In re Disciplinary Proceeding Against Abele

184 Wash.2d 1

358 P.3d 371

In the Matter of the DISCIPLINARY PROCEEDING AGAINST Kathryn B. ABELE, Attorney at Law.

201,352–0.

Supreme Court of Washington, En Banc.

Argued May 26, 2015.

Decided Aug. 27, 2015.

Sam Breazeale Franklin, Peter E. Sutherland, Lee Smart PS Inc., Seattle, WA, for Petitioner.

Sachia Stonefeld Powell, Washington State Bar Association, Seattle, WA, for Respondent.

Opinion

WIGGINS, J.

¶ 1 Following a four-day disciplinary hearing, hearing officer William S. Bailey found that attorney Kathryn B. Abele committed two counts of misconduct. He recommended that Abele be suspended for one year, that she complete an evaluation to determine her fitness to practice law, and that she pay all litigation costs. The Washington State Bar Association (WSBA) Disciplinary Board (Board) unanimously adopted the recommendations.

¶ 2 Abele appealed, arguing that 11 of the 48 findings of fact were not supported by substantial evidence and that suspension is not the appropriate sanction. We hold that substantial evidence supports the hearing officer's findings of fact and that his conclusions of law are correct. The record supports the finding of three aggravating factors and only one mitigating factor. We therefore accept the Board's recommendation and suspend Abele from the practice of law for one year.

FACTS

¶ 3 Abele was admitted to the practice of law in Washington in November 2002. At all times relevant to this case she practiced family law as a solo practitioner.

¶ 4 This proceeding arises out of two separate matters charged in two separate counts of misconduct. The first count charged Abele with violating several rules of professional conduct for behavior for which she was found in contempt of court in September 2011. The second count charged Abele with knowingly making a false or misleading report to the Seattle Police Department (SPD) in May 2011.

Following a four-day hearing that included testimony from 15 witnesses—9 witnesses for the WSBA, Abele's videotaped deposition, and 5 witnesses on Abele's behalf—as well as audio and video recordings of the incidents giving rise to each count, the hearing officer made 48 detailed findings of fact. Abele assigns error to 11 of these facts; the remaining findings are treated as verities on appeal. In re Disciplinary Proceeding Against Marshall, 160 Wash.2d 317, 330, 157 P.3d 859 (2007).

I. Factual History

¶ 5 This factual summary is based entirely on unchallenged findings—Abele has not assigned error to any the findings used for this factual history.

A. Count I: Contempt in Judge Farris's Court

¶ 6 In 2011, Abele represented the father in a three-way child custody battle in Snohomish County Superior Court. Ms. Janal Rich and Mr. Richard Jones represented the other parties, and Judge Anita Farris presided over the matter. The trial lasted 13 days; the attorneys testified that it was unusual, complex, and contentious.

¶ 7 Throughout the trial, Abele was repeatedly admonished for interrupting the court and other counsel. She slammed objects on the table and made loud comments when Judge Farris ruled against her. Though Abele's comments and actions were distracting to opposing counsel, she did not stop when the court instructed her to do so. Instead, Abele would falsely respond, “I did not say anything” and continue to engage in disruptive behavior.¹

¶ 8 The court held a posttrial hearing in August 2011 to finalize the parenting plan. Abele made it clear that she wanted the case resolved that day because she intended to immediately appeal the court's decision. The court told Abele that it would not be possible to conclude that day and that she would not sign Abele's proposed findings. Abele became angry and said to Judge Farris, “You've got to leave now. We have to take a break now.” Judge Farris, inferring from the statement that Abele was going to “blow up,” called for a recess. After Judge Farris left the bench, Abele made a loud screaming noise that could be heard in other rooms in the courthouse. Security was called, but Abele was not held in contempt for this outburst.²

¶ 9 On September 28, 2011, the court held another hearing to finalize the parenting plan. Abele and opposing attorney Rich were present in the courtroom, with Jones present by telephone. Abele and Rich loudly discussed a discrepancy in the parenting plan while Judge Farris was speaking. Frustrated with Abele's interruption, Judge Farris attempted to make a record of her concerns, hoping to prevent further interruptions. But Abele repeatedly interrupted Judge Farris, even yelling to express her disagreement. When Judge Farris directed staff to summon security, Abele announced, “I'm going to jail. I'm going to jail,” placing her hands over her head, crossed at the wrists as if being handcuffed. Abele walked out of the courtroom while court was still in session, causing the proceedings to come to a halt. Abele reentered the courtroom and announced, “I'm leaving. I'm out of here.... I'm abstaining completely.... Good-bye.”

¶ 10 The court ordered security personnel to locate Abele and return her to the courtroom. When Marshal Patrick Miles located Abele, she informed Miles that she would not return. Miles and Sergeant David Hayes again informed Abele that Judge Farris ordered her back to the courtroom.

Abele refused initially but ultimately returned to the courtroom.

¶ 11 On Abele's return, Judge Farris continued to make a record of Abele's behavior. Judge Farris stated that in the previous hearing Abele had made “loud noises that to me sounded like an animal being killed” and that “I have been in these courts for 30 years, 18 as a judge. I have never heard anything—I have never heard any lawyer make any kind of noise or do anything like that before.” Abele again yelled at the judge, attributing her previous scream to a hip injury and claiming that her yelling was the result of a hearing disability. Judge Farris held Abele in contempt “based on your screaming, yelling, jumping up and down in my courtroom, stomping and then—stomping out and refusing to represent your client....” Abele responded, “Your Honor, I appreciate your lecture. Could you just tell me how much I have to pay in a fine so I can get rid of it and take care of it and resolve this issue with you?”

¶ 12 To purge her contempt, Judge Farris ordered Abele to make contact within 30 days with the Lawyer's Assistance Program (LAP) provided by the Washington State Bar Association. Abele refused repeatedly to contact LAP.

¶ 13 Abele's behavior continued to have a disruptive effect on the courthouse after the hearing concluded. Immediately after leaving the courtroom, Abele yelled, “[T]hat bitch!” Opposing counsel Ms. Rich was so shaken by Abele's behavior that she asked to be accompanied by security personnel while leaving the courthouse.

¶ 14 Despite her earlier refusals, Abele contacted LAP later in the day, timely purging her contempt.

B. Count II: Knowingly Filing a False Police Report

¶ 15 Count II was based on Abele's conduct following her appearance before Commissioner James Kahan at the King County Courthouse in Seattle. Abele repeatedly left and reentered the courtroom. Commissioner Kahan requested additional security personnel because he believed that Abele was causing a disruption outside of his courtroom. Marshal Samuel Copeland was dispatched and served as standby backup, observing the proceedings from the back of the courtroom.

¶ 16 While Abele was outside the courtroom, Copeland heard a loud, agitated female voice in the hallway. He investigated, saw Abele in the hallway, and asked her to quiet down. This angered Abele: she extended her palm to Copeland, indicating that she didn't want to listen to him, told him that she was an attorney and she could talk however she wanted, and indicated that she didn't respect him. She also suggested to her client that Copeland was harassing her. Copeland returned to the courtroom in an attempt to de-escalate the situation.

¶ 17 Later that day, Abele again encountered Copeland and yelled at him that she didn't respect him and that “someone should fart in [his] face.” Copeland again walked away from Abele and toward Marshal Webb at the court's Fourth Avenue security checkpoint.

¶ 18 Abele followed Copeland to the checkpoint. Assuming that Webb was Copeland's supervisor, Abele complained to Webb about Copeland's behavior, waving her arms and speaking loudly and aggressively. Webb listened to Abele for a short time and asked her to go about her business, stating that he did not need to speak with her. Abele, angry at this dismissal, attempted to force her way between Copeland and Webb, yelling to the marshals, “[A]re you going to get out of my way?” Webb was seated on a stool, and Copeland was standing approximately one foot away from Webb. Instead of walking around the marshals in the six to eight feet of open hallway available to her, Abele pushed her way between them, contacting both police officers: her leg brushed against Webb's knee and she pushed against Copeland's body, causing him to move.

¶ 19 Abele immediately spun around, pointed, and yelled at Webb, accusing him of tripping her. She called 911, and SPD Officer James Ritter responded. Abele told Ritter that Webb had intentionally tripped her. She asserted that she had politely asked to go between the marshals because there was no room to go around them, that the marshals were rude to her, and that Webb laughed at her after his assault.

¶ 20 Officer Ritter interviewed Abele, Copeland, and Webb, and reviewed the security video. Ritter did not interview any other witnesses who were in the hallway during the incident. In reviewing the video, Ritter noted that Abele appeared to intentionally force herself into the 12 inch space between the two marshals, even though the remaining 8 feet of hallway was largely clear of visitors. He also noted that Abele had to turn sideways to pass between the marshals and that while “virtually every portion of her body appeared...