In re Disciplinary Proceeding Against Christopher

• Decision Date: 03 February 2005
• Docket Number: No. 200,064-9.
• Citation: In re Disciplinary Proceeding Against Christopher, 153 Wash.2d 669, 105 P.3d 976 (Wash. 2005)
• Court: Washington Supreme Court
• Parties: In the Matter of the DISCIPLINARY PROCEEDING AGAINST Margaret Diamond CHRISTOPHER, an Attorney at Law.

105 P.3d 976

153 Wash.2d 669

In the Matter of the DISCIPLINARY PROCEEDING AGAINST Margaret Diamond CHRISTOPHER, an Attorney at Law.

No. 200,064-9.

Supreme Court of Washington, En Banc.

Argued June 29, 2004.

Decided February 3, 2005.

As Amended on Denial Reconsideration March 25, 2005.

Kevin M. Bank, Washington State Bar Association, Seattle, for Petitioner.

Margaret Diamond Christopher, Kurt M. Bulmer, Seattle, for Respondent.

IRELAND, J.¹

In this case we consider whether to impose the Washington State Bar Association Disciplinary Board's (Board) recommended sanction of an 18-month suspension followed by three years of probation against Attorney Margaret Diamond Christopher. Christopher violated Rules of Professional Conduct (RPC) 3.3(a)(1), 3.3(a)(4), 3.3(b), 8.4(b), 8.4(c), and 8.4(d). The Washington State Bar Association (WSBA) contends that the appropriate sanction is disbarment. Christopher requests that we sanction her with a reprimand, as recommended by the hearing officer. We impose the sanction recommended by the Board.

FACTS

Attorney Christopher was admitted to the practice law in the state of Washington on June 20, 1995. In 1999, Christopher worked as an associate at the law firm of Graham and Dunn in Seattle, Washington. In the first case Christopher was assigned to handle on her own, she represented the defendants in a civil action that was subject to mandatory arbitration. On August 25, 1999, the arbitrator ruled in favor of the plaintiff.

After receiving the arbitrator's ruling, Christopher became concerned that she had made a mistake by not submitting an offer of judgment to the plaintiff prior to the arbitration in order to preserve her clients' right to an award of attorney fees in the event of a successful appeal to the superior court.² She worried that her failure to submit an offer of judgment might expose her law firm to a malpractice claim.

On August 25, 1999, Christopher created an offer of judgment pleading, which she signed and backdated to July 27, 1999. She attached a stamped declaration of mailing on which she forged her secretary's signature. Christopher filed the offer of judgment pleading and mailed a copy to opposing counsel. She also created a declaration in support of attorney fees, which stated that the offer of judgment was a true and correct copy of the defendants' offer to settle and that it had been served on the plaintiff on July 27, 1999. Christopher created an entry in her billing records to falsely reflect that she had prepared and finalized the offer of judgment on July 27, 1999.

After the papers were filed, the plaintiff's attorney called and spoke with Christopher's secretary. On September 2, 1999, Christopher wrote to the arbitrator and stated, "[M]y declaration and fee documentation was submitted simply to preserve the record in case of an appeal. I apologize for any confusion that this may have caused." Clerk's Papers at 12.

In early October, Christopher and her secretary exchanged e-mails and conferenced about the offer of judgment and declaration in support of fees. On October 11, 1999, the secretary said she would report the matter to Graham and Dunn's ethics chair or managing partner if Christopher did not do it herself. On the same day, the secretary reported the matter to management. On October 12, 1999, Christopher met with management. She was fired and informed that if she did not self-report the matter to the WSBA, management would report it. On October 13, 1999, Christopher reported the matter to the WSBA.

The WSBA filed a formal complaint against Christopher in August 2000. The complaint charged Christopher with four counts of misconduct, alleging that she (1) falsified various documents filed with the court; (2) made false statements under oath; (3) forged the signature of her secretary on one of the falsified documents; and (4) demonstrated her unfitness to practice law by her conduct.

The parties stipulated to most of the facts prior to the hearing. The hearing officer concluded that the WSBA proved counts 1 and 3, but he dismissed counts 2 and 4. For count 1, the hearing officer concluded that Christopher violated RPC 3.3(a)(1) (making false statements of material fact to a tribunal), RPC 3.3(a)(4) (offering evidence that the lawyer knows to be false), RPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation), and RPC 8.4(d) (engaging in conduct prejudicial to the administration of justice). For count 3, the hearing officer concluded that by committing forgery, Christopher violated RPC 8.4(b) (committing a criminal act that reflects adversely on the attorney's honesty, trustworthiness or fitness as a lawyer).

The hearing officer found that Christopher's state of mind was intentional and that her false statements were made with the intent to deceive the arbitration panel and the parties.

The hearing officer found several mitigating factors, including personal and emotional problems, imposition of other penalties or sanctions, inexperience in the practice of law, and interim rehabilitation. The hearing officer found two aggravating factors — dishonest motive and multiple offenses. He concluded the aggravating factors were not significant, and he recommended that Christopher receive a reprimand and a two-year period of probationary oversight.

The Board found that the presumptive sanction against Christopher was disbarment. By a 6-4 vote, the majority concluded that the hearing officer gave more weight to some of the mitigating factors than the record justified. The majority also found that Christopher's dishonest motive and the vulnerability of the victims were significant aggravating factors. Therefore, the Board recommended an 18-month suspension and three years of probation.

Petitioner WSBA appeals the Board's decision and requests that Christopher be disbarred. Christopher argues that the appropriate sanction is a reprimand.

ISSUES

1. Is disbarment the presumptive sanction for the falsification of documents and the forgery of another's signature?

2. Did the Board properly apply the aggravating and mitigating factors in determining its recommended sanction?

3. Do unanimity and proportionality justify a departure from the presumptive sanction?

ANALYSIS

1. Is disbarment the presumptive sanction for the falsification of documents and the forgery of another's signature?

This court has the ultimate responsibility and authority for determining the nature of lawyer discipline. In re Disciplinary Proceeding Against Kagele, 149 Wash.2d 793, 812, 72 P.3d 1067 (2003). In disciplinary cases, we accept as verities any unchallenged factual findings made by the hearing officer and approved by the Board. In re Disciplinary Proceeding Against Carmick, 146 Wash.2d 582, 594, 48 P.3d 311 (2002). We review conclusions of law de novo. In re Disciplinary Proceeding Against Halverson, 140 Wash.2d 475, 485, 998 P.2d 833 (2000).

Although we are not bound by the recommendations of the Board regarding sanctions, we give great weight to the conclusions of the Board and will not lightly depart from its recommendations. In re Disciplinary Proceeding Against Haskell, 136 Wash.2d 300, 317, 962 P.2d 813 (1998). We give greater weight to the Board's conclusions regarding the recommended sanction than to those of the hearing officer because the Board is the only body that hears the full range of disciplinary matters, giving it a "`unique experience and perspective in the administration of sanctions.'" Carmick,146 Wash.2d at 601,48 P.3d 311 (quoting In re Disciplinary Proceedings Against Dann, 136 Wash.2d 67, 84, 960 P.2d 416 (1998)).

In Washington, the American Bar Association's Standards for Imposing Lawyer Sanctions (1991 & Supp.1992) govern bar discipline cases. Halverson, 140 Wash.2d at 492, 998 P.2d 833. The ABA Standards provide a two-step process to determine the proper sanction after a finding of lawyer misconduct. First, the presumptive sanction is determined by considering (1) the ethical duty violated, (2) the lawyer's mental state, and (3) the extent of the actual or potential harm caused by the misconduct. Id. Second, aggravating and mitigating factors are weighed to determine whether a deviation from the presumptive sanction is warranted. In re Disciplinary Proceeding Against Kuvara, 149 Wash.2d 237, 252, 66 P.3d 1057 (2003). Finally, after completion of the two-step process, we consider whether the revised Noble factors of unanimity and proportionality should alter the sanction. Kuvara, 149 Wash.2d at 259, 66 P.3d 1057 (citing In re Disciplinary Proceeding Against Noble, 100 Wash.2d 88, 667 P.2d 608 (1983)).

Christopher does not challenge the Board's findings that she violated RPCs 3.3(a)(1), 3.3(a)(4), 8.4(c), and 8.4(d). Nor does she challenge the Board's finding that her mental state was intentional. These unchallenged findings are verities on appeal. Carmick, 146 Wash.2d at 594, 48 P.3d 311.

Christopher does challenge the Board's application of standards 5.11(b) and 6.11 in determining that the presumptive sanction is disbarment. She argues that crucial elements of standards 5.11(b) and 6.11 are not present in this case. She urges us to adopt the hearing officer's presumptive sanctions of suspension and reprimand under standards 4.6, 5.1, 6.1, and 6.2.

a. ABA Standard 5.11

Disbarment is appropriate under standard 5.11(b) when a lawyer engages in any "intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice law." Eight or more members of the Board determined that standard 5.11(b) applied to Christopher's conduct.³

Christopher contends that standard 5.11(b) does not apply. She claims that the misconduct was an isolated event in her life, and it is not likely to recur. Christopher asserts that while her ethical violations reflect adversely on her, the misconduct does not show that she is unfit to...