In re Disciplinary Proc. Against Cohen

• Decision Date: 15 January 2004
• Docket Number: No. 00373-4.,00373-4.
• Citation: 150 Wash.2d 744,82 P.3d 224
• Parties: In the Matter of the DISCIPLINARY PROCEEDING AGAINST Norman W. COHEN, Attorney at Law.
• Court: Washington Supreme Court

82 P.3d 224

150 Wash.2d 744

In the Matter of the DISCIPLINARY PROCEEDING AGAINST Norman W. COHEN, Attorney at Law.

No. 00373-4.

Supreme Court of Washington, En Banc.

Argued February 11, 2003.

Decided January 15, 2004.

Kurt M. Bulmer, Seattle, for respondent.

Anne I. Seidel, WSBA, Seattle, for appellant.

BRIDGE, J.

Attorney Norman Wolfe Cohen (Cohen) appeals the Washington State Bar Disciplinary Board's (Board) recommendation to suspend him for one year for three counts of misconduct. The Washington State Bar Association (WSBA) charged Cohen with (I) violation of Rules of Professional Conduct (RPC) 1.3 and 3.2, (II) violation of RPC 1.4(a) and 1.4(b), and (III) violation of RPC 1.15, 1.3, and 1.4. The hearing officer concluded that the WSBA had proved all three counts, and recommended restitution to the client, a one-year suspension less any period of time that Cohen served for his suspension for misconduct in another pending disciplinary matter, and a two-year probationary period. The Board affirmed the hearing officer's recommendation to impose a one-year suspension and restitution but refused to consider Cohen's other pending disciplinary matter or to require a probationary period.

Cohen argues that the WSBA failed to prove count III, improper withdrawal from his client's case, since he offered a letter from his physician that suggested he suffers from physical and mental conditions. He also argues that the hearing officer and Board failed to properly evaluate the applicable aggravating and mitigating circumstances and that the one-year suspension is disproportional to sanctions imposed for similar offenses. We reject Cohen's arguments and affirm the Board's recommendation that Cohen should provide restitution and serve a one-year suspension without credit for any period of suspension he serves in his other disciplinary matter. We also hold that the hearing officer and the Board may properly consider other pending disciplinary cases in determining sanctions.

I Statement of the Facts

Cohen was admitted to the WSBA in 1965. His practice consists of workers' compensation, employment law, and personal injury. Since 1970, Cohen has received four admonitions, a censure, and a reprimand because he failed to communicate with clients or diligently pursue cases. Last year, we suspended Cohen for six months followed by two years of probation for misconduct in his handling of Lawrence Cohn's employment case in 1994. In re Disciplinary Proceeding Against Cohen, 149 Wash.2d 323, 342, 67 P.3d 1086 (2003) (Cohen I). Cohen I had not been concluded at the time of Cohen's hearing and appeal to the Board in this disciplinary proceeding. However, Cohen had received the WSBA's analysis letter for Cohen I, which delineated the actions which led the WSBA to the conclusion that he had violated the RPC prior to the time that he engaged in the misconduct charged here.

This matter arose from Cohen's representation of Ron "Arne" Erickson (Erickson). In May 1996, Erickson retained Cohen to represent him in an employment dispute with King County Parks (King County). The trial court judge initially scheduled Erickson's trial for July 27, 1998. Despite Erickson's requests for quick resolution of his case, Cohen obtained a continuance due to commitments in other cases and failed to inform Erickson about the delay.

Cohen contacted King County's counsel, Alex Golan, about a second continuance in July 1998 after Golan filed a motion to compel discovery. When Golan hesitated, Cohen offered to voluntarily dismiss the suit. Cohen and Golan executed a joint stipulation to voluntarily dismiss Erickson's suit, and the trial court judge dismissed his case on August 6, 1998. To justify this second delay to his client, Cohen told Erickson that King County had asked for the continuance, and that he could not oppose King County's request.

Cohen refiled Erickson's lawsuit in September 1998 but failed to file a confirmation of service or to send Erickson a copy of the scheduling order for the new trial. Cohen also failed to timely file a confirmation of joinder and statement of arbitrability. After Cohen missed a status conference, the trial court judge dismissed Erickson's case without prejudice in April 1999. Cohen paid the sanction required by the court for the missed status conference and subsequent dismissal, and had the case reinstated once again in June 1999.

In November 1999, Cohen approached Golan with a request to transfer Erickson's case to mandatory arbitration. Golan agreed to the transfer. However, Cohen failed to consult with Erickson before requesting mandatory arbitration and failed to explain the risks of arbitration, i.e., that he would be liable for King County's attorney fees and costs if he lost.¹

At arbitration, Cohen presented two witnesses and demanded one dollar in damages. The arbitrator ruled against Erickson. Cohen then filed for a trial de novo but neglected to timely file a jury demand with his request, pursuant to King County Local Mandatory Arbitration Rule 7.1. On Cohen's motion to reverse this error, the trial court refused to grant Erickson's jury demand.

Finally, in November 2000, after the defendants filed a summary judgment motion and a motion for expedited consideration, Cohen filed a motion to withdraw. He failed to inform Erickson of his intent to withdraw before filing his motion with the trial court. Cohen supported his motion with a letter from his physician that stated Cohen suffered from high blood pressure, hyperlipidemia, and had recently experienced the death of a relative. Cohen knew of his health problems for more than a year before making his decision to withdraw from Erickson's case.

Erickson was unable to obtain new counsel after Cohen withdrew because of the difficult procedural posture of his case. Cohen left his client with no jury, trial de novo, and a rapidly approaching trial date. Consequently, Erickson agreed to dismiss the case with prejudice after defendants notified him that he could be liable for King County's attorney fees and costs.²

On September 24, 2001, the WSBA filed its formal complaint against Cohen based on his actions in Erickson's case and held a disciplinary hearing on May 7, 2002. Count I alleged Cohen violated RPC 1.3 and/or 3.2 for failure to diligently represent his client and failure to expedite litigation. On count I, the hearing officer found that Cohen had violated RPC 1.3 and 3.2 because he voluntarily dismissed the first lawsuit, failed to conduct any discovery in the first lawsuit, failed to comply with a court order in the second lawsuit resulting in the dismissal of that suit, and transferred Erickson's case to mandatory arbitration shortly before trial. Record at 13, Conclusion of Law (CL) 64.

In count II, the WSBA asserted that Cohen had failed to communicate adequately with his client. On count II, the hearing officer found that Cohen violated RPC 1.4(a) and 1.4(b) because he did not tell Erickson about the voluntary dismissal. He found that Cohen also failed to explain the risks of mandatory arbitration, failed to tell Erickson about the transfer of his case to arbitration, failed to obtain his consent to the arbitration transfer, neglected to return Erickson's phone calls, and failed to keep Erickson informed about the status of his case. Record at 13-14, CL 65.

In count III, the WSBA asserted that Cohen violated RPC 1.15, 1.3, and 1.4 by improperly withdrawing from Erickson's case, and/or failing to withdraw sooner, and/or failing to tell Erickson sooner about his need to withdraw. On count III, the hearing officer found that Cohen had violated RPC 1.15 by withdrawing from Erickson's case without a valid reason. Record at 14, CL 65. The hearing officer did not find that Cohen's claims of physical and mental health problems justified withdrawal. Record at 14, CL 66. Further, Cohen violated RPC 1.15, 1.3, and 1.4 by failing to advise his client about his illness even though he knew about his conditions for more than one year before making his motion to withdraw. Id.

The hearing officer considered the following eight aggravating factors when making his decision to discipline Cohen: prior disciplinary offenses, dishonest or selfish motive, pattern of misconduct, multiple offenses, refusal to acknowledge wrongfulness of the conduct, vulnerability of the victim, substantial experience in the practice of law, and indifference in making restitution. The hearing officer found one mitigating circumstance: personal or emotional problems. Based on these factors, the hearing officer recommended a one-year suspension with credit for time that Cohen was suspended in then-pending Cohen I. Record at 15, CL 73. He also recommended that Cohen receive probation consistent with that imposed in Cohen I and that Cohen pay $1,836.42 in restitution to Erickson. Id.

The Board adopted the hearing officer's findings of fact, conclusions of law, and recommendation with several amendments. Decision Papers (DP) at 1. The Board omitted all references to Cohen I but determined that the remaining aggravating factors justified the year long suspension. Id. The Board refused to give Cohen credit for any other suspension and declined to impose any probationary period. Id. Finally, the Board found that restitution of $1,836.42 should remain a condition of Cohen's reinstatement at the end of the suspension. Id. at 2. Cohen appealed.

Before this court, Cohen challenges the hearing officer's and Board's conclusion that the WSBA proved count III since he had provided the hearing officer and Board with his physician's letter which he asserts established physical and emotional conditions that justified his untimely withdrawal from Erickson's case. Additionally, Cohen argues that the hearing officer and Board incorrectly determined aggravating and mitigating circumstances and that his one-year suspension is disproportional to sanctions imposed for similar misconduct....