In re Disciplinary Proceeding Against Joe Wickersham

• Decision Date: 17 October 2013
• Docket Number: No. 201,088–1.,201,088–1.
• Citation: 310 P.3d 1237,178 Wash.2d 653
• Court: Washington Supreme Court
• Parties: In the Matter of the DISCIPLINARY PROCEEDING AGAINST Joe WICKERSHAM, an Attorney at Law.

178 Wash.2d 653

310 P.3d 1237

In the Matter of the DISCIPLINARY PROCEEDING AGAINST Joe WICKERSHAM, an Attorney at Law.

No. 201,088–1.

Supreme Court of Washington, En Banc.

Oct. 17, 2013.

Jai H. Rho, Pasadena, CA, for Petitioner.

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

STEPHENS, J.

[178 Wash.2d 657]¶ 1 This is an attorney discipline matter involving events during a time when the petitioner, Joe Wickersham, was experiencing mental health issues. The hearing officer recommended disbarment. The disciplinary board (Board) rejected some misconduct findings and reduced the sanction to a three-year suspension. We adopt the Board's recommendation and order Wickersham to complete a three-year suspension, and additional conditions, before resuming the practice of law.

FACTS AND PROCEDURAL HISTORY

¶ 2 Wickersham was admitted to practice in the state of Washington in 1989. At the time of the events giving rise to these proceedings, he was a solo practitioner with an office in the city of Renton. He had been previously reprimanded by the Washington State Bar Association (WSBA) in 2006 for an improper fee agreement and improper handling of client funds. Ex. A–136.

¶ 3 The events that led the Board to recommend a three-year suspension for Wickersham began in June 2010 and center around two clients, Walter Zimcosky and Jonathan Griffin.¹ In August 2010, Wickersham abruptly left Washingtonfor approximately three weeks. An outgoing voice message on his office telephone stated his office was permanently closed. See Answering Br. of WSBA (App. E) (hereinafter Answer) (transcription of the outgoing message). The WSBA believed he did not resume practice until approximately the end of December 2010, giving rise to an additional grievance that Wickersham abandoned his practice in violation of the rules of professional conduct.

The Zimcosky Matter

¶ 4 Wickersham represented Walter Zimcosky in the Auburn Municipal Court on a charge of driving under the influence. Zimcosky's wife had retained Wickersham's services with a $3,500 check. A hearing on a motion to suppress filed by Wickersham was scheduled for June 14, 2010, but Wickersham called the court the night before to say he was ill and could not attend, though he apparently did not notify Zimcosky, who appeared at the hearing. Findings of Fact, Conclusions of Law and Hr'g Officer's Recommendation (hereinafter Hr'g Officer's Decision) at 3 (Findings of Fact (FF) 13). The hearing was continued to June 18. On that date, Wickersham appeared but exhibited exceedingly odd behavior in the courtroom. He was agitated, sweating, fidgeting, pulled strange faces, including baring his teeth at observers, and engaged in “shadow boxing” or “karate moves.” I Verbatim Transcript of Proceedings (VTP) (Sept. 6, 2011) at 27. He asked nonsensical questions and made rambling objections. A prosecutor observing the spectacle testified that he had “never seen anything like it in my entire career, and that includes defendants, that includes mental health hearings, anything. I've never seen anything like it.” Id at 25. The court recessed. Wickersham returned 35 minutes late from the break, at which time he was informed that the court had struck the motions. Wickersham “laughed hysterically, very loudly and walked off laughing down the hallway.” Id. at 33.

¶ 5 On June 21, 2010, the city of Auburn moved to continue the trial due to prosecutors' concerns that Wickersham was not providing effective counsel. Wickersham continued to act erratically at that hearing as well. Following the hearing, Auburn City Prosecutor Harry Boesche filed a motion to disqualify Wickersham. Hr'g Officer's Decision at 4 (FF 19–20). On July 16, 2010, the court considered the motion but declined to remove Wickersham from representing Zimcosky because the court was unsure what the proper legal standard was for the issue. Id. at 5.

¶ 6 In the days that followed, Wickersham left a number of bizarre voice mails for Auburn City Attorney Daniel Heid. Id. On July 22, 2010, Wickersham was taken by police for a mental health evaluation at a hospital and diagnosed with a substance abuse induced psychosis. Id.; Ex. R–8.² On July 23, 2010, the court reconvened to address the never-resolved CrR 3.5/3.6 motions. Wickersham again behaved erratically. He told the court he was starting to shake, was going to die, and had to go. Ex. A–129A (Tr. of July 23, 2010 Mot. Hr'g at 9). The hearing ended when the court set the matter over again to July 30. On July 26, 2010, Wickersham left another message for Heid. Hr'g Officer's Decision at 5 (FF 25). Like his previous voice messages, this one relayed Wickersham's belief that several individuals in local government and law enforcement were involved in some sort of cover-up or conspiracy in which Wickersham was being victimized. Wickersham also spoke to Heid on the phone approximately three times. As a result of these interactions, Heid filed a grievance with the WSBA.

¶ 7 On the morning of July 30, 2010, Wickersham left a message with the WSBA explaining that he was not going to attend the hearing on the CrR 3.5/3.6 motion, noting again his belief that there was a conspiracy against him. Hr'g Officer's Decision at 6. Although Wickersham never formally withdrew from Zimcosky's case, and was not granted permission to do so by the court in accordance with CrRLJ 3.1(e), he did nothing more on Zimcosky's case following the message to the WSBA on July 30. Zimcosky ended up representing himself and pleaded guilty to reckless driving. Id. at 7. Zimcosky was also not able to recover his retainer from Wickersham, and though no count of misconduct is premised on this, restitution was ordered.

The Griffin Matter

¶ 8 Wickersham was hired to represent Jonathan Griffin in Cowlitz County Superior Court on a felony charge with a firearm enhancement, in addition to several other unrelated city and municipal court matters. Hr'g Officer's Decision at 10. Wickersham went to court with Griffin on two occasions in spring 2010 and filed a motion to suppress on June 30, 2010. But Wickersham failed to appear for a motion hearing on August 19, 2010. Apparently he had notified his client that he would not be present, but he did not notify the court or the prosecutor. Id. at 11 (FF 54). Griffin spoke with Wickersham during the hearing, and Wickersham agreed to reset the hearing to August 26, 2010. Id. at 11. But instead, Wickersham went to the Cowlitz County Superior Court on August 23, 2010. Finding no motion hearing set, he left without speaking to court staff. He testified he terminated services to Griffin the same day. Id. at 12. On August 26, 2010, the court struck the trial date and set the matter over to September 8, 2010. At the September 8, 2010 hearing, Griffin indicated that he had learned second-hand the week prior that Wickersham was “definitely not going to be practicing law” any longer. Ex. A–102A at 2. Wickersham had no further contact with the court, never filed a notice of withdrawal with regard to Griffin, and did not seek permission to withdraw in accordance with CrR 3.1(e). Griffin eventually retained new counsel. Judge James Stonier filed a grievance. (There is no count of misconduct concerning any fees paid by Griffin to Wickersham.)

Abandonment of Practice

¶ 9 As noted above, Wickersham exhibited serious mental health issues beginning in roughly June 2010. Matters grew worse when on August 22, 2010, his service dog ³ was apparently shot and killed by a fish and wildlife officer. It is difficult to ascertain from the record what actually happened with regard to the shooting, but there seems to be no debate that the dog was killed. Of less certainty is whether Wickersham's office and/or home was burglarized sometime that summer, as he believes. But Wickersham developed the belief that he was the target of a criminal element and that his life was in danger. On August 23, 2010, when he traveled to Cowlitz County, Wickersham had some kind of interaction with a person he believed was part of the scheme to do him harm. See II VTP (Sept. 7, 2011) at 385–88. As noted, he left Cowlitz County without confirming the correct court date, and returned to his home. From there he packed up his car and his 16–year–old son. In his son's words, the pair “fled our county and our house and we drove [through] eight states,” including a stop in Montana to abandon their car and buy a different one. Id. at 388–89. Wickersham was incommunicado, and his office was closed for several months following his departure, although it appears he returned to Washington sometime in late September or early October. Hr'g Officer's Decision at 17 (FF 79–81); II VTP (Sept. 7, 2011) at 389.

Disciplinary Proceedings

¶ 10 Following these events, the WSBA initiated disciplinary proceedings against Wickersham.⁴ The WSBA apparently did not seek an interim suspension. In September 2011, a hearing took place. Wickersham represented himself. It should be noted that the transcript of the hearing demonstrates a degree of continued impairment in Wickersham. His testimony rambles in places, and he has trouble staying focused. He frequently reiterates his belief that some kind of conspiracy against him had occurred in summer 2010 and that he had been in danger.

¶ 11 After the hearing, the hearing officer rendered a decision, finding seven counts of misconduct against Wickersham. As noted, the Board struck one count and struck the findings of fact and conclusions of law relating to client Raymond Ballard. The remaining counts before this court are

• COUNT 1: By failing to attend his clients' scheduled court appearances, without explanation or formal withdrawal, Wickersham violated RPC 8.4(d).

• COUNT 2: By abruptly ending his representation of Griffin and Zimcosky, without taking steps to ensure that his client's interests were protected, Wickersham violated RPC 1.16(d).

• COUNT 3; [Stricken by the Board].

• COUNT 4: By...