In re Disciplinary Proceeding Against Whitt

• Decision Date: 10 July 2003
• Docket Number: No. 21249-0.,21249-0.
• Citation: 72 P.3d 173,149 Wash.2d 707
• Court: Washington Supreme Court
• Parties: In the Matter of the DISCIPLINARY PROCEEDING AGAINST: Linda J. WHITT, Attorney at Law.

72 P.3d 173

149 Wash.2d 707

In the Matter of the DISCIPLINARY PROCEEDING AGAINST: Linda J. WHITT, Attorney at Law.

No. 21249-0.

Supreme Court of Washington, En Banc.

Argued January 23, 2003.

Decided July 10, 2003.

Kurt M. Bulmer, Seattle, Thomas D. Overcast, Ogden Murphy Wallace PLLC, Wenatchee, for Respondent.

Linda Briggs Eide, Washington State Bar Association, Seattle, for Petitioner.

FAIRHURST, J.

The Washington State Bar Association (hereinafter WSBA) charged Ms. Linda J. Whitt with three counts of misconduct. The most egregious count relates to making false representations and fabricating evidence during the disciplinary process. The hearing officer recommended disbarment. On review, a majority of the WSBA Disciplinary Board (hereinafter board) found mitigating factors and recommended the following disciplinary sanction: a two year suspension, a psychological evaluation prior to seeking readmission to the bar, and a two year probationary period with periodic checks on Ms. Whitt's law practice. The WSBA asks us to reject the board's recommendation and disbar Ms. Whitt. We agree that Ms. Whitt should be disbarred.

I. FACTS

In February 1997, Ms. Whitt filed a police misconduct action on behalf of her client. Between September 1997 and October 1998, her client made several requests that Ms. Whitt depose one of the named parties. Ms. Whitt did not respond. During the same time period, Ms. Whitt did not return many of her client's phone calls.

At a deposition in September 1997, Ms. Whitt's client identified a different perpetrator. In October 1998, opposing counsel filed a counterclaim alleging malicious prosecution based upon misidentification. In response to the counterclaim, Ms. Whitt negotiated a "walkaway deal" in which she agreed to dismiss her client's case with prejudice in return for dismissal of the counterclaim. Ms. Whitt did not inform her client of either the counterclaim or the "walkaway deal." In November 1998, without her client's knowledge or consent, the case was dismissed with prejudice.

Unaware of the dismissal, in February and April 1999, the client wrote to Ms. Whitt recommending discovery approaches and requesting a lawyer-client meeting. In early June 1999, Ms. Whitt contacted the client and apologized for her lack of communication. Ms. Whitt advised her client that she was retiring at the end of the year due to family health conditions and she could no longer represent him.

In late June 1999, the client wrote Ms. Whitt requesting a copy of his file, asking about the status of his case, and inquiring about any residual funds from her retainer fee. Six weeks later, the client, by letter, directed Ms. Whitt to send his file to another attorney. Instead, Ms. Whitt sent the file directly to the client.

Upon reviewing the file, the client learned his case had been dismissed with prejudice. He filed a grievance with the WSBA. The WSBA sent a grievance letter to Ms. Whitt calling for a response.

In her January 2000 response to the WSBA, Ms. Whitt denied she dismissed the case without her client's knowledge or consent and submitted four documents to support her contention. The first document, a copy of her calendar dated October 19 through 25, 1998, showed a staff meeting to discuss her client's case at noon on October 21, 1998, and a meeting with her client scheduled for October 23, 1998. The second document, a copy of her notes from a staff meeting held on October 21, 1999,¹ weighed the pros and cons of the case. The third document, a note dated October 23, 1998, indicated that, although the client was not happy with the dismissal, he understood the reasons for it. The fourth document, a handwritten note dated October 30, 1998, showed that Ms. Whitt apologized for the dismissal and informed her client that he made a good choice.

By letter in June 2000, the WSBA informed Ms. Whitt that it believed she provided false information and fabricated documents. In July 2000, Ms. Whitt admitted to supplying false information and fabricated documents to mislead the WSBA. She also admitted the client misconduct.

In September 2000, the WSBA charged Ms. Whitt with three counts of misconduct. The first two counts alleged that Ms. Whitt failed to act diligently on her client's behalf in violation of RPC 1.3 and/or RPC 3.2, failed to keep her client adequately informed in violation of RPC 1.4, failed to abide by her client's directives in violation of RPC 1.2, and failed to be honest about the status of her client's case in violation of RPC 8.4(c). The third count alleged Ms. Whitt made false representations and submitted fabricated documents during the disciplinary process in violation of RPC 8.4(c), RPC 8.4(d) and RLD 2.8(b)(3).²

A hearing was held on November 6, 2001. With respect to counts I and II, the hearing officer found that, although Ms. Whitt's actions were not done with the intent to benefit her or any third party, nonetheless, she knowingly failed to pursue the matter with diligence, knowingly took action contrary to the expressed wishes of her client and knowingly deceived her client. The hearing officer also found that Ms. Whitt's actions caused injury or potential injury to her client. Under the American Bar Association's Standards for Imposing Lawyer Sanctions (1991 & Supp.1992) (hereinafter Standards), the hearing officer concluded that the resulting sanction was suspension for counts I and II. With respect to count III, the hearing officer found that Ms. Whitt knowingly supplied false information and fabricated documents to the WSBA for a personal benefit, namely, to avoid discipline for her misconduct. He further found that Ms. Whitt engaged in dishonest conduct with disregard of the serious or potentially serious injury to the public, the legal system and the integrity of the disciplinary process. Under the Standards, the hearing officer concluded that the resulting sanction was disbarment.

The hearing officer also found that Ms. Whitt failed to reimburse her client for the residual funds supplied for his defense and owed her client a refund of $339.75. Ms. Whitt had $339.75 of her client's funds that had not been used in the course of representation. At first, she said she had expended all funds. At the WSBA hearing, however, it became clear that $339.75 had not been expended.

The hearing officer found the following aggravating factors: (1) dishonest or selfish motive, (2) submission of false evidence, false statements and fabricated documents during the disciplinary process, and (3) indifference toward making restitution. The hearing officer next considered potential mitigating factors. Ms. Whitt presented testimony from a psychologist suggesting she appeared anxious and depressed about the potential loss of her career when she was first evaluated in July 2000. The hearing officer found this testimony did not support mitigation because the psychological evaluation occurred after the WSBA challenged Ms. Whitt when she supplied false information and fabricated documents.

Ms. Whitt also presented evidence that she had sought treatment by a licensed counselor about the breakup of an 11 year relationship and the ongoing disciplinary proceedings against her. The hearing officer found this testimony did not support mitigation because the counseling began long after Ms. Whitt's misconduct occurred. The psychologist and counselor also testified that Ms. Whitt may have been distressed because she was embarrassed, guilty and discovered.

In addition, two character witnesses offered evidence of Ms. Whitt's good reputation and/or interim rehabilitation. But, the hearing officer concluded from the testimony that Ms. Whitt presented no substantial evidence to suggest that her problems were solved or will be solved by counseling, changes in her practice, or having an attorney mentor. He further opined that Ms. Whitt's conduct most likely resulted from "(1) a fundamental underlying character flaw or (2) a total failure to appreciate the nature of the litigation process and the Association's disciplinary process." Findings of Fact, Conclusions of Law and Hr'g Officer's Recommendation 14. The only mitigating factor considered by the hearing officer was Ms. Whitt's lack of a prior discipline history.

The hearing officer recommended disbarment.

Ms. Whitt appealed to the board. By a seven-to-six vote, the board modified the recommendation of the hearing officer to a recommendation that Ms. Whitt be suspended for two years followed by a psychological evaluation prior to seeking readmission, a two year probationary period and periodic monitoring of her law practice during the probationary period by a person assigned by the WSBA. The board amended four findings of fact. First, the board deleted the finding of "serious or potentially serious injury" relating to the false representations and fabricated documents. It also added the fact that Ms. Whitt admitted to her falsities after receiving a letter from the WSBA challenging her on the truthfulness of the information she provided. Second, the board added a finding that Ms. Whitt had personal and emotional problems at the time of her misconduct based on the following testimony.

Ms. Whitt's psychologist testified:

And I think she wanted to provide good representation, but I think one of the things that happened in the case is that the lines blurred between Ms. [sic] Swindler the client, Mr. Swindler and the accuser of her years ago in Seattle because it was a similar kind of case, and it was a case I think that she felt did not have sufficient merit. She did not know how to handle that, and I don't think she fully knew at that moment what it meant to her to have a case like this particular case that didn't have. She's had other cases that I think she believed didn't have sufficient merit, but they certainly did not end up like this. And so I'm left saying well, what's the reason—what's the reason that this particular case had this kind

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