In re Disciplinary Proceeding Against Del Carmen Rodriguez

Fl LE
IN CLERKS OFFICE
IUPR!:ME COURT, STATE OF WASHNmlN
QUC l g. 2013
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Disciplinary )
Proceeding Against ) No. 200,960-3
)
ROSAURA DEL CARMEN ) EnBanc
RODRIGUEZ, )
) Filed JUL 1 8 Z013~
an Attorney at Law. )
_______________________ )
FAIRHURST, J.-Rosaura Del Carmen Rodriguez appeals the Washington
State Bar Association's (WSBA) recommendation that she be disbarred for
submitting documents with forged signatures to a tribunal and later denying it
under oath to avoid discipline. Although the presumptive sanction for this
misconduct is disbarment, the hearing officer recommended a two-year suspension
based largely on Rodriguez's relative inexperience in the practice of law. The
WSBA Disciplinary Board (Board) increased the recommended sanction to
disbarment.
In re Disciplinary Proceeding Against Rodriguez, No. 200,960-3
Rodriguez claims three of the hearing officer's findings were not supported
by substantial evidence and that disbarment is not an appropriate sanction. We
hold that substantial evidence does support the hearing officer's findings and
consequently reject Rodriguez's argument. We find no reason to depart from the
sanction recommended by a nearly unanimous vote of the Board and therefore
disbar Rodriguez from the practice of law.
I. FACTS AND PROCEDURAL HISTORY
This action arose out of Rodriguez's representation of a client detained on an
immigration hold. At the time, Rodriguez worked as an associate at the law firm
Rios Cantor PS. In 2006, before Rodriguez represented the client, an immigration
judge denied the client's application for asylum and cancellation of removal. The
client could have remained in the United States pending an appeal to the Board of
Immigration Appeals (BIA), but the client's former attorney, Catherine Willmore,
failed to file the appeal. The client was not informed of this error and became
subject to immediate deportation.
In November 2006, Immigration and Customs Enforcement (ICE) agents
arrested the client pursuant to the deportation order and detained him at ICE's
Northwest Detention Center in Tacoma, Washington. During the week of
Thanksgiving, Willmore contacted Rodriguez's supervisor, Manuel Rios, and
asked that Rios Cantor take over the case and file the late appeal. Because Rios
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was leaving town for the holiday, he asked Rodriguez to handle the matter.
Willmore paid the client's legal fees by check dated November 22, 2006,
beginning Rios Cantor's representation of the client.
Rodriguez was under extreme pressure to act swiftly. According to the
disciplinary hearing officer, "the only thing standing between [the client] and a
flight to his home country of El Salvador was the necessity for the United States
Government to obtain travel documents for him." Clerk's Papers (CP) at 107.
Rodriguez prepared a motion to the BIA requesting leave to file a late notice of
appeal based on Willmore's ineffective assistance of counsel. The motion is dated
November 23, 2006-Thursday of the week Rodriguez took the case-and the
Department of Justice stamped the motion as received the following Monday. In
support of the motion, Willmore prepared a declaration acknowledging her
ineffective assistance. Rodriguez drafted a declaration for the client and a notice
of appearance, both of which purport to bear the client's signature.
The BIA granted Rodriguez's motion to file a late appeal, and Rodriguez
later timely filed an appellate brief with the BIA. She did not consult the client
regarding which issues to raise in the appeal. The only issues appealed by
Rodriguez were asylum and cancellation of removal, both of which involve a very
high standard of proof. Rodriguez did not seek temporary protected status (TPS)
3
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for the client. 1 However, the WSBA's immigration law expert testified that TPS
would have been the least desirable of these three remedies because it does not
confer a permanent status and would not have benefited the client's children.
Further, the option to apply for TPS remained open to Rodriguez's client for 60
days after final action on his appeal.
In March 2007, Rios Cantor received notice of the BIA's adverse decision
on the appeal. One of the firm's legal assistants sent a copy of the decision with a
letter to the client stating that the firm was not his legal representative, that its role
had been to help Willmore with his appeal, and that he would need to retain a
lawyer if he wished to appeal the BIA decision to the Ninth Circuit Court of
Appeals. Rodriguez did not see this letter until after it had been sent. Thi-s-letter- - - --- -
was the only written correspondence between Rodriguez or her firm and the client.
The client hired Cynthia Irvine as his counsel in April 2007. Irvine
contacted Rodriguez's supervisor and told him she was investigating possible
ineffective assistance of counsel on the parts of Willmore and Rodriguez. Irvine
also called Rodriguez. Rodriguez first told Irvine that she had never met with the
client, then said that another associate had met with him, and finally stated that she
had visited the detention center herself to obtain the client's signature. Rodriguez
1
TPS is granted to foreign nationals currently residing in the United States whose
homeland conditions are recognized by the United States as being temporarily unsafe. 8 U.S.C.
§ 1254a.
4
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later explained that these inconsistencies resulted because she did not have the file
in front of her at the time and could not recall much about the particular incidents.
Irvine filed a motion to reopen the client's case based on the ineffective assistance
of both Willmore and Rodriguez. Eventually, Irvine successfully petitioned for
TPS, and the case was administratively closed.
Irvine also sent a grievance to the WSBA concernmg Rodriguez's
ineffective assistance. On September 9, 2008, the WSBA deposed Rodriguez. She
testified that she went to the detention center to meet with the client on November
22, 2006. Rodriguez was shown attorney sign-in logs from the detention center
that did not contain her name, and she explained that she may have been waved
through without signing in. Rodriguez further testified that she witnessed the
client sign the declaration and the notice of appearance in her presence.
By letter, Rodriguez later retracted her testimony that she visited the client
on November 22, 2006, and instead said that she visited him on November 20,
2006. The detention center records from November 20, 2006, do not show that the
client left his unit to visit the attorney consultation area or returned from there.
The attorney sign-in log does show that Rodriguez signed into the detention center
on November 20, 2006, for a court appearance with another client. Similarly, Rios
Cantor's firm records show that Rodriguez visited the detention center on
November 20, 2006, for initial consultations with two other clients. However, the
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In re Disciplinary Proceeding Against Rodriguez, No. 200,960-3
firm's mileage expense record attributes travel costs on November 20, 2006 to the
client.
After investigating, the WSBA charged Rodriguez with five counts of
misconduct:
Count 1
84. By making one or more materially false statements under
oath at her WSBA deposition when she knew them to be false,
Respondent committed the crime of perjury (RCW 9A.72.020) and/or
the crime of false swearing (RCW 9A.72.040i21 and/or engaged in
dishonesty, deceit and/or misrepresentation, in violation of RPC
8.4(b) and/or RPC 8.4( c) and/or RPC 8.4(d) and/or RPC 8.4(i) and/or
RPC 8.4(1).
Count 2
85. By submitting one or more documents to the BIA that
Respondent knew to contain a false signature and/or by putting off as
true a written instrument she knew to be forged, Respondent
committed the crime of forgery (RCW 9A.60.020(1)(b)i31 and/or
engaged in deceit and/or misrepresentation, in violation of RPC 8 .4(b)
and/or RPC 8.4(c) and/or RPC 3.3(a)(l) and/or RPC 3.3(a)(4).
Count 3
86. By failing to adequately consult with [the client] about his
appeal and/or alternative means of relief and/or by failing to consult
with him regarding and/or to schedule a bond hearing, Respondent
violated RPC 1.3 and/or RPC 1.4(a)(2) and/or RPC 1.4(b).
Count 4
87. By accepting compensation from Ms. Willmore to
2
"A person is guilty of false swearing if he or she makes a false statement, which he or
she knows to be false, under an oath required or authorized by law." RCW 9A.72.040(1). "False
swearing is a gross misdemeanor." RCW 9A.72.040(2).
3
"A person is guilty of forgery if, with intent to injure or defraud" he or she "puts off as
true a written instrument which he or she knows to be forged." RCW 9A.60.020(l)(b). "Forgery
is a class C felony." RCW 9A.60.020(3).
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In re Disciplinary Proceeding Against Rodriguez, No. 200,960-3
represent [the client], without obtaining [his] informed consent to the
arrangement and/or by failing to assure that there would be no
interference with her professional judgment due to the potentially
conflicting interests of Ms. Willmore and [the client], Respondent
violated RPC 1.8(f)(l) and/or RPC 1.8(f)(2).
Count 5
88. By failing to clarify to [the client] which attorney was
representing him in his immigration matter, Respondent violated RPC
1.4(a)(2).
CP at 57-58.
At the disciplinary hearing, the WSBA presented evidence that Rodriguez
had submitted documents with forged signatures to the BIA. The client testified
that he had never seen Rodriguez before that hearing and did not sign the
documents at issue. An associate warden from the detention center testified it was
highly unlikely that a detainee's visit to the attorney consultation area would be
absent from the detainee tracking log, despite Rodriguez's claim that she had met
with the client. A WSBA handwriting expert opined that the signatures on the
client's declaration and the notice of appearance were forgeries. He stated that the
differences between the questioned signatures and the client's genuine signature
were "persistent" and "fundamental to the writing." Verbatim Transcript of
Proceedings (VTP) (Oct. 20, 2010) at 256.
The WSBA also presented evidence as to deficiencies in Rodriguez's
representation of the client. An immigration law expert testified to the errors
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In re Disciplinary Proceeding Against Rodriguez, No. 200,960-3
Willmore committed in handling the case and that Rodriguez failed to rectify after
she took over representation.
Rodriguez continued to assert that she had met with the client and that she
had obtained his signatures on the declaration and the notice of appeal. According
to Rodriguez, at the meeting she read the declaration to the client in Spanish and
witnessed him sign it.
Rodriguez also presented positive testimony about her fitness as an attorney.
Rios testified that Rodriguez was a hardworking, honest, and compassionate
attorney who cares about her clients. Two additional witnesses who knew
Rodriguez as a lawyer testified to her good character and reputation.
The hearing officer found the WSBA proved counts 1, 2, 3, and 5 by a clear
preponderance of the evidence but failed to prove count 4. Specifically, the
hearing officer found that ( 1) Rodriguez had intentionally filed forged documents
with the BIA, (2) Rodriguez intentionally made false statements at her deposition
to avoid discipline, (3) Rodriguez knowingly failed to consult with the client
regarding possible courses of action and took no steps to obtain his release on
bond, and (4) Rodriguez negligently failed to clarify for the client who was
representing him.
The hearing officer applied the American Bar Association's Standards for
Imposing Lawyer Sanctions (1991 & Supp. 1992) (ABA Standards). The hearing
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In re Disciplinary Proceeding Against Rodriguez, No. 200,960-3
officer concluded that the presumptive sanction was disbarment for counts 1 and 2,
suspension for count 3, and a reprimand for count 5. The hearing officer found
two aggravating factors: multiple offenses and dishonest or selfish motive. 4
Conversely, the hearing officer found three mitigating factors: absence of a prior
disciplinary record, inexperience in the practice of law, and good character or
reputation. Focusing on Rodriguez's lack of a disciplinary record, inexperience in
the practice of law at the time she submitted the forgeries, and her desire to help
her client avoid deportation, the hearing officer recommended a two-year
suspenswn.
Rodriguez appealed to the Board. She asked the Board to dismiss counts 1
and 2 due to insufficient evidence or, in the alternative, to adopt the hearing
officer's recommended sanction. The WSBA argued that the hearing officer's
recommended sanction was too lenient and asked the Board to increase the
sanction to disbarment.
The Board adopted the hearing officer's findings of fact (FOF) and
conclusions of law. By an eight to one vote, the Board increased the recommended
sanction from a two-year suspension to disbarment, finding the mitigating factors
did not outweigh the aggravating factors and the presumptive sanction was
appropriate. The dissenting Board member agreed with the hearing officer that
4
The dishonest or selfish motive aggravating factor applied only to count 1.
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Rodriguez's inexperience in the practice of law justified lowering the presumptive
sanction. He recommended a three-year suspension.
II. ISSUES PRESENTED
A. Does substantial evidence support the hearing officer's findings that
Rodriguez lied about meeting with the client and obtaining the client's
signature on the declaration and notice of appearance?
B. Is disbarment the appropriate sanction for Rodriguez's violations?
III. ANALYSIS
Rodriguez challenges the sufficiency of the evidence supporting certain FOF
made by the hearing examiner. She also argues that disbarment is not the
appropriate sanction, even if sufficient evidence supports those findings. We reject
her challenges.
A. Substantial Evidence Supports the Findings of Fact
"This court bears the ultimate responsibility for lawyer discipline in
Washington." In re Disciplinary Proceeding Against Marshall, 160 Wn.2d 317,
329, 157 P.3d 859 (2007). Nevertheless, "we give considerable weight to the
hearing officer's findings of fact." I d. at 329-30. This court will accept challenged
findings of fact so long as they are supported by substantial evidence. Id. at 330.
"Substantial evidence is evidence sufficient 'to persuade a fair-minded, rational
person of the truth of a declared premise."' I d. (internal quotation marks omitted)
(quoting In re Disciplinary Proceeding Poole, 156 Wn.2d 196, 209 n.2, 125 P.3d
10In re Disciplinary Proceeding Against Rodriguez, No. 200,960-3
954 (2006)). "We will not overturn findings based simply on an alternative
explanation or versions of the facts previously rejected by the hearing officer." !d.
at 331.
Rodriguez argues that the hearing officer's amended FOF 58 and 59, and
FOF 60 are not supported by substantial evidence. In these findings, the hearing
officer noted:
58. The clients noted in the firm's initial consultation log for
November 20 do not appear on Respondent's sign-in to the Detention
Center that day. One of those clients, (Francisco), is shown on
Exhibit A-114 as returning to B-3 from an attorney visit on November
20.
59. A firm mileage expense reimbursement record for Respondent
shows "11/20/06 Intakes [the client]." Exhibit 152, p.3. Rios Cantor,
P.S. 's informal policy was to split the mileage cost between all clients
visited. This record attributes all mileage for a November 20 trip to
the Tacoma Detention Center to [the client]. This record cannot be
satisfactorily reconciled with the firm's initial consultation log and
Detention Center records, which together show that Respondent
visited multiple clients that day, none of whom was [the client here].
The Detention Center B-3 detainee movement log and the firm's
initial consultation log are more reliable records.
60. Having carefully considered and weighed the evidence, including
witness demeanor and motivation, the consistency and logical
persuasiveness of the testimony, and the lack of any reliable record of
a Detention Center visit where a record should exist, the hearing
officer concludes that the clear preponderance of the evidence
establishes that Respondent never met with [the client]. This being
the case, since Respondent prepared and finalized documents bearing
signatures that were not his, she knew when she submitted them to the
BIA that the signatures were not genuine.
11
In re Disciplinary Proceeding Against Rodriguez, No. 200,960-3
Decision Papers (DP) at 13, 30-31. Inherent in Rodriguez's challenge to these
findings is the contention that without them, the record cannot establish she
submitted falsified documents to a tribunal.
First, Rodriguez argues the evidence does not support the hearing officer's
finding that the detention center's detainee movement logs and the firm's initial
consultation log were more reliable than the firm's mileage reimbursement record.
The detention center's associate warden testified that every time detainees leave
their cells, their movement is recorded. But cross-examination revealed that the
detention center logs are sometimes incomplete or illegible. Counsel pointed out
several examples where a detainee was logged out as leaving his unit, but never
logged in as returning, or where a detainee returned to the unit with no record entry
of ever leaving the unit.
Rodriguez also notes that the detention center logs do not reflect that the
client left his cell for medicine or that medical personnel brought medicine to him
on November 20, 2006, although the client testified that he has diabetes and takes
four pills per day.
Rodriguez next argues the client is not a credible witness and his testimony
should have been disregarded. Rodriguez contends that the client made false
claims in his first asylum application and misrepresentations on his tax returns.
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Rodriguez claims these actions, considered in the aggregate, undermine the client's
reliability. 5
Lastly, Rodriguez asks us not to accept the handwriting expert's opinion that
the client did not sign the declaration or notice of appearance. The expert admitted
that trauma could adversely influence handwriting, and his analysis as to whether
Rodriguez signed the documents was inconclusive.
All of Rodriguez's arguments challenging the sufficiency of the evidence
ask us to disregard the hearing officer's reasonable inferences and credibility
determinations. We give substantial deference to a hearing officer's credibility
determinations because the hearing officer is in the best position to make such
judgments. Marshall, 160 Wn.2d at 330; Poole, 156 Wn.2d at 212. The hearing
officer is permitted to draw reasonable inferences from the evidence and disregard
unreasonable alternative explanations. In re Disciplinary Proceeding Against
Cohen, 149 Wn.2d 323, 333, 67 P.3d 1086 (2003).
The hearing officer reasonably determined the detention center records and
the firm's initial consultation log were more reliable than the mileage expense
reimbursement record. The mileage record was generated from information
5
Rodriguez also claims the client could not recall when he entered the United States,
noting he testified that he came to the country in February 2004, although ICE records indicate
he entered in December 1993. Although the client first stated at the disciplinary hearing that he
entered the United States in February 2004, he immediately corrected himself and said the year
was 1994.
13
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provided by Rodriguez. Because it was irreconcilable with information provided
by disinterested parties, the hearing officer appropriately gave more weight to the
other evidence.
While the detention center log contained several inaccuracies, the hearing
officer concluded the log was unlikely to be missing records of a detainee going
both to and from the attorney visitation area. This reasonable inference is
supported by the associate warden's testimony that the possibility of this kind of
oversight was very slim. According to the associate warden, keeping track of the
detainees is "what [the staff] live and breathe and do." VTP (Oct. 20, 2010) at
218. Rodriguez's argument regarding the client's medication is speculative. Aside
from the brief mention of his diabetes and need for medication at the disciplinary
hearing, there is no evidence in the record of the client's treatment regimen while
in detention.
Even if we were to disregard the detention center records because of some
inaccuracies, substantial evidence supports the hearing officer's findings. The
client has consistently maintained that he did not meet with Rodriguez or sign the
documents at issue. The hearing officer found the client's past misstatements did
not warrant disregarding his testimony, and we give substantial deference to her
credibility determination. See Marshall, 160 Wn.2d at 330.
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In addition to the client's testimony, the handwriting expert gave his opinion
that the signatures at issue were forgeries. The expert based his opinion on
"fundamental" and "persistent" differences between the signatures on the
declaration and notice of appeal and sample signatures known to be the client's.
VTP (Oct. 20, 2010) at 256. The expert testified that he had the strongest possible
confidence in his conclusion that the signatures were forgeries. Id. at 259.
Hearing officers may accept or reject expert testimony. In re Disciplinary
Proceeding Against Botimer, 166 Wn.2d 759, 771, 214 P.3d 133 (2009). The
hearing officer here accepted the expert's opinion as "qualified and credible." DP
at 11. We will not disturb this finding on appeal.
Substantial evidence supports the conclusion that the signatures were forged
and Rodriguez knew they were forged.
B. Disbarment Is Appropriate for Rodriguez's Ethical Violations
The ABA Standards "govern lawyer sanctions in Washington." Marshall,
160 Wn.2d at 342. Based upon the ABA Standards, we use a three-step process to
analyze a recommended sanction. In re Disciplinary Proceeding Against Preszler,
169 Wn.2d 1, 18, 232 P.3d 1118 (2010). First, we "'evaluate whether the Board
properly determined the presumptive sanction by considering ( 1) the ethical duties
violated, (2) the lawyer's mental state, and (3) the actual or potential injury caused
by the lawyer's conduct."' !d. (quoting Marshall, 160 Wn.2d at 342). "Second,
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we determine whether any aggravating or mitigating circumstances call for a
departure from the presumptive sanction." Id. Third, and only if raised by the
attorney being disciplined, "we evaluate the Board's recommended sanction based
on '(1) proportionality of the sanction to the misconduct and (2) the extent of
agreement among the members of the Disciplinary Board."' I d. (quoting In re
Disciplinary Proceeding Against Schwimmer, 153 Wn.2d 752, 764, 108 P.3d 761(2005)).
We recognize that the Board is "[t]he only body in the state to consider the
full spectrum of disciplinary matters from the most trivial to the most serious." In
re Disciplinary Proceeding Against Noble, 100 Wn.2d 88, 94, 667 P.2d 608(1983). For this reason, we provide substantial deference to the sanction
recommended by the Board, and we do not "lightly depart" from this
recommendation. Id. "Accordingly, we will adopt the sanction recommended by
the Disciplinary Board unless we are able to articulate specific reasons for
adopting a different sanction." Id. at 95. Where the sanction recommended by the
Board differs from the sanction recommended by the hearing officer, "[w]e give
more weight to the Disciplinary Board's recommendation based on its unique
experience and perspective in the administration of sanctions." In re Disciplinary
Proceeding Against Van Camp, 171 Wn.2d 781, 809, 257 P.3d 599 (2011).
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1. The hearing officer and Board correctly determined that disbarment
is the presumptive sanction for Rodriguez's conduct
Rodriguez concedes that the presumptive sanction for counts 1 and 2 is
disbarment if we determine that the hearing officer's findings are supported by
substantial evidence. This concession is well received. We have repeatedly
concluded that disbarment is the presumptive sanction for submitting forged
documents to a tribunal or testifying falsely under oath during disciplinary
proceedings. In re Disciplinary Proceeding Against Christopher, 153 Wn.2d 669,
679, 105 P.3d 976 (2005); In re Disciplinary Proceeding Against Whitt, 149
Wn.2d 707, 719, 72 P.3d 173 (2003).
2. The balance of aggravating and mitigating factors does not justify a
departure from the presumptive sanction of disbarment
Because Rodriguez argues that a two year suspension is the appropriate
sanction, we must determine whether the aggravating and mitigating factors found
here justify a departure from the presumptive sanction. We will only depart from
the presumptive sanction where the balance of aggravating and mitigating factors
is "sufficiently compelling." Cohen, 149 Wn.2d at 339. Importantly, "[e]ven
where there are several mitigating factors ... the attorney's misconduct may still
warrant the presumptive sanction." In re Disciplinary Proceeding Against Smith,
170 Wn.2d 721, 737, 246 P.3d 1224 (2011).
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Rodriguez's case involves two aggravating factors and three mitigating
factors. The hearing officer found Rodriguez's offenses aggravated by the fact that
she committed multiple offenses and had a dishonest or selfish motivation for the
conduct underlying count 1. Conversely, the hearing officer found Rodriguez's
offenses mitigated by her inexperience in the practice of law, absence of a prior
disciplinary history, and good character.
The hearing officer appears to have empathized with Rodriguez, and not
without reason. By all accounts, she was an attorney committed to her work. Her
client faced distressing circumstances when she took this case, and she was
somewhat new to the practice of law when her firm took the appeal. The hearing
officer determined these factors substantially mitigated her offenses.
However, we conclude that the balance of aggravating and mitigating factors
does not justify a departure from the presumptive sanction. The weight given to
mitigating factors depends on the totality of the circumstances. In re Disciplinary
Proceeding Against Dornay, 160 Wn.2d 671, 688, 161 P.3d 333 (2007). The
hearing officer found Rodriguez committed what amounted to two different crimes
of dishonesty-forgery and false swearing-in two different legal proceedings.
Even if we accept the hearing officer's determination that exigent circumstances
may have mitigated, although not excused, Rodriguez's decision to commit fraud
on the legal system by submitting documents with a forged signature, Rodriguez's
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dishonesty did not end there. With two years to contemplate her actions, she baldly
lied under oath when the WSBA investigated. Good character and a lack of a
disciplinary record do not substantially mitigate these two severe ethical breaches.
See, e.g., Whitt, 149 Wn.2d at 722. Under these circumstances, the Board correctly
determined that no "sufficiently compelling" reason justifies imposing a lesser
sanction. Cohen, 149 Wn.2d at 339. Disbarment is appropriate.
3. Considerations ofproportionality or Board unanimity do not justifY a
departure from the presumptive sanction of disbarment
Rodriguez also argues that disbarment is disproportionate and unwarranted
given the Board's lack of unanimity in imposing the sanction. We disagree.
a) Disbarment is proportional to similarly situated cases
When evaluating proportionality, "we analyze whether the recommended
sanction is proper when compared to similarly situated cases." Christopher, 153
Wn.2d at 686-87. Sanctions are considered appropriate so long as they are
'"roughly proportionate to sanctions imposed in similar situations or for analogous
levels of culpability."' In re Disciplinary Proceeding Against Anschell, 141
Wn.2d 593, 615, 9 P.3d 193 (2000) (quoting In re Disciplinary Proceeding Against
Gillingham, 126 Wn.2d 454, 469, 896 P.2d 656 (1995)). "The attorney facing
discipline 'bears the burden of bringing cases to the court's attention that
demonstrate the disproportionality of the sanction imposed."' In re Disciplinary
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Proceeding Against Cramer, 168 Wn.2d 220, 240, 225 P.3d 881 (2010) (quoting
Cohen, 150 Wn.2d at 763).
Rodriguez argues that a three year suspenswn is proportionate to other
disciplinary cases. She cites four cases in support of this proposition: Preszler;
Dornay; Christopher; and In re Disciplinary Proceeding Against Dynan, 152
Wn.2d 601, 98 P.3d 444 (2004). The WSBA contends that the proportionality of
disbarment is demonstrated by three other cases: In re Disciplinary Proceeding
Against Whitney, 155 Wn.2d 451, 120 P.3d 550 (2005); In re Disciplinary
Proceeding Against Guarnera, 152 Wn.2d 51, 93 P.3d 166 (2004); and Whitt. We
agree with the WSBA that Guarnera and Whitney are the most similarly situated
cases and that they demonstrate the proportionality of disbarment under these
circumstances.
The facts m Guarnera closely parallel the facts in Rodriguez's case.
Guarnero forged his client's signature on a declaration he submitted to the tribunal.
Guarnera, 152 Wn.2d at 54-56. Just as Rodriguez did, Guarnero committed this
forgery in order to avoid a legal disaster for his client. I d. When Guarnero' s
forgery came to light, he lied under oath during disciplinary proceedings. Id. at 56-
57. A nearly unanimous Board recommended Guamero's disbarment, and we
affirmed that recommendation. Id.
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In re Disciplinary Proceeding Against Rodriguez, No. 200,960-3
The parallels between Guarnera and this case extend beyond factual matters.
The balance of aggravating and mitigating factors in Guarnera also closely
resembles the balance found here. The Guarnera hearing officer found two
aggravating factors present here: dishonest or selfish motivation and multiple
offenses. Jd. at 57. The Guarnera hearing officer found three other aggravating
factors not found here due to a charging decision: a pattern of misconduct,
submission of false evidence or statements during the disciplinary process, and
refusal to acknowledge the wrongful nature of the conduct at issue. I d. The hearing
officer did not find those aggravating factors in Rodriguez's case because they
formed the substance of the other count warranting disbarment, Rodriguez's false
statements under oath. See Whitt, 149 Wn.2d at 720 (matters that form substantive
charges cannot become aggravating factors). The Guarnera hearing officer found
one final aggravating factor not present here, substantial experience in the practice
of law. 152 Wn.2d at 57. The hearing officer here found two mitigating factors not
present in Guarnero-Rodriguez's inexperience in the practice of law and good
character. Even assuming that Rodriguez's good character and inexperience
warrant mitigation, despite multiple acts of dishonesty and her nearly five years of
legal practice when she lied under oath to the WSBA, Rodriguez's conduct,
aggravating factors, and mitigating factors here are substantially similar to those in
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In re Disciplinary Proceeding Against Rodriguez, No. 200,960-3
Guarnera. The proportionality analysis requires that Rodriguez receive a similar
sanction.
Whitney involved a nearly identical fact pattern. Whitney, acting as a
guardian ad litem during a dissolution proceeding, submitted a report containing
intentional falsehoods to the tribunal. Whitney, 155 Wn.2d at 455-56. During a
deposition with the bar, and again during the disciplinary proceeding, Whitney
testified under oath that the report was truthful. !d. at 456, 458. The Board voted
seven to one to disbar Whitney, and we adopted this recommendation. !d. at 460,
470. Again, the substance of Whitney's violations, lying to a tribunal and then
lying under oath to the WSBA during disciplinary proceedings, resembles
Rodriguez's violations. Just as in Guarnera, the aggravating and mitigating factors
in Whitney mirror those here once the WSBA's charging decisions are accounted
for. See Whitney, 155 Wn.2d at 468-69 (the WSBA used Whitney's lying during
the disciplinary proceeding to aggravate the original offense, rather than charge the
deception as a separate violation). Again, the similarity of Whitney's offense to
Rodriguez's requires similarity of punishment.
Whitt is not quite as analogous as Guarnera and Whitney, but it is no less
instructive. Unlike Guarnera and Whitney, the underlying ethical violations
triggering the WSBA's investigation in Whitt did not warrant disbarment. Whitt,
149 Wn.2d at 710, 717. Nonetheless, we disregarded the Board's recommendation
22
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that we suspend Whitt and disbarred her instead based solely on the severity of the
charge of lying during a disciplinary proceeding. Id. at 720. Because those that
testify falsely during a disciplinary proceeding fail to discharge their professional
duties to the legal system and the legal profession, we held that disbarment is the
appropriate sanction simply for lying during the WSBA's investigation into other
offenses. Id. Whitt indicates that disbarment would be a proportional sanction in
this case if Rodriguez had only testified falsely during the disciplinary process.
The cases Rodriguez cites are not comparable to hers because they involved
different misconduct, less culpable attorneys, and substantial mitigation. Preszler
involved an attorney that backdated a fee agreement and submitted the agreement
to a bankruptcy trustee. 169 Wn.2d at 11. The bar did not charge Preszler with
lying during disciplinary proceedings, nor did it argue that he had done so in order
to aggravate his other offenses. See id. at 31-32. 6 Unlike Rodriguez, Preszler did
not compound his original falsity by testifying falsely during the disciplinary
process.
Dornay testified falsely during a dissolution proceeding. Dornay, 160
Wn.2d at 677. This falsehood occurred in the context of her abusive relationship
with one of the parties to the divorce. Id. at 677-78. Like Preszler, Dornay did not
6
We noted that some evidence indicated that Preszler provided inconsistent testimony
during the disciplinary process. Preszler, 169 Wn.2d at 32. However, there were no findings that
Preszler intentionally lied. See id. at 31-32. In contrast, the hearing officer here found Rodriguez
intentionally testified falsely during the disciplinary process. DP at 14.
23
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compound her violation by lying to the WSBA. Jd. at 678. Further, we found
Dornay's culpability substantially mitigated by the fact that Dornay's false
testimony arose due to intimate partner violence and an abusive relationship. Id. at
688. Even if we accept that exigent circumstances should similarly mitigate
Rodriguez's submission of forgeries to the BIA, she can make no such claim to
lessened culpability for her knowing falsehoods to the WSBA.
Christopher committed a violation similar to one of Rodriguez's. She
submitted a forged document to a tribunal. Christopher, 153 Wn.2d at 674.
Again, and importantly, Christopher did not testify falsely during the WSBA's
investigation. ld. at 675. Instead she stipulated to most of the facts at issue in the
disciplinary proceeding and cooperated fully with the investigation. ld. at 675,
683. Further, we affirmed eight of the mitigating factors adopted by the Board and
two of the aggravating factors. ld. at 685-86. This dramatic preponderance of
mitigating factors over aggravating factors led to our decision to impose a sanction
of suspension, rather than disbarment. ld. at 686. Rodriguez's case does not
involve such a significant preponderance of mitigating factors over aggravating
factors.
Dynan believed his actual hourly rate was irrelevant to the question of
reasonable attorney fees and submitted documents to the tribunal containing false
billing rates. Dynan, 152 Wn.2d at 607, 613. Again, the WSBA did not charge
24
In re Disciplinary Proceeding Against Rodriguez, No. 200,960-3
Dynan with false testimony during the disciplinary proceeding, nor did it argue that
he should receive an aggravated sanction for having done so. See id. at 610. We
imposed a lesser sanction based partly on the fact that Dynan did not intend to
deceive the court and had no selfish motivation underlying his falsity. !d. at 625.
In contrast, Rodriguez both intended to deceive the tribunal and had a selfish
motivation underlying her false testimony to the WSBA.
Our proportionality analysis requires that similar violations receive similar
sanctions. The facts and aggravating and mitigating factors here closely mirror
those in Guarnera and Whitney. Each of those cases involved two instances of
dishonesty during official proceedings: Guarnero submitted forgeries and then lied
about having done so, and Whitney submitted a report containing false statements
and then similarly lied to cover up his false testimony. We imposed the sanction of
disbarment in those cases. Even if Rodriguez had only lied during a disciplinary
proceeding, proportionality with Whitt requires disbarment. The cases Rodriguez
cites are not similarly situated with her case because none of the attorneys in those
cases testified falsely to the WSBA, and most of the cases involved attorneys with
less culpable mental states or mitigating factors that strongly pointed to a lesser
sanction. We reject her argument that disbarment is disproportionate.
25
In re Disciplinary Proceeding Against Rodriguez, No. 200,960-3
b) We provide deference to sanction recommendations from a
nearly unanimous Board
It is true that "a recommendation from a divided Board deserves less
weight." Marshall, 160 Wn.2d at 343 (citing Whitney, 155 Wn.2d at 469).
However, the Board's vote was nearly unanimous here (eight to one), and the
recommendation of an almost unanimous Board deserves considerable deference.
Whitney, 155 Wn.2d at 469. We therefore see no reason to depart from the
overwhelming consensus of the Board in imposing disbarment as the appropriate
sanction for Rodriguez's conduct.
IV. CONCLUSION
Faced with a bad situation, Rodriguez made a bad choice. We find
substantial evidence to support the hearing officer's findings that, contrary to her
oath as an officer of the court, Rodriguez submitted forged documents to a tribunal.
We do not need to decide whether the circumstances Rodriguez faced when she
took her client's appeal mitigated her submission of forgeries to a tribunal.
Rodriguez's acts of dishonesty did not stop with these forgeries. Faced with a bar
complaint and a WSBA investigation, Rodriguez testified falsely about the matter
under oath. We recognized in Whitt that the self-regulating nature of the bar makes
false testimony during the disciplinary process "one of the most egregious charges
that can be leveled against an attorney." 149 Wn.2d at 720. Such false testimony
subverts efforts to police and remedy misconduct and ensure public confidence in
26
In re Disciplinary Proceeding Against Rodriguez, No. 200,960-3
the legal system. Id. Like the Board, we see no sufficiently compelling reason to
impose less than the presumptive sanction for Rodriguez's repeated acts of
dishonesty. Consequently, we order Rosaura Del Carmen Rodriguez (Bar No.
34334) disbarred from the practice of law.
27
In re Disciplinary Proceeding Against Rodriguez, No. 200,960-3
WE CONCUR:
28
In re Disciplinary Proceeding Against Rodriguez, No. 200,960-3
Gonzalez, J. dissenting
No. 200,960-3
GONZALEZ, J. (dissenting)-Rosaura Del Carmen Rodriguez's conduct is
unacceptable, but the balance of aggravating and mitigating factors warrants a less
severe sanction than disbarment. Rodriguez's inexperience in the practice of law,
coupled with her motive to assist a client in need of swift legal assistance, weighs
against her disbarment, as do the additional mitigating factors of absence of prior
disciplinary record and her otherwise good character and reputation. I respectfully
dissent.
The majority compares this case to In re Disciplinary Proceeding Against
Guarnera, 152 Wn.2d 51, 93 P.3d 166 (2004), but the balance of mitigating and
aggravating factors in that case was substantially different. In Guarnera, the attorney
forged his client's signature, sent the forgery to the court and the prosecutor, and took
other deceptive measures to conceal the forgery. Id. at 57. Guarnero's substantial
experience in the practice of law was one of six aggravators. !d. The presumptive
sanction for Guarnera's misconduct was disbarment, which the hearing officer found
was appropriate despite the sole mitigating factor of absence of prior disciplinary
record. !d.; see also In re Disciplinary Proceeding Against Whitney, 155 Wn.2d 451,
467-69, 120 P.3d 550 (2005) (applying presumptive sanction of disbarment to
In re Disciplinary Proceeding Against Rodriguez, No. 200,960-3
Gonzalez, J. dissenting
attorney who testified falsely under oath, where board found seven aggravating factors
and one mitigating factor).
Although Rodriguez was found to have committed similar acts to those of
Guarnera, the relevant mitigating factors are sufficiently compelling to justify a
departure from the presumptive sanction of disbarment. Unlike Guarnera, who had
practiced law for more than a decade, Rodriguez had been an attorney for only three
years before committing the act that is at the heart of this disciplinary action.
Furthermore, Rodriguez was an associate in a high-volume practice when she was
confronted by her client's dire need for quick assistance to avoid the consequences of
his prior attorney's mistake. Although these circumstances do not justify Rodriguez's
misconduct, they do warrant a lesser punishment than disbarment.
Considering the seriousness of the misconduct at issue in this case, particularly
Rodriguez's attempt to conceal her prior misconduct, I would suspend Rodriguez
from the practice of law for three years. This is the longest term of suspension we
generally impose. In re Disciplinary Proceeding Against McMullen, 127 Wn.2d 150,
170, 896 P.2d 1281 (1995). Because disbarment is disproportionately harsh in light of
the applicable mitigating factors, I respectfully dissent.
2
In re Disciplinary Proceeding Against Rodriguez, No. 200,960-3
Gonzalez, J. dissenting
3