In re Disciplinary Proceeding Against Starczewski

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IN CLERKS OFFICE
IUPREME COURT, STATE OF Wf.ll.-roft
This opinton".was filed for record
:JUL 1 2013 at ~. · a o :::f. I~ 0 \3
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Disciplinary )
Proceeding Against ) No. 201,073-3
)
MARIAM. STARCZEWSKI, ) En Bane
)
an Attorney at Law. )
)
_ _ _ _ _ _ _ _ _ _ _ _ _ _) Filed · ~l\.11 1 8 2013
OWENS, J. -- We are ultimately responsible for disciplining attorneys who
bring disrepute to the legal profession. In this case, the Washington State Bar
Association (WSBA) charged Marja Starczewski with three counts of attorney
misconduct because she represented her client without diligence, information, or
honesty. At the disciplinary hearing, the hearing officer concluded the WSBA had
proved all three counts. He recommended a sanction of$15,000 in restitution, 24
months of suspension, and 18 months of practice monitoring. The WSBA
Disciplinary Board (Board) adopted the hearing officer's decision except for the term
of practice monitoring, which it amended to 24 months.
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No. 201,073-3
That decision is before us now. Because substantial evidence supports the
findings and Starczewski does not present a clear reason to depart from the Board's
decision, we affirm it.
I. FACTS
This case of attorney discipline begins with a simple tort claim. In 2005, an
employee of Walters & Wolf Curtain and Wall LLC (Walters & Wolf), Kelly Reeser,
avoided Dawn De La Fuerte's stalled car on a King County highway. In doing so she
hit Rajinder Singh's taxi. Singh hired attorney Barish Bharti who referred him to
Starczewski on a fee-sharing basis.
Starczewski obtained a $15,000 settlement offer from Reeser's insurance
company, which Singh rejected. On the day before the statute of limitations ran in
May 2007 Starczewski filed suit against Reeser, Walters & Wolf, and De La Fuerte in
King County Superior Court. She claimed personal injury and lost wages and named
Singh and his brother, Surinder Khangura, 1 as plaintiffs.
After Starczewski filed suit the trial court issued a scheduling order, which
provided an October 2007 deadline for filing a confirmation of joinder. Under King
County Local Superior Court Rule 4.2, the plaintiff must file the confirmation of
1
Starczewski signed a contingent-fee agreement with Khangura, which named her as his
attorney on a lost wages claim arising from the damage to the taxi the brothers shared.
Despite knowing that the claims overlapped, Starczewski neither informed Singh of the
concurrent conflict of interest nor obtained the informed consent of either brother.
However, these particular actions are not the basis of the charges in this case.
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joinder and the plaintiffs attorney must sign it. After filing, the trial court reviews the
confirmation of joinder, and if it decides a hearing is necessary, it may issue a show
cause order. If the trial court issues such an order, all cited parties must appear.
Between the issuance of the scheduling order and the deadline of the
confirmation of joinder, Starczewski suffered financially and moved to East
Wenatchee-presumably from somewhere in King County. Starczewski did not
inform Singh of her financial hardships or how they might affect her work even
though her financial hardships coincided with a series of professional shortcomings in
Singh's case: Starczewski did not respond to, or inform Singh of, a September 2007
settlement offer of $20,000 from Reeser and Walter & Wolfs attorney, Julia Kyte.
When Kyte followed up, Starczewski still did not respond. In October 2007,
Starczewski neglected to timely serve and file a confirmation of joinder for De La
Fuerte. In response, the superior court ordered a show cause hearing on why it should
not dismiss Singh's case and order $250 in sanctions. Starczewski did not inform
Singh of the hearing nor did she appear at it, which caused the superior court to order
sanctions. The court continued the hearing to January 2008, however, and indicated it
would strike the hearing if Starczewski filed a confirmation of joinder up to seven
days beforehand. Starczewski did not inform Singh of the sanctions or continuance.
Because she neglected to file the confirmation of joinder a second time and did not
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appear at the continued show cause hearing, the superior court dismissed Singh's case
on procedural grounds. Starczewski did not inform Singh of the dismissal.
Although Starczewski neglected Singh's case, she did not abandon it, and in
February 2008 she moved to vacate the superior court's dismissal. Yet again she did
not inform Singh of the status of litigation. In March 2008, the superior court heard
oral argument on her motion and conditioned vacating its dismissal on Starczewski
paying $250 in sanctions, complying with the case scheduling order, and serving and
filing the confirmation of joinder by late April. Starczewski paid the sanctions but did
not inform Singh of the March 2008 order, did not timely file the confirmation of
joinder, and did not notify the superior court of any effort on her part to comply with
the scheduling order.
Starczewski's neglect was Singh's loss for in May 2008 the superior court
issued a second and final order of dismissal. The order noted Starczewski's failure to
file a confirmation of joinder. As before, Starczewski did not inform Singh of the
dismissal or his options. The day after the court dismissed Singh's case the statute of
limitations ran.
Since Starczewski had never updated Singh on his case, he was of course
unaware that the case had been dismissed and the statute of limitations had run.
Indeed it was a year after the dismissal that he first contacted Starczewski for an
update. Starczewski did not give Singh an honest account. In a July 2009 letter, she
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wrote Singh that the superior court had dismissed his case because it found opposing
counsel's arguments persuasive. She supported her assertion with excerpted portions
of opposing counsel's March 2008 "Response to the Motion to Vacate" where counsel
argued the emergency doctrine defeated Singh's claim. In other words, Starczewski
told Singh that the court dismissed his case on the merits rather than that the court had
dismissed his case on procedural grounds because of her failures. Admittedly,
Starczewski did include the actual order of dismissal with her letter. However, that
only served to confuse Singh because Starczewski did not explain the order and Singh
is not fluent in English.
In January 2010, Singh filed a grievance letter with the WSBA that requested
an investigation into Starczewski's handling of his case.
II. PROCEDURAL HISTORY
In January 2011, the WSBA charged Starczewski with three counts of
professional misconduct: (1) failure to represent Singh with reasonable diligence and
expedite his litigation in violation ofRPC 1.3 and 3.2; (2) failure to inform Singh of
the status of his case and explain matters such that he could make informed decisions
about the representation in violation ofRPC 1.4(a) and (b); and (3) failure to honestly
inform Singh ofthe reason the court dismissed his case in violation ofRPC 8.4(c).
These charges triggered a disciplinary hearing. The hearing officer bifurcated
the hearing into a violation hearing and a sanction hearing. At the May 2011 violation
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hearing, the hearing officer found that the WSBA had proved all three counts by a
clear preponderance of the evidence. At the October 2011 sanction hearing, the
hearing officer applied the American Bar Association's Standards for Imposing
Lawyer Sanctions (1991 & Supp. 1992). He concluded that the presumptive sanction
for all three counts was suspension. The hearing officer then applied six aggravating
factors and one mitigating factor to the presumptive sanction and concluded the
suspension should be 24 months long. He also recommended 18 months of practice
monitoring following reinstatement and $15,000 in restitution to Singh.
That decision went before the Board in May 2012 on automatic review. By a
vote of 11 to 1 with one board member recusing, the Board affirmed the hearing
officer's decision with one exception: it amended the duration of practice monitoring
from 18 to 24 months. The Board did not state the reason for the amendment.
Starczewski immediately appealed the Board's decision to this court.
III. STANDARD OF REVIEW
We have plenary power over attorney discipline in Washington. ELC 2.1. On
review, we give great weight to the hearing officer's findings of fact. In re
Disciplinary Proceeding Against Marshall, 167 Wn.2d 51, 66, 217 P .3d 291 (2009).
We treat unchallenged findings of fact as true, and so long as they are supported by
substantial evidence we also treat challenged findings of fact as true. !d. at 66-67.
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In contrast we review the Board's conclusions of law de novo. In re
Disciplinary Proceeding Against Van Camp, 171 Wn.2d 781, 797,257 P.3d 599(20 11 ). If they are supported by the findings of fact they will be upheld. Id. Further,
we will uphold a unanimous Board decision absent a clear reason for departure. In re
Disciplinary Proceeding Against Behrman, 165 Wn.2d 414, 422, 197 P.3d 1177(2008).
IV. ANALYSIS
Starczewski claims that (A) the hearing and decision violated due process and
hearing procedure, (B) the findings were not supported by substantial evidence, (C)
the hearing officer determined the incorrect presumptive sanction under the ABA
Standards, (D) the hearing officer applied the incorrect aggravating and mitigating
factors, (E) a 24-month suspension is disproportionate, (F) restitution is not proper,
and (G) the WSBA cannot order her proposed practice monitor to serve.
A. Whether the Hearing Officer or Board Violated Due Process or Proper Procedure
We review alleged due process violations de novo and evidentiary rulings for
abuse of discretion. In re Disciplinary Proceeding Against King, 168 Wn.2d 888,
899, 232 P.3d 1095 (2010); Van Camp, 171 Wn.2d at 799.
Starczewski alleges that (1) the hearing officer denied her the opportunity to
rebut the WSBA's proposed decision, (2) the WSBA's formal complaint did not
notify her of aggravating factors, (3) the WSBA made an improper request for
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documents, (4) the hearing officer prevented her from admitting rebuttal evidence, (5)
special disciplinary counsel was biased, (6) the hearing officer was biased, (7) the
hearing officer wrongly put the burden of proof on her, (8) the hearing officer
wrongly calculated the amount of restitution, and (9) the Board wrongly adopted the
hearing officer's recommendation.
1. Whether the Hearing Officer Denied Starczewski the Opportunity To Rebut
the WSBA's Proposed Findings and Conclusions
After the violation hearing, the hearing officer allowed the WSBA and
Starczewski to submit proposed findings and conclusions. Starczewski claims the
hearing officer denied her the opportunity to rebut the WSBA' s proposal because he
adopted it before she submitted her rebuttal. We disagree.
The ELCs provide that after a violation hearing and upon agreement with the
hearing officer, either party may submit a proposed decision and either party may
motion to modify, amend, or correct a decision. ELC 10.15(b)(1)(B), 10.16(b), (c).
In response, the hearing officer may deny the motion or amend, modify, or correct the
decision. ELC 10 .16(c)(2). The hearing officer's decision is final when the time for
the parties to motion lapses or the hearing officer rules on the motion. ELC
10.15(b )(1 )(B)(ii).
This case presents a situation where the hearing officer and parties agreed upon
a time line for submitting proposals from which the hearing officer then deviated.
The hearing officer deviated from the time line by adopting the WSBA proposed
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decision before Starczewski submitted her proposed decision. The hearing officer,
however, did not in fact deny Starczewski the opportunity to rebut the WSBA's
proposal: Starczewski moved to object and amended her motion within the time
frame provided by the ELCs. Then the hearing officer ruled on her motions before
reaffirming his earlier decision. At that point, the hearing officer's decision became
final. Thus there was no denial and no procedural violation.
2. Whether the WSBA Notified Starczewski of the Charges Against Her
Starczewski claims the WSBA's formal complaint against her violated due
process because it did not notify her of the aggravating factors. Specifically she
argues the WSBA did not notify her that the hearing officer would consider evidence
of a pattern of misconduct. We find that the WSBA' s formal complaint did not
violate due process because, as we held previously, the law does not require the
WSBA to include aggravating factors in the formal complaint. In re Disciplinary
Proceeding Against Burtch, 162 Wn.2d 873, 889, 175 P.3d 1070 (2008); ELC
10.3(a)(3). Further, the WSBA's formal complaint notified Starczewski of the
charges, and 3 5 days before the sanction hearing, the WSBA properly filed and served
a disclosure of its desired sanctions. More notification was not required.
3. Whether the WSBA Made a Proper Request for Documents
Starczewski claims that the WSBA's request for documents 23 days before her
sanction hearing was untimely, unnecessary, and prejudicial. The WSBA's request
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was none of those things because the ELCs permit the WSBA to make a request up to
three days before the sanction hearing. ELC 10.13(c).
We note that Starczewski refused to comply with the WSBA's proper request
despite the hearing officer's order that she do so. Because the hearing officer did not
enforce the request in the end, Starczewski' s claim is actually moot. But her defiance
of the hearing officer's order is grounds for discipline under ELC 10.13 (c), and we
consider it in our review of this case.
4. Whether the Hearing Officer Wrongly Excluded Starczewski's Evidence
Starczewski claims that even though she was cooperative, the hearing officer
ignored the scheduling order and wrongly excluded certain evidence from the sanction
hearing such as testimony from current clients, WSBA commendations, and awards
for pro bono service. In fact, the record shows the hearing officer excluded some, not
all, of Starczewski's proffered evidence because she disobeyed the scheduling order.
The hearing officer's evidentiary ruling was not an abuse of discretion because a
hearing officer may preclude a party that does not provide discovery as ordered from
introducing matters into evidence. ELC 10.1(a), (c), 10.11(g); CR 37(b)(2)(B).
5. Whether Special Disciplinary Counsel Should Have Been Disqualified
Starczewski claims special disciplinary counsel involvement in Saldivar v.
Momah, 145 Wn. App. 365, 186 P.3d 1117 (2008), and in her disciplinary
proceedings violates due process. We disagree. Starczewski was an attorney for the
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plaintiffs in Saldivar and the hearing officer considered her performance in that case
as evidence of a pattern of misconduct, an aggravating factor. Special disciplinary
counsel was not personally involved in the Saldivar case that the hearing officer
considered at the sanction hearing. Even if counsel was personally involved in
Saldivar, his involvement in that case and the proceedings would not violate due
process. While due process ensures that civil proceedings are impartial and
disinterested, Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S. Ct. 1610, 64 L. Ed.
2d 182 (1980), and disciplinary hearings are civil proceedings, ELC 10.1, a hearing's
"appearance of impropriety is not a serious consideration in attorney discipline cases
where the general public has little, if any, direct interest in the process. Unlike a
public prosecutor, [disciplinary] counsel's actions affect only attorneys who have
voluntarily subjected themselves to regulation by this court." In re Disciplinary
Proceeding Against Vetter, 104 Wn.2d 779, 782, 711 P.2d 284 (1985).
6. Whether the Hearing Officer Should Have Been Disqualified
Starczewski also claims the hearing officer's awareness of Saldivar (by virtue
of his specialty in medical malpractice law), coupled with his involvement in the
disciplinary proceedings, violated due process. Yet she cites no legal authority for
this proposition. Without such legal authority, we will not question the hearing
officer's impartiality merely because he was aware of a case that Starczewski
participated in and that the WSBA introduced into evidence at the sanction hearing.
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We note that the ELCs provide a nonexhaustive list of reasons for disqualifying a
hearing officer and none apply to the facts here. ELC 2.6(e)(4)(A).
7. Whether the WSBA Proved the Charges by a Clear Preponderance
Starczewski claims the hearing officer violated due process by allegedly
requiring her to muster evidence in her defense. Her claim is compromised since she
does not point to where the hearing officer wrongly put the burden of proof on her.
Starczewski also claims the WSBA did not investigate her current clients or her Singh
files. But, similarly, she does not cite legal authority for the proposition that the
WSBA must investigate evidence she submits to them. Without citation to the record
or precedent to undergird her argument, we conclude there was no violation of due
process. We also note the WSBA does have the burden of proof, ELC 10.14(b), and
in this case, the hearing officer found the WSBA met its burden on all three counts.
8. Whether the Hearing Officer Properly Determined the Restitution Amount
Starczewski claims $15,000 in restitution is improper because it does not
account for costs and expenses the WSBA billed her for or her ability to pay. Because
an order of restitution does not have to accouht for the WSBA' s costs and expenses or
the attorney's ability to pay, see ELC 13.7, 13.9(d)(1), we conclude that $15,000 is
not improper in this respect.
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9. Whether the Board Properly Amended the Hearing Officer's Decision
Starczewski claims the Board erred when it failed to state a reason for
amending the hearing officer's recommended term of practice monitoring.
Starczewski makes a valid claim. The Board must state the reason for an amendment,
modification, or reversal of the hearing officer's decision. ELC 11.12(e). But its
omission does not offend due process or affect our power to review the decision. In
re Disciplinary Proceeding Against Blanchard, 158 Wn.2d 317, 329-31, 144 P.3d 286(2006).
Ordinarily where the hearing officer's recommendation and the Board's
decision differ, we give greater weight to the Board's decision in light of its superior
experience and wider perspective. In re Disciplinary Proceeding Against Preszler,
169 Wn.2d 1, 19, 232 P .3d 1118 (20 10). Abiding by that rule is problematic here
since the Board does not state the reason for its amendment. Nevertheless we uphold
the Board's 24-month, practice-monitoring term because Starczewski has shown no
signs of curbing her misconduct as evinced by her defiance of the hearing officer's
discovery order.
Finally, Starczewski claims the Board made no findings or adopted the hearing
officer's erroneous findings. This argument is meritless because the Board adopted
the hearing officer's findings as is permitted, ELC 11.12(d), and the findings are not
erroneous.
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B. Whether Substantial Evidence Supports the Hearing Officer's Challenged
Findings
Starczewski generally claims 27 of the hearing officer's 74 findings are
irrelevant, incomplete, unsupported, or all of the above. We are not persuaded. We
reject 21 of her challenges because she fails to support them with citations to the
record or legal authority. Marshall, 167 Wn.2d at 67 (providing that a challenge is
sufficient only if the attorney cites to the record in support of her argument); RAP
10.3(a)(6) (providing that arguments in a brief should contain citations to the record
and legal authority). We reject three other challenges because they are either
supported by unchallenged findings, amount to an attack on witness credibility, or
amount to an alternative explanation of the facts the hearing officer rejected.
Marshall, 167 Wn.2d at 66-67. Three challenges remain.
Two of these challenges concern procedural failures. First, the hearing officer
found that at the March 2008 hearing on Starczewski's motion to vacate the order of
dismissal, the court ordered Starczewski to serve De La Fuerte, file a confirmation of
joinder, and comply with all pretrial deadlines set in the original case scheduling
order. Second, he found the court dismissed the case again in May 2008 because
Starczewski failed to file the confirmation of joinder. Starczewski claims these
findings are incomplete because they do not note that the judge promised a second
show cause hearing. In fact, the March 2008 show cause hearing transcript shows the
judge started to say there would be a second show cause hearing before stopping
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midsentence to instead say he would order Starczewski to serve De La Fuerte, file a
confirmation of joinder, and to comply with all pretrial deadlines set in the original
case scheduling order, which he ultimately did. Hence these challenges fail because
substantial evidence shows the judge did not promise or actually order a second show
cause hearing.
Finally, the hearing officer found that Starczewski's explanation for the
dismissal was false. Starczewski claims this finding assumes another finding is true
and misrepresents a sentence from her July 2009 letter? Substantial evidence shows
Singh's case was dismissed for procedural violations rather than on the merits. For
instance, the final order of dismissal refers to the plaintiffs' noncompliance but not the
merits. Thus, substantial evidence shows Starczewski's explanation for the dismissal
was false, and for that reason the challenge fails.
C. Whether the Hearing Officer Applied the Correct Presumptive Sanction
We-as well as the hearing officer and Board-follow a two-step process to
determine the appropriate sanction against an attorney. In re Disciplinary Proceeding
Against Cramer, 165 Wn.2d 323, 339, 198 P.3d 485 (2008). At step one, we
determine the presumptive sanction under the ABA Standards. !d. We do so by
considering the ethical duty violated, the attorney's mental state, and the actual or
potential harm to the client. !d. At step two, we consider the applicable aggravating
2
Because Starczewski does not identify which sentence the hearing officer's finding
misrepresents, we refrain from considering that particular challenge.
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and mitigating factors' impact on the presumptive sanction. Id. In this case the
hearing officer concluded the presumptive sanction was suspension for all three
counts. Starczewski claims the hearing officer's conclusions about her mental state
and the actual or potential harm to Singh were wrong.
As the fact finder, the hearing officer is best positioned to make the mental-
state determination. In re Disciplinary Proceeding Against Anschell, 149 Wn.2d 484,
501, 69 P.3d 844 (2003). The hearing officer concluded Starczewski's mental state
was "knowing" for all three counts. Starczewski claims the hearing officer's
conclusions are wrong or unsupported. We disagree. First, the unchallenged findings
of the hearing officer show Starczewski knew of the deadlines in the case scheduling
order and her responsibility to meet them. Thus, she knew when she was failing to
meet the deadlines she was failing to represent Singh diligently and expeditiously.
Second, the absence of documented conversations between Starczewski and Singh is
circumstantial evidence that no conversations occurred between them "[a]nd
circumstantial evidence is as good as direct evidence," Rogers Potato Serv., LLC v.
Countrywide Potato, LLC, 152 Wn.2d 387, 391, 97 P.3d 745 (2004). Thus,
Starczewski knew that when she was failing to have any conversations with Singh,
she was failing to inform him and explain matters to him. Finally, when Starczewski
wrote Singh in July 2009, she knew his case had been dismissed on procedural
grounds because she had the order of dismissal that showed the case was dismissed
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for noncompliance. Thus Starczewski knew her written explanation that the superior
court had dismissed the case on the merits was false. On this final point we
emphasize again that "circumstantial evidence is as good as direct evidence," id., and
the WSBA did not have to prove intent to prove a "knowing" mental state, see ABA,
STANDARDS FOR IMPOSING LAWYER SANCTIONS Definitions at 17 (1991) (defining
"[k]nowledge" 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"); In re Disciplinary Proceeding Against Brothers, 149 Wn.2d 575,
585, 70 P.3d 940 (2003) (stating that in an attorney disciplinary matter, "outright
dishonesty is not a necessary element to a finding that an attorney acted knowingly").
Consequently the hearing officer concluded correctly that the mental state was
"knowing" for all three counts.
Next, we address the injuries. First, the hearing officer concluded Starczewski
injured Singh in that he never received current information about his case, never had·
the opportunity to consult with the court or seek another attorney, and never had the
opportunity to accept or reject the $20,000 settlement offer. Starczewski claims the
evidence supporting the first and third of these injuries is insubstantial. However, we
believe the evidence is substantial and note the second injury alone shows potential
harm to Singh.
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Second, the hearing officer concluded Starczewski's misrepresentation of the
dismissal injured Singh because the resulting misunderstanding prevented Singh from
pursuing potential remedies. Starczewski's strongest argument here is that the
conclusion is irrelevant because there is no indication potential remedies would have
been successful. However, she fails to cite authority for the proposition that the
hearing officer must find that a remedy would be successful. In any case, Singh's
remedies are not limited to his claim against Reeser, Walters & Wolf, and De La
Fuerte as Starczewski may believe.
Starczewski' s misrepresentation raised new claims of attorney malpractice and
restitution (via the Lawyer's Fund for Client Protection). See 16 DAVID K. DEWOLF
&KELLER W.ALLEN, WASHINGTONPRACTICE: TORTLAW AND PRACTICE§ 15.41,
at 490 (3d ed. 2006); APR 15. Had Singh not learned the truth, he would not have
had the chance to realize these claims against Starczewski. That constitutes a
potential injury to Singh, which means Starczewski's claim fails. The hearing officer
concluded correctly that Starczewski injured Singh and that the presumptive sanction
is suspension.
D. Whether the Board Applied the Correct Aggravating and Mitigating Factors
The second step we take to determine the appropriate sanction is to consider the
applicable aggravating and mitigating factors' impact on the presumptive sanction.
Cramer, 165 Wn.2d at 339. The ABA Standards provide a list of aggravating factors.
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STANDARDS std. 9.22. In this case the hearing officer determined the applicable
aggravating factors were dishonest motive, pattern of misconduct, multiple offenses,
refusal to acknowledge misconduct, substantial legal experience, and indifference to
making restitution. Starczewski challenges the consideration of all these factors
except for substantial legal experience. We review the challenges one by one.
The hearing officer applied the dishonest-motive factor because Starczewski
misrepresented Singh's case dismissal to hide her own misconduct. Starczewski
claims the evidence militates against applying the factor because Singh was
responsible for the lack of communication and she sent Singh the actual order of
dismissal. Her first argument fails because it amounts to an "alternative explanation[]
or version[] of the facts rejected by the hearing officer," an insufficient argument upon
review before this court. Marshall, 167 Wn.2d at 67. Her second argument fails
because the enclosure of the order of dismissal was insufficient to overcome her
misrepresentations in the July 2009 letter. 3 Accordingly her challenge fails.
The hearing officer applied the pattern-of-misconduct factor because of
Starczewski's history of dishonesty, frivolous claims, and disregard for judicial and
3
Starczewski's challenge on grounds of relevancy to this factual finding-that
Starczewski's enclosure of the order of dismissal was insufficient to overcome her
misrepresentation-fails because the finding is relevant to the duties to inform, explain,
and avoid dishonesty. Also Starczewski does not cite legal authority for the proposition
that the finding is irrelevant because it does not support a finding of misconduct. See
RAP 10.3(a)(6) (providing that arguments in a brief should contain citations to legal
authority).
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disciplinary warnings. Starczewski claims the factor applies only to similar violations
of the RPCs and her past misconduct is dissimilar. The ABA Standards are clear that
the pattern-of-misconduct factor applies to mere misconduct not violations of the
RPCs. Compare STANDARDS std. 9.22(a) (prior disciplinary offenses), with std.
9.22(c) (a pattern of misconduct). Further, the rule as articulated by this court does
not require the misconduct to be similar: the factor applies when the attorney has
simply committed multiple acts of misconduct involving multiple clients over a period
of time. In re Disciplinary Proceeding Against Cohen, 150 Wn.2d 744, 760 n.8, 82
P.3d 224 (2004).
Moreover, the two cases Starczewski cites in support of her argument address
the issue in dicta or not at all. See Burtch, 162 Wn.2d at 889 (noting Burtch's prior
misconduct was similar to that at issue, which shows he knew his conduct violated the
RPCs); In re Disciplinary Proceeding Against Whitney, 155 Wn.2d 451, 464, 120
P.3d 550 (2005) (rejecting Whitney's claim that collateral estoppel precludes the court
from considering evidence of past misconduct). Accordingly her challenge fails.
Next we address Starczewski's claim that the hearing officer wrongly applied
the multiple-offenses factor because he did not list what he considered as multiple
offenses. In short, no explanation was necessary because the factor plainly applies
where an attorney faces multiple counts of violating the RPCs. See In re Disciplinary
Proceeding Against Poole, 156 Wn.2d 196, 225, 125 P.3d 954 (2006) (applying the
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multiple-offenses factor because the court upheld two counts of misconduct against
the attorney). Because Starczewski faces three counts of misconduct, the factor
applied in her case.
The hearing officer applied the refusal-to-acknowledge-wrongful-nature-of-
conduct factor because Starczewski blamed her failure to inform Singh on his lack of
communication and argued she was only 40 percent responsible for his case because
she was entitled to only 40 percent of the contingency fee under the fee-sharing
agreement with Bharti. Starczewski claims the factor punishes her for appearing pro
se because it allows the hearing officer to consider her arguments as evidence that she
has no remorse. Her argument raises a real concern about the fairness, albeit one we
have previously addressed.
An attorney may appear pro se in a disciplinary proceeding without
automatically incurring the refusal-to-acknowledge-wrongful-nature-of-conduct
factor. In re Disciplinary Proceeding Against Ferguson, 170 Wn.2d 916, 943, 246
P.3d 1236 (2011). Indeed the factor applies only when an attorney denies conduct
was wrongful or rationalizes misconduct as error. !d. at 943-44. Here, substantial
evidence supports applying the factor. While under examination, Starczewski acted
as witness rather than pro se counsel. And while under examination, Starczewski
testified that she was not the reason for the case dismissal, she was entitled to a
second show cause hearing, and she truthfully told Singh why his case was dismissed
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by virtue of enclosing the actual order of dismissal. Her statements amount to denial
and rationalization of misconduct, and the hearing officer was entitled to credit them
just as we are entitled to give great weight to that finding. Behrman, 165 Wn.2d at
423; Marshall, 167 Wn.2d at 67. Accordingly her challenge fails.
Finally, Starczewski claims the indifference-to-making-restitution factor should
not apply because restitution is not warranted in her case. The hearing officer applied
the indifference-to-making-restitution factor because Starczewski made no attempt to
make restitution to Singh, did not tell Singh that he had a potential claim against her,
and did not tell Singh that he could seek redress through her professional liability
coverage. Because this case warrants restitution, as discussed below, Starczewski' s
challenge fails.
Next we turn to mitigating factors. The ABA Standards also provide a list of
mitigating factors. STANDARDS std. 9.32. In this case, the hearing officer concluded
only the personal-problems factor warranted application. Yet he gave the factor
minimal weight because he felt Starczewski' s financial challenges did not justify her
misconduct.
Generally, we do not consider personal financial problems to be a mitigating
factor. In re Disciplinary Proceeding Against Holcomb, 162 Wn.2d 563, 591, 173
P.3d 898 (2007). We see no reason to make an exception here because as the he~ring
officer noted, financial problems did not justify Starczewski' s misconduct. Thus, the
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hearing officer wrongly applied the factor. However, the error does not undermine
the hearing officer's ultimate recommendation of a 24-month suspension since he
gave the factor minimal weight.
Starczewski claims the hearing officer should have applied more mitigating
factors to her sanction. Examples include her loss of office staff, her prior WSBA
commendations, association with Bharti, 4 her cooperation with disciplinary
proceedings, and the lack of communication from Singh. In disciplinary cases, the
attorney has the burden of proving that some fact should be considered a mitigating
factor in her case. Cf In re Disciplinary Proceeding Against Carpenter, 160 Wn.2d
16, 30, 155 P.3d 937 (2007) (stating the subject attorney has the burden of proving the
mitigating factor of an absence of a selfish or dishonest motive).
Cooperation and character are enumerated mitigating factors under ABA
Standards std. 9.32(e) and (g). But Starczewski does not meet her burden on these
factors because she presents her two WSBA commendations without argument. And
though she points to a moment during the hearings when the hearing officer thanked
her for cooperating as a witness, she does not articulate why her cooperation on that
day overshadows, for example, her failure to comply with the hearing offlcer's
discovery order. Similarly, she does not make policy arguments for accepting her
other proposed mitigating factors, which do not fall within one of the ABA Standards'
4
It is unclear whether Starczewski is referring to her fee-sharing agreement with Bharti
or to an attorney-client relationship between Singh and Bharti.
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enumerated categories. STANDARDS std. 9.32. Because Starczewski does not meet
her burden on this issue, we refrain from applying her proposed mitigating factors. In
sum, the hearing officer's recommendation of a 24-month suspension is sound.
E. Whether a 24-Month Suspension Is Disproportionate
On review, the subject attorney must raise demonstrative cases to show the
recommended sanction is disproportionate. Cohen, 150 Wn.2d at 763. Starczewski
claims a 24-month suspension is disproportionate in her case but fails to raise
demonstrative cases because the two cases she cites are inapposite. In re Disciplinary
Proceeding Against Johnson, 114 Wn.2d 737, 752-53, 790 P.2d 1227 (1990)
(ordering the disbarment of a disciplined attorney who converted client funds for
personal use and concealed his conversion); In re Disciplinary Proceeding Against
Haskell, 136 Wn.2d 300, 320-22,962 P.2d 813 (1998) (holding two years of
suspension, not the recommended disbarment, was the appropriate sanction where the
attorney deceptively overbilled clients). Starczewski appears to argue these cases are
demonstrative because, in her opinion, a 24-month suspension is equivalent to
disbarment. We disagree. The ELCs distinguish between disbarment and suspension,
and the ceiling for suspension is 36 months. ELC 13.3(a). Because Starczewski's 24-
month suspension does not pierce that ceiling, we are hard-pressed to agree it is
equivalent to disbarment especially without citation to contrary legal authority.
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Finally, Starczewski claims the hearing officer wrongly started at a baseline
suspension of21 months rather than 6 months. The record shows the WSBA argued
for an 18-month baseline that equals 6 months per count. In the alternative, the
WSBA argued for a 21-month baseline suspension that is halfway between the ABA
Standards' minimum and maximum of6 and 36 months. STANDARDS std. 2.3.
Because the WSBA's arguments and the hearing officer's decision in this regard were
reasonable and because Starczewski fails to cite legal authority to the contrary, we
accept the 21-month baseline.
F. Whether Restitution Is Proper
Starczewski claims our precedent supports ordering restitution only where the
client actually lost money and that there is no evidence in this case that Singh would
have accepted the settlement offers. We disagree for two reasons.
First, there is substantial evidence that Singh would have accepted the
settlement offers. For instance in a letter to the WSBA, Singh stated that if he had
known his case was weak, he would have accepted the $15,000 settlement offer. 5
Also, Singh testified that he could have used the $20,000 settlement offer. The
hearing officer determined Singh's testimony was credible, a determination to which
5
Starczewski argues that because Singh's daughter wrote the letter, it is not indicative of
Singh's intent. Her argument is not compelling. At the hearing, Singh adopted the letter
as his own statement.
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we give great weight. Marshall, 167 Wn.2d at 67. Thus, the hearing officer correctly
concluded that Singh would have accepted the settlement offers.
Second, the ELCs provide an attorney may be ordered to pay restitution to
persons who are financially injured by the attorney's misconduct. ELC 13.7(a). The
hearing officer found Singh was injured because he never had the opportunity to
accept the $20,000 settlement offer. Given that Singh would have accepted the offer,
that injury-the lost opportunity to accept the offer-is financial. Starczewski fails to
present a clear and supported reason to depart from that conclusion. 6 Thus restitution
is proper in this case.
G. Whether the Court Can Order a Proposed Practice Monitor To Serve
Lastly Starczewski states her proposed practice monitor, Anthony Urie, will
serve only if she is not suspended because he requires her assistance in his practice.
She claims the WSBA may not have the authority to force Urie to serve as a practice
monitor. The issue is not properly before us because the hearing officer did not order
Urie to serve as practice monitor. Further, Starczewski does not have to propose a
monitor until 60 days prior to her reinstatement and there is no evidence that she has
formally proposed Urie. If Starczewski and the WSBA cannot agree on a practice
monitor, then the Board may resolve the dispute.
6
Starczewski's reference to cases in the form of PDF (portable document format)
attachments to an e-mail to the WSBA insufficiently apprises us of contrary precedent.
See RAP 10.3 (a)( 6) (providing that arguments in a brief should contain citations to legal
authority).
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V. CONCLUSION
We affirm the Board's unanimous decision to suspend Starczewski for 24
months and order $15,000 in restitution because substantial evidence supports it. In
addition, Starczewski fails to provide a clear reason to depart from it. Also, we affirm
the majority of the Board's decision to extend the hearing officer's recommended 18
months of practice monitoring to 24 months. While the Board did not justify its
amendment, we believe it is just in light of Starczewski' s defiance of the hearing
officer's discovery order.
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WE CONCUR:
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