January 2002

Ethics and the Law
Lawyer Disciplinary Sanctions

by Barrie Althoff, WSBA Chief Disciplinary Counsel

This article revises and abridges an article initially prepared for and presented at the American Bar Association 27th National Conference on Professional Responsibility in Miami Beach, Florida, on May 31, 2001.

When a lawyer violates ethics rules, should the lawyer be sanctioned? If the lawyer should be sanctioned, what is the appropriate sanction? Is there, or should there be, any uniformity or consistency in lawyer sanctions? If so, what factors should be considered and who should be making these determinations?

These questions are of vital interest to the lawyer, to disciplinary counsel and adjudicators in lawyer disciplinary systems, and to the public, both when adjudicating and settling disciplinary proceedings. Unless they believe that the sanction, if any, is fair and proportional both to the underlying conduct and to sanctions imposed on other lawyers for like misconduct, the system will lack credibility and will ultimately fail. This article briefly looks at these and related issues, first examining the American Bar Association's (ABA) model conceptual framework for disciplinary sanctions, and then examining Washington's framework and how that framework is actually applied in our state.

The professional conduct of lawyers in the United States is governed by ethics codes adopted by each state and generally based on the ABA's 1983 Model Rules of Professional Conduct (Model RPCs) or on the predecessor to those rules, the 1969 Model Code of Professional Responsibility (Model CPR), as amended from time to time. For example, the Washington State Supreme Court adopted, with some modifications, the ABA's Model RPCs as Washington's ethics code, effective September 1, 1985, replacing its earlier code based on the ABA's Model CPR. Those rules and codes usually state the minimum standard of conduct required of lawyers, and state that failure to comply with that standard is a basis for invoking the disciplinary process.1 They do not provide guidance, however, as to the disciplinary process or as to what sanction, if any, should be imposed for ethical misconduct. That guidance is provided in part by two other ABA models, the 1989 Model Rules for Lawyer Disciplinary Enforcement (Model RLDE)2 and the 1986 ABA Standards for Imposing Lawyer Sanctions (Standards), both of which have been amended since their respective adoption dates.

Disciplinary enforcement procedures vary far more from jurisdiction to jurisdiction than do the substantive ethics codes. While many jurisdictions have borrowed important portions of or ideas from the Model RLDE, it has not been adopted wholesale as the basis of the disciplinary enforcement rules of many jurisdictions. Instead, most jurisdictions have retained their own unique disciplinary procedural rules, usually predating the Model RLDE and its predecessor rules, but have often borrowed provisions or ideas from the Model RLDE, using it as a checklist of important considerations.

Most jurisdictions have, often with variations, the same disciplinary sanctions provided for in the Model RLDE. Rule 10(A) thereof lists the sanctions (presumably in order of decreasing seriousness) in the following order: disbarment, suspension from practice (for not more than three years), probation (for up to two years, with renewal provisions), reprimand, admonition, restitution, assessment of costs and expenses, and limitation of a lawyer's future practice.

The principal provision of the Model RLDE governing the appropriate sanction to be imposed in lawyer disciplinary proceedings is Rule 10(C), titled "Factors to be Considered in Imposing Sanctions." It incorporates as its central feature the four-part analysis of the ABA Standards for Imposing Lawyer Sanctions, discussed below, and directs the adjudicator to consider four factors: the nature of the duty violated, the lawyer's mental state, the actual or potential harm, and various aggravating and mitigating factors. Rule 10(C) is as follows:

"In imposing a sanction after a finding of lawyer misconduct, the court or [disciplinary] board shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:

(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;

(2) whether the lawyer acted intentionally, knowingly, or negligently;

(3) the amount of the actual or potential injury caused by the lawyer's misconduct; and

(4) the existence of any aggravating or mitigating factors."

By its skeletal reference to the Standards, the Model RLDE incorporates them as the core of its sanction analysis. The Model RLDE gives little other direct guidance as to what sanction should be imposed in any particular case. Rule 9(B), which states the grounds for discipline and provides the definitional basis for programs to divert out of the lawyer discipline system certain "lesser misconduct" cases, recognizes that not all misconduct is equally serious, and thus not all misconduct deserves the more serious sanctions "restricting the respondent's license to practice law," namely disbarment or suspension.3 

The rule then defines the term "lesser misconduct," first, by stating that it is misconduct that does not warrant the sanction of disbarment or suspension, and second, by listing seven considerations which, if any one is present, exclude the conduct from being viewed as "lesser misconduct." By implication, if any of the seven considerations is present, the misconduct is not "lesser misconduct" and thus may warrant the sanctions of disbarment or suspension. Rule 9(B) states as follows:

Lesser Misconduct. Lesser misconduct is conduct that does not warrant a sanction restricting the respondent's license to practice law. Conduct shall not be considered lesser misconduct if any of the following considerations apply:

1) the misconduct involves the misappropriation of funds;

2) the misconduct results in or is likely to result in substantial prejudice to a client or other person;

3) the respondent has been publicly disciplined in the last three years;

4) the misconduct is of the same nature as misconduct for which the respondent has been disciplined in the last five years;

5) the misconduct involves dishonesty, deceit, fraud, or misrepresentation by the respondent;

6) the misconduct constitutes a "serious crime" as defined in Rule 19(C)4 ; or

7) the misconduct is part of a pattern of similar misconduct.

In addition, the Model RLDE gives some indirect guidance as to when the sanction of probation should be imposed by stating in Rule 10(A)(3): "Probation shall be used only in cases where there is little likelihood that the respondent will harm the public during the period of rehabilitation and the conditions of probation can be adequately supervised."

The ABA Standards for Imposing Lawyer Sanctions (Standards), first adopted by the ABA in 1986 and last amended in 1992, attempt to establish a framework for consistent determination of the appropriate sanction in lawyer disciplinary proceedings.

The preface to the Standards points out that inappropriate sanctions undermine the goals of lawyer discipline: if too lenient, they do not deter misconduct but undermine public confidence; if too onerous, they impair confidence in the system and deter lawyers from reporting misconduct; and if inconsistent, either within a jurisdiction or among jurisdictions, they cast doubt on the efficiency and the basic fairness of all disciplinary systems.

The preface summarized the drafters' mandate in creating the Standards as "to examine the current range of sanctions imposed and to formulate standards for the imposition of appropriate standards." It then goes on to note that the drafters recognized that:

"[A]ny 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. These standards are designed to promote thorough, rational consideration of all factors relevant to imposing a sanction in an individual case. The standards attempt to ensure that such factors are given appropriate weight in light of the stated goals of lawyer discipline, and that only relevant aggravating and mitigating circumstances are considered at the appropriate time. Finally, the standards should help achieve the degree of consistency in the imposition of lawyer discipline necessary for fairness to the public and the bar."

The Standards do so by establishing a framework in which to consistently analyze lawyer misconduct situations. In every case, the adjudicator is required by Standard 3.0 to consider the following four factors: (1) the duty violated, (2) the lawyer's mental state, (3) the potential or actual injury caused by the misconduct, and (4) the existence of aggravating or mitigating factors.

The adjudicator first identifies the first three factors to determine, under the Standards, the presumptive sanction for the misconduct. Then, the adjudicator determines whether that presumptive sanction should be either increased or decreased based on particular factors unique to the case. The following discussion looks at each of these factors.

The Standards identify four categories of lawyer duty: to clients, the public, the legal system, and the legal profession. Duties to clients are stated to include:

• loyalty, including: preservation of client property [RPC 1.15]; maintaining client confidences [RPC 1.6]; avoiding conflicts of interest [RPCs 1.7-1.13, 2.2, 3.7, 5.4(c) and 6.3];

• diligence [RPCs 1.2, 1.3, 1.4];

• competence [RPC 1.1]; and

• candor [RPC 8.4(c)].5 

Duties to the public are described as follows:

"Members of the public are entitled to be able to trust lawyers to protect their property, liberty and lives. The community expects lawyers to exhibit the highest standards of honesty and integrity, and lawyers have a duty not to engage in conduct involving dishonesty, fraud, or interference with the administration of justice." [RPCs 8.2, 8.4(b) & (c)….]6

Duties to the legal system are described as follows:

"Lawyers are officers of the court, and must abide by the rules of substance and procedure which shape the administration of justice. Lawyers must always operate within the bounds of the law, and cannot create or use false evidence, or engage in any other illegal or improper conduct." [RPCs 3.1 through 3.6, 3.9, 4.1 through 4.4, 8.2, 8.4(d)(e) & (f)….]7 

Finally, lawyers have duties to the legal profession, in which the Standards include:

• restrictions on advertising and recommending employment [RPCs 7.1-7.5];

• fees [RPCs 1.5, 5.4 and 5.6];

• assisting the unauthorized practice of law [RPC 5.5];

• accepting, declining or terminating representation [RPCs 1.2, 1.14, 1.16]; 

and

• maintaining the integrity of the profession [RPCs 8.1 & 8.3].8 

Determining to whom the violated duty is owed is essential to using the Standards, since separate standards apply for each of the four categories of duty, and within each standard are substandards which may apply to the particular misconduct in question. These provisions are the heart of the Standards. Their structure, paralleling to whom the duty is owed and the nature of the duty violated, can be seen by reviewing the captions for the Standards:

• 4.1 Failure to Preserve the Client's Property

•  4.2 Failure to Preserve the Client's Confidences

•  4.3 Failure to Avoid Conflicts of Interest

•  4.4 Lack of Diligence

•  4.5 Lack of Competence

•  4.6 Lack of Candor

•  5.1 Failure to Maintain Personal Integrity

•  5.2 Failure to Maintain the Public Trust

•  6.1 False Statements, Fraud, and Misrepresentation

•  6.2 Abuse of the Legal Process

•  6.3 Improper Communications with Individuals in the Legal System

•  7.1 Disbarment is generally appropriate when . . .

•  7.2 Suspension is generally appropriate when . . .

•  7.3 Reprimand is generally appropriate when . . .

The Standards differentiate three mental states: (1) intentional, (2) with knowledge, and (3) negligence. The most culpable is intentional, where the lawyer acts with "the conscious objective or purpose to accomplish a particular result." The next most culpable state is with knowledge, when the lawyer acts with a "conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result." The least culpable is negligence, which the Standards define as "the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, of which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation."9 

In lawyer disciplinary cases, after misconduct has been found or acknowledged, much of the battle often takes place over the characterization of the lawyer's mental state, since the more culpable the mental state the more severe the sanction. Disciplinary counsel will often seek to characterize the lawyer's mental state as intentional or with knowledge, while respondents will often seek to characterize it as not even negligent since, it is argued, all the lawyers in the community do it the way the respondent did, and thus it is not a deviation from the standard of care.

Unlike professional malpractice cases where to recover damages the client must generally have suffered injury as a result of the lawyer's negligence, in lawyer disciplinary cases a sanction may still be imposed even if there is no injury to a client. The presence or absence of actual or potential injury, however, will affect the severity of the sanction. The Standards define the terms "injury" and "potential injury" and further differentiate between degrees of injury. The terms are defined as follows:

"'Injury' is harm to a client, the public, the legal system, or the profession which results from a lawyer's misconduct. The level of injury can range from 'serious' injury to 'little or no' injury; a reference to 'injury' alone indicates any level of injury greater than 'little or no' injury."

"'Potential injury' is 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, and which, but for some intervening factor or event, would probably have resulted from the lawyer's misconduct"10 

After the lawyer's duty has been identified, after the lawyer's mental state at the time of the misconduct has been characterized, and after the amount of injury or potential injury has been gauged, the presumptive sanction is determined by applying the applicable standards (Standards 4.0-8.0). That presumptive sanction may then be adjusted upwards based on aggravating factors, or downwards based on mitigating factors, or, if there are no aggravating or mitigating factors, or they are equal in significance, the presumptive sanction should become the sanction to be imposed.

Aggravating Factors. Standard 9.22 lists 11 nonexclusive possible aggravating factors: (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; and (k) illegal conduct, including that involving the use of controlled substances.

Mitigating Factors. Standard 9.32 lists 13 nonexclusive possible mitigating factors: (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 in certain cases; (j) delay in disciplinary proceedings; (k) imposition of other penalties or sanctions; (l) remorse; and (m) remoteness of prior offenses.

Neutral Factors. In addition, Standard 9.4 identifies six factors which should not be considered as either aggravating or mitigating: (a) forced or compelled restitution; (b) agreeing to the client's demand for certain improper behavior or result; (c) withdrawal of complaint against the lawyer; (d) resignation prior to completion of disciplinary proceedings; (e) complainant's recommendation as to sanction; and (f) failure of injured client to complain.

Very substantial portions of a disciplinary proceeding will likely be spent arguing these factors. It is not unusual for evidence to be introduced that Standard 9.4 states should not be considered as either aggravating or mitigating factors. If a disciplinary proceeding is bifurcated, with liability being determined in the first phase and the sanction in the second, it is not unusual for mitigating or aggravating factors, or the nonfactors, to be introduced in the first phase as well, presumably with the hope of influencing the adjudicator to find or not to find liability, or to have the adjudicator see the respondent in the same way as seen by disciplinary counsel or by the respondent.

The Standards are a very considerable accomplishment and have provided a much-needed mechanism for working toward greater consistency and uniformity in disciplinary sanctions. In many disciplinary counsel offices, such as Washington's, they form the analytic framework for every recommendation for a public hearing on alleged lawyer misconduct, for every recommendation of the appropriate sanction at such a hearing, and on every appeal of a sanction. Their effectiveness has been limited, however, by several factors, some intrinsic, others extrinsic.

Although the Standards are widely used by respondents and disciplinary counsel to predict likely outcomes of disciplinary proceedings and to determine appropriate sanction levels for settlements or stipulations to discipline, they are principally directed to adjudicators in the lawyer discipline system. While inexperienced disciplinary counsel, especially those with limited practice experience outside the Bar, may request inappropriately severe sanctions, the sanction decision is made by the disciplinary adjudicator. On the trial level, adjudicators are often volunteers without substantial experience in or any institutional memory of past disciplinary results. Not infrequently, hearing officers, as practicing lawyers, identify with the practicing lawyer respondent in a "this-could-be-me-or-my-partner" mentality, resulting in inappropriately low-sanction recommendations. Less often the reverse happens and an inappropriately severe sanction is recommended. Disciplinary boards, which serve as appellate courts in many disciplinary systems, likewise suffer from the same infirmities, particularly where membership changes frequently and terms of service are short. The ultimate adjudicator of lawyer discipline in each jurisdiction is that jurisdiction's court of last resort, usually the state supreme court. That court, depending on the length of service of its members, may also lack experience in and institutional memory of lawyer discipline cases. As the court of last resort, it is free to use or not use the Standards as it sees fit. A court may pay obeisance to the Standards and then effectively ignore them.

The Standards are intended to be broad and flexible so they may be applied to the very broad range of possible lawyer misconduct. Thus, the drafters of the Standards elected to establish a framework for analysis rather than establishing merely a sentencing-like matrix that might be used mechanistically as a substitute for analysis. Indeed, the preface to the Standards indicates that the drafters rejected the notion of having a specific standard for each type of misconduct on the basis that such an approach would be "theoretically simplistic and administratively cumbersome" and, in a note, observed that "an approach that reviewed each type of misconduct would result in nothing more than a general statement that the individual circumstances of a case dictate the type of sanction which ought to be imposed."11 

While the Standards have indeed helped, as they were intended, to "promote thorough, rational consideration of all relevant factors to imposing a sanction in an individual case," it is unclear to what extent they have resulted in greater uniformity or consistency in decisions either within a given jurisdiction or across jurisdictions. In part this may be due to the complexity of many lawyer disciplinary proceedings involving multiple alleged violations of duties owed to multiple different persons, so that application of the Standards becomes far more complex than for a single violation of a single duty to a single person. It may also be that they are so fluid, with so many different factors involved and so many judgments to be made, that they may as often be invoked and ignored as they are invoked and followed.

While the Standards are very flexible, they have inherent limitations based on their origin. According to the preface and the appendices, the Standards are derived from an analysis of 2,991 discipline cases consisting of all reported lawyer-discipline cases in the United States, generally from 1980 through June 1984, wherein public discipline was imposed, and on an in-depth examination of all published lawyer disciplinary cases, generally from January 1974 through June 1984, in eight jurisdictions. This broad basis assured a wide national examination of disciplinary cases, but since it also focused more intensively on eight states, it gave cases from those states a greater weight. Of the 2,991 cases, those eight states alone accounted for 59.7 percent of the total cases.12 Thus, the cases on which the Standards are based may or may not be reflective of the complete disciplinary tradition in any particular jurisdiction.

The Standards are also a product of their time and are to some extent frozen in time. They are built on, and their fundamental tenets rest on, lawyer discipline cases reported between 1974 and 1984, and on societal values then current. Their exclusion of disciplinary cases reported before the stated time periods is not troubling, since the cases examined were likely built on earlier cases and, through application of the doctrine of precedent, likely reflect them. But the Standards, now over 14 years old, are largely built on lawyer misconduct that all likely occurred between 17 and 30 years ago. While the Standards have had minor revisions since initial adoption, their basic structure and underlying assumptions remain the same as when initially adopted. This has practical effects. If a sanction should be proportional to what has been imposed on other lawyers, sanctions will always be looking backwards to the past. But if they do so, they will not reflect changed societal values.

Some of the fundamental assumptions of the Standards may today either be invalid or need to be reconsidered. The Standards state: "In determining the nature of the ethical duty violated, the standards assume that the most important ethical duties are those obligations which a lawyer owes to clients."13 This likely reflected thoughts about the nature of lawyers' duties and about the legal profession when the Standards were formulated. It also reflects what many lawyers may still believe today. But it does not adequately reflect the growing recognition in the legal profession, a recognition long held by the public, that a lawyer has equally important duties to the legal system itself and to the public.

Under the Standards' stated assumption, when a duty to a client conflicts with a duty to the legal system, the duty to the client presumably takes priority over the lawyer's duty to the legal system. Today, it is increasingly recognized that this may not always be the appropriate result. This is perhaps seen most clearly in the conflict of a lawyer's duty to maintain client confidences with the lawyer's duty to be candid to the court and to others, and to prevent use of false evidence; and in the conflict of a lawyer's duty to a client to maintain confidences with the lawyer's duty to the public not to defraud or injure them or facilitate such action by the lawyer's client. It is also reflected in recent debates in connection with the ABA's Ethics 2000 Commission, which reviewed the Model RPCs. This recognition of competing equally valid, but opposite, ethical demands may call for a different and even more complex analysis than called for under the Standards.

Further, some of the conclusions as to appropriate sanctions likely need revisiting, or they need to be restated far more emphatically so that they are more clearly understood and easier to apply. By implication, the imposition under the Standards of any sanction less than disbarment means that the lawyer in question is still fit to practice law, either on a continuing basis without interruption of the lawyer's practice (if the sanction is a reprimand or below), or after having completed the period of suspension, if the lawyer is suspended. In effect, this means that the legal profession will make room for lawyers who have committed serious violations against clients, against the public, and against the profession, including lawyers who lie, cheat and steal.

Standard 5.11, for example, provides that disbarment is generally appropriate when a lawyer engages in serious criminal conduct, a necessary element of which includes various items such as false swearing, misrepresentation, fraud, misappropriation or theft; or the sale, distribution or importation of controlled substances; or engages in any other intentional conduct involving dishonesty, fraud, deceit or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice law.

And yet we all know of cases, without significant mitigators, where the sanction imposed for such serious criminal conduct or dishonest conduct is less than disbarment. In these cases, it is likely the adjudicators have simply not appropriately applied the standard or have too easily justified it with mitigators. The Standards need to make clear that in such cases as those described in Standard 5.11, the profession demands a zero-tolerance for misconduct. It needs to clearly state that only in the most extraordinary and rare cases will any mitigator, or any combination of mitigators, be allowed to reduce the sanction from disbarment in such cases, and that no longer will mitigators be routinely found that justify retaining such a lawyer in the profession. Until the disciplinary system makes clear it has no room for such lawyers, the public will not have confidence in the system; lawyers will not be deterred from such conduct; the system will fail the profession and the public; and the public's distrust of lawyer self-regulation will be justified.

On the other hand, some standards reach perhaps dubious conclusions or applications under today's societal values. Standard 5.12 states that suspension is the appropriate sanction if the lawyer knowingly engages in criminal conduct which does not include the elements listed in Standard 5.11 and that seriously reflect on the lawyer's fitness to practice.

Commentary to Standard 5.12 gives as an example of a presumably appropriate sanction a lawyer who was suspended from practice for three years for two counts of child molesting. While the legal profession may believe such a sanction is appropriate for a lawyer guilty of two counts of child molesting, it is doubtful that the public believes that such a lawyer is fit to continue to be a lawyer. In such a case, the Standards are suspect, and the profession should be asking how it can justify allowing a person showing such disregard for the law and for the dignity of others, particularly the vulnerable, to continue being a lawyer.14 On the other hand, commentary to the same Standard gives an example of a lawyer indefinitely suspended for possession of marijuana. Given the increasing recognition that our criminalization of drug-related conduct has been a massive failure, and the beginning of dismantling that approach, it seems clear that the Standards need to be revisited to reflect different societal values from those in effect when the Standards were adopted.

Similarly, Standard 5.13 provides that reprimand is generally appropriate when a lawyer knowingly engages in any other conduct (other than that described in Standards 5.11 and 5.12) that involves dishonesty, fraud, deceit or misrepresentation, and that adversely reflects on the lawyer's fitness to practice law. The underlying dubious assumption to this standard is that a lawyer who has knowingly engaged in dishonesty, fraud, deceit or misrepresentation is still worthy of being entitled to practice law. Acceptance by the disciplinary system of such conduct by a lawyer undermines public trust in that system and casts into doubt the legitimacy of self-regulation.

The Standards are a framework, not a substitute, for a sanction analysis. But if the Standards are to form the cornerstone for an adjudicator's determination of the appropriate sanction, they must be regularly updated and modified to reflect changed societal values as reflected in the most current disciplinary decisions of the courts nationwide. Any model or rule based on precedent is inevitably caught in the tension between trying to discern past societal values based on prior decisions, determining whether those values still apply, and then applying them to the present.

Washington's leading case on imposing lawyer disciplinary sanctions is In re Noble, 100 Wn.2d 88, 667 P.2d 608 (1983).15 This case, as interpreted by its progeny, uneasily co-exists with the ABA Standards to form the basis for Washington's approach to imposing lawyer sanctions. The case, with its multiple concurring and dissenting opinions and dealing with the mitigator of alcoholism, reflects the difficulty in determining the appropriate sanction.

In Noble, the hearing officer found the respondent deliberately misappropriated over $30,000 from his father's estate. He also found mitigation due to alcoholism at the time of the misappropriations, subsequent control of alcoholism, cooperation with the Bar in disciplinary proceedings, acceptance of responsibility for his actions, "a 'very fine' attitude on the part of the respondent" (100 Wn.2d 88, 92), and a lack of a pattern of misuse of client funds. The lawyer had been twice censured for client neglect in prior disciplinary proceedings. The Bar sought disbarment; the respondent argued for censure. The hearing officer recommended a 90-day suspension, which the appellate Disciplinary Board unanimously upheld. The five-person majority of the Washington Supreme Court upheld the 90-day suspension, but ordered the suspension to continue until the respondent repaid certain funds.16 The Court stated the issue before it:

"The only issue before us is the appropriate sanction for respondent's violation of the disciplinary rules. Failure to preserve the integrity of client funds leads to disbarment absent extraordinary mitigating circumstances. In re Moynihan, 97 Wn.2d 237, 643 P.2d 439 (1982). We must determine, therefore, whether the hearing officer's findings of mitigating circumstances were correct, and if so, whether 3 months' suspension is an appropriate sanction in the light of those mitigating circumstances." [100 Wn.2d 88, 92].

The Court, recognizing it had not developed "an objective standard by which to measure the appropriateness of disciplinary sanctions in a particular case," 100 Wn.2d 88, 94, then set out to create one. It listed five factors (subsequently known in Washington as "the Noble factors"):

"First, we will consider the purposes of attorney discipline.…

Second, we will consider whether the sanction recommended by the Board is proportionate to the misconduct. This is at best an inconclusive determination.

Third, we will consider the effect of the sanction on the attorney.…[95/96]

Fourth, the Board's recommendation must, of course, be fairly supported by the record developed by the hearing panel.…

Finally, the weight given a recommendation of the Board may well vary according to the extent of agreement among members of the Board.…"[100 Wn.2d 88, 95-96]

Given its statement that "[f]ailure to preserve the integrity of client funds leads to disbarment absent extraordinary mitigating circumstances" and its cite to its own decision just one year previously, the Court's five-justice majority apparently found "extraordinary mitigating circumstances" in the claimed mitigators. Instead of disbarment, it concluded the recommended 90-day suspension sanction was appropriate, although it also ordered the suspension be extended until respondent repaid certain sums.17 The minority rejected the sanction as inadequate: one justice thought it should be disbarment; another thought it should be a two-year suspension; and two others, describing the 90-day suspension as "woefully inadequate" (100 Wn.2d 88, 104), thought it should be a two-year suspension with summary disbarment if certain sums were not repaid within 90 days. Justice Rosellini, in dissent, accurately described the then-status of imposing lawyer sanctions in Washington:

"Despite recent attempts to enunciate a formula for attorney discipline [cites to Washington cases omitted], the fact remains that the question of appropriate punishment for attorney misconduct is a highly subjective determination.… [E]ach of us brings our own experience, judgment and morality to bear.… I view with alarm the departure from the well established rule that trust fund violations will be met with severe sanctions, most often disbarment.… Nothing in the majority or concurring/dissenting opinions, or the record persuades me that we should not adhere to that rule here." [100 Wn.2d 88, 100-101]

Twenty years later, even after the Washington Supreme Court had long since adopted the ABA Standards, Justice Rosellini's statement remains an accurate statement of discipline in Washington today.

Justice Rosellini would likely be equally alarmed by Washington's most recent lawyer disciplinary case which again allows a lawyer guilty of trust-fund violations to remain a member of the Bar (In re Tasker, 141 Wn.2d 557, 9 P.3rd 822 (WA 2000)). In Tasker the Court describes its approach, still partially based on the "Noble factors," to reviewing lawyer disciplinary sanctions recommended by Washington's appellate-level Disciplinary Board:

"This court does not lightly depart from the Board's recommendation; however, it is not bound by it [cites omitted]. The Supreme Court retains the ultimate responsibility for determining the nature of an attorney's discipline [cites omitted]. We adopt the Board's recommendation unless the court can articulate a specific reason to depart from it and we are persuaded the sanction is inappropriate based upon consideration of the following factors:

1) The purposes of attorney discipline (sanction must protect the public and deter other attorneys from similar misconduct);

2) The proportionality of the sanction to the misconduct (sanction must not depart significantly from sanctions imposed in similar cases);

3) The effect of the sanction on the attorney (sanction must not be clearly excessive);

4) The record developed by the hearing panel (sanction must be fairly supported by the record and must not be based upon considerations not supported by the record); and

5) The extent of agreement among the members of the [Disciplinary] Board (sanction supported by unanimous recommendations will not be rejected in the absence of clear reasons)." [cites omitted]

"Our road map in making this inquiry is the ABA Standards for Imposing Lawyer Sanctions (1991 ed.) (amended 1992) [cite omitted]. The ABA Standards provide for a two-stage process:

First, we 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. Then, we consider any aggravating or mitigating factors which may alter the presumptive sanction." [cites omitted] [141 Wn.2d 557, 566]

The Court's majority, recognizing disbarment as the presumptive sanction under both ABA Standard 4.11, conversion of client funds, and ABA Standard 5.11(b), failure to maintain personal integrity (that is, engaging in conduct involving dishonesty), then goes on to cite ABA Standards 4.12 and 7.2, which it notes were not a basis for a finding or a conclusion by either the hearing officer or the Disciplinary Board, stating that suspension is the appropriate standard for certain conduct. Not surprisingly, after this the Court's majority rejected the Disciplinary Board's 9-1 recommendation of disbarment and, stressing the mitigators of delay in prosecution and the lawyer's "rehabilitation," instead ordered a two-year suspension.

The lawyer's misconduct included repeated commingling of personal and client funds in client trust accounts so as to avoid paying court-ordered child support, paying personal expenses out of client trust accounts and violating trust-account rules, and lying at a disciplinary hearing. The Court's majority held that delay in prosecution and the lawyer's "rehabilitation" during the delay mitigated the otherwise applicable presumptive sanction of disbarment. Although the opinion stated that the lawyer's testimony amply demonstrated he lied at his disciplinary hearing and that the lying was undisputed, no weight was given to lying as a sanction aggravator.

Acceptance of "rehabilitation" as a mitigator in this case leads to some peculiar conclusions. Apparently if a lawyer is caught in misconduct, but thereafter behaves before being prosecuted and while under observation of a prosecutor (especially if the prosecution takes longer than the Court in hindsight thinks should be taken), the lawyer is deemed "rehabilitated" and entitled to a reduced sanction. This curious result, undoubtedly welcomed by the well-behaved incarcerated, proves the wisdom of the ancient maxim to "make virtue out of necessity."18 

An observer might query what it takes to get disbarred in Washington, since a lawyer who hid money in his client trust account to avoid paying court-ordered child support, who used client funds to pay his own personal expenses, and who lied to the bar is in effect found still fit to serve as a fiduciary and "guardian of the law."19 The decision does little to lessen public skepticism about the honesty of lawyers or the efficacy of their self-regulation. The case should best be seen as a peculiar aberration, not indicative of what is an acceptable minimal level of conduct. The case also gives proof to the continuing validity, even after the Court's adoption of the ABA Standards, of Justice Rosellini's statement that the determination of the appropriate sanction for lawyer misconduct "is a highly subjective determination."

This article began with a series of questions, only some of which have been answered, and then only in part. Some conclusions, albeit limited and tentative, are possible.

While it is generally agreed that a lawyer who violates ethics rules should be sanctioned, there are also unusual cases where, due to rare and unique mitigating factors, a sanction may not be appropriate. But those cases should be rare, very rare. It is generally agreed that there should be uniformity and consistency in lawyer sanctions for lawyers who commit like misconduct, but achieving that uniformity and consistency has been very elusive. Courts of last resort properly reserve to themselves the right to make the final decisions as to the appropriate disciplinary sanction, but like any judicial determination, that decision must be a just one based on a rule of law, not on the singular view of whoever happens to be serving on the Court at the time. Yet, as Justice Rosellini reminded us, the determination of the appropriate lawyer disciplinary sanction is a highly subjective one. Courts regularly recite the presumptive sanctions enunciated in the ABA Standards, and just as regularly find reasons not to impose them.

It may be argued that Tolstoy's observation that "[h]appy families are all alike; every unhappy family is unhappy in its own way"20 is equally applicable to lawyers, and explains the lack of consistency in lawyer sanctions. Those who engage in misconduct do so in their own unique way, with an infinite variety of facts, mitigators and aggravators, with all the wondrous richness of each person's unique personality and idiosyncrasies, and with all the infirmities and anguish the person has accumulated in a lifetime. But this is equally true of criminal behavior wherein degrees of harm, culpability, intent, and so on, are all recognized. While recognizing the uniqueness of persons and conduct, as a society we still demand that persons who commit like offenses be treated similarly and that the sentence be proportional to the harm done. The problem is that lawyers and judges rarely seem to be able to agree that two legal ethics offenses are like offenses.

If the lawyer discipline system is to be perceived as just, it too must satisfy the basic requirement of societal justice. It must be "based upon the rule of law grounded in respect for the dignity of the individual and his capacity through reason for enlightened self-government."21 Thus, any system for imposing disciplinary sanctions must be based on a rule of law, not on the personal predilections of disciplinary prosecutors or adjudicators. While it is a subjective determination, it must be based on uniform criteria fairly and consistently applied to all. And, to be accepted by the public and the bar, and accomplish its purpose of protecting the public and deterring misconduct, it must consistently impose sanctions proportional to the harm done.

The ABA Standards are a magnificent accomplishment. They have collected the factors widely considered to be relevant in lawyer disciplinary cases and laid out a framework for analysis of those sanctions. By doing so, they have brought greater uniformity to the analysis of lawyer disciplinary sanctions. But they have not brought the same degree of uniformity or proportionality to the actual imposition of sanctions. The Standards have several weaknesses, including being based on an aging body of law that may not wholly reflect today's societal values. But the primary weakness in imposing lawyer discipline sanctions through the framework of the Standards is not in the Standards themselves, but in application of them. Unless they are uniformly and consistently applied, the resultant sanctions will be unfair to the respondents or the public and are unlikely to be proportional to the misconduct. A system which cannot assure fairness will lack credibility and will fail.

1. Comment 17, Scope, ABA Model Rules of Professional Conduct; Preliminary Statement, ABA Model Code of Professional Responsibility.

2. The Model RLDE, last amended in February 1999, was itself a combination of two earlier ABA models, the 1979 Standards for Lawyer Discipline and Disability Proceedings and the 1985 Model Rules for Lawyer Disciplinary Enforcement.

3. In June 2001, the Washington Supreme Court amended the Rules for Lawyer Discipline effective September 1, 2001 to authorize a discipline-diversion program.

4. Rule 19(C) defines "serious crime" as "any felony or any lesser crime that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, or any crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or an attempt, conspiracy or solicitation of another to commit a 'serious crime.'"

5. Standards, Part II, Theoretical Framework, p. 5

6. Standards, Part II, Theoretical Framework, p. 5

7. Standards, Part II, Theoretical Framework, p. 5

8. Standards, Part II, Theoretical Framework, p. 5-6.

9. Standards, Part II, Theoretical Framework, p. 6, and Part III, Definitions, p. 7.

10. Standards, Part III, Definitions, p. 7.

11. Standards, Part I, Preface, p. 3 and Note 13, p. 53

12. The eight states and their respective percentages of the 2,991 total cases are: Arizona, 3.2 percent; California, 22.8 percent; District of Columbia, 4.2 percent; Florida, 11.6 percent; Illinois, 6.6 percent; New Jersey, 2.3 percent; North Dakota, 0.5 percent; and Texas, 7.5 percent.

13. Standards, Part II, Theoretical Framework, p. 5.

14. The preamble to Washington's Rules for Professional Conduct states that "… justice is based upon the rule of law grounded in respect for the dignity of the individual.… Law so grounded makes justice possible, for only through such law does the dignity of the individual attain respect and protection. Without it, individual rights become subject to unrestrained power, respect for law is destroyed, and rational self-government is impossible." Also see note 18, below.

15. The case predates the ABA Standards, but was presumably considered by the drafters of the Standards since it is within the Standards' stated 1980-1984 timeframe for Washington cases.

16. A dissenting opinion by Justice Dore observes: "Six months ago Noble advised us that he had left the practice of law. He said he had advised his clients, in writing, that he would no longer be practicing law and they should seek other legal counsel." 100 Wn.2d 88, 108. As of April 12, 2001, 18 years later, the respondent remains suspended from the practice of law.

17. Curiously, in a nearly similar case, In Re Johnson, 114 Wn.2d 737, 790 P.2d 1227 (WA 1990), the Washington Supreme Court, applying the ABA Standards, rejected an 11-1 Disciplinary Board recommendation of a one-year suspension, and instead disbarred a lawyer who converted $21,000 of client trust funds while suffering from chronic alcoholism.

18. Under this rationale, an incarcerated person awaiting trial on theft charges who is thereafter convicted should be entitled to a reduced sentence for not having stolen anything while incarcerated and while under observation.

19. The preamble to Washington's Rules of Professional Conduct states that "[l]awyers, as guardians of the law, play a vital role in the preservation of society." This language is taken from the preface of Washington's prior Code of Professional Responsibility, which language was in turn taken from the preface to the ABA's Model Code of Professional Responsibility.

20. Leo Tolstoy, Anna Karenina, Part I, Chapter 1, transl. Constance Garnett (New York: P. F. Collier & Son, 1917).

21. Preamble, ABA Model Code of Professional Responsibility. Washington's Rules of Professional Conduct, while adopting most of the ABA Model RPCs, have, with minor modification, retained this statement as part of its preamble.