In re Disciplinary Proceeding Against Dynan

• Decision Date: 30 September 2004
• Docket Number: No. 12161-3.,12161-3.
• Citation: 98 P.3d 444,152 Wash.2d 601
• Court: Washington Supreme Court
• Parties: In the Matter of the DISCIPLINARY PROCEEDING AGAINST Mark J. DYNAN, Attorney at Law.

98 P.3d 444

152 Wash.2d 601

In the Matter of the DISCIPLINARY PROCEEDING AGAINST Mark J. DYNAN, Attorney at Law.

No. 12161-3.

Supreme Court of Washington, En Banc.

Argued March 9, 2004.

Decided September 30, 2004.

As Amended on Denial of Reconsideration November 30, 2004.

Douglas M. Fryer, Anthony Lawrence Butler, Washington State Bar, Seattle, for Petitioner.

Edward Sydney Winskill, Davies Pearson PC, Tacoma, for Respondent.

OWENS, J.

Allstate Insurance Company (Allstate) retained Mark J. Dynan in three different lawsuits to represent people insured by the company. Dynan requested attorney fees in these suits under RCW 4.84.250 and/or Mandatory Arbitration Rules (MAR) 7.3. Dynan submitted declarations for attorney fees and copies of bills sent to Allstate in support of his motions for attorney fees. The declarations stated that the bills attached were true and correct billings for Dynan's time and services. However, the attached bills were not those sent to Allstate. Dynan's office whited out the actual hourly rate, $100-$120, and replaced it with a reasonable attorney fee, $150 per hour, before he submitted the bills to the court. Dynan's knowing alteration of the bills and submission of false declarations to the court constitute falsification and misrepresentation of evidence. The presumptive sanction for false swearing is disbarment. However, in light of the lack of actual harm resulting from Dynan's actions, the addition of a mitigating factor, and a proportionality analysis, we depart from the Disciplinary Board's (Board) recommendation of a nine-month suspension and hold that Dynan is suspended for six months.

STANDARD OF REVIEW

In disciplinary proceedings, the Supreme Court has "plenary authority" and the court's discretion is limited only by the evidence before it. In re Disciplinary Proceeding Against Whitt, 149 Wash.2d 707, 716, 72 P.3d 173 (2003). The court will treat unchallenged findings of fact as verities on appeal and a challenged finding of fact will not be overturned if it is supported by a clear preponderance of the evidence. See In re Disciplinary Proceeding Against Kuvara, 149 Wash.2d 237, 246, 66 P.3d 1057 (2003)

; In re Disciplinary Proceeding Against Anschell, 149 Wash.2d 484, 503, 69 P.3d 844 (2003); State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994); Rules for Lawyer Discipline (RLD) 4.11(b) (stating disciplinary council must prove misconduct "by a clear preponderance of the evidence").¹ A clear preponderance of the evidence is an intermediate standard between simple preponderance in a civil suit and reasonable doubt in a criminal action. In re Disciplinary Proceeding Against Halverson, 140 Wash.2d 475, 486, 998 P.2d 833 (2000). The court reviews conclusions of law de novo and will uphold those conclusions if they are supported by the findings of fact. Whitt,

149 Wash.2d at 716-17,

72 P.3d 173; In re Disciplinary Proceeding Against Boelter, 139 Wash.2d 81, 90, 985 P.2d 328 (1999).

FACTS

Although Dynan assigns error to the Board's modification of the hearing officer's findings of fact, Dynan specifically challenges only the Board's modified finding of fact 12, which is supported by a clear preponderance of the evidence. See Resp't's Br. at 4, 16.² Therefore, we adopt the Board's modified findings of fact.³ Although the Board's modified findings of fact include findings on six cases, the Washington State Bar Association (WSBA) filed complaints regarding Dynan's conduct in only three Pierce County Superior Court cases: Le v. Hedberg, No. 97-2-12023-9 (Hedberg); Han v. Allstate Insurance Co., No. 95-2-06251-8, 1997 WL 453651 (Han); and Walls v. Walls, No. 95-2-11451-8, 1998 WL 349872 (Walls). See Record Before the Disciplinary Board at 831-37 (Third Amended Formal Complaint); Disciplinary Board Decision Papers [hereinafter Decision Papers] at 8-10 (Disciplinary Board Order, Findings of Fact 34-50 (findings regarding three additional cases)). Similar conduct in the three additional cases supports a pattern of misconduct, which is an aggravating factor. See In re Disciplinary Proceeding Against Anschell, 141 Wash.2d 593, 615, 9 P.3d 193 (2000)

(explaining how a pattern of misconduct may be established). However, it is unnecessary for us to consider these cases because Dynan's actions in Hedberg, Han, and Walls already constitute a pattern of misconduct. Therefore, our discussion will be limited to Hedberg, Han, and Walls. See infra note 24.

Dynan, representing Allstate and Allstate insurees, submitted sworn declarations to the court in support of his motion for attorney fees in Hedberg, Han, and Walls pursuant to MAR 7.3 or RCW 4.84.250 between 1997 and 1999. Report of Proceedings (RP) (Dec. 5, 2001) at 33 (Han, MAR 7.3), 35 (Hedberg, RCW 4.84.250), 36-37 (Walls, RCW 4.84.250). All three declarations used similar language. In Hedberg the declaration stated "[a]ttached hereto as Tab No. 1 are true and correct billings for my time and services expended on this matter." Ex. 1. The declaration in Walls used identical language, substituting Tab No. 1 with Tab No. 3. Ex. 15. In Han two declarations were submitted. The first stated, "[a]ttached hereto are copies of the past bills sent to the insurance company." Ex. 5. The second stated, "[a]ttached hereto are true and correct copies of all billing charges." Ex. 8.⁴ The billings attached to all of the above declarations were copies of the actual bills sent to Allstate with the original hourly billing rate, $100-$120, whited out and $150⁵ typed in its place. See RP (Dec. 5, 2001) at 54-55 (Dynan admitting to the alterations).⁶ Dynan also submitted billing statements using the $150 hourly billing rate to Paul Apple, his opposing counsel in Han and Hedberg. Ex. 1, 2, 11; RP (Dec. 4, 2001) at 21-25. Although the Board determined that Dynan knowingly filed the declarations and altered billings with the court, it also concluded that Dynan did not believe the actual fee amount was material to a reasonable attorney fee award and Dynan did not intend to deceive the court.⁷

No attorney fees were paid out in Hedberg and Walls because Hedberg settled and the attorney fee award in Walls was overturned on appeal. In Han, attorney fees were granted and the plaintiff paid approximately $3,449 more than Dynan's actual fees.⁸ These higher fees were not recouped by Dynan, but were paid to Allstate.

Based on the above conduct, the WSBA filed complaints against Dynan regarding declarations and bill submissions made to the court in Hedberg, Han, and Walls. The WSBA accused Dynan of four counts of misconduct based on violations of Rules of Professional Conduct (RPC) 3.3(a)(1) and (4), 3.4(b), and 8.4(c) and (d). On December 4-5, 2001, hearing officer Gayle T. McElroy heard the case. McElroy determined that the WSBA had not proved the charges by a preponderance of the evidence, but found that Dynan's conduct was negligent and potentially could cause harm. Subsequently, she ordered Dynan censured. The WSBA appealed the hearing officer's decision and the Board disagreed with the hearing officer. The Board modified McElroy's findings of fact and conclusions of law and concluded that all four counts were proved by a preponderance of the evidence. After conducting a proportionality analysis, the Board recommended a nine-month suspension. We depart from the Board and hold that the appropriate sanction is a six-month suspension.

ISSUES

1. Did the WSBA prove all four counts of misconduct based on the violation of RPC 3.3(a)(1) and (4), 3.4(b), and 8.4(c) and (d) by a preponderance of the evidence?

2. If the WSBA proved misconduct, is the appropriate sanction a nine-month suspension?

ANALYSIS

Our court has determined that the American Bar Association's Standards for Imposing Lawyer Sanctions (1991 & Supp.1992) (ABA Standards) should guide our bar disciplinary cases. Halverson, 140 Wash.2d at 492, 998 P.2d 833. Under the ABA Standards, after misconduct is found the court performs a two prong analysis. Id. at 492-93, 998 P.2d 833. First, the court determines the presumptive sanction based on the ethical duty violated, the attorney's mental state, and the extent of actual or potential harm caused by the conduct. Id. The court then considers aggravating and mitigating factors, which may decrease or lengthen the presumptive sanction. Id. at 493, 998 P.2d 833; see ABA Standards stds. 9.22, .32. Finally, the court will adopt the Board's recommended sanction unless the sanction departs significantly from sanctions imposed in other cases or the Board was not unanimous in its decision. In re Disciplinary Proceeding Against Miller, 149 Wash.2d 262, 277-78, 285-86, 66 P.3d 1069 (2003).⁹

A. Ethical Violations/Misconduct

Dynan challenges the Board's conclusions of law finding him guilty of all four counts of misconduct, and argues the WSBA did not prove the misconduct by a clear preponderance of the evidence.¹⁰ We uphold the Board's conclusions of law because they are supported by the Board's unchallenged, modified findings of fact, and these findings of fact do not support the hearing officer's conclusions of law.¹¹ Therefore, we determine the WSBA proved misconduct by a preponderance of the evidence.

1. CountI — RPC 3.3(a)(1)¹²

RPC 3.3(a)(1) states "[a] lawyer shall not knowingly make a false statement of material fact or law to a tribunal." The Board's modified findings of fact show Dynan knowingly submitted material and false declarations and attached billings in support of his motions for attorney's fees.¹³ Therefore, the Board correctly concluded that Dynan's conduct constituted a violation of RPC 3.3(a)(1).

a. Materiality

Dynan argues that an attorney does not have to provide documentation of his actual fee rate to the court because the actual rate may not be the reasonable rate and is therefore not material to a determination of a reasonable fee award. Dynan further asserts that an attorney's actual rate is not material to a fee award because the...