. Young, 89 Wn.2d 613, 625, 574 P.2d 1171 (1978)(quoting DeHeer v. Seattle Post-
Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)).
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B. Cottingham received proper notice of the proceedings against him
Cottingham argues that ODC violated his due process rights because ODC
failed to give him proper notice of the factual basis on which it would argue that
Cottingham's actions were frivolous, ODG's refusal to admit that the Morgans had
acted unlawfully, or the aggravating factors that ODC would seek.
First, a formal disciplinary complaint '"must state the respondent's acts or
omissions in sufficient detail to inform the respondent of the nature of the allegations
of misconduct.'" Marshall, 160 Wn.2d at 340 (quoting ELC 10.3(a)(3)). The formal
complaint at issue gave Cottingham notice of the specific RPCs that he was charged
with violating, and it is replete with specific detail as to the respondent's acts that serve
as a basis for the charges. This is sufficient to satisfy the notice requirements of ELC
10.3.
Second, ODC is not required to put forth the evidence-based arguments that it
intends to make on appeal. To the contrary, in the proceedings in front of the Board,
ODC may argue any ground supported by the record on which the hearing officer's
decision may be affirmed. See, e.g., State v. Costich, 152 Wn.2d 463, 477, 98 P.3d
795(2004)(reviewing court may affirm lower court's ruling on any grounds supported
by the record).
Third, ODC is not required to plead aggravating factors in the formal complaint.
in re Disciplinary Proceeding Against Starczewski, 177 Wn.2d 771, 783, 306 P.3d 905(2013).
Accordingly, we find no merit in Cottingham's due process argument.
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C. The First Amendment does not shield frivolous litigation from discipiine
Cottingham seeks dismissal of the disciplinary charges, arguing that the First
Amendment right to petition for redress to the courts protects his pursuit to change
the trial court's decision. It is true, as Cottingham contends, that "disciplinary rules
governing the legal profession cannot punish activity protected by the First
Amendment, and [the] First Amendment protection survives even when the attorney
violates a disciplinary rule he swore to obey when admitted to the practice of law."
Gentile v. State BarofNev., 501 U.S. 1030, 1054, 111 S. Ct. 2720, 115 L. Ed. 2d 888(1991).
However,'"baseless litigation is not immunized by the First Amendment Right
to Petition.'" in re Yeiverton, 105 A.Sd 413, 421 n.8 (D.C. 2014)(quoting in re Ditton,
980 A.2d 1170, 1173 n.3 (D.C. 2009)). Once a respondent is "made aware that his
motions were frivolous, their repeated assertion . . . [is] no longer in good faith and
could be subject to reasonable sanction in order to enforce well-established standards
of professional conduct." id.] see also Bill Johnson's Rests., Inc. v. Nat'i Labor
Relations Bd., 461 U.S. 731, 743,103 S. Ct. 2161, 76 L. Ed. 2d 277(1983)("baseless
litigation is not immunized by the First Amendment right to petition").
Here, Cottingham's initial lawsuit against the Morgans was not frivolous; there
was a legitimate dispute, and it was proper to seek resolution in the court. However,
Cottingham's frequent pleadings containing baseless, repetitive arguments were
frivolous. The hearing officer appropriately found by a preponderance of the evidence
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that Cottingham knowingly, intentionally, and repeatedly engaged in frivolous litigation.
The Board adopted these findings.
The First Amendment does not protect frivolous litigation. Thus, while
Cottingham is correct that attorney discipline rules may not prohibit or punish activity
protected by the First Amendment, that protection is inapplicable here.
IV. Sanction
The hearing officer recommended and a unanimous Board concluded that
Cottingham should be suspended from practicing law for 18 months.
"[T]he ultimate responsibility for determining the nature of discipline rests with
this court." In re Disciplinary Proceeding Against Noble, 100 Wn.2d 88, 95, 667 P.2d
608 (1983). We review sanctions de novo. Jones, 182 Wn.2d at 48. Nonetheless, in
fulfilling this responsibility, we are guided by and give considerable weight to the
recommendation of the Board. Id. All disciplinary matters not disposed of by stipulation
or resignation are heard by a hearing officer and considered by the Board. See Noble,
100 Wn.2d at 94; ELC 9.1, 9.3. In contrast, the range of disciplinary matters
considered by this court is narrower: though any attorney may seek discretionary
review of any disciplinary decision, ELC 12.4, only those involving suspension or
disbarment are appealable as a matter of right, ELC 12.3(a). See Noble, 100 Wn.2d
at 94. Because the hearing officer and Board "consider the full spectrum of disciplinary
matters from the most trivial to the most serious," they have "the opportunity to develop
unique experience and perspective in the administration of sanctions." Id.16
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Though we are not bound by the recommendations of the Board, for several
reasons we do "not lightly depart from recommendations shaped by this experience
and perspective." id. We appoint the members of the Board with the benefit of
recommendations from the Disciplinary Selection Panel, which considers candidates
for appointment recommended to it by the WSBA Board of Governors. ELC 2.3(b)(1).
In recommending members to the Board, both the Disciplinary Selection Panel and
the Board of Governors "conslder[ ] diversity in gender, ethnicity, disability status,
sexual orientation, geography, area of practice, and practice experience . . . ." ELC
2.2(f). The care exercised in selection of members of the Board and the required
attention to diversity combine to increase our confidence in the Board.
Another important factor contributes to our confidence in the
recommendations of the Board; the Board membership must include at least 4
nonlawyers and at least 10 lawyers. ELC 2.3(b)(1). We appoint these members as
well, again based on recommendations of the Disciplinary Selection Panel and the
Board of Governors, id. One primary purpose of the attorney disciplinary system is to
protect the public, and "[t]he severity of the sanction should be calculated to achieve
these ends." Noble, 100 Wn.2d at 95 (noting that because "discipline is not imposed
as punishment for the misconduct, . . . our primary concern is with protecting the
public and deterring other lawyers from similar misconduct") The presence of
nonlawyer members serves to ensure the protection of the public and gives the
Board's recommendations further weight and importance.
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We apply the ABA Standards in all lawyer discipline cases. Id. To arrive at the
correct sanction, the court first determines the presumptive sanction and then
determines whether mitigating or aggravating factors merit a departure from the
presumptive sanction. Id. Then, if raised by the respondent, we consider whether the
factors of unanimity and proportionality should alter the sanction. In re Disciplinary
Proceeding Against Christopher, 153 Wn.2d 669, 678,105 P.3d 976 (2005).
To determine a presumptive sanction, the court considers (1) the ethical duty
violated, (2) the lawyer's mental state, and (3) the extent of the actual or potential
harm caused by the misconduct. Id. Here, the hearing officer applied ABA Standards
6.22 and determined that suspension was the presumptive sanction, and the Board
unanimously agreed. The hearing officer also determined that the aggravating and
mitigating factors did not warrant a departure from the presumptive sanction, and the
Board agreed.
We will not depart from the presumptive sanction unless "the balance of
aggravating and mitigating factors is 'sufficiently compelling.'" In re Disciplinary
Proceeding Against Del Carmen Rodriguez, 177Wn.2d 872, 888, 306P.3d 893(2013)
(quoting In re Disciplinary Proceeding Against Cohen, 149 Wn.2d 323, 339, 67 P.3d
1086 (2003)). Here, the hearing officer found four aggravating factors (selfish motive,
pattern of misconduct, multiple offenses, and substantial experience in the law) and
three mitigating circumstances (no prior disciplinary record, testimony of good
character, and satisfaction of all sanctions ordered against him). These factors are not
sufficiently compelling to warrant a departure from the presumptive sanction.
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Cottingham also contends that proportionality review requires us to depart from
the presumptive sanction. 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." In re
Disciplinary Proceeding Against Miller, 149 Wn.2d 262, 285, 66 P.3d 1069 (2003). To
determine whether a case is appropriately similar, we focus on "the misconduct found,
the presence of aggravating factors, the existence of prior discipline, and the lawyer's
culpability." Conteh, 175 Wn.2d at 152-53.
The attorney facing discipline bears the burden of bringing to the court's
attention cases that demonstrate the disproportionality of the sanction imposed, in re
Disciplinary Proceeding Against Kageie, 149 Wn.2d 793, 821, 72 P.3d 1067 (2003).
Here, Cottingham does not engage in any comparative analysis of similarly situated
cases and thus has failed to meet his burden of proving that an 18-month suspension
is disproportionate.
Nonetheless, the 18-month suspension is proportionate when compared to
other similarly situated cases. For example, in in re Disciplinary Proceeding Against
Sanai, we held that disbarment was appropriate for Sanai's misconduct that involved
repeated frivolous filings while he represented his mother in her divorce case. 177
Wn.2d 743. The hearing officer found that just 2 years after being sworn in as an
attorney, id. at 759, Sanai violated the rules of professional conduct when he "filed
multiple frivolous motions and claims for purposes of harassment and delay,
repeatedly and willfully disobeyed court orders and rules, brought frivolous suits
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No. 201,704-5
against judges who ruled against him, and filed similar claims multiple times in multiple
jurisdictions for purposes of delay," id. at 746.
Like Cottingham, Sanai was found to have filed frivolous pleadings in violation
of RPC 3.1, burdening a third party in violation of RPC 4.4(a), and engaging in conduct
prejudicial to the administration of justice in violation of RPC 8.4(d).
However, unlike Cottingham, Sanai was repeatedly held in contempt during the
underlying proceedings. Id. at 748, 753, 755. As a result of his contemptuous behavior
in the courtroom, the hearing officer found that in addition to filing frivolous pleadings,
Sanai knowingly and willfully disobeyed court orders in violation of RPC 3.4(c) and
RPC 8.40).2 177 Wn.2d at 746. Under RPC 3.4(c), an attorney shall not "knowingly
disobey an obligation under the rules of a tribunal except for an open refusal based
on an assertion that no valid obligation exists," and under RPC 8.4(j), it is misconduct
for an attorney to "willfully disobey or violate a court order directing him or her to do
or cease doing an act which he or she ought in good faith to do or forbear."
Sanai's willful disobedience of the court heightens the seriousness of his
misconduct in a manner absent in Cottingham's proceedings. Contemptuous behavior
undermines the court's orderly and effective exercise of jurisdiction. It is "essential to
the efficient action of the court and the proper administration of justice" that the
authority of the court be respected, and that disobedient, contemptuous, and insolent
2 Sana! was also found to have violated RPC 3.2 (delaying litigation), RPC 8.4(a) (violating
or attempting to violate the RPCs), and RPC 8.4(n) (conduct demonstrating unfitness to
practice law). 177 Wn.2d at 746.
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No. 201,704-5
behavior be corrected. Bianchard v. Golden Age Brewing Co., 188 Wash. 396, 424,
63 P.2d 397 (1936).
The hearing officer recommended that Sanai be disbarred. Sana!, 177 Wn.2d
at 759. The hearing officer also found that Sanai's behavior during the hearing
constituted an aggravating factor, id at 770. It is unclear whether any mitigating factors
were found../d. The Board unanimously recommended that Sanai be disbarred. Id. at
759. We agreed and disbarred Sanai. id. at 770.
Here, Cottingham's misconduct and culpability is similar to that in Sanai.
However, because Cottingham was charged with fewer violations, none of which
included the willful disobedience of a court order, and had a long history of being
discipline-free, an 18-month suspension is proportionate when compared to Sanai's
disbarment.
Similarly, in in re Disciplinary Proceeding Against Scannell, the hearing officer
found three counts of misconduct; one count of failing to obtain written consent
regarding a conflict of interest and two counts of filing frivolous pleadings and
frustrating the disciplinary proceedings against him. 169 Wn.2d 723, 735-36, 239 P.3d
332 (2010). The hearing officer recommended suspension, but the Board
recommended disbarment upon finding that the frivolous filing violations were
intentional, id. at 736.
This court found that Scannell violated former RPC 1.7 by negligently failing to
obtain written consent regarding a conflict of interest and that he violated RPC 3.1
and RPC 8.4(/) by intentionally filing frivolous pleadings with the purpose of frustrating
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In re Disciplinary Proceeding Against Cottingham (David)
No. 201,704-5
and delaying the disciplinary proceedings against him. Id. This court disbarred
Scannell, finding that intentionally violating RPC 3.1 and 8.4(/) warranted disbarment.
Id. at 748. Scannell's behavior was especially troubling in the context of a disciplinary
hearing, where it "poses a serious threat to lawyer self-regulation." Id. at 728. We
noted that "[i]f every lawyer subject to a disciplinary investigation were as intransigent
as Scannell has been, disciplinary proceedings would be expensive, long, and hard-
fought procedural wars that might or might not be effective at uncovering wrongdoing
and protecting the public." Id. at 745.
Here, Cottingham's misconduct and culpability is comparable to Scannell's—
both filed frivolous pleadings and did so intentionally. However, the context of the
pleadings differs significantly—Scannell filed frivolous pleadings with the purpose of
frustrating the disciplinary proceedings against him, while Cottingham's misconduct
took place within the context of a land dispute with his neighbor. As we noted in
Scannell, the presumptive sanction for intentionally obstructing a disciplinary
proceeding is disbarment. Id. at 744 (citing ABA Standards 7.1 (recommending
disbarment for knowing violations of ethical rules with intent to benefit the lawyer, if
the violations cause serious injury to the legal system)). In contrast, the presumptive
sanction for Cottingham's misconduct is suspension. See ABA Standards 6.22
("Suspension is generally appropriate when a lawyer knows that he or she is violating
a court order or rule, and causes injury or potential injury to a client or a party, or
causes interference or potential interference with a legal proceeding."). Additionally,
there were four aggravating factors in both cases. However, Cottingham had four
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In re Disciplinary Proceeding Against Cottingham (David)
No. 201,704-5
mitigating factors, while Scannell had one, which applied only to the RPC 1.7 violation.
Scanneli, 169 Wn.2d at 746. Thus, Cottingham's 18-month suspension is
proportionate to Scannell's disbarment.
Cottingham fails to engage in any comparative analysis of similarly situated
cases and has failed to meet his burden of proving that an 18-month suspension is
disproportionate. Nonetheless, the suspension is proportionate when compared to
similarly situated cases. We suspend Cottingham from the practice of law for 18
months.^
CONCLUSION
The unchallenged findings of fact support the conclusion that Cottingham
knowingly and intentionally violated RPC 3.1, 4.4(a), and 8.4(d) by engaging in
frivolous litigation with the intent to harass his neighbors, which injured them and
interfered with the administration of justice. We adopt the recommendation of the
hearing officer and the Board and impose on Cottingham the 18-month suspension
recommended by the hearing officer and by the Board.
3 The Board assessed ODG's costs and expenses of $5,603.53 against Cottingham under
ELC 13.9(e). Cottingham contends that this was an abuse of discretion. Under ELC 13.9(a),
ODC's costs may be assessed against a sanctioned respondent attorney. Thus, the Board
did not abuse its discretion by entering the ELC 13.9(e) order. We affirm the Board's
assessment of costs. Cottingham also moves for an award of attorney fees under 42 U.S.C.
§ 1983 or RCW 4.84.350. Cottingham Appeal Br. at 48-49. This action was not a civil rights
action brought under 42 U.S.C. § 1983, nor was it judicial review of an agency action under
RCW 4.84.350. Rather, this was a disciplinary proceeding conducted under the ELC, which
does not include a provision for awarding attorney fees to respondent lawyers. See ELC 13.9.
Furthermore, Cottingham did not prevail in this action. We deny the motion.
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No. 201,704-5
WE CONCUR.
L
J
\Aa j
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