Disciplinary Proceeding against Perez-Pena

• Decision Date: 04 October 2007
• Docket Number: No. 200,428-8.,200,428-8.
• Citation: 168 P.3d 408,161 Wn.2d 820
• Court: Washington Supreme Court
• Parties: In the Matter of the DISCIPLINARY PROCEEDING AGAINST Fernando PEREZ-PENA, Attorney at Law.

168 P.3d 408

In the Matter of the DISCIPLINARY PROCEEDING AGAINST Fernando PEREZ-PENA, Attorney at Law.

No. 200,428-8.

Supreme Court of Washington, En Banc.

Argued May 17, 2007.

Decided October 4, 2007.

Anthony Savage, Attorney at Law, Seattle, WA, for Petitioner.

M. Craig Bray, Washington State Bar Association, Seattle, WA, for Respondent.

BRIDGE, J.

¶ 1 Attorney Fernando Perez-Pena appeals from the Washington State Bar Association Disciplinary Board's (Board) recommendation that he be suspended from the practice of law for six months. The Washington State Bar Association's (WSBA) hearing officer concluded that Perez-Pena had committed misconduct by assaulting Cecelia Cameron Garcia in the course of representing Cecelia and her husband, Arturo. The hearing officer found that the second count against Perez-Pena, that he had failed to return an unearned fee, was not proved. The hearing officer recommended that Perez-Pena be admonished. In a unanimous decision, the Board amended the hearing officer's recommended sanction on count 1 and reversed the ultimate finding on count 2. The Board recommended a three-month suspension for the assault, to run concurrently with a six-month suspension for Perez-Pena's failure to return the Garcias' money. It also recommended that reinstatement be conditioned on making restitution. Perez-Pena appealed to this court, arguing that the hearing officer improperly relied on his assault conviction as conclusive evidence that he committed the act, even though the conviction was vacated, and that even though he has failed to return the Garcias' money, an admonishment is sufficient. The WSBA argues that the six-month suspension and restitution requirement should be imposed. While we agree in large part with the Board's analysis, we impose a 60-day suspension, with reinstatement conditioned upon Perez-Pena fulfilling the civil judgment against him.

I Facts and Procedural History

¶ 2 Fernando Perez-Pena was admitted to practice in Washington State in 1973.¹ He has a general practice, which includes immigration law. On March 22, 2001, Cecelia and Arturo Garcia met with Perez-Pena, seeking his help in an immigration matter. They agreed to a fee of $2,000, which the Garcias paid via check. There was no written fee agreement.

¶ 3 The Garcias were concerned about paying the money, which they had borrowed from Mrs. Garcia's mother. They were also concerned (unjustifiably) about whether Perez-Pena was actually a lawyer, since they received some bad advice, apparently from a nonlawyer, that Perez-Pena had given them "wrong" forms and that he did not give them the required medical forms. Finding of Fact (FOF) 5. This information was not accurate. Additionally, the Garcias could not find a financial sponsor for Mr. Garcia.

¶ 4 Presumably due to these concerns, the Garcias decided a few days after their first meeting not to proceed with the matter and asked Perez-Pena for a refund. He agreed to return $1,500, charging a flat fee of $500 for the work he had done, and gave the Garcias a check in that amount. However, the Garcias were unable to deposit the check because their bank account had only Mrs. Garcia's maiden name on it. Perez-Pena had possession of the Garcias' marriage certificate, so they went back to his office to obtain the certificate. Their demeanor at Perez-Pena's office was hostile, and after they obtained the certificate they threatened lawsuits and WSBA complaints.

¶ 5 Based on the threats and what he perceived as a lack of appreciation for his agreement to refund the money, Perez-Pena stopped payment on the check. He did not notify the Garcias, and the check bounced. After a series of hostile dealings, letters, and phone conversations, Perez-Pena agreed to give the Garcias a refund of $1,600 if they agreed to sign releases of liability.² The Garcias agreed, and on March 31, 2001 they went to Perez-Pena's office with the releases and the bounced check. Mr. Garcia went into the office, where he was disruptive. Id. Perez-Pena called the police, and Mr. Garcia left.

¶ 6 Perez-Pena ultimately agreed to go to his bank to obtain a cashier's check for the Garcias, and the parties met to exchange the documents. During the exchange, Mrs. Garcia tried to keep the check and grab the releases back from Perez-Pena. Perez-Pena pushed or hit Mrs. Garcia, who ended up with the check but tore the release document in half. Perez-Pena thereafter reported the check stolen, and it bounced.

¶ 7 The city of Seattle charged Perez-Pena with misdemeanor assault, and a jury convicted him on January 30, 2002. On February 28, 2002, the court granted Perez-Pena a deferred sentence. Perez-Pena completed the conditions of his deferred sentence, and on July 3, 2003 the court vacated his judgment and sentence and dismissed the complaint. On May 9, 2005, in anticipation of his disciplinary proceedings, Perez-Pena filed a motion to clarify the docket entries of July 3, 2003, asking, inter alia, for the court to vacate the jury verdict. The court clarified that it had vacated the judgment and sentence and dismissed the complaint but, notably, it would not vacate the jury verdict.

¶ 8 On May 29, 2002, the Garcias filed a claim against Perez-Pena in small claims court for the unearned portion of the fee they paid to Perez-Pena. The court awarded the Garcias $1,431.45, id., which Perez-Pena has admittedly not paid.

¶ 9 On July 19, 2005, WSBA filed a formal complaint against Perez-Pena, alleging that he committed a criminal act that reflected adversely on his fitness to practice, in violation of RPC 8.4(b),³ and/or committed an unjustified act of assault, in violation of RPC 8.4(i)⁴ (count 1); and that he failed to refund an unearned fee, in violation of former RPC 1.15(d)⁵ (count 2). On March 14, 2006, Hearing Officer James C. Lawrie held the disciplinary hearing. On March 22, 2006, he filed his findings of fact and conclusions of law with the Board. He found that count 1 had been proved, and that an admonition was the appropriate sanction. He dismissed count 2, finding that the fee was earned at the time of payment and that "[t]he clients obtained the core benefits of knowledge and procedures (with some initial forms)." Clerk's Papers (CP) at 81-83.

¶ 10 On October 12, 2006, in a unanimous decision, the Board amended the hearing officer's decision. It found that even though the resulting injury from the assault was minor, the incident "seriously reflects adversely on [Perez-Pena]'s fitness as to demeanor and handling of complex emotional client[] confrontations." FOF 20. The Board recommended a three-month suspension for count 1. Contrary to the decision of the hearing officer, the Board found that count 2 was proved. It found that the record did not contain a written fee agreement or other evidence to support finding a nonrefundable fee and that Perez-Pena had done only three or four hours of labor on the case. Therefore, because Perez-Pena "repeatedly and intentionally prevented his clients from recovering the unearned portion of the fee," Decision Papers (DP) at 20, the Board recommended a six-month suspension for count 2. DP at 22. It also recommended that Perez-Pena be required to satisfy the civil judgment within three months of this court's order. Perez-Pena now appeals this recommendation.

II Analysis Standard of Review

¶ 11 This court is ultimately responsible for lawyer discipline in the state of Washington and holds plenary authority in that regard. In re Disciplinary Proceeding Against Whitney, 155 Wash.2d 451, 461, 120 P.3d 550 (2005). We have the inherent power to interpret the rules of lawyer discipline. In re Disciplinary Proceeding Against Haley, 156 Wash.2d 324, 333, 126 P.3d 1262 (2006). Although we make the final decision regarding the proper sanction, a hearing officer makes findings of fact and conclusions of law and recommends a sanction to the Board. Whitney, 155 Wash.2d at 461, 120 P.3d 550. The Board may then adopt, modify, or reverse the findings, conclusions, and/or recommendations. Id. Unchallenged findings of fact made by the hearing officer and unchanged by the Board are viewed as verities on appeal. Id. We will uphold challenged findings of fact if they are supported by a clear preponderance of the evidence. Id. We review conclusions of law de novo. Id.

Misconduct

Count 1 — Assault

¶ 12 Perez-Pena does not specifically challenge the findings of fact for count 1 but instead argues that the hearing officer erred in relying upon his municipal court conviction for assault as conclusive evidence of his guilt of that crime. See Fernando Perez-Pena's Br. in Opp'n to Decision of the Disciplinary Bd. of WSBA (Br. in Opp'n) at 8. ELC 10.14(c) states that if a formal complaint against an attorney is based upon criminal conduct of which the attorney has been convicted, then "the court record of the conviction is conclusive evidence at the disciplinary hearing of the respondent's guilt of the crime and violation of the statute on which the conviction was based." However, RCW 9.96.060(3) provides that

[o]nce the court vacates a record of conviction under subsection (1) of this section, the person shall be released from all penalties and disabilities resulting from the offense. . . . For all purposes . . . a person whose conviction has been vacated under subsection (1) of this section may state that he or she has never been convicted of that crime.

Perez-Pena argues that because RCW 9.96.060(3) expressly released him from "all penalties and disabilities resulting from the offense" upon the vacation of his conviction and because he obtained a vacation of his judgment and sentence and a dismissal of the original complaint, the hearing officer erred in relying upon his conviction as conclusive evidence of his guilt. Br. in Opp'n at 8-12.

¶ 13 We first discern whether the dismissal of the complaint and vacation of the judgment and sentence constitute a vacation of a person's...