In the Matter of The Disciplinary Proceeding v. Smith

Citation246 P.3d 1224,170 Wash.2d 721
Decision Date13 January 2011
Docket NumberNo. 200,748–1.,200,748–1.
PartiesIn the Matter of the DISCIPLINARY PROCEEDING AGAINST J. David SMITH, an Attorney at Law.
CourtWashington Supreme Court

OPINION TEXT STARTS HERE

J. David Smith, Minoa, NY, Kurt M. Bulmer, Attorney at Law, Seattle, WA, for Petitioner/Appellant.Scott G. Busby, WSBA, Seattle, WA, for Respondent.J.M. JOHNSON, J.

[170 Wash.2d 725] ¶ 1 This case presents us with the question of whether rule 10.14(c) of the Rules for Enforcement of Lawyer Conduct (ELC), which provides that the record of a civilian criminal conviction is conclusive evidence of the underlying misconduct at an attorney disciplinary proceeding, violates state and federal constitutional requirements. We hold that it does not.

¶ 2 ELC 10.14(c) states that the court record of an attorney's criminal conviction is conclusive evidence of his guilt at a disciplinary proceeding. A federal court convicted attorney J. David Smith of conspiracy to commit securities and wire fraud. Based on ELC 10.14(c), a hearing officer concluded that Smith violated several provisions of the Rules of Professional Conduct (RPC) and recommended disbarment. The Washington State Bar Association Disciplinary Board (Board) agreed. Smith appeals, arguing that ELC 10.14(c) is unconstitutional and that there is insufficient evidence to warrant his disbarment. Smith's appeal is denied, and we disbar him.

Facts and Procedural History

¶ 3 On February 12, 2004, federal prosecutors charged attorney Smith with several violations of federal law.1 Pursuant to a plea agreement, Smith pleaded guilty to one count of criminal conspiracy to commit securities and wire fraud in violation of 18 U.S.C. § 371. Consistent with Smith's plea, a federal district court convicted Smith and sentenced him to 18 months of confinement and three years in a supervised release program.

¶ 4 The Washington State Bar Association (Association) filed a formal complaint against Smith alleging that his criminal acts violated several RPC provisions.2 In his answer to the formal complaint, Smith admitted that he pleaded guilty to criminal conspiracy but denied that the statement of facts incorporated into the formal complaint from his plea agreement accurately described his conduct. Prior to Smith's disciplinary hearing, the Association filed a motion under ELC 10.10(b) for an order finding misconduct based on the pleadings. Relying on ELC 10.14(c), the Association argued that Smith's criminal conspiracy conviction conclusively established that he committed the underlying criminal misconduct and that the criminal misconduct violated several RPC provisions. The hearing officer granted the Association's motion and issued an order holding that Smith committed the misconduct alleged in the formal complaint.

¶ 5 On December 10, 2008, the hearing officer conducted a hearing to determine the appropriate sanctions for Smith's misconduct. At the hearing, despite the adamant protests of Smith's counsel, the hearing officer refused to allow Smith to repudiate his plea agreement or deny the factual predicates that resulted in his criminal conviction. Over Smith's objections, the hearing officer admitted several exhibits from the Association, including Smith's federal indictment, his plea agreement, transcripts of his guilty plea colloquy, and the federal court's final judgment and sentence.

¶ 6 On January 14, 2009, the hearing officer issued his findings and recommendations. The hearing officer adopted numerous facts from Smith's plea agreement and statements from his guilty plea colloquy and sentencing proceeding. He determined that Smith's misconduct violated several RPC provisions.3 Additionally, the hearing officer found that Smith's misconduct presented several aggravating factors and one mitigating factor (i.e., absence of a prior disciplinary record).4 The hearing officer recommended disbarment.

¶ 7 The Board filed a unanimous order adopting the hearing officer's determination that Smith violated RPC 8.4(b), 8.4(c), and 8.4(i) and the hearing officer's recommendation to disbar Smith. However, the Board dismissed the violations of RPC 1.2(d) and 4.1(a), (b) finding that the hearing officer could rely only on the formal complaint and answer to determine Smith's ethical violations. The Board determined that the elements of Smith's crime did not involve counseling or assisting clients and that there was insufficient evidence to conclude that Smith violated RPC 1.2(d) and 4.1(a), (b). Smith appealed the Board's order. We deny Smith's appeal and adopt the Board's conclusions that Smith violated RPC 8.4(b), 8.4(c), and 8.4(i). We disbar Smith from practicing law in the state of Washington.

Analysis

¶ 8 We hold that the operation of ELC 10.14(c) in Smith's disciplinary proceedings did not violate his due process rights and that there is sufficient evidence to warrant the Board's findings. For these reasons, he is disbarred.

1. Standard of Review

¶ 9 We retain the ultimate responsibility for lawyer discipline in Washington. In re Disciplinary Proceeding Against Vanderveen, 166 Wash.2d 594, 604, 211 P.3d 1008 (2009). However, we give great weight to the hearing officer's factual findings and will uphold those findings supported by substantial evidence. Id.; In re Disciplinary Proceeding Against Poole, 156 Wash.2d 196, 208–09, 125 P.3d 954 (2006). We review legal conclusions de novo and will uphold legal conclusions supported by the findings of fact. Vanderveen, 166 Wash.2d at 604, 211 P.3d 1008. While we review recommended sanctions de novo, we generally affirm the Board's recommended sanction unless we can articulate a specific reason to reject it. Id.; In re Disciplinary Proceeding Against Guarnero, 152 Wash.2d 51, 59, 93 P.3d 166 (2004).

2. ELC 10.14(c) Does Not Violate Constitutional Due Process Guaranties

¶ 10 In a disciplinary hearing, ELC 10.14(c) provides that a prior criminal conviction is conclusive evidence that an attorney committed the crime that forms the basis of his conviction. An attorney may not dispute “the essential facts regarding a prior criminal conviction for the purposes of a disciplinary proceeding.” Vanderveen, 166 Wash.2d at 608, 211 P.3d 1008. Though an attorney may present matters in mitigation, he may only ‘offer evidence of mitigating circumstances not inconsistent with the essential elements of the crime whose existence is conclusively established by the finding of guilt.’ Id. (internal quotation marks omitted) (quoting In re Disciplinary Proceeding Against Perez–Pena, 161 Wash.2d 820, 831, 168 P.3d 408 (2007)). The hearing officer received evidence of Smith's federal felony conviction and properly determined that this conclusively established Smith's participation in a criminal conspiracy to commit securities and wire fraud in violation of federal law.

¶ 11 Smith challenges the hearing officer's factual findings and argues that ELC 10.14(c) deprives him of his constitutional rights to due process.5 This argument fails. In order to discipline an attorney, the Association “has the burden of establishing an act of misconduct by a clear preponderance of the evidence.” ELC 10.14(b). “Clear preponderance” is an intermediate standard of proof ... requiring greater certainty than “simple preponderance” but not to the extent required [by the criminal standard of] “beyond [a] reasonable doubt.” Poole, 156 Wash.2d at 209, 125 P.3d 954 (first & third alteration in original) (quoting In re Disciplinary Proceeding Against Allotta, 109 Wash.2d 787, 792, 748 P.2d 628 (1988)). To subject an attorney to criminal liability, a prosecutor must have established his guilt beyond a reasonable doubt. Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Roggenkamp, 153 Wash.2d 614, 642, 106 P.3d 196 (2005). Here, a federal district court convicted Smith of criminal conspiracy beyond a reasonable doubt. The due process afforded to Smith during his criminal proceedings allays any concerns that the Association failed to satisfy the clear preponderance standard applicable to attorney discipline cases.

¶ 12 It is well established under Washington law that a federal criminal conviction is an appropriate basis for disciplinary action against an attorney. See, e.g., In re Disbarment of Hopkins, 54 Wash. 569, 103 P. 805 (1909); In re Proceedings for Disbarment of Wells, 121 Wash. 68, 208 P. 25 (1922); In re Proceedings for Disbarment of Comyns, 132 Wash. 391, 232 P. 269 (1925); In re Proceedings for Disbarment of Finch, 156 Wash. 609, 287 P. 677 (1930); In re Disbarment of Burns, 13 Wash.2d 199, 124 P.2d 550 (1942); In re Proceedings for Disbarment of Barnett, 35 Wash.2d 191, 211 P.2d 714 (1949); In re Disciplinary Proceeding Against Hett, 70 Wash.2d 435, 423 P.2d 629 (1967); In re Disciplinary Proceeding Against Krogh, 85 Wash.2d 462, 536 P.2d 578 (1975); In re Disciplinary Proceeding Against Egger, 86 Wash.2d 596, 547 P.2d 864 (1976).

¶ 13 Additionally, the historical rules governing attorney discipline in Washington provide that, at a disciplinary proceeding, a criminal conviction is conclusive evidence of an attorney's guilt. See, e.g., former Rem. Comp. Stat. § 139–14 (1922); former Discipline R. for Attorneys 1.1(a) (1975); former R. for Lawyer Discipline 4.9 (1983); ELC 10.14(c). Our recent decisions applying ELC 10.14(c) are inapposite. See Vanderveen, 166 Wash.2d 594, 211 P.3d 1008; Perez–Pena, 161 Wash.2d 820, 168 P.3d 408; In re Disciplinary Proceeding Against Day, 162 Wash.2d 527, 173 P.3d 915 (2007).

¶ 14 As we explained long ago while discussing a predecessor rule to ELC 10.14(c),

[the Rule] provides that “the record of conviction shall be conclusive evidence.” The purpose of this last quoted clause is apparent. We have no power to review the judgments of the Federal courts and must accept them as binding on us. The...

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