In re Disciplinary Proceeding Against Pfefer

This opinion was filed for rec:ord
at B'·160 Wash. 2d 317,
330, 157 P.3d 859 (2007). An attorney must present arguments why specific
findings are not supported by the record and cite to the record in support of that
argument. Simply arguing an alternative version of events or an alternative
explanation will not suffice to overturn the hearing officer's conclusions. Marshall,
160 Wash. 2d at 331. Sanctions recommended to this court by a unanimous board will
be upheld unless there is a clear reason for departure. In re Disciplinary
Proceeding Against Sanai, 177 Wash. 2d 743, 760, 302 P.3d 864 (2013), cert. denied,
i • . •
. ~----U.S. ____ , 134 S. Ct. 1324, 188 L. Ed. 2d 307 (2014).
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In re Disciplinary Proceeding Against Pfefer, No. 201,327-9
·,
!!l'ti[er 's Dut; Process !.fzguments Lack Merit
Pfefer_, rather than challenging the· factual findings that support his sanction,
argues that his right to due process was violated by the hearing examiner.
According to Pfefer, the hearing examiner improperly considered his own (the
hearing offlcer' s) knowledge and experience without the support of expert
testimony in concluding that Pfefer's conduct violated the RPC. Because the
hearing officer's "secret opinion" was incapable of cross-examination, Pfefer
asserts he was denied due process. Resp't-Lawyer's Br. Opposing Disciplinary
Bd. 's Decision at 28. ~n essen~e, Pfefer argues that expert testimony is required to
establish the violations of thy RPC. We disagree .
.In Burtch, we held that a hearing officer may properly refuse to qualify
witnesses as experts if those witnesses lack the ability to assist the trier of fact. In
re Disciplinary Proceeding Against Burtch, 162 Wash. 2d 873, 890, 175 P.3d 1070
(2008). In that case, we hel~ that the hearing officer did not err in limiting the
questioning of two attorney-witnesses because there was no showing that either
"lawyer had a specialty in ethics or any other specialty that would assist the trier of
fact in. this case, the hearing officer, also a lawyer." Burtch, 162 Wash. 2d at 890.
Pfe±~r fails to understand that hearing officers are capable of determining the facts
.'
and applying; the ±1:tcts and evidence of the case to the RPC and concluding whether
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In r~DisciplindryProceeding Against P.fefer, No. 201,327-9
an attorney's conduct met the standards established by the rules. The record here
contains simple documentary evidence and testimony from witnesses about the
history of Ortiz's case, from which the hearing officer determines the facts and
draws reasonable inferences in light of the overall testimony and evidence. See In
re Disabili~y Proceeding Against Diamondstone, 153 Wn.2d 430,440, 105 P.3d 1
(2005); In re Disciplinary Proceeding Against VanDerbeek, 153 Wash. 2d 64, 82,
101 P.3d 88 (2004). We find no due process or unfairness concerns with this
procedure.
Pfefer also alleges that he was denied due process when the hearing officer
ruled that Pfefer's law partner, Robert Caruso, could not serve both as a fact
witness andas co-counsel at the disciplinary hearing. Pfefer argues that RPC 3.7 1
does not apply at disciplinary hearings because the language of the rule states that
it applies only "at a trial." See Resp't-Lawyer's Br. Opposing Disciplinary Bd. 's
Decision at 17. We disagree. The comments to RPC 3. 7 state that the purpose of
1
"(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a
necessary witness unless:
"(l) the testimony relates to an uncontested issue;
"(2) the testimony relates to the nature and value of legal services rendered in the case;
"(3) disqualification ofthe lawyer would work substantial hardship on the client; or
"(4) the lawyer has been called by the opposing party and the court rules that the lawyer
may continue to act as an advocate.
"(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm
is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9."
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In re Disciplinary Proceeding Against Pfefer, No. 201,327-9
the rule is to protect the "tribunal" from prejudice and confusion. RPC 3.7 cmt. 3.
''Tribunal,'' as defined under the RPC, "denotes a court, an arbitrator in a binding
arbitration proceeding or legislative body, administrative agency or other body
acting in an adjudiCative capacity," evidenced "when a neutral official, after the
presentation of evidence or legal argument by a party or parties, will render a
binding legal judgment directly affecting a party's interests in a particular matter."
RPC l.O(m). The plain language ofRPC l.O(m) and RPC 3.7 support application
ofRPC 3.7 to disciplinary hearings.
More fundamentally, Pfefer fails to show on this record that the hearing
officer disqualified Caruso at all. Rather, he gave Pfefer a choice: either Caruso
could act as advocate and cross-examine two of the WSBA's witnesses (including
Ortiz) or he could testify as a fact witness. Pfefer chose the latter. The hearing
officer ruled that Pfefer had the opportunity to testify in the narrative, subject to
objection, and Caruso was permitted to sit at counsel's table and advise Pfefer
throughout the hearing. Because the record shows that the hearing officer did not
disq~Jalify Caruso from assisting Pfefer at the disciplinary hearing, we find no
error.
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In r.e. Disciplinary Proceeding Against Pfefer, No. 201,327-9
Substantial Evidence Supports the Findings o[Fact
Unchallenged findings of fact are treated as verities on appeal, and we give
great weight to the hearing officer's determination of credibility and veracity of
witnesses. Marshall, 160 Wash. 2d at 330. Pfefer challenges only two of the hearing
officer's findings of fact. After a full review of the record, we find that the findings
of fact are supported by substantial evidence.
Under count one, the evidence establishes that Pfefer failed to diligently
pursue his client's case, in violation ofRPC 1.3 2 and RPC 3.2. 3 He waited over a
year after the beginning of representation to file Ortiz's suit, during which time he
performed little or no investigation or discovery. After the case was filed, Pfefer
failed to comply with any of the deadlines established in the court's February 8,
2011 order requiring completion of the joint confirmation and that the case be
submitted to mediation. Despite being reminded by both his paralegal and the
superior court's bailiff, he failed to file the joint confirmation by the deadline of
February 28, 2011 and because of this the case was dismissed. Pfefer challenges
the hearing officer's finding of fact that he found it not credible that Pfefer's
reason for failing to file the joint confirmation was due to some confusion about
2
"A lawyer shall act with reasonable diligence and promptness in representing a client."
3
"A lawyer shall make reasonable efforts to expedite litigation consistent with the
interests of the client."
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In re Disciplinary Proceeding Against Pfefer, No. 201,327-9
local King County rules. Clerk's Papers (CP) at 201. We agree that Pfefer's
conduct was not the product of confusion. Rather, the record amply demonstrates a
knowing failure by Pfefer to show reasonable care in Ortiz's case by complying
with simple court deadlines. We agree with the hearing officer's conclusion that
Pfefer violated RPC 1.3 and RPC 3.2.
Under count two, we find substantial evidence that Pfefer violated RPC
1.2(a)4 and RPC 1.4 5 by failing to consult Ortiz about the dismissal of her case and
for failing to consult her regarding the settlement offer. Pfefer testified that he
believed that the offer was ineffective or a sham, and for that reason he did not
communicate the offer to Caruso. The hearing officer found his explanation was
4
"Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions
concerning the objectives of representation and, as required by Rule 1.4, shall consult with the
client as to the means by which they are to be pursued. A lawyer may take such action on behalf
of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a
client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the
client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive
jury trial and whether the client will testify."
5
"(a) A lawyer shall:
"(1) promptly inform the client of any decision or circumstance with respect to which the
client's informed consent, as defined in Rule 1.0(e), is required by these Rules;
"(2) reasonably consult with the client about the means by which the client's objectives
are to be accomplished;
"(3) keep the client reasonably informed about the status of the matter;
"(4) promptly comply with reasonable requests for information; and
"(5) consult with the client about any relevant limitation on the lawyer's conduct when
the lawyer knows that the client expects assistance not permitted by the Rules of Professional
Conduct or other law.
"(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation."
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In re Disciplinary Proceeding Against Pfefer, No. 201,327-9
not credible. CP at 202. Pfefer challenges this finding. We agree with the hearing
examiner. RPC 1.4 requires communication of settlement offers to clients. The
"effectiveness" of such an offer is immaterial in regard to an attorney's obligation
to inform the client on his or her case. Pfefer informed Ortiz neither of the
substance nor the existence of the settlement offer, nor does the record show that
Ortiz previously indicated that she would not accept a settlement in the amount
offered. Pfefer had provided no evidence or justification in not communicating the
offer to Ortiz.
Similarly, Pfefer proffers no justification for not informing Ortiz that her
case had been dismissed. RPC 1.4 requires an attorney to communicate with his or
her client, and no excuse or reason was established for this lapse. We have
previously addressed this situation and affirmed disciplinary action against an
attorney who failed to honestly inform the client of the reason the court dismissed
the client's case. In re Disciplinary Proceeding Against Starczewski, 177 Wash. 2d
771, 780, 306 P.3d 905 (2013) (attorney failed to inform client that case had been
dismissed on procedural grounds and later told client that case had been dismissed
on the merits). Pfefer's conduct violates the requirements of the RPC because he
failed to inform his client that her case was dismissed at all. We agree with the
hearing officer's conclusion that Pfefer violated RPC 1.2(a) and RPC 1.4.
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In re Disciplinary Proceeding Against Pfefer, No. 201,327-9
We also uphold the charges under count three, that Pfefer violated RPC
1.16(c)6 and RPC 1.16(df by withdrawing from Ortiz's representation "effective
immediately." RPC 1.16(c) permits withdrawal following notice to or permission
of a tribunal but only if the lawyer "compl[ies] with applicable law.'' In this case,
·that "applicable law" is Superior Court Civil Rule (CR) 71(c)(l), which mandates
that "[t]he attorney shall file and serve a Notice of Intent to Withdraw on all other
parties in the proceeding. The notice shall specify a date when the attorney intends
to withdraw, which date shall be at least 10 days after the service of the Notice of
Intent to Withdraw." Before this 10-day period can begin to run, however, notice
must first be served on the client. CR 71 (c)(2).
Pfefer's notice of withdrawal, given to the court "effective immediately,"
violated CR 71 (c)( 1) because it failed to permit the 10-day period following filing,
a period that itself cannot begin to run until service is effective, and proof of
service filed, in accordance with CR 71(c)(2). The hearing officer's unchallenged
6 "A lawyer must comply with applicable law requiring notice to or permission of a
tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall
continue representation notwithstanding good cause for terminating the representation."
7
"Upon termination of representation, a lawyer shall take steps to the extent reasonably
practicable to protect a client's interests, such as giving reasonable notice to the client, allowing
time for employment of other counsel, surrendering papers and property to which the client is
entitled and refunding any advance payment of fee or expense that has not been earned or
incurred. The lawyer may retain papers relating to the client to the extent permitted by other
law."
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In re Disciplinary Proceeding Against Pfefer, No. 201,327-9
findings established that Pfefer informed Ortiz of his withdrawal only by leaving a
message with a friend and mailing a copy of the notice. Pfefer argues that if he did
violate CR 71, he was nonetheless in substantial compliance. Immediate
withdrawal is not substantial compliance with a procedure that requires, at a
minimum, 10 days' notice, especially here where Ortiz's case was facing dismissal
based on Pfefer's lack of diligence in complying with the court's scheduling orders
and where the statute of limitations would expire shortly after the case was
dismissed.
This evidence also supports the conclusion that Pfefer failed to protect
Ortiz's interests in violation ofRPC 1.16(d). His immediate withdrawal, filed May
5, 2011, left his client with little chance to pursue her case. Ortiz tried to object in
court, but the objection was stricken for lack of proof of service. Ortiz's case was
dismissed on May 19, and the statute of limitations ran six days later. It was
Pfefer' s conduct and his withdrawal "effective immediately" that caused her legal
claim to be barred. We agree with the hearing officer's conclusion that Pfefer
violated RPC 1.16(c) and RPC 1.16(d).
Sanctions Analysis
We affirm the hearing officer's and unanimous Board's recommended
sanctions against Pfefer. This court applies the ABA Standards in all lawyer
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In re Disciplinary Proceeding Against Pfefer, No. 201,327-9
discipline cases. In re Disciplinary Proceeding Against Halverson, 140 Wash. 2d
475, 492, 998 P.2d 833 (2000). Under this two-step process, the presumptive
standard is first determined by considering ( 1) the ethical duty violated, (2) the
lawyer's mental state, and (3) the extent of actual or potential harm caused by the
misconduct. The next step is to consider the application of any mitigating or
aggravating factors. In re Disciplinary Proceeding Against Dann, 136 Wash. 2d 67,
77, 960 P .2d 416 (1998) (citing In re Disciplinary Proceedings Against Johnson,
118 Wash. 2d 693, 701, 826 P.2d 186 (1992)). This court reviews sanctions de novo
but will uphold a unanimous recommendation by the Board unless there is a clear
reason for departure. In re Disciplinary Proceeding Against Behrman, 165 Wn.2d
414,422, 197 P.3d 1177 (2008). Pfefer has shown no reason for departure.
In his sanctions analysis, the hearing officer concluded that Pfefer acted
knowingly under all three counts and caused injury to Ortiz's interests and that of
the legal system. We agree. Pfefer's knowing failure to diligently prosecute Ortiz's
claim caused her case to be dismissed (twice) and subsequently barred by the
statute of limitations. His failure to communicate the settlement offer prevented her
from considering acceptance. And his means of withdrawal left his client's
interests unprotected.
The presumptive sanction for Pfefer's misconduct is suspension. The
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In re Disciplinary Proceeding Against Pfefer, No. 201,327-9
hearing officer determined that ABA Standards std. 4.4 applied to counts one and
two. ABA Standardsstds. 4.42(a) and (b) state that suspension is generally
appropriate when "a lawyer knowingly fails to perform services for a client and
causes injury or potential injury to a client" or "a lawyer engages in a pattern of
neglect and causes injury or potential injury to a client." The hearing officer also
determined that ABA Standards std. 7.0 applied to count three. Under that
standard, "[s]uspension is generally appropriate when a lawyer knowingly engages
in conduct that is a violation of a duty owed to the profession, and causes injury or
potential injury to a client, the public, or the legal system." ABA Standards std.
7 .2. We agree with this determination.
The second step under the ABA Standards is to consider any mitigating or
aggravating factors. The hearing officer found two aggravating factors 8 and two
mitigating factors 9 present. We agree with this determination. Pfefer does not argue
that his sanction is disproportionate, nor would we find it to be so in this case.
Pfefer also argues that the amount of restitution should be reduced to reflect
his firm's costs but fails to support his argument with any explanation on why such
costs are borne by his firm and not by Ortiz. The Board, based on the evidence and
8
ABA Standards std. 9.22(d) (multiple offenses), (j) (indifference to making restitution).
9
ABA Standards std. 9.32(a) (absence of prior disciplinary record), (b) (absence of
dishonest or selfish motive).
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In re Disciplinary Proceeding Against Pfefer, No. 201,327-9
argument from Pfefer, reduced the amount of restitution from $6,580.06 to
$5,834.15 in order to reflect costs attributable to Ortiz's case. We find that no
further reduction is appropriate and affirm restitution in the amount of $5,834.15.
WSBA Costs
Finally, Pfefer objects to the costs and expenses assessed against him by the
chair of the disciplinary board (Chair) under ELC 13.9(a). The WSBA filed a
statement of costs and expenses, as required under ELC 13.9(d), listing five
headings and the costs associated with each. 10 Pfefer had 20 days from the date of
service to file exceptions. ELC 13.9(d)(4). Two days before the deadline, Pfefer
filed a blanket objection "to all costs stated by disciplinary counsel as no
documentation supports any of these costs." DP at 98. The WSBA had 10 days to
reply. ELC 13.9(d)(5). Although not strictly required by the rules, the WSBA
provided detailed receipts of all charges. Ten days later the Chair entered the costs
under ELC 13.9(e), finding the costs and expenses appropriate.
The day after the Chair entered the costs, Pfefer filed a supplemental
10
(1) "Court reporter charges for attending and transcribing depositions or hearing" in the
amount of$4,463.15, (2) "Necessary travel expenses ofhearing officers, disciplinary counsel,
investigators, adjunct investigative counsel, adjunct trial counsel or witnesses for both
investigation and prosecution" in the amount of$1,254.67, (3) "Special mail or delivery charges"
in the amount of $10.07, (4) "Other: translation services and court records" in the amount of
$1,102.90, and (5) "Expenses under ELC 13.9(c)" in the amount of$3,000. DP at 97. The total
claimed is $9,830.79.
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In re Disciplinary Proceeding Against Pfefer, No. 201,327-9
objection. His supplemental objections challenged virtually every expense,
objecting to, for example, mileage reports for disciplinary counsel, 11 lunch
expenses, parking, the use of in person questioning of witnesses at the disciplinary
hearing instead of performing the hearing telephonically, document fees, and
interpreter's services. The Chair did not consider Pfefer's supplemental objections,
concluding they were too late.
We agree with the WSBA that Pfefer's supplemental objections were
untimely. Independently, we have reviewed the costs and expenses assessed
against Pfefer and find that all costs were "reasonably and necessarily incurred" by
the WSBA pursuant to ELC 13.9(b).
CONCLUSION
The record amply demonstrates that Pfefer knowingly failed to provide his
client with the representation required by the RPC, resulting in injury to his client.
Clients expect, and RPC establish, due diligence by attorneys: Pfefer showed little.
We adopt the Board's unanimous recommendation, suspend Pfefer from the
practice of law for six months, and condition his reinstatement on his payment of
11
Pfefer's supplemental motion to take judicial notice of the distance between the cities
of Burien and Seattle is denied.
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In re Disciplinary Proceeding Against Pfefer, No. 201,327-9
restitution to Ortiz for $5,834.15 and the costs and expenses assessed against him
under ELC 13.9.
WE CONCUR:
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