In re Lowell K.
Halverson, April 27, 2000. Downloaded from the Washington Supreme Court website
on April 28, 2000. Formatting appears as in the original.
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 01518-0
Title of Case: In RE: Lowell K. Halverson
v.
Attorney At Law
File Date:
04/27/2000
Oral Argument Date: 10/14/1999
SOURCE OF APPEAL
----------------
JUSTICES
--------
Authored by Faith E Ireland
Concurring: Charles Z. Smith
Barbara A.
Madsen
Gerry L.
Alexander
Philip A.
Talmadge
Visiting
Judge
Visiting
Judge
Dissenting: Charles W. Johnson
Richard B.
Sanders
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
David Allen
Allen Hansen
& Maybrown PS
600 Univ St.
Ste 3020
Seattle,
WA 98154
Counsel for Respondent(s)
Andrea A.
Darvas
860 S.W.
143rd Street
Seattle,
WA 98166
In the Matter of the
Disciplinary
)
Proceeding Against LOWELL
K.
) Bar No. 01518-0
HALVERSON, an Attorney at
Law.
)
)
) En Banc
)
)
) Filed April 27, 2000
)
)
IRELAND, J. -- In this Washington State Bar Association (WSBA) disciplinary
case, this Court must determine (1) whether the WSBA Disciplinary Board
(the Board) properly found that Lowell Halverson's sexual relationship with
a dissolution client resulted in his violation of Rules of Professional
Conduct (RPC) 1.7(b), 1.4(b) and 2.1, but did not result in a violation of
RPC 1.8(b) and 1.13(a), and Rules for Lawyer Discipline (RLD) 1.1; and (2)
whether the Board properly sanctioned Halverson with a six-month suspension
and two-year probation. We affirm the Board's
determination as to whether or not there was a violation of each of the
charges, but increase the suspension to one year, finding the lesser
sanction inadequate to serve the purposes of attorney discipline.
FACTS
Lowell K. Halverson has been a member of the WSBA in
private practice
since 1968, concentrating on family law for the last 20 years. He has
lectured and published extensively in this area. From 1990-91, Halverson
served as president of the WSBA.
Although Halverson has been married to his wife, Diane,
since 1964, he
admits that since the early 1970s he has had consensual sexual
relationships with six different female clients. Five of these clients
retained Halverson as their attorney before the sexual relationship began.
The most recent of these relationships was with Liisa Wickersham, the
grievant in this action. Halverson first met Wickersham in 1989 when
Wickersham accompanied a friend to Halverson's office. At this point,
Wickersham was married to an attorney, Neil Sarles.
During this office visit, Halverson gave Wickersham and her friend a
personality questionnaire that he regularly used with clients; he also
asked Wickersham if she might like to work in his office on a special
project involving artwork. Following this meeting, Wickerhsam worked at
Halverson's office for a few months until early in 1990.
Wickersham retained
Halverson as her attorney in May 1991, at
which time Halverson administered another personality questionnaire.
Wickersham's testimony conflicts as to whether her intention at this point
was a trial separation from her husband or dissolution. In any event,
Halverson filed a dissolution petition on her behalf in June 1991, and
Wickersham moved out of her husband's house in early July.
Later in July while at Halverson's office, Wickersham
confided to him
that she was "attracted to {her} attorney." Report of
Proceedings (RP) at
509. Shortly thereafter, following a successful court appearance,
Halverson took Wickersham on a tour of photographs displayed at the Rainier
Club in Seattle. According to Halverson, while on the tour, Wickersham
suggested that they get a room, but Wickersham denies this occurred.
Both agree, however, that after the tour they went to a restaurant on the
waterfront where they expressed a mutual attraction and discussed
Halverson's "ground rules" for a potential relationship:
Halverson's wife
could not find out about the affair and there could be no bonding between
Halverson and Wickersham's young daughter. According to Halverson, he
explained to Wickersham that a potential relationship between them would
not be of any significance to the pending divorce action if these "ground
rules" were followed. Wickersham herself recognized the need for them
to
be discreet because of Halverson's high profile as president of the WSBA.
Halverson, however, did not advise Wickersham of the possible ramifications
if the relationship were to become known. For example he did not tell her
that, if Sarles were to discover the relationship, he would most likely
become less willing to compromise in the divorce proceeding and that this
would increase the complexity and cost of the dissolution and could impact
the custody determination. Neither did Halverson advise Wickersham that
either his wife's or Sarle's discovery of the affair could lead to his
withdrawal as her attorney.
Halverson and Wickersham agreed to see each other within the next few weeks
when Halverson's wife left on a trip to Australia. After Halverson's wife
left the country, Wickersham called Halverson at his office and they made
plans to get together. At Halverson's home that evening, Halverson and
Wickersham had sexual intercourse while Wickersham's young daughter slept
in the next room. For the next six months, Wickersham and Halverson
maintained a sexual relationship seeing each other whenever they could.
On January 1, 1992, Halverson's wife discovered the affair. Within a few
days, Halverson withdrew as Wickersham's attorney because he felt that he
had lost his objectivity and could no longer keep his roles separate,
particularly in view of his wife's position as his office manager.
Halverson temporarily moved out of his home and continued his personal
relationship with Wickersham for several weeks. In mid-February, however,
Halverson told Wickersham that he was returning to his wife.
Meanwhile, Halverson provided Wickersham with the names of several other
attorneys who could take over her case. Although Wickersham wanted
Halverson to continue as her attorney, he refused, and Wickersham, thus,
hired another attorney, Eric Watness, to complete her dissolution.
Halverson transferred the balance of Wickersham's account to Watness and
wrote off her outstanding bill to him. There is no evidence that Halverson
at any time revealed any client confidences or otherwise used information
obtained from Wickersham.
Wickersham did not tell Watness about her relationship with Halverson until
almost three months after she retained him. Watness
believed Wickersham was "at times anxious, particularly fixated on the
relationship between herself and Mr. Halverson, at times unable to focus
off of that and onto resolution of issues, development of facts, that sort
of thing." RP at 576. Nonetheless, Watness also testified that
Wickersham
assisted him on her case "in an intelligent and competent way."
RP at 573.
Watness represented Wickersham until September 1992, when her case settled
and a decree of dissolution was entered. Overall, Watness felt Wickersham
received a "fair outcome" in her case. RP at 559.
A year later in October 1993, Wickersham complained to the WSBA about
Halverson's conduct and, in 1994, filed a civil lawsuit. Wickersham's
civil suit against Halverson settled in 1995 by sealed agreement for a
substantial sum and with no admission of liability. Wickersham's former
husband subsequently sued Wickersham and received one-half of the
settlement.
The WSBA filed a formal complaint against Halverson in February 1997.
Following proceedings in December 1997 and February 1998, the hearing
officer issued findings of fact and conclusions of law and recommended a
sanction consisting of six months' suspension and two years' probation with
the conditions that Halverson disclose to female clients the purpose of his
discipline and continue treatment with his mental health physician.
Halverson appealed the hearing officer's decision to the Board. The 14-
member Board unanimously upheld the hearing officer's findings of fact and
conclusion that Halverson violated RPC 1.7(b). By split decision, the
Board rejected the hearing officer's conclusions that Halverson violated
RPC 1.8(b) and 1.13(a) but did not violate RPC 1.4(b), and approved the
hearing officer's conclusions that Halverson violated RPC 2.1 but did not
violate RLD 1.1 and 2.8. Also by split decision, the Board approved the
hearing officer's recommended sanction.
Halverson appealed the Board's decision to this Court challenging four of
the hearing officer's factual findings and the Board's adverse conclusions
of law. He also claims that the sanction was too harsh. The WSBA in
turn
assigned error to the Board's conclusions that no violations of RPC 1.8(b)
and 1.13 and RLD 1.1 occurred, and to the Board's failure to impose a
harsher sanction. Based on these facts, we will address Halverson's
challenges to the factual findings and the parties' respective challenges
to the Board's legal conclusions and recommended sanction in turn.
ANALYSIS
I. FACTUAL FINDINGS
Halverson challenges several of the Board's factual findings. He
claims that both Finding of Fact 281 and Finding of Fact 332 are not
supported by substantial evidence. As to Finding of Fact 33, Halverson
relies on testimony from three witnesses establishing that Wickersham
received a "'very good'" outcome in her case. Opening Br. of
Resp't at 18
(quoting RP at 439).
Halverson claims that Finding of Fact 293 is not actually a factual finding
but rather a "generality, observation, or policy statement."
Opening
Br. of Resp't at 24. Finally, Halverson challenges Finding of Fact 324
arguing that Wickersham should have known what harm might result from the
relationship because she was a willing participant. He further relies upon
expert testimony that an attorney-client sexual relationship should not be
relevant under the current no-fault divorce statutes.
Generally, in bar discipline cases, this Court does not
review
unchallenged factual findings made by the hearing officer and unanimously
affirmed by the Board; they are accepted as verities. See In re
Disciplinary
Proceeding Against Johnson, 118 Wn.2d 693, 701, 826 P.2d 186 (1992) (citing
In re Disciplinary Proceeding Against Curran, 115 Wn.2d 747, 759, 801 P.2d
962, 1 A.L.R.5th 1183 (1990)). Even when unanimously approved findings are
challenged as they are here, we will not disturb them if supported by the
clear preponderance of the evidence. See In re Disciplinary Proceeding
Against McMullen, 127 Wn.2d 150, 161-62, 896 P.2d 1281 (1995) (citing,
inter alia, Curran, 115 Wn.2d at 759).
Although the hearing examiner's findings are not
conclusive, they are
entitled to considerable weight, particularly when the credibility and
veracity of witnesses are at issue. McMullen, 127 Wn.2d at 162 (citing In
re Disciplinary Proceeding Against Allotta, 109 Wn.2d 787, 793-94, 748 P.2d
628 (1988)). This Court will not substitute its evaluation of the
credibility of the witnesses over that of the hearing examiner. McMullen,
127 Wn.2d at 162 (citing Allotta, 109 Wn.2d at 794).
Here, each of the challenged findings is supported by a
clear
preponderance of the evidence. Regarding Finding of Fact 28, Halverson
offers no authority or citation to the record to undermine this finding.
Further, the record is clear that Wickersham depended upon Halverson
regarding temporary living arrangements, custody of her daughter, and a
favorable property division in her dissolution action.
As to the power imbalance, an experienced family law practitioner testified
to the inherent power imbalance in a dissolution attorney-client
relationship. In addition, Dr. Laura Brown, a psychologist who studies
sexual relationships between clients and professionals, testified that
Halverson's administration of personality tests to Wickersham "added a more
psychological aura to what he was doing" and, therefore increased "the
risk
of harm because the power differential was greater." RP at 157.
According
to Dr. Brown, Halverson's status as Wickersham's former employer further
contributed to a power differential.
As to Finding of Fact 33, the testimony that Wickersham received a "fair
outcome" in her dissolution proceeding does not undermine the substantial
testimony from mental health professionals that as a result of Halverson's
conduct, Wickersham suffered personal harm in the form of depression and
anxiety. RP at 342. In addition, Wickersham's relationship with
Halverson
had an adverse impact upon her relationship with her former husband. In
the years following the divorce, Wickersham described the relationship as
"brutally adversarial; abusive and emotionally and financially
difficult."
RP at 339. Further, after her relationship with Halverson,
Wickersham was
unable to trust her new attorney.
Regarding Finding of Fact 29, the statement about the quasi-therapeutic
nature of the attorney-client relationship in a dissolution action is
based on the testimony of at least two experts and on Halverson's own book
on divorce law, which was admitted as an exhibit. Thus, even if the first
part of the finding is a generalization, it is one supported by the clear
preponderance of the evidence. See Para-Medical Leasing, Inc. v. Hangen,
48 Wn. App. 389, 397, 739 P.2d 717 (1987) (a factual finding is a
"determination from the evidence of the case" (citation omitted)).
Halverson's argument, therefore, must fail.
As to Finding of Fact 32, Halverson's admission to
sexual
relationships with five prior clients clearly supports the finding that he
knew or should have known the risks of such relationships, particularly
because one of these relationships resulted in a fee dispute where the
client threatened to disclose the details of the relationship to
Halverson's wife unless Halverson wrote off his bill.
Further, Halverson's book, Divorce in Washington:
A Humane Approach,5
discouraged those involved in a dissolution from getting involved in a new
sexual relationship. A section in the Washington Family Law Deskbook of
which Halverson was editor and chief,6 and the written materials for a
Continuing Legal Education course at which Halverson spoke, both discussed
the potential adverse ramifications of an attorney-client sexual
relationship, as did three prominent family law attorneys who testified.
Where the evidence conflicted as to the potential effect of the
Wickersham/Halverson affair upon Wickersham's dissolution proceeding, the
hearing officer was entitled to credit the testimony of those experts who
testified that the affair increased the legal risks to Wickersham. See In
re Disciplinary Proceeding Against Felice, 112 Wn.2d 520, 525, 772 P.2d 505
(1989) (court will not disturb hearing examiner's findings of fact made
upon conflicting evidence). Finally, Halverson's argument that Wickersham
should have known the harm that might result from the relationship is
irrelevant as to the issue of his knowledge of the risks that his conduct
imposed upon his client.
II. LEGAL CONCLUSIONS
In a bar disciplinary case, challenges to conclusions of law will fail if
the conclusions are supported by the factual findings. Curran, 115 Wn.2d
at 759. "Pursuant to RLD 4.11(b), counsel for the WSBA has the burden
of
establishing an act of misconduct by a clear preponderance of the
evidence." In re Disciplinary Proceeding Against Haskell, 136 Wn.2d
300,
309-10, 962 P.2d 813 (1998). A clear preponderance is an intermediate
standard between the simple preponderance required in a civil suit and the
reasonable doubt standard in a criminal action. Haskell, 136 Wn.2d at 310.
Unlike in a civil malpractice suit for damages, a disciplinary proceeding
does not require a showing of actual harm. "{A} lawyer may be
disciplined
even if the misconduct does not cause any damage. The rationale is the
need for protection of the public and the integrity of the profession."
Hizey v. Carpenter, 119 Wn.2d 251, 262, 830 P.2d 646 (1992) (quoting 1
Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice sec. 1.9, at 33 (3d
ed. 1989)). With these principles in mind, we address the parties'
respective challenges to the Board's conclusions of law.
A. Violation of RPC 1.7(b)7 - Duty to Avoid Conflicts of Interest
"RPC 1.7(b) generally prevents a lawyer from representing a client if that
representation will be materially limited by the lawyer's own interests
unless the lawyer reasonably believes the representation will not be
affected and the client consents in writing." McMullen, 127 Wn.2d at
164
(emphasis added). Halverson concedes no written consent was
obtained,
but argues that this was merely a technical violation of the rule. We
disagree.
It was not objectively reasonable for Halverson to believe that the
representation would not be adversely affected by the sexual relationship,
nor did Halverson disclose to Wickersham the risks involved or the material
implications of the sexual relationship upon the dissolution proceeding.
Consequently, Halverson's failure to obtain written consent was more than a
mere technical violation of the rule.
Halverson should have known that discovery of the
affair could worsen
the relationship between Wickersham and Sarles and, thus, unnecessarily
complicate the dissolution proceeding. Further, Halverson should have
known that the affair could impact the custody determination of
Wickersham's daughter. Finally, Halverson should have known that discovery
of the affair by his wife might lead to his withdrawal as Wickersham's
attorney. Thus, Halverson's subjective belief that the relationship would
not adversely affect the representation was not objectively reasonable.
In any event, Halverson did not disclose any of these
risks to
Wickersham before commencing the relationship. Rather, the "ground
rules"
discussed at the start of the relationship focused primarily on Halverson's
own interests: keeping the relationship secret from his wife and avoiding
any emotional bonding with Wickersham's daughter. Under these
circumstances, the Board properly affirmed the hearing officer's conclusion
that Halverson violated RPC 1.7(b).
B. Violation of RPC 1.4(b) - Duty to Communicate
Pursuant to RPC 1.4 (b), "A lawyer shall explain a matter to the extent
reasonably necessary to permit the client to make informed decisions
regarding the representation." We agree with the Board that the same
failures to disclose supporting the conclusion that Halverson violated RPC
1.7(b) also support the conclusion that he violated RPC 1.4(b).8
C. Violation of RPC 2.1 - Duty to Exercise Independent
Professional
Judgment
"In representing a client, a lawyer shall exercise independent professional
judgment and render candid advice. In rendering advice, a lawyer may refer
not only to law but to other considerations such as moral, economic, social
and political factors, that may be relevant to the client's situation."
RPC 2.1.
As recently noted by the Court of Appeals in a criminal case where the
defendant claimed ineffective assistance of counsel, a lawyer who
"commences a sexual relationship with the client during the course of the
representation . . . creates significant but needless risks that emotions
arising from the relationship will impair . . . his or her ability to
'exercise independent professional judgment' . . . ." State v. Stough,
96
Wn. App. 480,
486 & n.21, 980 P.2d 298, review denied, 139 Wn.2d 1011 (1999) (quoting RPC
2.1). Although we do not adopt a per se rule that a lawyer who
commences
a sexual relationship with a client always fails to exercise independent
professional judgment, we find that under the circumstances here Halverson
violated RPC 2.1
Halverson did not exercise independent professional judgment when he failed
to (1) advise Wickersham of the potential ramifications the affair might
have on the dissolution or his ability to represent her; (2) advise
Wickersham of his published professional opinion that persons involved in a
dissolution should be discouraged from getting involved in a new sexual
relationship; and (3) take precautions to avoid pregnancy or discuss with
Wickersham the consequences of such event. Thus, we affirm the Board's
conclusion that Halverson violated RPC 2.1.
D. No Violation of RPC 1.8(b)- Duty to Avoid Using Information
Related to
Representation of a Client to Client's Disadvantage
Pursuant to RPC 1.8(b), "A lawyer who is representing a client in a matter:
. . . (b) Shall not use information relating to representation of a client
to the disadvantage of the client unless the client consents in writing
after consultation." Here, there is no evidence that Halverson used
any
information against Wickersham that was obtained in the course of
representing her.
Further, an unchallenged factual finding states: "There is no
evidence
that {Halverson} at any time divulged any client confidences of
{Wickersham}." CP at 674. Consequently, the Board properly
concluded that
Halverson did not violate RPC 1.8(b). See Johnson, 118 Wn.2d at 701
(unchallenged factual findings are accepted as verities on appeal); Curran,
115 Wn.2d at 759 (challenges to a hearing examiner's conclusion of law will
fail if conclusions are supported by factual findings).
E. No Violation of RPC 1.13(a) - Duty to Maintain Normal
Client-Lawyer
Relationship with Client Under an Impairment/Disability
RPC 1.13(a) provides:
When a client's ability to make adequately considered decisions in
connection with the representation is impaired, whether because of
minority, mental disability or for some other reason, the lawyer shall, as
far as reasonably possible, maintain a normal client-lawyer relationship
with the client.
Here, there was no evidence that Wickersham suffered from a mental
disability either during her sexual relationship with Halverson or
subsequently. Although there was evidence that Wickersham had difficulty
focusing on the dissolution after Halverson withdrew as her attorney, there
was no evidence that during the course of Halverson's representation
Wickersham had an impaired ability to make adequately considered decisions.
In fact, her new attorney testified that she assisted him on her case "in
an intelligent and competent way." RP at 573. Thus, the Board
properly
concluded that although emotionally vulnerable, Wickersham did not suffer
from the type of impairment or disability covered by RPC 1.13(a).
F. No Violation of RLD 1.1 - Commission of Act of Moral
Turpitude
RLD 1.1 provides in pertinent part:
A lawyer may be subjected to the disciplinary sanctions or actions set
forth in these rules for any of the following:
(a) The commission of any act involving moral turpitude, dishonesty, or
corruption, or any unjustified act of assault or other act which reflects
disregard for the rule of law, whether the same be committed in the course
of his or her conduct as a lawyer, or otherwise, and whether the same
constitutes a felony or misdemeanor or not . . . .
The WSBA argues that Halverson's acts constituted moral
turpitude
citing, In re Disciplinary Proceeding Against Heard, 136 Wn.2d 405, 963
P.2d 818 (1998); Heinmiller v. Department of Health, 127 Wn.2d 595, 903
P.2d 433, 909 P.2d 1294 (1995); and Haley v. Medical Disciplinary Bd., 117
Wn.2d 720, 818 P.2d 1062 (1991). Halverson claims that these cases are
distinguishable. We agree.
Heard states that: "Despite the absence of an express rule banning
attorney-client sexual relations, an attorney's sexual relations with a
client can constitute 'moral turpitude,' justifying the imposition of
disciplinary sanctions." 136 Wn.2d at 419. Heard's client was a
23-year-
old woman who suffered from a mental disability as a result of injuries
from a motorcycle accident, and who also had drug and alcohol problems.
All of this was known to Heard. Nonetheless, during the course of
settlement negotiations, Heard went to the client's home, took her to two
cocktail lounges where they both consumed alcohol, had her drive his
vehicle while intoxicated, and then took her to his apartment where they
had consensual sexual relations. Heard, 136 Wn.2d at 409-12.
This Court concluded that "Heard's use of his professional position to
exploit a vulnerable young woman constituted moral turpitude within the
meaning of RLD 1.1." Heard, 136 Wn.2d at 422-23 (footnote omitted).
However, this Court also made clear that not all attorney-client sexual
conduct violates RLD 1.1:
By our opinion, however, we do not announce a general rule regarding
attorney-client sexual conduct. This issue may be addressed in the normal
course of the judicial rule-making or decision-making process. However,
where an attorney so blatantly misuses his professional status to exploit a
client's vulnerability, the Board is entirely justified in finding the
conduct to be an act of moral turpitude under RLD 1.1.
Heard, 136 Wn.2d at 423 n.9.
Heard was based on Haley, a case involving a physician-patient sexual
relationship. There, Haley, a 66-year-old surgeon, operated on a 16-year-
old patient and, thereafter, over the next two years provided the girl with
alcohol and engaged in a sexual relationship with her. Haley, 117 Wn.2d at
722-25. Haley was given a 10-year stayed suspension on grounds his acts
constituted moral turpitude.9 Haley, 117 Wn.2d at 726.
This Court also followed the Haley holding in Heinmiller, where we found a
social worker's sexual relationship with a former patient that began one
day after the conclusion of counseling constituted moral turpitude. 127
Wn.2d at 604-06. The finding of moral turpitude in Heinmiller rested on
expert testimony establishing bright line rules in the social work
profession prohibiting counselor-patient sexual relations for a period of
time even after the discontinuance of therapy. See Heinmiller, 127 Wn.2d
at 605.
Here, the aggravating factors present in Heard and
Haley do not exist.
Wickersham was not a juvenile. She did not suffer from a mental disability
or a drug and alcohol addiction. Halverson did not supply her with
intoxicants. Thus, Halverson did not "blatantly misuse{ } his
professional
status to exploit {his} client's vulnerability . . . ." Heard, 136
Wn.2d
at 423 n.9.
Further, unlike in Haley and Heinmiller, a bright line rule prohibiting
attorney-client sexual relations does not exist. Finally, Halverson's
conduct was not an unsolicited advance because Wickersham was arguably the
initiator of the relationship. See Heard, 136 Wn.2d at 420 (quoting People
v. Good, 893 P.2d 101 (Colo. 1995)) ("Because the lawyer stands in a
fiduciary relationship with the client, an unsolicited sexual advance by
the lawyer debases the essence of the lawyer-client relationship."
(emphasis added)). Consequently, the Board properly found that under the
circumstances Halverson's affair with Wickersham did not constitute moral
turpitude.
III. SANCTION
We will first discuss the standards that the Board10 must apply when
recommending a disciplinary sanction and then discuss the standards this
Court applies when reviewing the Board's recommended sanction.
A. Sanction Standards
The American Bar Association's Standards for Imposing Lawyer Sanctions
(1991 ed. & Feb. 1992 Supp.) (hereafter ABA Standards) govern bar
discipline cases in Washington. In re Disciplinary Proceeding Against
Boelter, 139 Wn.2d 81, 99, 985 P.2d 328 (1999); Johnson, 118 Wn.2d at 701;
In re Disciplinary Proceeding Against Lynch, 114 Wn.2d 598, 610, 789 P.2d
752 (1990). After a finding of lawyer misconduct, the Board engages
in a
two-step process to determine the proper sanction.
First, the Board must determine a presumptive sanction by considering (1)
the ethical duty violated; (2) the lawyer's mental state; and (3) the
extent of the actual or potential harm caused by the misconduct. Johnson,
118 Wn.2d at 701; ABA Standards Std. 3.0. As to mental state, the
Board
must determine whether the lawyer acted intentionally, knowingly, or
negligently. McMullen, 127 Wn.2d at 169 (citing ABA Standards Std. 3.0 and
commentary). In deciding the extent of the actual or potential harm, the
Board should consider the "harm to a client, the public, the legal system
or the profession that is reasonably foreseeable at the time of the
lawyer's misconduct . . . ." ABA Standards, Definitions
at 7. The
potential for injury caused by the lawyer's misconduct need not be actually
realized. ABA Standards Std. 3.0 commentary.
Second, the Board considers whether there are aggravating or mitigating
factors11 that should lead to an alteration of the presumptive sanction or
affect the length of a suspension. Johnson, 118 Wn.2d at 701 (citing,
inter alia, Curran, 115 Wn.2d at 771); see also ABA Standards Std. 2.3
commentary ("The specific period of time for the suspension should be
determined after examining any aggravating or mitigating factors . . . .").
Here, as discussed above, the Board properly determined that Halverson
violated his duties to avoid conflicts of interest, RPC 1.7(b); to
communicate material information, RPC 1.4(b); and to exercise independent
professional judgment, RPC 2.1, but did not commit ethical violations with
respect to the remaining charges. Thus, when the Board determined
its
recommended sanction it considered the relevant ethical violations.
As to mental state, the Board also properly determined
that Halverson
acted knowingly. The ABA Standards define "knowledge" as the
"conscious
awareness of the nature or attendant circumstances of the conduct but
without the conscious objective or purpose to accomplish a particular
result." ABA Standards, Definitions at 7. Although there is no
evidence
that Halverson intended to harm Wickersham or the legal profession, the
evidence clearly establishes that Halverson was aware that his entry into a
sexual relationship with Wickersham during her dissolution proceedings
exposed her to serious psychological and legal risks. Further, Halverson
must have known that the inconsistency of his personal conduct and his
published professional advice, in conjunction with his status in the legal
community, would result in harm to the integrity of the profession.
As to the Board's consideration of the actual or
potential harm, it is
not clear from the record whether the Board considered the actual or
potential injury to the legal profession from Halverson's conduct. The
record, however, demonstrates that the Board properly considered the
substantial personal harm actually suffered by Wickersham as well as the
potential for her legal injury.
In light of the above factors, particularly the
determination that
Halverson acted knowingly, the Board properly concluded that suspension
should be the presumed sanction, as opposed to disbarment or a mere
reprimand. The ABA Standards state: "Suspension is generally
appropriate
when a lawyer knows of a conflict of interest and does not fully disclose
to a client the possible effect of the conflict, and causes injury or
potential injury to a client." ABA Standards Std. 4.32; see also ABA
Standards Std. 7.2 (suspension is presumed sanction for knowing violation
of duty to the legal profession).12
Washington's Rules for Lawyer Discipline provide that
suspensions from
the practice of law should be "for an appropriate fixed period of time not
exceeding 2 years." RLD 5.1(b). Additionally, this Court has
previously
recognized that suspensions "generally should last for a period of time not
less than six months and not greater than three years." Boelter, 139
Wn.2d
at 101; McMullen, 127 Wn.2d at 170.
This six month to three year range of suspensions is based upon the
commentary to Standard 2.3 of the ABA Standards, which states in pertinent
part:
While the Model Rules for Lawyer Disciplinary Enforcement (see MRLDE 25)
currently provide for suspensions of less than six months, short-term
suspensions with automatic reinstatement are not an effective means of
protecting the public. If a lawyer's misconduct is serious enough to
warrant a suspension from practice, the lawyer should not be reinstated
until rehabilitation can be established.
. . . . In reality, a short-term suspension functions as a fine on the
lawyer, and fines are not one of the recommended sanctions in the MRLDE.
The amount of time for which a lawyer should be suspended, then, should
generally be for a minimum of six months. . . . The specific period of
time for the suspension should be determined after examining any
aggravating or mitigating factors in the case.
ABA Standards Std. 2.3 (1991 ed. & Feb. 1992 Supp.)(emphasis added).
Although six months is the generally accepted minimum term of suspension,
this Court has occasionally imposed a shorter term of suspension when a
less severe suspension is warranted by specific mitigating circumstances or
when aggravating circumstances justify a more severe
sanction than a letter of censure.13 See, e.g., Johnson, 118 Wn.2d at 697,
705 (60-day suspension appropriate where attorney voluntarily reaffirmed
contractual obligations to client in bankruptcy proceedings; court declined
to impose six month suspension because it would have "drastic effect"
upon
Johnson's ability to continuing repaying his clients); In re Disciplinary
Proceeding Against Felice, 112 Wn.2d 520, 772 P.2d 505 (1989) (30-day
suspension rather than mere censure appropriate for neglect of guardianship
duties where attorney had substantial experience, refused to acknowledge
wrongdoing and where client was 86 years old and incompetent).
We next consider whether the Board properly examined the mitigating and
aggravating factors to decide whether such factors warranted an alteration
of the presumed sanction, Johnson, 118 Wn.2d at 701, and, if not, what
affect such factors should have on the length of suspension. See ABA
Standards Std. 2.3, at 8 (rules),20-21 (commentary). Here, the Board
concluded that the aggravating and mitigating factors effectively cancelled
each other out.
As aggravating factors, the Board found that Halverson had (1) substantial
experience in the practice of law, yet he had (2) engaged in a pattern of
misconduct; (3) committed multiple offenses (4) against a vulnerable
victim; and (5) refused to acknowledge wrongdoing. As mitigating factors,
the Board found that Halverson (1) had no prior disciplinary record; (2)
suffered from depression during the affair with Wickersham; (3) has an
excellent professional reputation; (4) has taken rehabilitative steps; and
(5) has been otherwise sanctioned through negative publicity.
While we find that the Board properly considered all of these aggravating
and mitigating factors,14 except Halverson's excellent professional
reputation as a mitigating factor,15 we do not agree that an approximately
equal number of aggravating and mitigating factors necessarily warrants a
minimal suspension. Rather, a minimal suspension seems more appropriate in
a case where there are either no aggravating factors and at least some
mitigating factors, or where the mitigating factors clearly outweigh any
aggravating factors.16 Consequently, the Board's recommended sanction of
six months' suspension appears inadequate where there were at least five
aggravating factors.
B. Standards for Washington State Supreme Court's Review
This Court has the exclusive responsibility to
determine what
discipline should be imposed for a lawyer's acts of misconduct. In re
Disciplinary Proceeding Against Heard, 136 Wn.2d 405, 423, 963 P.2d 818
(1998) (citing, inter alia, In re Disciplinary Proceeding Against Felice,
112 Wn.2d 520, 526, 772 P.2d 505 (1989));
RLD 2.1. Thus, we are not bound by the Board's sanction recommendation.
Heard, 136 Wn.2d at 423. Where such recommendation is insufficient to
protect the public and the administration of justice or to preserve the
integrity of the legal profession, we will modify it.17 In re Disciplinary
Proceeding Against McGough, 115 Wn.2d 1, 9, 793 P.2d 430 (1990).
However, we will adopt the Board's sanction recommendation unless we can
articulate specific grounds based on one or more of the following factors
to support departing from the Board's recommendation: (1) the purposes of
attorney discipline; (2) the proportionality of the sanction as compared to
sanctions imposed in similar cases; (3) the effect of the sanction on the
attorney; (4) the record developed by the hearing panel; and (5) the extent
of agreement among the Board members. Heard, 136 Wn.2d at 423-24 (citing
cases).
Regarding the first factor, the purposes of sanctions
for lawyer
misconduct are to: (1) protect the public and the administration of
justice;
(2) preserve the integrity of the legal profession and to maintain public
confidence therein; (3) deter the offending lawyer from further unethical
conduct, and where appropriate to rehabilitate the lawyer; and (4) deter
all members of the profession from unethical conduct. ABA Standards Std.
1.1 and commentary; McMullen 127 Wn.2d at 163; Allotta, 109 Wn.2d at 792.
Under the circumstances here, we are persuaded that a
six-month
suspension is inadequate to maintain public confidence in the integrity of
the legal profession and deter others from such conduct. As a frequent
lecturer and extensive publisher in the family law area, and as the past
president of the WSBA, other attorneys as well as the public looked to
Halverson for advice. His book demonstrates not only that he knew of the
serious psychological and legal risks entering into a new sexual
relationship presented to a dissolution client but that he specifically
advised others against it. Yet, Halverson knowingly carried on his affair
with Wickersham while he was president of the WSBA.
His practice of using personality questionnaires increased his clients'
perceptions of him as a personal counselor or quasi-therapist and
engendered their trust. Yet, Halverson violated the trust Wickersham placed
in him by taking advantage of her status as his dissolution client for his
own sexual gratification.
What seems most lacking in the Board's sanction determination is the fact
that Halverson engaged in a pattern of misconduct. By his own admission,
he has engaged in a sexual relationship with six clients. We find the
contradiction between Halverson's published professional advice and status
in the legal community, and his personal conduct particularly damaging to
the integrity of the legal profession.
Furthermore, a minimal six-month suspension in this high profile case would
fail to inform the public and warn other attorneys that this Court takes
such misconduct seriously. See In re Disciplinary Proceeding Against
Kennedy, 97 Wn.2d 719, 723, 649 P.2d 110 (1982) ("as a function of
preserving public confidence, punishment of an attorney is sometimes
necessary to deter others and to indicate our legal system's intolerance of
{mis}conduct"). Thus, we find that the first factor - the purposes of
attorney discipline - warrants increasing the suspension to one year.
As to the proportionality factor, this Court has stated: "The
principle of
consistency alone . . . cannot determine the length of the suspension" and
"{c}onsistency within a jurisdiction is more important than consistency
between jurisdictions."18 Curran, 115 Wn.2d at 773. Here, a
one-year
suspension is not inconsistent with the two-year suspension imposed in the
only other bar disciplinary case in Washington involving sexual misconduct.
See Heard, 136 Wn.2d 405.
The conduct in Heard was much more egregious than here; in fact, we
recognized that there were arguable grounds for Heard's disbarment. Heard,
136 Wn.2d at 425. Heard not only had sexual relations with a much more
vulnerable client than Wickersham but also violated several rules of
professional conduct "by negotiating a settlement agreement with worthless
interests included, advising his client to sign it, and then keeping all
the cash proceeds of the settlement without the client's consent or without
rendering the client a final accounting." Heard, 136 Wn.2d at
409. Thus,
although a two- year suspension or disbarment would not be proper for
Halverson, a one-year suspension does not constitute a disproportionate
sanction.
As to the effect of the sanction on Halverson, we acknowledge that it
is substantial. However, when we weigh the hardship imposed on Halverson
against the serious nature of his misconduct, the sanction is not
excessive.
The considerations that this Court relies upon to support its one-year
suspension are amply supported by the record. Finally, although we
recognize that none of the Board members recommended a suspension longer
than six months, we emphasize that this Court, and not the Board, is
ultimately responsible for determining the nature of lawyer discipline.19
Heard, 136 Wn.2d at 423.
CONCLUSION
In conclusion, we uphold all the Board's factual
findings, its
conclusions of law, and the conditions of the two-year probationary period.
We increase the recommended term of suspension from six months to one year
to adequately serve the purposes of attorney discipline.
1Finding of Fact 28 states:
Ms. Wickersham depended on Respondent while he was her attorney to help her
obtain temporary living arrangements, custody of her child with sufficient
child support and maintenance. She also depended upon Respondent for a
favorable property settlement which was important for her economic well
being. This dependence created a large power imbalance between Ms.
Wickersham and Respondent.
Clerks Papers (CP) at 673.
2Finding of Fact 33 states:
In the instant case, Ms. Wickersham has suffered personal harm from
Respondent's conduct. In addition, Ms. Wickersham was harmed by having to
change attorneys during the dissolution proceeding. The change of
attorneys required additional time on the part of Ms. Wickersham. It
required her to establish a new relationship with another attorney.
Further, Ms. Wickersham suffered a temporal {sic} inability to focus on her
dissolution after the relationship with Respondent ended which made the
dissolution more difficult for Ms. Wickersham and her new attorney.
CP at 674.
3Finding of Fact 29 states:
Unlike many legal areas, dissolution practice requires some degree of
intimacy between lawyer and client. Attorneys practicing dissolution law
are not only attorneys but to some extent are personal counselors or quasi
therapists. Respondent enhanced this feeling on the part of dissolution
clients, both through his administration of a personality sorter and
through the personal advice in his book.
CP at 673.
4Finding of Fact 32 states:
Respondent knew or should have known from his sexual relationships with
other clients in the past that by engaging in sexual relationships with
clients, those clients were being exposed to greater risks of emotional
harm. Further, Respondent should have known that his sexual relationships
with clients created greater legal risks for his clients in their pending
dissolution proceeding{s}.
CP 674.
5Lowell K. Halverson & John W. Kydd, Divorce in Washington: A Humane
Approach (1985).
6Washington State Bar Ass'n, Family Law Deskbook sec. 3.9 (1989).
7RPC 1.7(b) provides:
A lawyer shall not represent a client if the representation of that client
may be materially limited by the lawyer's responsibilities to another
client or to a third person, or by the lawyer's own interests, unless:
(1) The lawyer reasonably believes the representation will not be adversely
affected; and
(2) The client consents in writing after consultation and a full disclosure
of the material facts (following authorization from the other client to
make such a disclosure). When representation of multiple clients in a
single matter is undertaken, the consultation shall include explanation of
the implications of the common representation and the advantages and risks
involved.
8Justice Sanders' concurrence/dissent argues that we incorrectly affirm the
Board's ruling regarding RPC 1.4(b) because, among other reasons, the Board
improperly "ignore{d} the examiner's findings and replace{d} those with new
ones based on previously considered evidence." Dissent at 9-10
(citing In
re Disciplinary Proceeding Against Lynch, 114 Wn.2d 598, 608, 789 P.2d 752
(1990)). This is a misreading of Lynch. See 114 Wn.2d at 607-08 (RLD
6.7(d) "specifically grants the Board authority to adopt, modify or reverse
findings, conclusions, or recommendations of the hearing officer."); accord
In re Disciplinary Proceeding Against Heard, 136 Wn.2d 405, 413-14, 963
P.2d 818 (1998) (Board's modified findings of fact upheld because they were
"amply supported by the record" (citing, inter alia, RLD 6.7(e) and In
re
Lynch, 114 Wn.2d at 607-08)). Here, the Board's decision was completely
proper as it was based upon reasonable inferences drawn from the examiner's
findings of fact and is amply supported by the record. See CP at 355
(Halverson failed to discuss potential complicating effects of affair on
dissolution or custody proceedings); accord RP at 511-15 (Halverson's
testimony on direct); RP at 628-29 (Halverson's testimony on cross).
9Halverson notes that Haley is distinguishable because it involved a bright
line statutory rule prohibiting physician-patient sexual contact. See RCW
18.130.180(24). Although this statute does create a bright line rule, the
Haley court held it inapplicable because the young woman was a former
patient. 117 Wn.2d at 730-31.
10In this section of our opinion, we assume the hearing officer must apply
the same standards as the Board, but refer only to the Board.
11Mitigating factors include:
(a) absence of a prior disciplinary record; (b) absence of a dishonest or
selfish motive; (c) personal or emotional problems; (d) timely good faith
effort to make restitution or to rectify consequences of misconduct; (e)
full and free disclosure to disciplinary board or cooperative attitude
toward proceedings; (f) inexperience in the practice of law; (g) character
or reputation; (h) physical disability; (i) mental disability or chemical
dependency including alcoholism or drug abuse . . .; (j) delay in
disciplinary proceedings; (k) imposition of other penalties or sanctions;
(l) remorse; (m) remoteness of prior offenses.
ABA Standards Std. 9.32(1991 ed. & Feb. 1992 Supp.). Aggravating
factors
include:
(a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a
pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of
the disciplinary proceeding by intentionally failing to comply with rules
or orders of the disciplinary agency; (f) submission of false evidence,
false statements, or other deceptive practices during the disciplinary
process; (g) refusal to acknowledge wrongful nature of conduct; (h)
vulnerability of victim; (i) substantial experience in the practice of law;
(j) indifference to making restitution; (k) illegal conduct including
voluntary use of controlled dangerous substances.
ABA Standards Std. 9.22 (1991 ed. & Feb. 1992 Supp.).
12Compare ABA Standards Std. 4.33 (reprimand is presumed sanction for
lawyer's negligence regarding conflict of interest), Std. 4.31(b)
(disbarment is presumed sanction when lawyer intends to benefit himself in
conflicted representation), and Std. 7.3 (reprimand is generally
appropriate for negligent violation of a duty to the legal profession).
13We acknowledge that in some cases decided before 1986 this Court approved
of suspensions less than six months without articulating specific
mitigating circumstances, but we note that such cases were decided before
the ABA Joint Committee on Professional Standards prepared the ABA
Standards and before this Court first officially adopted such standards for
use in all lawyer discipline cases. See Lynch, 114 Wn.2d at 610.
14We note that the record supports consideration of additional factors not
explicitly relied upon by the Board, for example, selfish motive as an
aggravating factor and a good faith effort to rectify at least some of the
consequences of the misconduct as a mitigating factor. We do not believe,
however, that these additional factors would have changed the Board's
ultimate conclusion that the aggravating and mitigating factors cancelled
each other out.
15See Curran, 115 Wn.2d at 774 (a lawyer's excellent professional reputation
is not a proper mitigating factor when the lawyer's misconduct is not
directly related to professional activity (citing In re Disciplinary
Proceeding Against McGrath, 98 Wn.2d 337, 344-45, 655 P.2d 232 (1982))).
16In so stating, we do not mean to suggest that the ABA Standards require a
specific sanction for any particular lawyer misconduct. In
fact, quite
the opposite is true. The background section of the ABA Standards states:
"{T}he Sanctions Committee recognized that any proposed standards should
serve as a model which sets forth a comprehensive system of sanctions, but
which leaves room for flexibility and creativity in assigning sanctions in
particular cases of lawyer misconduct." ABA Standards, Preface at
1. The
methodology section further states: "{O}ne will look in vain for a
section
of this report which recommends a specific sanction for, say, improper
contact with opposing parties who are represented by counsel . . . , or any
other specific misconduct." ABA Standards, Preface at 3.
Finally, the
theoretical framework section states: "The standards thus are not
analogous to criminal determinate sentences, but are guidelines which give
courts the flexibility to select the appropriate sanction in each
particular case of lawyer misconduct." ABA Standards, Theoretical
Framework at 6.
17In the following cases, this Court increased the Board's recommended
sanction finding it inadequate to serve the purposes of attorney discipline
or disproportionate to sanctions imposed for similar misconduct: In re
Discipline of Petersen, 120 Wn.2d 833, 846 P.2d 1330 (1993) (Board
recommended 2-year suspension; this Court ordered disbarment); In re
Discipline of McGough, 115 Wn.2d 1, 793 P.2d 430 (1990) (Board recommended
2-year suspension; this Court ordered disbarment); In re Discipline of
Johnson, 114 Wn.2d 737, 790 P.2d 1227 (1990) (Board recommended 1-year
suspension; this Court ordered disbarment); Lynch, 114 Wn.2d at 612 (Board
recommended 6-month suspension; this Court ordered 2-year suspension);
Felice, 112 Wn.2d 520 (Board recommended letter of censure; this Court
ordered a 30-day suspension); In re Discipline of Yates, 110 Wn.2d 444, 755
P.2d 770 (1988) (Board recommended 2-year suspension; this Court ordered
disbarment); In re Discipline of Selden, 107 Wn.2d 246, 728 P.2d 1036
(1986) (Board recommended 60-day suspension; this Court ordered
disbarment).
18We do not consider sanctions imposed in sexual misconduct cases from other
jurisdictions because the range of such sanctions in relation to the
misconduct is highly inconsistent. Compare, e.g., In re Lewis, 262 Ga. 37,
415 S.E.2d 173 (1992) (three year suspension imposed where attorney
commenced sexual relationship three years before being retained in divorce
action even though no harm to client appeared to have resulted) with In re
McBratney, 320 S.C. 416, 465 S.E.2d 733 (1996) (90-day suspension imposed
where attorney gave domestic relations client one-half of a Valium, and had
sexual relationship with her, and legal representation resulted in a less
than favorable settlement).
19See Selden, 107 Wn.2d 246 (ordering disbarment although no member of the
Board recommended more than a 120-day suspension).
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