Stroh, Matter of

Decision Date13 May 1982
Docket NumberNo. C,C
Citation97 Wn.2d 289,644 P.2d 1161
PartiesIn the Matter of the Disciplinary Proceeding against Hugh W. STROH, an attorney at law. Norm MALENG, Prosecuting Attorney, Petitioner, v. WASHINGTON STATE BAR ASSOCIATION, Respondent. D. 6869.
CourtWashington Supreme Court

Norman K. Maleng, King County Prosecutor, David Boerner, Robert S. Lasnik, Deputy Pros. Attys., Seattle, James J. Lamont, Hugh W. Stroh, Bellevue, Gerald B. Netzky, Redmond, for petitioner.

Kurt M. Bulmer, Gen. Counsel, Washington State Bar Ass'n, Seattle, for respondent.

BRACHTENBACH, Chief Justice.

We have been asked to review the actions of the Disciplinary Board in dismissing a complaint against an attorney who has been convicted of a felony. For the reasons set out below, we conclude that the Disciplinary Board erred. Pursuant to our inherent authority to supervise the practice of law, we have reviewed the record and conclude that attorney Hugh Stroh's actions warrant disbarment. We so order.

These facts are undisputed:

On April 30, 1979, attorney Hugh W. Stroh was convicted of tampering with a witness in violation of RCW 9A.72.120(1)(a). Tampering with a witness is a Class C felony. He was sentenced to 30 days in jail and placed on probation for 3 years. In addition, he was required to pay court costs and a $500 fine, and perform 150 hours of community service. The provisions of the sentence have since been carried out. A notice of appeal by Stroh from the conviction of the crime charged was filed but then withdrawn on November 14, 1980.

The King County Prosecutor, Norm Maleng, filed a formal complaint with the Washington State Bar Association. That organization, aware of the charges against attorney Stroh, had instituted disciplinary proceedings under Discipline Rules for Attorneys DRA 9.1(a) and DRA 1.1(a).

DRA 9.1(a) provides that an attorney who has been convicted of a felony will be automatically suspended until the Board determines the appropriate final disposition of the case.

DRA 9.1(a) states:

An attorney shall be automatically suspended from the practice of law upon his conviction of a felony under either state or federal law, whether such conviction be after a plea of guilty, nolo contendere, not guilty, or otherwise, and regardless of the pendency of an appeal, and upon the filing of a certified copy of such conviction with the Supreme Court. Provided, however, that the Board may recommend to the Supreme Court for final disposition the prevention or termination of the suspension if such Board affirmatively finds that moral turpitude was not in fact an element of the crime of which the attorney was convicted, or if the Board affirmatively finds that there is other good cause for preventing or terminating such suspension. Suspension in this manner shall not be a substitute or alternative for disciplinary proceedings against said attorney, but such proceedings shall be commenced by the Board upon said conviction, or prior thereto if reasonable cause therefor exists, and shall proceed without regard to said suspension.

Prior to sentencing, Mr. Stroh petitioned the Disciplinary Board pursuant to the provisions of DRA 9.1(a). The Disciplinary Board granted that motion and forwarded a certified copy of the conviction, along with its recommendation, to this court. The recommendation in part stated:

(T)he Board being fully advised in the premises and finding that there is a question whether moral turpitude is in fact an element of the offense for which Mr. Stroh was convicted and that there is a good cause for preventing Mr. Stroh's suspension and finding that a hearing should be held to determine whether moral turpitude is an element of Mr. Stroh's offense, hereby unanimously RECOMMENDS that attorney Hugh W. Stroh not be automatically suspended from the practice of law upon the filing of a certified copy of his conviction with the Supreme Court.

Acting on the assumption that a hearing would be held, we did not respond to the recommendation and Mr. Stroh was not suspended.

While DRA 9.1(a) imposes discipline for the period between an attorney's conviction of a felony and the final disposition of his case, DRA 1.1(a) governs the course of all subsequent disciplinary proceedings. That section requires that a fact finding hearing be held to investigate the charges.

In felony cases, a hearing panel officer must determine whether moral turpitude was in fact an element of the crime committed and recommend appropriate disciplinary action. An investigative hearing was held and the hearing panel officer filed his findings of fact, conclusions of law, and recommendation concerning Hugh W. Stroh. The hearing panel officer concluded that "Respondent's (Stroh's) conduct in attempting to get a witness to testify falsely violated the commonly accepted standard of good morals, honesty and justice, and involved moral turpitude." The hearing panel officer then concluded Stroh had violated DRA 1.1(a) in that he had been convicted of a felony involving moral turpitude. Even though the hearing panel officer concluded the risk of recidivism was remote, he felt compelled to recommend, subject to DRA 8.1(a), that Stroh be disbarred because his crime involved moral turpitude.

The findings, conclusions and recommendation of the hearing panel officer were considered by the Disciplinary Board at its January 18, 1980 meeting. The chairman of the Disciplinary Board issued the following order:

RESOLVED that the Board, having given due consideration to the record, finds that the respondent's acts and conduct in this matter did not involve moral turpitude within the meaning of DR 2-103(A)(3) and DRA 1.1(a).

Accordingly, we hereby strike the conclusions and recommendation of the Hearing Officer and direct that the complaint be dismissed.

Neither notice of the dismissal of the complaint nor a copy of the Board's conclusions was forwarded to this court. Also, the prosecutor was not notified of the dismissal as required by DRA 5.6(m).

On January 13, 1981, when Mr. Stroh requested suspension of his jail sentence, the prosecuting attorney discovered that the Disciplinary Board had dismissed his complaint against Stroh. The prosecuting attorney requested that the Board reconsider the case. After oral presentation by the prosecutor and Mr. Stroh on March 20, 1981, the Board denied the motion to reopen.

The prosecuting attorney seeks review of that denial. He claims that the Disciplinary Board failed to follow the Discipline Rules for Attorneys. He also urges that the Board erred in failing to transmit to this court the record of its dismissal of the complaint against Stroh. The Board erred, argues the prosecutor, because only this court has the authority to dispose of a case in which a member of the Bar has been convicted of a felony. Finally he claims the Disciplinary Board committed error of law in violation of its duty under DRA 1.1(a) by striking the conclusions and recommendation of the hearing panel officer and by dismissing the complaint.

On July 10, 1981, this court issued a show cause order directed to the Bar Association and Mr. Stroh. Our order contained the following statement:

That the parties shall file briefs and present oral argument according to a schedule set by the Clerk of the Supreme Court concerning the following issues, and other issues deemed relevant by the parties:

(a) Should the Court take cognizance of this matter either upon the Petition of the Prosecuting Attorney of King County or upon its own motion?

(b) Did the proceedings before the Disciplinary Board and its Order of February 22, 1980, comply with the Discipline Rules for Attorneys (1) as a matter of law and/or (2) as a matter of fact?

At oral argument, attorney Stroh was also allowed to argue the general question of what action this court should take regarding discipline. We therefore decide not only the specific questions stated above, but also the ultimate disposition of the case.

I.

It is not disputed that this court has the inherent power to promulgate rules of discipline, to interpret them, and to enforce them. Dodd v. Bannister, 86 Wash.2d 176, 187, 543 P.2d 237 (1975). When the Disciplinary Board fails to carry out its duties regarding discipline, we will protect the process by exercising our inherent power to review the entire matter. Moore v. Smith, 89 Wash.2d 932, 939, 578 P.2d 26 (1978). Because of the serious nature of the crime of which Hugh Stroh has been convicted, the effect the dismissal of the complaint has upon public respect for the legal profession, and the allegation that the Disciplinary Board violated the Discipline Rules for Attorneys by dismissing a complaint involving moral turpitude, this case requires our scrutiny.

A.

Having decided to review the Board's action, we must address the second prong of our order to show cause: Did the proceedings before the Disciplinary Board and its Order of February 22, 1980, comply with the Discipline Rules for Attorneys?

We conclude that the Board's interpretation of the Discipline Rules for Attorneys was incorrect. The following discussion should clarify the responsibilities of the Board in future proceedings.

The Disciplinary Board erred initially by striking the findings of the hearing officer and substituting its own conclusion that moral turpitude was not an element of the crime committed by Stroh. This conclusion cannot be reconciled with either the precedents of this court or the facts of this case.

First, the crime of tampering with a witness strikes at the very core of the judicial system and therefore necessarily involves moral turpitude. "This system assumes that litigants, lawyers, and witnesses have but one common goal-the ascertainment of truth." In re Bucci, 376 A.2d 723, 727 (R.I.1977) (Kelleher, J., dissenting to 2-year suspension). An attorney presents his case almost entirely through the testimony of witnesses. Although an occasional witness may...

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    ...In re Disciplinary Proceeding Against Hopkins, 54 Wash. 569, 572, 103 P. 805 (1909). See also In re Disciplinary Proceeding Against Stroh, 97 Wash.2d 289, 644 P.2d 1161 (1982) (attorney's crime of tampering with a witness strikes at the very core of the judicial system and therefore necessa......
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    ...have "the inherent power to promulgate rules of discipline, to interpret them, and to enforce them." In re Disciplinary Proceeding Against Stroh, 97 Wash.2d 289, 294, 644 P.2d 1161 (1982) (emphasis added); see also ELC 2.1 (recognizing this court's "inherent power to maintain appropriate st......
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