MATTER OF DISCIPLINARY PROCEEDING AGAINST GUARNERO

• Decision Date: 08 July 2004
• Docket Number: No. 200,035-5.,200,035-5.
• Citation: 93 P.3d 166,152 Wash.2d 51
• Court: Washington Supreme Court
• Parties: In the Matter of the DISCIPLINARY PROCEEDING AGAINST Ricardo A. GUARNERO, Attorney at Law.

93 P.3d 166

152 Wash.2d 51

In the Matter of the DISCIPLINARY PROCEEDING AGAINST Ricardo A. GUARNERO, Attorney at Law.

No. 200,035-5.

Supreme Court of Washington, En Banc.

Argued May 11, 2004.

Decided July 8, 2004.

Ricardo A. Guarnero, Pro se.

Kurt M. Bulmer, Seattle, WA, for Petitioner.

Joanne S. Abelson, Washington State Bar Assc, Thomas V. Harris, Perey-Harris Trial Lawyers, Seattle, WA, for Respondent.

OWENS, J.

Ricardo Guarnero was admitted to the practice of law in Washington in 1989. In June 2001, the Washington State Bar Association (WSBA) charged Guarnero with six counts of misconduct, all arising from his alleged forgery of a client's signature on a declaration faxed to the trial judge and opposing counsel. Having determined that the WSBA established the charged violations by a clear preponderance of the evidence, the hearing officer concluded that the presumptive sanction was disbarment. Finding six aggravating factors and a single mitigating factor, the hearing officer recommended disbarment. The Disciplinary Board thereafter ordered the adoption of the hearing officer's findings, conclusions, and recommendation. Guarnero asks this court to dismiss the charges.

We affirm the Disciplinary Board's order disbarring Guarnero.

FACTS

Jamie Farrell filed suit against King County in August 1998, alleging that she had been sexually abused as an inpatient at a county owned substance abuse treatment facility. Guarnero appeared on her behalf in January 2000. In preparation for a May 19, 2000, hearing on the county's motion for summary judgment on statute of limitations grounds, Farrell drafted a declaration and e-mailed it to Guarnero. On May 10, 2000, Farrell drove from her home in Lake Stevens to Guarnero's Seattle office, where she reviewed, signed, and dated the declaration, which was printed on pleading paper. Because her name had been printed on the declaration's signature page as "Jamie L. Farrell," Farrell signed her name using her middle initial. On May 15, 2000, Guarnero directed his office assistant, Jennifer Morgans, to copy the opposition papers (including the 17-page declaration) for service and filing. Due to a copy machine error, page 17 of the declaration was not copied, so the copies served on Judge Sharon Armstrong and Senior Deputy Prosecutor Jill Hendrix lacked the declaration's signature page. On May 16, Hendrix's assistant called Guarnero to request a copy of the signature page, and Guarnero responded by printing and faxing an unsigned copy of the page. Hendrix prepared and filed a reply brief on May 18, asking the court to strike the declaration as untimely and unsigned.

On May 19, based on Guarnero's assurances that he could produce a signed copy of the declaration, Judge Armstrong allowed argument on the summary judgment motion to go forward. Judge Armstrong denied the summary judgment motion but directed Guarnero to fax a copy of the executed signature page to the court and counsel by 4:30 that afternoon. Guarnero was uncertain whether the original signature page could be immediately located; consequently, on the short walk back to his office from the hearing, which had ended between 3:25 and 3:35 p.m., Guarnero called Morgans and told her to call Farrell about coming in to sign another declaration. When he arrived at his office, Morgans told him that she had left a message for Farrell with Farrell's mother.

What happened next gave rise to the WSBA's charges of misconduct. Guarnero claims that he located in his files the declaration's signature page and personally faxed copies to Judge Armstrong and Hendrix a few minutes after 4:00 p.m. However, the signature page that Guarnero faxed to Judge Armstrong and Hendrix was not the signature page that his assistant had filed with the court. Unaware of Guarnero's actions, Morgans had gone to the clerk's office to search for the missing page. She returned to the office with a copy of the original signature page, which had been located in a file used to hold loose pleadings not yet affixed in the case's master file. To account for the dual signature pages, Guarnero has since contended that Farrell "either signed multiple signature pages ... while in his office on May 10th or she faxed a signature page to him on May 10th from her home or from her place of work at some time prior to her coming to his office on that day."¹ Hendrix, however, having seen Farrell's signature on previous documents, immediately suspected that the signature on the faxed document was a forgery. Hendrix suspected that, rather than discovering a second legitimately executed signature page in his file, Guarnero had simply printed another original page 17 from his computer, signed his client's name in ink (erringly deleting her middle initial), and faxed copies of the forged signature page to her and Judge Armstrong.

After obtaining an expert opinion that the signature had been forged, Hendrix moved for reconsideration of the denial of the inpatient's summary judgment motion. In response, Guarnero drafted a declaration for Farrell to sign, stating that she had sent him a signed signature page prior to signing the second one at his office. According to her testimony, even though it had initially made no sense to her that she would have faxed a signature page to Guarnero prior to arriving at his office to sign one, she was nevertheless persuaded by his assurances that they had done a lot of prior faxing and e-mailing. When Farrell signed the supplemental declaration, she did not have before her a copy of the questioned signature page. The supplemental declaration was one of the documents that Guarnero filed in opposition to the inpatient's motion for reconsideration. Judge Armstrong advised counsel that she would rehear the summary judgment motion on June 26, 2000, and that a different judge would consider the forgery issue.

Following the Monday, June 26, hearing, Judge Armstrong stated that she would rule by Friday. On Friday, before Judge Armstrong issued a ruling, the parties attended mediation and settled Farrell's case for $50,000. Although Farrell was dissatisfied with the settlement, Guarnero advised her to accept it and to pursue a malpractice claim against her former attorney. Following Guarnero's advice, Farrell later obtained her file from Guarnero and met with other counsel about the potential malpractice claim. According to Farrell, it was during one of those meetings that she first saw a copy of the questioned signature page (i.e., a copy of the page faxed to Judge Armstrong and Hendrix), and she recognized the signature as a forgery. Her lawyer ultimately advised her that, if anyone had damaged her case, it was Guarnero.

After the King County prosecutor filed a grievance against Guarnero regarding the forgery, Guarnero sent Farrell an e-mail telling her of the grievance and reminding her that, were the WSBA to prove that the signature was a forgery, she could be accused of perjury for having signed the supplemental declaration affirming that the signature on the questioned document was hers. The WSBA obtained Guarnero's client file from Farrell's lawyer and found in it the ink-signed original of the allegedly forged signature page. At the hearing, the WSBA's handwriting expert testified that the original of the allegedly forged signature page was a "simulated forgery," one that is drawn or traced (not fluidly written) in an effort to "reproduce the pictorial aspects of a genuine signature." 2 Transcript of Proceedings at 612. As to how the ink-signed original of the questioned document came to be in his client file, Guarnero testified at the hearing that Farrell had either brought it with her to his office on May 10 or planted it in the file at some point after Guarnero turned the file over to her. Farrell testified that, prior to the disciplinary hearing, she had not seen the ink-signed original of the questioned signature page, and she denied having planted the document in the file — a file that had been in her possession only for the two weeks prior to her consultation with other lawyers about a suit against her first lawyer.

The hearing officer determined that the WSBA had proved by a clear preponderance of the evidence all six counts charged in the June 15, 2001, complaint. In sum, the charges were that Guarnero had (1) forged Farrell's signature, (2) faxed the forgery to the trial judge, (3) served it on the prosecutor, (4) served and filed another declaration falsely denying his creation of the forgery, (5) deceitfully secured a supplemental declaration from Farrell stating that she had signed the forged document, and (6) continued his representation of Farrell without telling her of his forgery and the associated risks of his continued representation. The hearing officer concluded that, while Guarnero had acted negligently in failing to apprise Farrell of the risks of his continued representation, he had acted knowingly and intentionally as to all other charges. The hearing officer identified disbarment as the presumptive sanction under standards 4.61 and 5.11 of the American Bar Association's Standards for Imposing Lawyer Sanctions (1991 & Supp.1992). That sanction remained unchanged by the hearing officer's finding of a single mitigator (absence of prior disciplinary record) and six aggravators: dishonest or selfish motive, pattern of misconduct, multiple offenses, submission of false evidence or statements during the disciplinary process, refusal to acknowledge the wrongful nature of his conduct, and substantial experience in the practice of law.

The hearing officer's findings, conclusions, and recommendation were filed on December 27, 2002, and were amended, on the WSBA's motion, on January 15, 2003. On May 16, 2003, by a vote of 10-2, the Disciplinary Board adopted the hearing officer's findings and conclusions and his recommended sanction of disbarment; the two dissenters concluded that the WSBA had not "met its burden of...