Rosellini, Matter of

• Citation: 646 P.2d 122,97 Wn.2d 373
• Decision Date: 20 May 1982
• Docket Number: No. C,C
• Parties: In the Matter of the Disciplinary Proceeding Against John M. ROSELLINI, An Attorney at Law. D. 7768.
• Court: United States State Supreme Court of Washington

Page 373

97 Wn.2d 373

646 P.2d 122

In the Matter of the Disciplinary Proceeding Against John M. ROSELLINI, An Attorney at Law.

No. C.D. 7768.

Supreme Court of Washington, En Banc.

May 20, 1982.

Kurt Bulmer, Seattle, for Washington State Bar Ass'n.

John N. Rupp, Seattle, for respondent.

BRACHTENBACH, Chief Justice.

This is an attorney discipline proceeding involving the misuse of trust funds. The hearing panel officer and the Disciplinary Board recommended that attorney John M. Rosellini be disbarred. We concur.

The complaint of the Bar Association alleged 21 violations of the Discipline Rules for Attorneys (DRA) and the Code of Professional Responsibility (CPR). The hearing panel officer found 14 violations and recommended disbarment. The Board, by a 3 to 2 vote, adopted the hearing panel officer's findings, conclusions, and recommendations. Other members of the Board were either absent or disqualified themselves. The two dissenting members disagreed with the majority only on the issue of the proper sanction. The dissenters believed a 1-year suspension was appropriate.

The respondent admits that he violated the rules governing trust funds. He argues only that he should be suspended not disbarred.

These charges arise from the following facts. Respondent John Rosellini was employed to probate the estate of Voyena Brandt. On May 31, 1977, he received and placed in his trust account $10,000 which was to be paid to the decedent's two children. Those funds were not disbursed to the Brandt children until September 11, 1978, more than 16 months later.

In the meantime respondent attorney drew the following checks on his trust account for the stated purposes:

                 DATE          PAYEE                     AMOUNT  PURPOSE
                 (1) 7-29-77   Seattle 1st Nat Bank   $1,968.00  office rent
                 (2) 8-8-77    Seattle 1st Nat Bank    1,968.00  office rent
                 (3) 9-20-77   Equitable Savings &     1,275.77  residence mortgage
                               Loan Ass'n                          payment
                 (4) 10-4-77   John M. Rosellini         800.00  personal expenses
                 (5) 10-5-77   Cash                      546.03  office telephone
                 (6) 10-17-77  Pacific NW Bell           427.86  office telephone
                 (7) 10-21-77  John M. Rosellini         750.00  personal expenses
                 (8) 10-28-77  Pacific National Bank     300.00  residence mortgage
                                                                   payment
                 (9) 11-4-77   John M. Rosellini         750.00  personal expenses
                (10) 11-8-77   Equitable Savings &        92.68  residence mortgage
                               Loan Ass'n                          payment
                (11) 11-8-77   Cash                      225.00  personal expenses
                (12) 11-8-77   Equitable Savings &       636.77  residence mortgage
                               Loan Ass'n                          payment
                (13) 11-16-77  John M. Rosellini         700.00  personal expenses
                (14) 3-23-78   Seattle Seahawks          200.00  personal
                

These withdrawals totaled $10,640.11.

Mr. Brandt made numerous inquiries as to when the $10,000 would be disbursed. Eventually, he filed a complaint with the Bar Association and an investigation was started. Respondent then disbursed the funds, explaining that he was waiving fees and costs because of unanticipated delays in processing the estate.

The payment to the Brandt heirs was made possible by the following transaction. Three days before disbursing the money respondent received $22,063.94. These funds were from the estate of an Italian national and were delivered to respondent in his capacity as Honorary Vice Consul for Italy. After deducting a fee, respondent put the balance in his consular account. He then transferred $10,000 to his trust account. With these funds he was then able to disburse the amount owed to the Brandt heirs.

On March 21, 1978, after making 13 withdrawals from his trust account for personal use, respondent signed an affidavit required by DRA 13.3, swearing under oath that all clients' funds were kept in his trust account in the manner specified in (CPR) DR 9-102. That section prohibits the comingling of personal and client funds, and requires that an attorney promptly pay or deliver to the client upon demand all funds in the attorney's possession to which the client is entitled.

Respondent admits that he knew at the time he filed the affidavit that the answers were not true and the trust account was not maintained in the manner specified in (CPR) DR 9-102 nor were all clients' funds to the extent required by (CPR) DR 9-102 kept therein. Respondent admits also, that at the time he was taking money from the trust account he knew it was wrong, but "it was easy to do."

We are faced with a disciplinary matter where an attorney over a period of 8 months intentionally invaded a trust fund containing his clients' funds.

This court has long disbarred attorneys for such flagrant violation of their professional and fiduciary duties. We have said: "(t)hose few lawyers who mishandle trust funds, who fail to maintain complete records of trust funds and who fail to account and deliver funds as requested are reminded that disbarment is the usual result." In re Deschane, 84 Wash.2d 514, 516-17, 527 P.2d 683 (1974).

Over the years trust account violations have led to disbarment in these cases.

In re Gowan, 104 Wash. 166, 176 P. 7 (1918); In re Ward, 104 Wash. 170, 176 P. 2 (1918); In re Martin, 107 Wash. 372, 181 P. 880 (1919); In re Gwynn, 179 Wash. 389, 37 P.2d 1114 (1934); In re Grant, 4 Wash.2d 617, 104 P.2d 602 (1940); In re Moran, 5 Wash.2d 679, 106 P.2d 571 (1940); In re Beakley, 6 Wash.2d 410, 107 P.2d 1097 (1940); In re Scott, 12 Wash.2d 736, 737, 121 P.2d 953 (1942); In re McCoy, 20 Wash.2d 884, 146 P.2d 818 (1944); In re Grimm, 29 Wash.2d 147, 185 P.2d 990 (1947); In re Walsh, 40 Wash.2d 593, 244 P.2d 868 (1952); In re King, 42 Wash.2d 617, 257 P.2d 219 (1953); In re Park, 45 Wash.2d 383, 274 P.2d 1006 (1954); In re Dillard, 48 Wash.2d 376, 293 P.2d 761 (1956); In re Ward, 54 Wash.2d 593, 343 P.2d 872 (1959); In re Carroll, 54 Wash.2d 633, 343 P.2d 1023 (1959); In re Peterson, 56 Wash.2d 187, 351 P.2d 533 (1960); In re Griffin, 58 Wash.2d 149, 361 P.2d 569 (1961); In re Timothy, 58 Wash.2d 153, 361 P.2d 642 (1961); In re McDole, 63 Wash.2d 962, 390 P.2d 9 (1964); In re Marsh, 65 Wash.2d 390, 397 P.2d 828 (1964); In re Chantry, 67 Wash.2d 190, 407 P.2d 160 (1965); In re Moody, 69 Wash.2d 808, 420 P.2d 374 (1966); In re Warnock, 70 Wash.2d 457, 423 P.2d 929 (1967); In re Randall, 72 Wash.2d 676, 435 P.2d 26 (1967); In re Hall, 73 Wash.2d 401, 438 P.2d 874 (1968); In re Anderson, 73 Wash.2d 587, 439 P.2d 981 (1968); In re Johnson, 74 Wash.2d 21, 442 P.2d 948 (1968); In re Stromberg, 75 Wash.2d 955, 452 P.2d 547 (1969); In re Soderquist, 78 Wash.2d 227, 472 P.2d 395

(1970); In re Garvin, 78 Wash.2d 832, 479 P.2d 930 (1971); In re Slater, 78 Wash.2d 958, 481 P.2d 564 (1971); In re Johnson, 81 Wash.2d 46, 499 P.2d 879 (1972); In re Espedal, 82 Wash.2d 834, 514 P.2d 518 (1973); In re England, 82 Wash.2d 121, 508 [646 P.2d 125] P.2d 611 (1973); In re Delaney, 83 Wash.2d 415, 518 P.2d 713 (1974); In re Kirchen, 83 Wash.2d 727, 522 P.2d 188 (1974); In re Deschane, 84 Wash.2d 514, 527 P.2d 683 (1974); In re Batali, 85 Wash.2d 246, 533 P.2d 843 (1975); In re Smith, 85 Wash.2d 738, 539 P.2d 83 (1975); In re Robinson, 89 Wash.2d 519, 573 P.2d 784 (1978); In re Gibson, 90 Wash.2d 440, 442, 583 P.2d 633 (1978); In re Cary, 90 Wash.2d 762, 585 P.2d 1161 (1978); In re Hawkins, 91 Wash.2d 497, 589 P.2d 247 (1979); In re Zderic, 92 Wash.2d 777, 600 P.2d 1297 (1979); In re Allper, 94 Wash.2d 456, 617 P.2d 982 (1980).

Despite these strong precedential statements that disbarment results from misuse of trust funds, there have been instances where this court has imposed less severe discipline. In In re Salvesen, 94 Wash.2d 73, 614 P.2d 1264 (1980), we stated that we will look to other acts of misconduct and the presence or absence of mitigating circumstances. For instance, lack of cooperation with the Bar investigation may be an aggravating circumstance. But lack of prior discipline and full cooperation will not excuse the conduct. Furthermore, restitution and repentance do not constitute a defense. In re Cary, supra, In re Grant, supra.

Given this historical pattern of dealing with trust account violations, we reiterate the considerations inherent in determining the appropriate sanction:

The two basic purposes of attorney discipline are to protect the public from future misconduct of an attorney and to preserve public confidence in the legal system.

In an individual case, however, recitation of disciplinary purposes does not resolve the issue of appropriate discipline, which must be determined by the facts and circumstances of each case. This court has reiterated several considerations in making this determination: (1) the seriousness and circumstances of the offense; (2) avoidance of repetition; (3) deterrent effect upon others; (4) maintaining respect for the legal profession; (5) assurance that those who seek legal services will be insulated from unprofessional conduct.

(Citations omitted.) In re Zderic, 92 Wash.2d 777, 787, 600 P.2d 1297 (1979).

There is no question that respondent's violations were serious and intentional. Only when faced with a Bar investigation did respondent disburse the Brandts' funds. But at that time he took other trust funds to cover his earlier defalcations. Finally, respondent compounded his violations of his duty to the public and the Bar by falsely and knowingly alleging that his trust account was properly maintained.

Admittedly respondent is now remorseful and contrite. Nothing less would be expected. His remorse is not impressive, however, when viewed in light of his attempts at concealment. For instance, he did not disclose the truth to his clients when finally disbursing the money. In fact, he wrote to Mr. Brandt who had provided the $10,000 settlement money that he was disappointed to learn of the...