In re Disciplinary Proceeding Against Thomas R. Kamb

177 Wash.2d 851

305 P.3d 1091

In the Matter of the DISCIPLINARY PROCEEDING AGAINST Thomas R. KAMB, an Attorney at Law.

No. 200,926–3.

Supreme Court of Washington, En Banc.

July 18, 2013.

Brett Andrews Purtzer, Attorney at Law, Tacoma, WA, for Petitioner.

M. Craig Bray, Washington State Bar Association, Seattle, WA, for Respondent.

GONZÁLEZ, J.

[177 Wash.2d 856]¶ 1 After practicing law in Washington State for more than 20 years, Thomas Kamb misrepresented the existence of a court order to a tribunal and then altered a filed court order to conceal his lie. Although we recognize the gravity of displacing someone of his or her profession, we order Kamb disbarred for his misconduct.

I. FACTS AND PROCEDURAL HISTORY

¶ 2 Kamb was admitted to the Washington State Bar Association (WSBA) in 1987. He primarily practices criminal law, and about 50 percent of his cases arise from alcohol-related driving offenses. This disciplinary action stems from Kamb's representation of a client facing criminal charges and revocation of her driver's license for driving under the influence. A hearing was set in the criminal matter on the morning of May 13, 2008, before Judge David Svaren at the Skagit County District Court. According to Kamb's calendar, Kamb had approximately 20 separate court matters scheduled that day. Before the hearing, Deputy Prosecuting Attorney Sloan Johnson faxed Kamb a plea offer that would allow Kamb's client to plead guilty to the lesser charge of first degree negligent driving. Kamb proposed an order consistent with that offer at the hearing. Johnson consented to the order, and Judge Svaren approved it.

¶ 3 The order did not suppress Kamb's client's breath test results, and Kamb did not request such an order. A suppression order may have precluded the Department of Licensing (DOL) from suspending his client's driving privileges. See Thompson v. Dep't of Licensing, 138 Wash.2d 783, 982 P.2d 601 (1999).

¶ 4 Later that afternoon, Kamb represented the same client in a DOL telephonic hearing before Hearing Officer Lori Provoe. The following exchange took place:

Hearing Officer [Provoe]: Uh, Counsel, will your client be testifying today?

Counsel [Kamb]: No, your Honor. I do, uh, have an exhibit that I want to send you, and it is a copy of a[n] order from the District Court suppressing the breath test in this case.

Hearing Officer: Okay, what's the basis for this suppression?

Counsel: The basis is a lack of foundation.

Hearing Officer: And that's all it says?

Counsel: No. It goes on to say that the, (pause) that uh (pause) the breath test lacks a foundation and that the decision to take the test was not at all a voluntary decision.

Hearing Officer: Okay, um, uh, well I'll have you go ahead and fax it to me following the hearing, and I'll take a look at that and consider that. I'll go ahead and mark that as Exhibit No. 3, as I don't have it in front of me to read the language on it, so I don't—

Counsel (interrupting): We filed it this morning with the Court. I forgot to take a copy so I'm gonna probably fax it [ ] in to you [ ] tomorrow if that's okay.

Hearing Officer: Oh, that's fine, and does it have a Judge's signature on it?

Counsel: It does.

Ex. 18. Provoe adjourned the hearing, but kept the record open to allow Kamb to submit the court order.

¶ 5 After the hearing, Kamb went to the clerk's office at the Skagit County District Court and asked a court clerk for his client's file. Kamb took the file away from the front counter and then wrote “BAC suppressed not a knowing & voluntary decision to take test” on the order that Judge Svaren had approved that morning. Ex. 5. Kamb returned to the counter and asked the clerk for a copy of the order. Having seen Kamb alter the order, however, the clerk refused to make a copy and instead reported the incident to another clerk, who contacted Deputy Prosecuting Attorney Johnson. Johnson asked Kamb to come to his office.

¶ 6 Kamb and Johnson discussed the matter, and Kamb requested that Johnson stipulate to suppression of the breath test results. As a result of their conversation, Johnson believed that the DOL hearing had not yet occurred and did not know that Kamb had already altered the court order. Johnson agreed to suppress the breath test results and sent the clerk an e-mail authorizing her to give Kamb a copy of the order.

¶ 7 When Kamb returned to the court, however, the clerk referred him to Judge Svaren. Kamb told Judge Svaren that he had intended to take a copy of the altered order to Johnson and then to Judge Svaren for their approval. Kamb claimed that he did not intend to do anything underhanded.

¶ 8 Kamb later returned to Johnson's office and said that he was pressed for time that day and wrote on the court order as a shortcut. He also admitted to Judge Svaren that he had made a mistake and apologized to the court administrator.

¶ 9 Kamb did not immediately inform Provoe that his client's breath test results had not been suppressed. Provoe attempted to contact Kamb to ask about the order, and after some “phone tag” they communicated in June 2008. Only then did Kamb inform Provoe that the test results had not been suppressed. Provoe suspended Kamb's client's license for 90 days.

¶ 10 Judge Svaren filed a grievance with the WSBA regarding Kamb's conduct. As a result, the WSBA filed a formal complaint against Kamb charging three counts of professionalmisconduct. Count 1 charges Kamb with misrepresenting the existence of an order suppressing his client's breath test to the hearing officer in violation of RPC 3.3(a)(1), Count 2 charges Kamb with changing Judge Svaren's order in violation of RPC 8.4(b), 8.4(c), and 8.4(d). Count 3 charges Kamb with violating RPC 1.3 (which requires a lawyer to act diligently and promptly) by failing to discuss suppression of the breath test with Johnson before the DOL hearing.

¶ 11 Hearing Officer Donald W. Carter found that the WSBA had proved the allegations by a clear preponderance of the evidence and that the presumptive sanction for counts 1 and 2 was disbarment. The hearing officer also found numerous aggravating factors weighing in favor of adopting the presumptive sanction and no mitigating factors to support a lighter sanction. The disciplinary board adopted the hearing officer's decision by a nine-to-one vote.

II. ANALYSIS

¶ 12 The Washington State Supreme Court is the definitive authority for attorney discipline. In re Disciplinary Proceeding Against Kuvara, 149 Wash.2d 237, 246, 66 P.3d 1057 (2003). But the court gives a hearing officer's findings of fact considerable weight, particularly when they address credibility and veracity of witnesses. In re Disciplinary Proceeding Against Poole, 156 Wash.2d 196, 208–09, 125 P.3d 954 (2006). We recognize “that the hearing officer is in the best position to determine factual findings regarding a lawyer's state of mind and his decision is given ‘great weight’ on review.” In re Disciplinary Proceeding Against Cramer, 165 Wash.2d 323, 332, 198 P.3d 485 (2008) (quoting In re Disciplinary Proceeding Against Longacre, 155 Wash.2d 723, 744, 122 P.3d 710 (2005)). Thus, challenged findings of fact will be upheld if supported by substantial evidence. In re Disciplinary Proceeding Against Marshall, 167 Wash.2d 51, 66, 217 P.3d 291 (2009). “ ‘Substantial evidence exists if the record contains evidence in sufficient quantum to persuade a fair-minded, rational person of the truth of a declared premise.’ ” Poole, 156 Wash.2d at 209 n. 2, 125 P.3d 954 (internal quotation marks omitted) (quoting In re Disciplinary Proceedings Against Bonet, 144 Wash.2d 502, 511, 29 P.3d 1242 (2001)). Unchallenged findings of fact are treated as verities on appeal. Marshall, 167 Wash.2d at 66, 217 P.3d 291.

¶ 13 Disciplinary counsel must prove misconduct by a clear preponderance of the evidence. ELC 10.14(b). “ ‘Clear preponderance’ is an intermediate standard of proof ... requiring greater certainty than ‘simple preponderance’ but not to the extent required under ‘beyond [a] reasonable doubt.’ ” Poole, 156 Wash.2d at 209, 125 P.3d 954 (alteration in original) (internal quotation marks omitted) (citing In re Disciplinary Proceeding Against Allotta, 109 Wash.2d 787, 792, 748 P.2d 628 (1988)).

A. Findings of Fact

¶ 14 Kamb challenges several of the hearing officer's factual findings. “It is incumbent on counsel for the appellant to present argument to the court why specific findings of fact ‘are not supported by the evidence and to cite to the record to support that argument.’ ” In re Disciplinary Proceeding Against Haskell, 136 Wash.2d 300, 311, 962 P.2d 813 (1998) (quoting In re Estate of Lint, 135 Wash.2d 518, 532, 957 P.2d 755 (1998)), Although Kamb fails to offer specific citation to the record, we nonetheless address his challenges and find them wanting.

1. Did Kamb discuss or negotiate the suppression of his client's breath test results prior to the hearing?

¶ 15 Kamb challenges the finding that he failed to discuss or negotiate suppressing his client's breath test results until after the district court hearing. His challenge basically reiterates his version of the facts: he negotiated suppression before the hearing and simply forgot to include the relevant language in the order. But Johnson testified that he was quite certain they did not discuss the suppression issue, and the hearing officer found that Kamb's testimony lacked credibility. The hearing officer's finding is supported by substantial evidence.

2. Did Kamb falsely represent to Hearing Officer Provoe that a valid suppression order existed?

¶ 16 Kamb next challenges the findings that he intended to cause Provoe to believe that a valid suppression order existed at the time of the DOL hearing and that he knew there was no suppression order at the time of the DOL hearing. At the DOL hearing, however, Kamb affirmatively stated that the district court had suppressed the breath test results and even explained the basis of the nonexistent...