In re Disciplinary Proceeding Against Tasker

• Decision Date: 14 September 2000
• Docket Number: No. 12426-4.,12426-4.
• Citation: 141 Wash.2d 557,9 P.3d 822
• Parties: In re DISCIPLINARY PROCEEDINGS AGAINST Michael K. TASKER, Attorney at Law.
• Court: Washington Supreme Court

9 P.3d 822

141 Wash.2d 557

In re DISCIPLINARY PROCEEDINGS AGAINST Michael K. TASKER, Attorney at Law.

No. 12426-4.

Supreme Court of Washington, En Banc.

Argued May 18, 2000.

Decided September 14, 2000.

Joanne Abelson, Seattle, for Petitioner.

Skellenger, Bender, Rita L. Bender, Seattle, for Respondent.

SANDERS, J.

Attorney Michael Tasker appeals the determination of the Disciplinary Board of the Washington State Bar Association (WSBA) that he be disbarred for various violations of the Rules of Professional Conduct (RPC). At issue is whether an attorney who commingles funds in his client trust account and pays business and personal expenses out of the commingled account, but without intent to permanently deprive any clients of money, should be disbarred. We disagree with the WSBA that Tasker be disbarred, and instead impose a two-year suspension from the practice of law.

FACTS

Michael Tasker was an agent of the Federal Bureau of Investigations prior to becoming a practicing attorney in Bellingham, Washington. From 1982 until 1988, Mr. Tasker practiced law in a partnership with lawyer Dennis Hindman. After the dissolution of that partnership in 1988, he became a sole practitioner.

At about the same time his partnership dissolved in 1988, Tasker's marriage with then-wife Lynn Tasker (now Chamberlain) fell apart and resulted in hotly contested dissolution and child-support proceedings. The dissolution became final in May 1989, and Tasker's ex-wife was awarded child support, which Tasker failed to pay.¹ In June 1992, Chamberlain obtained a judgment for $41,063.24 in overdue support payments, and later secured judgments for amounts between $50,000 and $70,000. By late 1992, Tasker's personal and business accounts were garnished to pay overdue support obligations. This development interfered with the payment of expenses in his law office.

Tasker testified in a February 1994 proceeding that his office checking account was penniless and for two months he had been paying his office overhead out of his clients' trust account. This prompted the WSBA to order an audit of his trust account for the period October 1, 1992 to April 30, 1994. The audit occurred in May 1994. The report issued in October 1994.

The audit revealed that Tasker allowed earned income to remain in his trust account and beginning in May 1993, Tasker paid his office and personal expenses out of his trust account rather than first dispensing his earned income to his operating account before payment of personal expenses. From August 1993 until May 1994, Tasker used the commingled account for all of his business and personal financial transactions. He deposited his own funds into the trust account and commingled them with the client funds in the same account. The admitted purpose of the commingling was to avoid garnishment of funds in his personal and business accounts by the Office of Support Enforcement.

Although the trust account balance sometimes fell below that attributable to client funds, at no time did any client lose any money nor did Tasker, in the words of the hearing officer, intend "to permanently deprive his clients of their money." Clerk's Papers (CP) at 373 (Finding 67).

The hearing officer found Tasker knew "his client trust account was being used for his personal and business financial transactions." CP at 373 (Finding 66).

The WSBA audit showed that for most of the year between May 1993 and May 1994, the balance in Tasker's trust account was less than the amount which should have been held in trust, up to a deficit of $30,000 in August 1993. On several occasions during that year the trust account was overdrawn, although no checks were ever returned. The hearing officer found Tasker "had full knowledge of the requirements of RPC 1.14," concerning the management of trust accounts, and that Tasker "knew that he was doing more than simply commingling his funds with client funds. He knew that he was using client funds to meet his financial obligations." CP at 373-74 (Finding 67). Since 1994, WSBA and independent audits commissioned by Tasker demonstrate his office complied with proper trust accounting practices.

Between 1992 and 1994 several clients filed grievances against Tasker with the WSBA on various other matters. These less serious grievances, in addition to the trust account violation, formed the basis of the WSBA's formal complaint. On February 24, 1998, the WSBA filed a 12-count formal complaint against Tasker covering seven separate grievances. Shortly after filing an answer, Tasker stipulated to certain facts and misconduct, including:

• Misappropriation of client funds for use to pay personal and business expenses and commingling personal and client funds in violations of RPC 1.14 and 8.4(c);

• failing to provide clients with accurate billings regarding the services rendered on their behalf, or to supervise his staff with respect to providing clients with accurate billings, in violation of RPC 1.5, 1.14(b)(3), 5.3, and 8.4(c);

• applying to his fee $7,000 in bond proceeds due the parents of a client without their permission, in violation of RPC 1.14 and 8.4(c);

• failing to communicate with a client about the decision for a trial continuance, in violation of RPC 1.4;

• representing one client in a matter directly adverse to a current client without the client's written consent, in violation of RPC 1.7;

• failing to act diligently in representing a client, in violation of RPC 1.3;

• misrepresenting to a court that he had experience in class action litigation when such was arguably not the case, in violation of RPC 3.3(a); and

• failing to supervise his paralegal's issuance of a misleading communication through a press release, in violation of RPC 5.3.

CP at 8-22.

Despite the stipulation of facts and misconduct, Tasker asserted that he had not known many of the facts that formed the basis of the stipulated misconduct, but would take responsibility for the actions of others.

During a four-day sanction hearing, appointed hearing officer Timothy Esser investigated Tasker's mental state as well as mitigating and aggravating factors. Esser filed his Findings of Fact, Conclusions of Law, and Recommendation on November 17, 1998. Esser concluded Tasker intentionally commingled his funds with those of his clients to avoid payment of court-ordered child support, and knowingly used client funds from the commingled account to pay personal and business expenses.

Finding disbarment the presumptive sanction under the ABA Standards for this violation, Esser nevertheless determined Tasker's sanction should be mitigated to a one-year suspension due to delay in prosecution by the WSBA and because disbarment would be disproportionate to other cases in which worse malefactors escaped with a suspension. As for the other acts of misconduct, the hearing officer found the presumptive sanctions were one reprimand and four admonitions. He dismissed two acts of stipulated conduct relating to the alleged misrepresentation of class action experience and the issuance of a press release about that class action lawsuit.

On November 18, 1998, the WSBA asked Esser to amend his findings because he did not address count 12 of the formal complaint, viz., Tasker's alleged unfitness to practice law. Esser then filed a supplemental finding that Tasker was fit to practice law.

The WSBA appealed Esser's conclusions and recommendations to the Disciplinary Board. Tasker did not appeal any of Esser's factual findings, conclusion, or recommendation of sanctions.

The Board issued a September 20, 1999 opinion adopting Esser's findings but modifying his conclusions and sanction recommendation to reflect the Board's 9 to 1 determination that Tasker be disbarred for the trust account violations. The Board also reversed the hearing officer's dismissal of the two stipulated counts of misconduct,² and found the presumptive sanctions for Tasker's other violations to be one suspension, two reprimands, and three admonitions. The Board's decision was rendered over the vigorous dissent of member Leslie Weatherhead who argued disbarment was a disproportionate sanction in Tasker's case and that the Board majority's sanction recommendation seemed more retributive than rational.

DISCUSSION

At the heart of the Disciplinary Board's disbarment recommendation is the hearing officer's finding that Tasker knowingly commingled personal funds in his trust account, knowingly used the trust account to pay personal expenses without client authorization, and intentionally violated the trust account rules to avoid payment of court-ordered child support—findings the Disciplinary Board unanimously adopted. However the Board departed from the hearing officer's recommended one-year suspension in favor of the presumptive ABA Standards sanction of disbarment, and the WSBA has vigorously defended the Board's departure.

The hearing officer deviated from the presumptive sanction based upon two mitigating factors and the disproportionality of disbarment to prior sanctions in similar cases. In mitigation the hearing officer considered the lengthy delay between auditing Tasker's trust account (1993-94) and bringing the disciplinary proceeding (1998) and Tasker's interim rehabilitation. However a majority of the Disciplinary Board voted 9 to 1 to reverse the hearing officer's recommendation, opting for disbarment instead.

This court does not lightly depart from the Board's recommendation; however it is not bound by it. RLD 2.1; In re Disciplinary Proceeding Against Haskell, 136 Wash.2d 300, 317, 962 P.2d 813 (1998). The Supreme Court retains the ultimate responsibility for determining the nature of an attorney's discipline. Id. (citing In re Disciplinary Proceeding Against Espedal, 82 Wash.2d 834, 838, 514 P.2d 518 (1973)). We adopt the Board's recommendation unless the court can articulate a specific reason to depart from it and we are persuaded the sanction is inappropriate...