MATTER OF DISCIPLINARY PROCEEDING AGAINST KUVARA

• Decision Date: 24 April 2003
• Docket Number: No. 03603-9.,03603-9.
• Parties: In the Matter of the DISCIPLINARY PROCEEDING AGAINST Robert KUVARA, Attorney at Law.
• Court: Washington Supreme Court

66 P.3d 1057

149 Wash.2d 237

In the Matter of the DISCIPLINARY PROCEEDING AGAINST Robert KUVARA, Attorney at Law.

No. 03603-9.

Supreme Court of Washington, En Banc.

Argued January 16, 2003.

Decided April 24, 2003.

Leland Ripley, Lake Stevens, for Petitioner.

Anne Seidel, Joanne Abelson, Seattle, for Respondent.

BRIDGE, J.

On May 9, 2000, the Washington State Bar Association (WSBA) filed a complaint against Robert Kuvara, alleging that he committed numerous ethical and criminal violations by listing the name of a man he knew to be dead as the grantor on a deed, allowing the man's widow to sign the man's name to the deed, notarizing the signature as though it were the dead man's, and submitting the false deed to be recorded. The WSBA's complaint also alleged that this conduct demonstrates that Kuvara is unfit to practice law.¹ The hearing officer found that Kuvara should be disbarred and the Disciplinary Board (Board) affirmed that decision by an 11-1 vote. We agree.

I

Kuvara was admitted to the WSBA in 1963 and has practiced in Washington for the past 39 years. His practice includes criminal defense, personal injury, and wills.

In 1982, a police officer named Samuel Hicks was shot and killed in the line of duty. Kuvara agreed to handle the probate of his estate pro bono for his widow, Terri Hicks. Included in the estate was a piece of property in Shasta County, California. Although Kuvara contacted two California law firms for assistance in transferring the property to Terri Hicks, the transfer was never accomplished.

Despite the lack of a formal transfer, Terri Hicks sold the property to Samuel Hicks' sister, Nancy Maurice, for $5,000 in 1990. Hicks and Maurice continued to seek written documentation of the transfer from Kuvara for the next eight years. Eventually, Maurice decided to sell the property and received an offer to purchase from a third party on January 28, 1999. To assist with the sale, Maurice sought the assistance of Denise Butcher, an escrow agent. Although Butcher contacted Kuvara's office several times, she was not able to obtain a deed for the property or speak with Kuvara.

Meanwhile, Terri Hicks went to Kuvara's office on January 10, 1998, believing she was to sign the papers necessary to formally transfer the property to Maurice. When she arrived, a quitclaim deed was already prepared. The deed indicated that the grantor was Samuel A. Hicks. Terri Hicks signed her deceased husband's name on the deed. She maintained in her deposition that she would not have signed his name on her own accord. She also stated that she asked Kuvara if she should initial the signature and he indicated that she should not. Kuvara testified that he had no memory of the events that took place on the day that Terri Hicks went to his office, but that he had no reason to doubt the veracity of the statements made by Ms. Hicks.

Kuvara, a licensed notary public, then notarized the signature as that of Samuel A. Hicks by stamping the deed with his official notary seal and signing as notary. Before the hearing officer, Kuvara testified that he could not recall notarizing the document, but contended that if he had, he must have done so by mistake. The deed remained at Kuvara's office after Terri Hicks left.

In March 1999, 15 months after Terri Hicks signed the deed with her dead husband's name, it was filed with the recorder's office in Shasta County, California. Kuvara testified that he had no memory of sending the deed to California for filing, but that in such circumstances he would usually be the one to handle the filing of such documents.

When Denise Butcher obtained a copy of the deed from the public record, she determined that it had been forged because she knew from Maurice that Samuel Hicks had died approximately 16 years before the deed was signed. Maurice and Terri Hicks contacted Kuvara repeatedly about the false signature, but Kuvara failed to provide assistance until Maurice filed a grievance with the WSBA. Maurice and her husband hired a probate paralegal in California to resolve the matter, but the escrow did not close until November 1999, which resulted in a nine-month delay in the sale of the property.

Kuvara has been disciplined several times previously. In 1982, he received a censure for twice suggesting to a client that she backdate a real estate deed in order to divest herself of ownership of the property so that she could qualify for welfare benefits. In 1996, Kuvara stipulated to a reprimand for attempting to collect legal fees that had been discharged in bankruptcy, negotiating with the clients to obtain a reaffirmation of their debt while he was representing them in the bankruptcy proceeding, and failing to advise the court of the requirement that a reaffirmation must be in writing. Finally, Kuvara was suspended from the practice of law for 30 days in 1996 for various trust account violations, including commingling his funds with client funds and using client funds to pay his personal expenses.

In May 1999, Nancy Maurice and her husband filed a grievance against Kuvara with the WSBA. They later dismissed the grievance at Kuvara's request after he paid the fees of their California paralegal, but the WSBA decided to proceed with its investigation.

A hearing was held on February 22, 2001. The hearing officer, Marc L. Silverman, found that Kuvara engaged in criminal as well as unethical conduct. Specifically, the hearing officer found that Kuvara acted criminally by (1) advising Terri Hicks to commit forgery in violation of RCW 9A.60.020, (2) performing a false certification in violation of RCW 9A.60.050, (3) committing official misconduct by a notary in violation of RCW 42.44.160, and (4) making a false statement to a public servant in violation of RCW 9A.76.175.

Based on the same conduct, the hearing officer found several ethical violations. He found that Kuvara violated RPC 8.4(c) by engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation" and RPC 8.4(b) by committing "a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." RPC 8.4(c), (b). The hearing officer also found that Kuvara engaged in "conduct that is prejudicial to the administration of justice" under RPC 8.4(d) because he hindered Terri Hicks' and Maurice's attempts to lawfully convey the property. RPC 8.4(d). Finally, the hearing officer stated that Kuvara violated RPC 4.1(a) because he knowingly made a false statement of a material fact to a third person in the course of representing a client by submitting a falsely executed real estate deed to the recording office in California.

The hearing officer concluded that Kuvara should be disbarred. He found that Kuvara acted knowingly and intentionally, despite Kuvara's inability to recall the events and his contention at the hearing that it was merely a mistake on his part. He found it "inconceivable" that Kuvara's actions could be a simple mistake, instead concluding that Kuvara attempted to submit a false document as a "`short cut'" because he had "`dropped the ball'" in handling the probate 16 years previously.² He opined: "Too many steps were involved, too much care had to be taken, and too much formal legal work had to be accomplished for his `careless signature' on this quitclaim deed to constitute a `mistake.' "³

The hearing officer found several mitigating factors. He found that Kuvara had a good reputation in the community and was not motivated by greed or monetary gain. Although Kuvara's offer to pay for the paralegal fees would normally be a mitigating factor, the hearing officer found that it was neutralized by the fact that it was made only after the Maurices filed their grievance with the WSBA.

The hearing officer also found various aggravating factors. He emphasized the significance of Kuvara's previous disciplinary matters, particularly the advice to backdate a deed in 1982. He also found that Kuvara's 39 years of practice and the fact that he has handled numerous probate matters indicated that he knew the impropriety and seriousness of his actions. In addition, he stated that the 15-month delay between the execution of the forged deed and its recordation in California was an aggravating factor because of the additional distress that it caused Terri Hicks and Maurice, and because Kuvara had time to reconsider his actions, but submitted the false document for recordation anyway. He also found that Kuvara refused to acknowledge that his conduct was wrongful or to accept responsibility for his actions.

Kuvara appealed the hearing officer's disbarment recommendation to the Board and oral argument was set for September 7, 2001. Meanwhile, on September 4, 2001, Kuvara allegedly disclosed to his attorney for the first time that he suffered from diabetes and alcoholism. His attorney filed a motion with the Board under Rules for Lawyer Discipline (RLD) 6.5(a) for an order remanding the proceedings to the hearing officer for consideration of these illnesses as potential mitigating factors.⁴ On July 2, 2002, the Board unanimously denied the motion to remand, finding that these conditions could not be considered newly discovered evidence. The Board also affirmed the hearing officer's findings of fact, conclusions of law and sanction recommendation by an 11-1 vote.⁵ Kuvara appealed the Board's recommendation to this court.

On July 12, 2002, the WSBA filed a petition for the interim suspension of Kuvara with this court under former RLD 3.2(b).⁶ Kuvara responded to the WSBA's interim suspension petition by requesting that it not be imposed until October 15, 2002, in order for him to conclude several pending client matters. This court heard oral argument regarding the interim suspension on September 5, 2002, and on the same day issued an order granting the interim suspension effective October 15, 2002.⁷

II

This court is the definitive authority for bar discipline cases in...