In re Cross

1

In re: GEOFFREY COLBURN CROSS, Lawyer (Bar No. 3089), Appellant.

No. 201, 993-5

Supreme Court of Washington, En Banc

December 23, 2021

GORDON MCCLOUD, J.

Attorney Geoffrey Colburn Cross revealed information relating to his representation of former client, Drew Vickers, in a criminal matter. He revealed that information to the attorney representing a party adverse to Vickers in a separate related, civil matter. The Disciplinary Board of the Washington State Bar Association (Board) found that Cross's conduct violated two Rules of Professional Conduct (RPC) barring such disclosures absent informed consent.^[1] The main question for the court on this appeal is whether Cross's purposeful disclosure of this information to the adverse party should be considered "negligent," rather than "knowing," because Cross did not realize that the RPCs barred such disclosure. The Office of Disciplinary Counsel's hearing officer determined that the conduct was "negligent," and the hearing officer therefore imposed a reprimand. The Board disagreed the Board unanimously ruled that Cross's disclosure was "knowing," and it therefore unanimously imposed a nine month suspension.

We uphold the Board's decision in full. We adhere to our prior decisions holding that a lawyer's conscious choice to disclose client information that the RPCs protect from disclosure constitutes "knowing," rather than "negligent," conduct-even if the lawyer does not know that the RPCs protect that information.

Factual and Procedural History

I. Cross represented Vickers in 2014

On April 12, 2013, Vickers was driving passenger Mary Valenzuela on a Yamaha all-terrain vehicle (ATV). The ATV overturned and both Vickers and Valenzuela were injured. Ass'n's Designated Exs. (Exs.) at 135; Decision Papers (DP) at 2. There was some evidence that Vickers had been drinking before he took the wheel. Exs. at 135, 196-97. But in the course of the criminal case that followed, Valenzuela provided a declaration stating that the accident was "in no way [Vickers]'s fault," and that "something happened to the quad that caused the accident." Id. at 137-38. There was some support for her assertion: Yamaha had recalled the ATV and there is evidence that the cause of the accident may have been a mechanical failure. Id. at 141, 197, 199.

After the accident, Vickers consulted attorney Michael Carroll about two matters: filing a civil lawsuit against Yamaha concerning the cause of the accident and defending him against anticipated criminal charges due to the accident. DP at 2. Carroll referred Vickers to Cross. Id.; Verbatim Report of Proceedings (VRP) at 17. Cross had known Carroll for about 40 years, and they worked closely together for many years. VRP at 12. Carroll worked as a contractor for Cross and would earn "commissions" for the cases that he settled on Cross's behalf. Id. at 13. Cross and Carroll shared an office space at the time that Carroll referred Vickers to Cross. VRP at 12-13; DP at 2.

On January 6, 2014, the State charged Vickers with vehicular assault and criminal trespass in the second degree in Pierce County Superior Court as a result of the ATV accident. DP at 2; Exs. at 133. Cross represented Vickers throughout those criminal proceedings. DP at 2. Vickers pleaded guilty about two months later to the reduced charges of reckless driving and criminal trespass in the second degree. Id. at 3. The State reduced the vehicular assault charge to reckless driving in part because it was "highly likely that the collision resulted from catastrophic failure of a steering component" of the ATV. Exs. at 141 (Prosecutor's Statement Regarding Am. Information).

The last contact between Cross and Vickers occurred after the restitution hearing, in May 2014. DP at 3; VRP at 20-21. At that time, Cross and Vickers discussed a potential products liability case against Yamaha. VRP at 19-20. Cross advised Vickers that Vickers did not have a strong case and that Vickers should not pursue this claim with Cross as counsel. Id. Vickers and Cross were the only parties present during this discussion-Carroll was not there. Id. at 19.

II. Valenzuela v. Vickers and Cross's disclosures

About two years later, on July 8, 2016, Valenzuela (who had previously authored the declaration asserting that Vickers was not at fault) sued Vickers for her injuries from the ATV accident. DP at 3; Valenzuela v. Vickers, No. 16-2-09320-1 (Pierce County Super. Ct., Wash.); Exs. at 154-55. The complaint was filed by Carroll (who had previously referred Vickers to Cross). That complaint alleged that Vickers caused the accident by "driving too fast" and "failing to safely control his vehicle." Exs. at 154-55.

After Vickers's answer was filed, Vickers changed counsel to Kathleen Thompson. Id. at 159. Thompson promptly filed a motion to amend the answer to assert the affirmative defense that the accident was the result of the third party fault of Yamaha. DP at 3; Exs. at 160-74.

Cross learned of Valenzuela from discussions with both Thompson and Carroll. VRP at 21; DP at 3. Based on these discussions, Cross has admitted to knowing that (1) Carroll represented Valenzuela, the party adverse to Vickers in Valenzuela v. Vickers, (2) Thompson represented Vickers in Valenzuela v. Vickers, (3) Thompson wanted to amend Vickers's answer to assert a defense related to the manufacturing defect in the ATV, and (4) Carroll was trying to prevent Thompson from amending Vickers's answer to assert an affirmative defense. DP at 3-4; VRP at 21-24. Cross also believed that Thompson was trying to disqualify Carroll from representing Valenzuela. DP at 4; VRP at 23. (Thompson never filed such a motion. DP at 4.)

At the time that Cross knew this information, including the information about who represented whom, Carroll asked Cross to give Carroll some information about Cross's former client, Vickers. Despite the fact that Cross knew that Carroll represented Vickers's adversary (Valenzuela), Cross agreed. Cross then told Carroll that during Cross's representation of Vickers, Cross had discussed with Vickers the possibility of filing a lawsuit against Yamaha and that Vickers had decided against it. DP at 5; Exs. at 177, 245. Carroll took this information and in turn disclosed it publicly in Carroll's declaration in opposition to Vickers's motion to amend his answer. Clerk's Papers at 25; Exs. at 177.

The trial court nevertheless granted Vickers's motion to amend his answer on June 5, 2017. DP at 5. The amended answer asserted the affirmative defense that the accident was caused by mechanical failure of the ATV. Id.; Exs. at 203.

Ten days later, Carroll filed a motion to strike that affirmative defense and included a declaration from Cross to support this motion. Exs. at 206, 209; VRP at 24-25.

According to Cross, Carroll "just wanted to clarify who was representing who. And the fact we had decided not to file a products liability suit." Exs. at 244; VRP at 25 (emphasis added). Cross claimed that Carroll "needed to clarify what happened, and I clarified it at his request." VRP at 27 (emphasis added). Cross admitted that he never discussed with Vickers or Thompson whether he could disclose this information to Vickers's adversary. Id. at 35.

Cross's declaration stated in full:

Geoffrey Cross, under penalty of perjury, deposes and states that I represented Mr. Vickers. That Mike Carroll provided recall documents. That Mr. Vickers did not wish to pursue a lawsuit against Yamaha over the recalled vehicle. This was discussed about the time of his restitution hearing with the owner of the vehicle. The costs of a products liability suit and the legal complications made it something that we did not pursue.

Exs. at 209. Carroll's motion to strike the amended answer ultimately failed. VRP at 77.

Cross now acknowledges that providing the declaration was a mistake. Id. at 39. But he claims that nothing was disclosed that was not already in the public record. Id. Cross also claims that his understanding was complicated by the fact that the statute of limitations had expired on any claim that Vickers had had against Yamaha. DP at 7-8. Further, Cross now denies that he was helping Carroll and asserts that he did not believe he was hurting his former client in any way. VRP at 39. Notably, however, Cross admitted at other points during the disciplinary proceeding that the purpose of his declaration was to "help" Carroll. Exs. at 253.

III. The hearing officer ruled the violations were "negligent" and recommended a sanction of reprimand

The Office of Disciplinary Counsel (ODC) opened a grievance file on Cross on October 26, 2018. Id. at 212. After a hearing, the hearing officer determined that the ODC had carried its burden to prove that Cross violated RPC 1.9(c)(2) and RPC 1.6(a) by a "clear preponderance of the evidence." DP at 6. The hearing officer also concluded that Cross acted negligently in revealing client confidences and, hence, that the presumptive sanction was reprimand. ABA, Standards for Imposing Lawyer Sanctions std. 4.2, at 28-29 (1991 ed. & Supp. 1992); DP at 7, 11.

The hearing officer then found two substantial aggravating factors: Cross's two prior disciplinary offenses in the past 10 years and Cross's nearly 50 years of experience in the practice of law. DP at 9. The hearing officer also found three mitigating factors: (a) absence of a dishonest or selfish motive, (b) full and free disclosure to the disciplinary board or cooperative attitude toward proceedings, and (c) remoteness of one prior offense. DP at 10; ABA Standards std. 9.32, at 50. After weighing mitigating and aggravating factors, the hearing officer recommended that Cross be reprimanded. DP at 11.

IV. The Board ruled that the violations were "knowing" and...