In re Halverson, 01518-0.

• Citation: 998 P.2d 833,140 Wash.2d 475
• Decision Date: 27 April 2000
• Docket Number: No. 01518-0.,01518-0.
• Parties: In the Matter of the DISCIPLINARY PROCEEDING AGAINST Lowell K. HALVERSON, an Attorney at Law.
• Court: United States State Supreme Court of Washington

998 P.2d 833

140 Wash.2d 475

In the Matter of the DISCIPLINARY PROCEEDING AGAINST Lowell K. HALVERSON, an Attorney at Law.

No. 01518-0.

Supreme Court of Washington, En Banc.

Argued October 14, 1999.

Decided April 27, 2000.

David Allen, Seattle, for Petitioner.

Andrea A. Darvas, Washington State Bar Disciplinary Counsel, Seattle, for Respondent.

IRELAND, J.

In this Washington State Bar Association (WSBA) disciplinary case, this Court must determine (1) whether the WSBA Disciplinary Board (the Board) properly found that Lowell Halverson's sexual relationship with a dissolution client resulted in his violation of Rules of Professional Conduct (RPC) 1.7(b), 1.4(b) and 2.1, but did not result in a violation of RPC 1.8(b) and 1.13(a), and Rules for Lawyer Discipline (RLD) 1.1; and (2) whether the Board properly sanctioned Halverson with a six-month suspension and two-year probation. We affirm the Board's determination as to whether or not there was a violation of each of the charges, but increase the suspension to one year, finding the lesser sanction inadequate to serve the purposes of attorney discipline.

FACTS

Lowell K. Halverson has been a member of the WSBA in private practice since 1968, concentrating on family law for the last 20 years. He has lectured and published extensively in this area. From 1990-91, Halverson served as president of the WSBA.

Although Halverson has been married to his wife, Diane, since 1964, he admits that since the early 1970s he has had consensual sexual relationships with six different female clients. Five of these clients retained Halverson as their attorney before the sexual relationship began. The most recent of these relationships was with Lisa Wickersham, the grievant in this action. Halverson first met Wickersham in 1989 when Wickersham accompanied a friend to Halverson's office. At this point, Wickersham was married to an attorney, Neil Sarles.

During this office visit, Halverson gave Wickersham and her friend a personality questionnaire that he regularly used with clients; he also asked Wickersham if she might like to work in his office on a special project involving artwork. Following this meeting, Wickerhsham worked at Halverson's office for a few months until early in 1990.

Wickersham retained Halverson as her attorney in May 1991, at which time Halverson administered another personality questionnaire. Wickersham's testimony conflicts as to whether her intention at this point was a trial separation from her husband or dissolution. In any event, Halverson filed a dissolution petition on her behalf in June 1991, and Wickersham moved out of her husband's house in early July.

Later in July while at Halverson's office, Wickersham confided to him that she was "attracted to [her] attorney." Report of Proceedings (RP) at 509. Shortly thereafter, following a successful court appearance, Halverson took Wickersham on a tour of photographs displayed at the Rainier Club in Seattle. According to Halverson, while on the tour, Wickersham suggested that they get a room, but Wickersham denies this occurred.

Both agree, however, that after the tour they went to a restaurant on the waterfront where they expressed a mutual attraction and discussed Halverson's "ground rules" for a potential relationship: Halverson's wife could not find out about the affair and there could be no bonding between Halverson and Wickersham's young daughter. According to Halverson, he explained to Wickersham that a potential relationship between them would not be of any significance to the pending divorce action if these "ground rules" were followed. Wickersham herself recognized the need for them to be discreet because of Halverson's high profile as president of the WSBA.

Halverson, however, did not advise Wickersham of the possible ramifications if the relationship were to become known. For example he did not tell her that, if Sarles were to discover the relationship, he would most likely become less willing to compromise in the divorce proceeding and that this would increase the complexity and cost of the dissolution and could impact the custody determination. Neither did Halverson advise Wickersham that either his wife's or Sarle's discovery of the affair could lead to his withdrawal as her attorney.

Halverson and Wickersham agreed to see each other within the next few weeks when Halverson's wife left on a trip to Australia. After Halverson's wife left the country, Wickersham called Halverson at his office and they made plans to get together. At Halverson's home that evening, Halverson and Wickersham had sexual intercourse while Wickersham's young daughter slept in the next room. For the next six months, Wickersham and Halverson maintained a sexual relationship seeing each other whenever they could.

On January 1, 1992, Halverson's wife discovered the affair. Within a few days, Halverson withdrew as Wickersham's attorney because he felt that he had lost his objectivity and could no longer keep his roles separate, particularly in view of his wife's position as his office manager. Halverson temporarily moved out of his home and continued his personal relationship with Wickersham for several weeks. In mid-February, however, Halverson told Wickersham that he was returning to his wife.

Meanwhile, Halverson provided Wickersham with the names of several other attorneys who could take over her case. Although Wickersham wanted Halverson to continue as her attorney, he refused, and Wickersham, thus, hired another attorney, Eric Watness, to complete her dissolution. Halverson transferred the balance of Wickersham's account to Watness and wrote off her outstanding bill to him. There is no evidence that Halverson at any time revealed any client confidences or otherwise used information obtained from Wickersham.

Wickersham did not tell Watness about her relationship with Halverson until almost three months after she retained him. Watness believed Wickersham was "at times anxious, particularly fixated on the relationship between herself and Mr. Halverson, at times unable to focus off of that and onto resolution of issues, development of facts, that sort of thing." RP at 576. Nonetheless, Watness also testified that Wickersham assisted him on her case "in an intelligent and competent way." RP at 573. Watness represented Wickersham until September 1992, when her case settled and a decree of dissolution was entered. Overall, Watness felt Wickersham received a "fair outcome" in her case. RP at 559.

A year later in October 1993, Wickersham complained to the WSBA about Halverson's conduct and, in 1994, filed a civil lawsuit. Wickersham's civil suit against Halverson settled in 1995 by sealed agreement for a substantial sum and with no admission of liability. Wickersham's former husband subsequently sued Wickersham and received one-half of the settlement.

The WSBA filed a formal complaint against Halverson in February 1997. Following proceedings in December 1997 and February 1998, the hearing officer issued findings of fact and conclusions of law and recommended a sanction consisting of six months' suspension and two years' probation with the conditions that Halverson disclose to female clients the purpose of his discipline and continue treatment with his mental health physician.

Halverson appealed the hearing officer's decision to the Board. The 14-member Board unanimously upheld the hearing officer's findings of fact and conclusion that Halverson violated RPC 1.7(b). By split decision, the Board rejected the hearing officer's conclusions that Halverson violated RPC 1.8(b) and 1.13(a) but did not violate RPC 1.4(b), and approved the hearing officer's conclusions that Halverson violated RPC 2.1 but did not violate RLD 1.1 and 2.8. Also by split decision, the Board approved the hearing officer's recommended sanction.

Halverson appealed the Board's decision to this Court challenging four of the hearing officer's factual findings and the Board's adverse conclusions of law. He also claims that the sanction was too harsh. The WSBA in turn assigned error to the Board's conclusions that no violations of RPC 1.8(b) and 1.13 and RLD 1.1 occurred, and to the Board's failure to impose a harsher sanction. Based on these facts, we will address Halverson's challenges to the factual findings and the parties' respective challenges to the Board's legal conclusions and recommended sanction in turn.

ANALYSIS

I. FACTUAL FINDINGS

Halverson challenges several of the Board's factual findings. He claims that both Finding of Fact 28¹ and Finding of Fact 33² are not supported by substantial evidence. As to Finding of Fact 33, Halverson relies on testimony from three witnesses establishing that Wickersham received a "`very good'" outcome in her case. Opening Br. of Resp't at 18 (quoting RP at 439).

Halverson claims that Finding of Fact 29³ is not actually a factual finding but rather a "generality, observation, or policy statement." Opening Br. of Resp't at 24. Finally, Halverson challenges Finding of Fact 32⁴ arguing that Wickersham should have known what harm might result from the relationship because she was a willing participant. He further relies upon expert testimony that an attorney-client sexual relationship should not be relevant under the current no-fault divorce statutes.

Generally, in bar discipline cases, this Court does not review unchallenged factual findings made by the hearing officer and unanimously affirmed by the Board; they are accepted as verities. See In re Disciplinary Proceeding Against Johnson, 118 Wash.2d 693, 701, 826 P.2d 186 (1992)

(citing In re Disciplinary Proceeding Against Curran, 115 Wash.2d 747, 759, 801 P.2d 962, 1 A.L.R.5th 1183 (1990)). Even when unanimously approved findings are challenged as they are here, we will not disturb them if supported by the clear preponderance of the evidence. See In re Disciplinary Proceeding Against McMullen, 127 Wash.2d 150, 161-62, 896 P.2d 1281 (1995)...