In re Disciplinary Proceeding against Day

• Decision Date: 20 December 2007
• Docket Number: No. 200,429-6.,200,429-6.
• Citation: 162 Wn.2d 527,173 P.3d 915
• Parties: In the Matter of the DISCIPLINARY PROCEEDING AGAINST Jeffrey K. DAY, an Attorney at Law.
• Court: Washington Supreme Court

173 P.3d 915

162 Wn.2d 527

In the Matter of the DISCIPLINARY PROCEEDING AGAINST Jeffrey K. DAY, an Attorney at Law.

No. 200,429-6.

Supreme Court of Washington, En Banc.

Argued May 10, 2007.

Decided December 20, 2007.

Brett Andrews Purtzer, Attorney at Law, Tacoma, WA, for Petitioner.

Joanne S. Abelson, Washington State Bar Assc., Seattle, WA, for Respondent.

FAIRHURST, J.

¶ 1 Attorney Jeffrey K. Day appeals the Washington State Bar Association (WSBA) Disciplinary Board's (Board) unanimous adoption of the hearing officer's recommendation to disbar him. Day was convicted of first degree child molestation under RCW 9A.44.083 and sentenced to a term of confinement of 60 months to life. Day molested a former client, D.J., who at the time was 11 years old.

¶ 2 After his conviction, the WSBA filed a formal complaint alleging that Day violated RPC 8.4(b), a criminal act, and RPC 8.4(i), an act involving moral turpitude and an unjustified assault of another. Day argues that although the hearing officer properly applied the presumptive sanction of suspension under the American Bar Association's Standards for Imposing Lawyer Sanctions (1991 & Supp.1992) (ABA Standards), he misapplied the ABA Standards' aggravating and mitigating factors and improperly deviated from the presumptive sanction. The WSBA asks this court to uphold the Board's unanimous recommendation but argues we should apply a presumptive sanction of disbarment for sex crimes of this nature rather than the presumptive sanction of suspension currently required by the ABA Standards. It also argues that because the ABA's Model Rules of Professional Conduct (2004) (Model Rules) do not recognize acts involving moral turpitude and the ABA Standards are based on the Model Rules, Washington case law governs presumptive sanctions for acts involving moral turpitude and, under the facts of this case, the sanction should be disbarment.

¶ 3 We affirm the Board's unanimous recommendation. We conclude that, while the appropriate presumptive sanction for Day's violation of RPC 8.4(b) was suspension under standard 5.12, the hearing officer did not err in ultimately deviating to disbarment based on Day's abuse of D.J.'s and D.J.'s mother's trust. We conclude the ABA Standards does not apply in determining the appropriate presumptive sanction for violations of RPC 8.4(i) involving acts of moral turpitude and the appropriate presumptive sanction under RPC 8.4(i) for conviction of first degree child molestation, a Class A felony involving an act of moral turpitude, is disbarment based on Washington case law. We conclude the hearing officer erred in finding that the aggravating factor of dishonest or selfish motive did not apply, but he did not err regarding the remaining factors. Lastly, we conclude that Day's sanction is not disproportionate when compared to other cases similarly situated.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 4 The parties do not contest the essential facts relating to the conduct that led to this disciplinary action.

¶ 5 Day was admitted to the practice of law in Washington on October 22, 1993. During the relevant time, Day also served as a judge pro tempore. In early 2002, Day began to represent D.J., who was then nine years old, in a criminal matter. While representing D.J., Day learned that D.J. was being raised by a single mother and the family had limited means. After D.J.'s criminal matter was dismissed, Day became friendly with D.J. and D.J.'s mother. Over time, D.J.'s mother began to trust Day and allow D.J. to spend time with Day. D.J.'s mother trusted Day because he was an attorney and a judge.

¶ 6 D.J.'s mother began to allow her son to stay overnight at Day's house. The record is conflicting about how many times D.J. stayed overnight at Day's house. At his criminal trial, Day testified that he instructed D.J. to sleep in another room of Day's house when D.J. stayed overnight. However, Day testified that during one night, D.J. came to Day's room and got into bed with Day. Day stated he was uncomfortable about having D.J. in his bed but he did not confront D.J. about it at the time or inform D.J.'s mother.

¶ 7 On February 14-15, 2004, D.J. was 11 years old. D.J. and Day watched a movie at Day's house and D.J. fell asleep. While D.J. was asleep, Day removed D.J.'s pants, leaving him in his boxer shorts, and Day went to his own bedroom to go to sleep. D.J. woke later in the night and again went to Day's bedroom and got into bed with Day. D.J. claimed he later woke during the night and found Day's hand inside his boxer shorts touching his testicles.

¶ 8 The Pierce County Prosecuting Attorney charged Day with first degree child molestation under RCW 9A.44.083, a Class A felony. A jury convicted Day and sentenced him to a minimum term of confinement of 60 months and a maximum term of life.

¶ 9 After his conviction, the WSBA filed a complaint, charging Day with violating RPC 8.4(b) and/or RPC 8.4(i). This court ordered Day's interim suspension in accordance with ELC 7.1. The WSBA and Day stipulated to a three year suspension, which the Board accepted but only on the condition that the sanction be elevated to disbarment. Day did not agree to the increased sanction and the matter went to a disciplinary hearing.

¶ 10 Hearing officer Gregory J. Rosen found that the court record of Day's conviction was conclusive evidence of his guilt of the crime of first degree child molestation under ELC 10.14(c). He found that Day acted intentionally because "the crime of child molestation requires `sexual contact,' which is defined as `any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.'" Findings of Fact and Conclusions of Law (FFCL) at ¶ 19 (quoting RCW 9A.44.010(2)). He also found that the evidence presented at the hearing established that Day's conduct caused harm to D.J. and his mother.

¶ 11 In his conclusions of law, the hearing officer determined, in accordance with ELC 10.14(b), that the WSBA had proved by a clear preponderance of the evidence that Day violated RPC 8.4(b)¹ and RPC 8.4(i).²

¶ 12 The hearing officer found that Day's criminal conduct violated RPC 8.4(b) for two reasons. First, because the crime of first degree child molestation is a Class A felony and, by definition, a "`violent offense,'" it clearly cast doubt on Day's "fitness" as an attorney. FFCL at ¶ 25. Second, the criminal act implicated Day's trustworthiness because Day abused the trust of both D.J. and his mother by his criminal act. The hearing officer noted that Day had abused D.J.'s mother's trust because the only reason she had allowed Day to pursue a relationship with D.J. was that Day was an attorney and a judge. He also noted that Day's conduct "call[ed] into question [Day's] ability to create and maintain such attorney-client relationships in the future, given his enormous violation of trust as to D.J. and his mother." FFCL at ¶ 25.

¶ 13 The hearing officer also found that Day violated RPC 8.4(i) for two reasons. First, he concluded Day's conduct constituted an "unjustified act of assault."³ FFCL at ¶ 27 (citing State v. Hupe, 50 Wash.App. 277, 282, 748 P.2d 263 (1988) (for the definition of "assault as" "an unlawful touching with criminal intent")). Second, he concluded Day's "criminal conduct involved moral turpitude." FFCL at ¶ 28 (citing In re Disciplinary Proceeding Against McGrath, 98 Wash.2d 337, 342-43, 655 P.2d 232 (1982)). The hearing officer based his second conclusion, that Day's criminal conduct involved moral turpitude, on the facts that (1) Day was convicted of committing "an extremely serious offense, a Class A felony, punishable by a maximum term of life in prison;" (2) Day's conduct required an intent to gratify his or another's sexual desire; (3) the victim was substantially younger than Day; and (4) Day's conviction had an intent element of knowledge which is "some evidence" of moral turpitude. Id.

¶ 14 In determining the appropriate sanction for both of Day's violations, the hearing officer applied the ABA Standards. First, he determined that two potential presumptive sanctions in the ABA Standards were applicable in this case, standard 5.11⁴ and standard 5.12.⁵ He noted that the commentary to the ABA Standards suggests that the presumptive standard for sexual offenses like the one involved here is standard 5.12.⁶ Although acknowledging that Day acted intentionally when he committed the criminal act of child molestation, the hearing officer concluded that the presumptive sanction that applied here was suspension.

¶ 15 Lastly, the hearing officer evaluated the aggravating factors and mitigating factors.⁷ The WSBA argued that three aggravating factors applied: (b) dishonest or selfish motive (sexual gratification), (h) vulnerability of the victim (11 year old child), and (i) substantial experience in the practice of law (admitted in 1993). Day argued that five mitigating factors applied: (a) absence of a prior disciplinary record,⁸ (b) absence of a dishonest or selfish motive, (e) full and free disclosure to Board or cooperative attitude toward proceedings, (g) character or reputation, and (k) imposition of other penalties or sanctions.

¶ 16 The hearing officer determined that the only aggravating factor that applied was the vulnerability of the victim and determined the only mitigating factor that applied was the absence of a prior disciplinary record. He expressly concluded that three of Day's proposed mitigating factors, (e) cooperative attitude toward the proceedings, (g) character, and (k) other penalties or sanction, did not apply. He stated that cooperative attitude toward the proceedings has been held by this court not to be a mitigating factor even though it is listed in the ABA Standards because attorneys are expected to cooperate. FFCL at ¶ 34 (citing In re Disciplinary Proceeding Against Dynan, 152 Wash.2d 601, 622, 98 P.3d 444 (2004);...