Disciplinary Proceeding Against Curran, Matter of

• Decision Date: 13 December 1990
• Docket Number: No. 8630,8630
• Citation: 801 P.2d 962,115 Wn.2d 747
• Court: Washington Supreme Court
• Parties: , 1 A.L.R.5th 1183 In the Matter of the DISCIPLINARY PROCEEDING AGAINST Patrick M. CURRAN, Attorney at law. Bar En Banc

Page 747

115 Wn.2d 747

801 P.2d 962, 1 A.L.R.5th 1183

In the Matter of the DISCIPLINARY PROCEEDING AGAINST Patrick M. CURRAN, Attorney at law.

Bar No. 8630.

Supreme Court of Washington,

En Banc.

Dec. 13, 1990.

Washington State Bar Ass'n,

Randy V. Beitel, Seattle, for Bar Ass'n.

Pence & Dawson, Christopher C. Pence, Seattle, for respondent.

UTTER, Justice.

The Disciplinary Board of the Washington State Bar Association (hereinafter Disciplinary Board) decided that Patrick Curran, an attorney, violated no rules of professional conduct when he was convicted of vehicular homicide. Accordingly, it terminated Mr. Curran's interim suspension, which attached automatically upon conviction of a felony, and ordered no disciplinary action. We hold that vehicular homicide reflects a disregard for the rule of law, RLD 1.1(a), and suspend him from practice for a period of 6 months beginning on the date of his oral argument before this court.

I

Until recently, Mr. Curran practiced with the firm of Riach, Gese, Seather, Watts & Curran in Lynnwood. In that capacity, he served as principal counsel for the City of Lynnwood and a number of utilities.

Following an afternoon of eating lunch and drinking with several clients, Curran attempted to drive three of the clients home on June 3, 1987. Curran recalls that the drinks consisted of at least a margarita before lunch, a beer with a light lunch, and a gin on the rocks after lunch. Curran does not remember what occurred after the third drink, but he got in the car and attempted to drive his luncheon companions home. His vehicle left the roadway, killing two of the passengers. As a result, a jury convicted Curran of two counts of vehicular homicide by (1) driving a vehicle while under the influence of alcohol, or (2) operating a vehicle with disregard for the safety of others. See RCW 46.61.520. The jury was instructed that a medical condition unforeseeable to Mr. Curran which prevented him from forming a conscious decision to drive was a defense, even if the jury found he was driving under the influence. On December 9, 1988, the trial judge sentenced Curran to 26 months on each of the two counts to run concurrently.

This court has since accepted review of Curran's appeal in the criminal case. In that case, Curran challenges the admission of evidence as to his blood alcohol level, which was reported to be .18. See Brief of Appellant, at ii.

Mr. Curran is a diabetic. The hearing examiner found that Curran gave himself a dose of insulin prior to lunch which proved to be excessive given the size of the meal. Mr. Curran could not recall events following lunch and attributes this failure of memory to excessive insulin. But the hearing examiner rejected a proposed factual finding that Mr. Curran experienced a medical imbalance which impaired his judgment.

Curran has never been an alcoholic. Mr. Curran has expressed remorse for the accident and has acted personally to cause his insurance carrier to tender the full amount of his liability coverage, $1.5 million, to the civil claimants against him, thus bringing about a full settlement. Before and after the accident, Mr. Curran has been of good moral character and enjoyed a good reputation in the community for integrity and honesty.

This court suspended Curran from the practice of law "pending disposition of disciplinary proceedings against him" on January 18, 1989. See Rules for Lawyer Discipline (RLD) 3.1(e), (f). On April 17, 1989, Mr. Curran filed a petition to terminate interim suspension pursuant to RLD 3.1(g). The Disciplinary Board, by a vote of 10-to-1, recommended that we terminate Mr. Curran's interim suspension for cause. RLD 3.1(g). On June 8, 1989, we rejected the recommendation at an en banc administrative conference.

Bar counsel charged Curran with committing an "act ... which reflects disregard for the rule of law", see RLD 1.1(a); with committing a criminal act that reflects adversely on his fitness as a lawyer, Rules of Professional Conduct (RPC) 8.4(b), see RLD 1.1(i); and with conduct prejudicial to the administration of justice, RPC 8.4(d), see RLD 1.1(i). Bar counsel requested a suspension lasting 6 months or until termination of parole.

Following a full hearing in August 1989, the hearing examiner concluded that bar counsel had failed to establish any rule violations. The Disciplinary Board voted 9-to-3 to accept the examiner's recommendation, and recommended Curran's reinstatement. Two members dissented, urging disbarment. One member dissented, but did not agree that disbarment was the appropriate sanction.

The Board of Governors refused bar counsel's recommendation to seek discretionary review. See RLD 7.3(c). Accordingly, bar counsel notified this court of dismissal of the disciplinary proceedings, as he is required to do. RLD 3.1(h). We noted that the result reached in the Curran case appeared to be inconsistent with the treatment of Gordon Willhite, an attorney who had committed vehicular homicide. In re Willhite, noted at 103 Wash.2d ff 1033 (1985) (C.D. 2303). ¹ The bar association had found that Mr. Willhite's conduct reflected a disrespect for the rule of law and had recommended a 12-month suspension. This court had approved a stipulation implementing this recommendation.

We responded to notification of dismissal of disciplinary proceedings in the Curran vehicular homicide case by denying reinstatement and directing counsel to prepare briefs on the following issues:

(a) Whether Patrick Curran's conduct involved moral turpitude.

(b) Whether Patrick Curran's conduct reflects adversely on his fitness as a lawyer.

(c) Whether Patrick Curran's conduct was prejudicial to the administration of justice.

(d) What is the effect of the Bar Association's stipulation regarding moral turpitude.

(e) Should reinstatement occur while respondent's conviction is in effect, including the issue of the claimed deprivation of civil rights.

Order, C.D. 8630, March 6, 1990. The court relied on its inherent authority to dispose of individual cases involving lawyer discipline in deciding to review the case. RLD 2.1. Following submission of briefs by the parties, the court asked the parties to address the issue of whether Curran's conduct reflected disregard for the rule of law. See RLD 1.1(a); Rules of Appellate Procedure (RAP) 12.1(b).

II

We first address Curran's vigorous objection to our decision to review this case on our own motion. He concedes that this court has the inherent power to review bar discipline cases, see RLD 2.1, but argues that we must exercise that power within the constraints contained in the Rules for Lawyer Discipline which we have adopted. These rules, according to Curran, do not authorize this court to review a case on its own motion. We agree that we should exercise our powers within the confines of the rules as interpreted in our cases. We must therefore decide whether the rules authorize review upon the motion of the court.

Title 7 of the Rules for Lawyer Discipline governs appeal routes in attorney discipline cases. RLD 7.1(a) explains that two methods of appeal exist for review of lawyer discipline cases, review as a matter of right, called appeal, RLD 7.1(a)(1), and review by permission of the Supreme Court, called discretionary review, RLD 7.1(a)(2). Rule 7.1(b) states that this rule shall not affect the power of the Supreme Court to exercise its inherent and exclusive jurisdiction over the lawyer discipline system. RLD 7.1(b). That inherent power includes review of individual cases. See RLD 2.1. This suggests rather strongly that we may review cases on our own motion, even when no appeal can be made and no motion for discretionary review has been filed.

Curran, however, notes that RLD 7.3(a) states that Disciplinary Board decisions not providing for suspension or disbarment "are subject to review by the Supreme Court only through discretionary review." RLD 7.3(a). Neither the Board of Governors nor Mr. Curran exercised their rights to seek discretionary review before this court. See RLD 7.3(b), 7.3(c). Curran argues that the lack of a petition for review precludes Supreme Court review because of the exclusive language of RLD 7.3(a).

This argument draws this language from its context. RLD 7.2 explains that a lawyer has a right to appeal when the bar has suspended or disbarred the lawyer. RLD 7.3(a)'s statement that decisions not providing for suspension are reviewable only through discretionary review follows the appeal provisions in RLD 7.2. Read in context, RLD 7.3(a) simply means that an appeal as of right is not available when the bar declines to discipline a lawyer through suspension or disbarment. In light of RLD 7.1(b)'s statement that the rule providing for appeal and discretionary review does not affect the powers of this court to review cases, this is the only possible interpretation of RLD 7.3(a). The text of the rules authorize our review of disciplinary matters on our own motion.

We recently relied on RLD 7.1(b) to review a case on our own motion. See In re Felice, 112 Wash.2d 520, 525, 772 P.2d 505 (1989). Felice shows that RLD 7.3(a) limits the ability of disciplined lawyers not suspended or disbarred and the Board of Governors to appeal to this court. They cannot appeal cases not involving suspension or disbarment; they can only seek discretionary review. The rule does not limit our authority to review a case on our own motion. See also In re Johnson, 114 Wash.2d 737, 738, 744, 790 P.2d 1227 (1990); In re Stroh, 97 Wash.2d 289, 294, 644 P.2d 1161 (1982), cert. denied, 459 U.S. 1202, 103 S.Ct. 1187, 75 L.Ed.2d 434 (1983).

We emphasize, however, that we do not exercise this power lightly. Our responsibility to ensure consistent discipline of attorneys requires us to exercise this power when gross inconsistencies appear in cases involving similar conduct. The conclusion that Mr. Curran's vehicular homicide shows no disregard for the rule of law appears...