McGough, Matter of, 6771
| Decision Date | 28 June 1990 |
| Docket Number | No. 6771,6771 |
| Citation | 115 Wn.2d 1,793 P.2d 430 |
| Court | Washington Supreme Court |
| Parties | In the Matter of the Disciplinary Proceeding Against Joseph E. McGOUGH, An Attorney at Law. En Banc |
Randy Beitel, Washington State Bar Ass'n, Seattle, for Bar Ass'n.
Michael E. de Grasse, Walla Walla, for respondent.
Attorney Joseph E. McGough appeals the recommendation of the Disciplinary Board of the Washington State Bar Association that he be suspended from the practice of law for 2 years. Upon careful review of the record and prior discipline cases, we conclude that the appropriate sanction is disbarment.
McGough was admitted to practice law in 1976 and has practiced in the Tri-Cities area since 1978, mostly as a sole practitioner. McGough has a prior disciplinary history resulting from conduct in 1984 and 1985, which culminated in his stipulation to two letters of censure in November 1985. 1
The current proceeding was initiated by a complaint filed with Bar Association counsel by Rodger Easley on January 12, 1987. Easley alleged that McGough had failed to file a criminal appeal on his behalf in September 1985. The investigation of this matter was delayed due to McGough's failure to cooperate with the Bar Association's investigation. The Easley complaint was ordered to hearing on July 20, 1987, and Bar Association counsel filed a formal complaint on January 13, 1988.
On September 9, 1987, Isidro Diaz filed a complaint with Bar Association counsel alleging that McGough failed to file a criminal appeal on his behalf in April 1985. The investigation of this matter was also delayed due to McGough's failure to cooperate with the Bar Association's investigation. The Diaz complaint was ordered to hearing on March 10, 1988, and Bar Association counsel filed the first amended formal complaint, alleging these additional counts, on April 19, 1988.
On March 15, 1988, John Moller filed a complaint with Bar Association counsel alleging that McGough had neglected the probate of an estate and had failed, after being dismissed, to refund unexpended client trust funds. Bar Association counsel subpoenaed bank records and determined that the Moller funds had been deposited directly into McGough's personal checking account. On April 19, 1988 and May 12, 1988, aware of the invasion of a client trust fund, Bar Association counsel twice advised McGough by letter that authorization was being sought to petition the Supreme Court, pursuant to Rules for Lawyer Discipline (RLD) 3.2(a), for an order of immediate suspension. On June 21, 1988 the Review Committee of the Disciplinary Board unanimously authorized a petition for interim suspension. On June 27, 1988 the Review Committee ordered the Moller complaint to a formal hearing.
On June 20, 1988, McGough telephoned and wrote to Bar Association counsel advising that he had "taken client funds" in six other matters. By agreement, McGough's deposition was taken on July 13, 1988, and on August 18, 1988, Bar Association counsel filed a second amended formal complaint which added 16 counts to the existing 5 counts. As more allegations came to light following the Bar Association Auditor's report, the second amended formal complaint was further amended on November 16, 1988 adding three additional counts, for a total of 24 counts.
On September 20, 1988, this court heard argument on Bar Association counsel's petition for McGough's immediate suspension pending the final disposition of the disciplinary proceedings against him. On September 23, 1988, this court entered an order allowing McGough to continue practicing law provided that he meet various conditions including obtaining co-counsel on all matters, obtaining a supervisory attorney who assumed joint control of his trust account, and his continued cooperation with the Lawyers Assistance Program. The order further directed that the disciplinary proceedings be expedited for a hearing on the merits.
On December 14, 1988, a disciplinary hearing was held before Hearing Officer John Huneke. Because the parties had stipulated to McGough's misconduct as charged and the various violations of the Rules of Professional Conduct (RPC) as charged, 2 the hearing was to resolve the narrow issue of the appropriate sanction to be imposed for McGough's misconduct. Accordingly, the testimony at the hearing was limited to establishing the injury caused by McGough's misconduct and the extent of any mitigating circumstances.
By agreement, McGough has stipulated to multiple violations of the RPC involving 22 counts of misconduct. The misconduct is fairly wide ranging. McGough has stipulated to converting client trust funds from 10 separate clients in the amount of $18,657.50 over a 19 month period beginning in December 1986. In a number of these instances, McGough stipulated that he failed to complete the matters for those clients in an effort to conceal the conversions, and as a result those clients were put at risk.
In addition, McGough stipulated that he failed to file two criminal appeals and that he subsequently made misrepresentations to those clients. These misrepresentations resulted in his clients losing their right to appeal because the time had expired. McGough's stipulated misconduct also includes failure to promptly respond to two disciplinary investigations; conduct involving dishonesty, fraud, deceit, and misrepresentation; failure to account for client funds; failure to record real estate contracts and obtain title insurance; failure to calculate a settlement proposal correctly and to seek attorney fees on behalf of a client; failure to probate an estate; and failure to properly file a bankruptcy.
At the hearing, McGough called Dr. G. Andrew H. Benjamin as a witness. Dr. Benjamin is both a lawyer and a clinical psychologist and is the director of the Lawyers' Assistance Program. Dr. Benjamin began working with McGough, as a counselor, in April 1987. 3 The counseling consisted of 19 telephone conversations between Dr. Benjamin and McGough from April 1987 to November 1987 for a total of 9 hours.
Dr. Benjamin diagnosed McGough as suffering from clinical depression, which is the result of his underlying compulsive personality disorder complicated by a series of major interpersonal losses. In addition, Dr. Benjamin determined that McGough had a chronic procrastination problem. Although Dr. Benjamin testified that "the best treatment for clinical depression is a regimen of antidepressant medications" and that he advised McGough to consider using such treatment, McGough rejected this approach. Dr. Benjamin further testified that he recommended to McGough that he obtain either psychiatric or psychological counseling. McGough, however, did not seek such therapy, nor does he have any plans to seek such therapy. Dr. Benjamin also testified that McGough's depression lifted or began to lift in November or December of 1987, whereupon he and McGough discontinued the psychotherapy and he had McGough start speaking with a peer counselor. 4 Nonetheless, the record reveals that after the period of time in which Dr. Benjamin believed that McGough's depression had lifted, McGough continued to convert client trust funds.
On January 17, 1989, the Hearing Officer filed his findings of fact, conclusions of law, and recommendation. The Hearing Officer adopted the stipulation as his findings and conclusions and made additional findings as to mitigating and aggravating circumstances. McGough's two previous letters of censure were considered to be an aggravating factor. However, the Hearing Officer also found several mitigating factors. Specifically, he found that McGough:
(1) Participated in the Lawyer's Assistance Program of the Washington State Bar Association from April 1987.
(2) From 1985 has experienced major depression.
(3) Was divorced in 1984, became responsible for his children, and was embroiled in custody litigation until June 1988.
(4) Has consistently sought to make restitution for funds.
(5) Since June 1988 has cooperated with Bar investigation.
Although the Hearing Officer noted that McGough's admitted violations "ordinarily are tantamount to disbarment", he recommended a 9-month "suspended" suspension with various probationary measures including that a supervising attorney act as co-counsel on all matters.
On January 27, 1989, pursuant to RLD 4.13(c), Bar Association counsel filed a motion to modify, amend, and correct the decision of the Hearing Officer. On February 10, 1989, Hearing Officer Huneke denied the motion. Subsequently, pursuant to RLD 6.1(b), Bar Association counsel filed a notice of appeal to the Disciplinary Board (Board) of the Washington State Bar Association.
On May 12, 1989, the Board heard oral argument on the matter. At the hearing, Bar Association counsel sought a recommendation of disbarment. By a 9-to-3 decision, the Board recommended a 2-year suspension followed by a 2-year probationary period with reinstatement conditioned on a showing that McGough's practice does not present a threat of injury or potential injury to his clients.
The majority of the Board adopted the stipulation as its findings and conclusions. In addition, the majority adopted the following two additional findings:
(1) That the actions of Mr. McGough resulted in injury to his clients or had the potential for injury to his clients.
(2) That Mr. McGough's actions or failures to act as set forth in the Findings, although under stressful conditions and during a period of depression, were done knowingly.
The three dissenting members of the Board recommended disbarment. The dissent reasoned that because McGough has
stolen a substantial sum of money, neglected matters, deceived clients for his own benefit, has been previously disciplined, and refuses the type of counseling recommended, ... that disbarment is the only appropriate discipline.
Pursuant to RLD 7.2, McGough appeals the recommendation of the Board. He contends that,...
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