Rentel, In re

• Decision Date: 26 November 1986
• Docket Number: No. 7663,7663
• Parties: In re Gary W. RENTEL. C.D.
• Court: Washington Supreme Court

Page 276

107 Wn.2d 276

729 P.2d 615

In re Gary W. RENTEL.

C.D. No. 7663.

Supreme Court of Washington En Banc.

Nov. 26, 1986.

Robert T. Farrell, Seattle, for Bar Ass'n.

Gary W. Rentel, Tacoma, pro se.

Monte Hester, Tacoma, for respondent.

ANDERSEN, Justice.

FACTS OF CASE

At issue in this case is the appropriate sanction to impose upon an attorney who misappropriated client funds while addicted to cocaine and alcohol.

Respondent Gary W. Rentel was admitted to practice law in the State of Washington on November 16, 1972. In 1974 he became an associate with a law firm, and in 1980 joined a Tacoma firm as a partner.

Respondent drank socially until he became an attorney, whereupon his drinking increased. In 1977, his alcohol consumption began to interfere with his marriage. In 1978 Respondent and his wife separated. He then sought psychiatric treatment for depression.

Respondent continued to practice law. He also continued Respondent continued to practice law despite his cocaine and alcohol addictions. On February 17, 1983, he received a formal complaint from the Bar Association charging him with violating DR 7-104(A)(2) in that he had given advice to an unrepresented person when the interests of that person conflicted with his client's interests. The complaint also charged Respondent with violating DR 1-102(A)(4), which prohibits conduct involving fraud, deceit, dishonesty or misrepresentation.

                to drink.   By 1981, he was drinking daily beginning at noon and consuming 10 to 15 drinks a day.   Respondent and his wife divorced at the end of 1981.   Before the divorce was final, and as early as 1978, Respondent used cocaine.   By the end of 1981 he was addicted;  Respondent used 1-1 1/2 grams of cocaine daily while consuming 10-15 drinks daily
                

On March 5, 1983, one of Respondent's partners confronted him with a client's claim that Respondent had received and kept funds belonging to the client. After the partner examined the file and discovered that Respondent had taken the client's money, he informed the Bar Association. Further investigation revealed additional misappropriations. With Respondent's consent, he was suspended from practicing with his firm.

On March 18, 1983, Respondent voluntarily suspended himself from the practice of law altogether. His clients were notified of his voluntary suspension. Then on April 6, 1983, this court entered an order formally suspending Respondent from the practice of law pending the outcome of disciplinary proceedings against him. On July 7, 1983, Respondent was admitted into the Kirkland CareUnit for treatment of alcoholism and drug addiction.

On November 4, 1983, the Bar Association amended its earlier complaint to charge Respondent with misappropriating the funds of eight clients between March and December 1982. The complaint was further amended on March 30, 1984, to add another misappropriation charge. The total client funds taken exceeded $26,000. The complaint Disciplinary proceedings against Respondent were delayed while he was tried on 12 counts of felony theft in Pierce County Superior Court. Respondent stipulated to taking the money, but contended that he was not criminally liable because of his diminished mental capacity and his lack of intent to steal. A jury acquitted Respondent on all 12 counts.

                noted that some of the misappropriated funds had been repaid.   Respondent admitted taking the money in each instance, but stated that he suffered from diminished mental capacity and/or disability at the time of each theft
                

The disciplinary hearing began on June 25, 1984. Respondent admitted misappropriating client funds, but maintained that he remembered nothing about the incidents and took the money only because his reasoning was totally impaired by his alcohol and cocaine addiction. Several witnesses testified, however, that Respondent functioned competently as an attorney during the period of his addictions. A psychiatrist who examined Respondent at the Bar Association's request made three psychiatric diagnoses: narcissistic personality disorder of long-standing duration; continuous cocaine abuse during 1981, 1982 and 1983; and continuous alcohol dependence from 1976 through 1983.

The hearing officer concluded that Respondent did engage in the charged acts of misconduct, which included misappropriation of client funds, failure to make full accountings and the giving of advice to a non-client whose interests conflicted with those of his client. The hearing officer did not consider disbarment appropriate, however, because he found that during 1981, 1982 and 1983 Respondent "was suffering from diagnosed personality disorders, depression, narcissistic personality, alcohol addiction and cocaineaddiction, all of which were medical problems which had a profound effect upon his judgment." The hearing officer also noted Respondent's apparently successful treatment at CareUnit and his involvement with Alcoholics Anonymous and Cocaine Anonymous. Respondent is now a mortgage banker and works as a volunteer at CareUnit.

The hearing officer recommended that Respondent be suspended for 15 months commencing April 6, 1983. Since the hearing officer's decision was rendered on March 15, 1985, its effect would be immediate reinstatement for the Respondent. The hearing officer also recommended a 10-year probationary period (increased from 5 years at Respondent's request) which would involve conditions such as Respondent's "intense involvement" with Alcoholics Anonymous, supervision by a committee of three attorneys, blood or urinalysis tests on 12 hours' notice and counseling from a certified alcohol and drug counselor.

On May 3, 1985, the Disciplinary Board reviewed the case. No oral argument was requested, and none was heard. On July 1, 1985, the Board rendered its decision adopting and modifying the hearing officer's decision. The Board made two additions to the findings of fact. One was drawn from the testimony of Dr. Petrich, the psychiatrist who examined Respondent: "However, Mr. Rentel's ability to perceive reality was not so impaired that he could not distinguish between his money and his clients' money." The second addition also was based on the psychiatrist's deposition testimony:

According to the testimony of Dr. Petrich, people such as Mr. Rentel, with a narcissistic personality, are more vulnerable to alcohol and drug abuse, and it is extremely difficult for such persons to sustain a remission from use of alcohol or drugs.

The Board struck the hearing officer's recommendation and ordered that Respondent (1) be required to make restitution to any client not yet fully reimbursed for funds misappropriated by Respondent and (2) be disbarred. The Board's vote was 9-0.

Respondent moved for reconsideration and requested that oral argument be permitted at the time of the hearing on the motion for reconsideration. The Board denied the motion for reconsideration and the request for oral argument. It also assessed costs and expenses against Respondent.

Respondent then appealed the Bar Association's disbarment recommendation to this court. ¹

We are presented with one ultimate issue.

ISSUE

What is the appropriate sanction for an attorney who, while addicted to alcohol and cocaine, misappropriates more than $26,000 of client funds over a 10-month period?

DECISION

CONCLUSION. In order to protect the public and to maintain our strong policy against misappropriation of client funds, a majority of this court concludes that the only sanction appropriate under the circumstances presented here is disbarment.

Respondent initially raises several procedural issues. First, he argues that the Disciplinary Board erred in denying his motion for reconsideration and his request for oral argument. Respondent had the right to present oral argument at the May 3, 1985 review of his case before the Disciplinary Board. ² Neither Respondent nor his attorney requested oral argument. The right to so argue was thus waived. ³ Our rules do not provide for the Disciplinary Board reconsidering its own decision. The Board therefore did not err when it denied Respondent's motion as well as his request to orally argue that motion. ⁴

Respondent also requested that oral argument and testimony be presented to this court or that his case be remanded to the Board for further proceedings. RLD 7.7(a) provides that oral argument before this court will be conducted under the provisions of Title 11 of the Rules of Appellate Procedure, unless we otherwise direct. There is no provision in Title 11 for allowing testimony, nor do we regard it as necessary here. The record presented is sufficient for us to reach a decision. Respondent was allowed to speak to this court on his own behalf. We deem further proceedings unnecessary.

The main issue here presented, of course, is whether the appropriate sanction is disbarment, as recommended by the Disciplinary Board. In deciding this issue, we have recourse to the very helpful analytical framework proposed by the American Bar Association, ABA Standards for Imposing Lawyer Sanctions (Approved Draft, 1986).

We note initially the purpose of lawyer discipline as stated by the American Bar Association's Sanctions Committee:

The purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely properly to discharge their professional duties to clients, the public, the legal system, and the legal profession.

Standards, at 23. This statement coincides with this court's traditional position that the purposes of attorney discipline are to protect the public and to preserve confidence in the legal system. ⁵

In satisfying these basic purposes of bar discipline, the consequence of disciplining an errant attorney is unavoidably punitive to some extent. ⁶ Indeed, as observed in In re Little, 40 Wash.2d 421, 431, 244 P.2d 255 (1952):

The final adjudication should...