In re Muenster

195 Wash.2d 276

457 P.3d 1139

In the MATTER OF John Rolfing MUENSTER, Lawyer.

No. 201,872-6

Supreme Court of Washington.

Filed FEBRUARY 20, 2020

As Amended on Denial of Motion for Reconsideration MARCH 26, 2020

John Rolfing Muenster, Pro Se.

Joanne S. Abelson, Scott G. Busby, Washington State Bar Association, 1325 4th Avenue, Suite 600, Seattle, WA 98101-2539, for Respondent.

WIGGINS, J.

¶ 1 The issue before this court is whether the Disciplinary Board (Board) of the Washington State Bar Association (WSBA) sustainably declined sua sponte review of the hearing officer’s decision in this case. We affirm the Board’s order declining sua sponte review, adopting the hearing officer’s decision, and ordering that John Rolfing Muenster be disbarred and that he pay restitution with interest as set forth therein. See Administrative R. (AR) at 22 (Findings of Fact, Conclusions of Law and Hearing Officer’s Recommendation).

FACTS AND PROCEDURAL HISTORY

¶ 2 Muenster was admitted to the practice of law in Washington in 1975. In 2016, he was subjected to disciplinary proceedings. These proceedings concerned his mismanagement and conversion of client funds.

¶ 3 In common with many lawyers, Muenster maintained a trust account for processing collections, distributing funds, and other functions. AR at 8.¹ Muenster maintained the account himself, making bank deposits and withdrawing funds. Id. Significantly, Muenster’s trust account contained funds belonging to several clients, as well as funds belonging to Muenster. Id. at 9.

¶ 4 The WSBA’s Office of Disciplinary Counsel (ODC) brought a formal complaint against Muenster in July 2016, alleging six counts of violations of the Rules of Professional Conduct (RPCs). Id. at 1-3. The hearing took place on April 23-26, 2018. Id. at 5. The hearing included six counts brought by the ODC and six counts brought by Douglas Myser, one of Muenster’s clients. Id.

¶ 5 The first six counts against Muenster stemmed from his management of client funds. From 2011 through 2015, Muenster "did not maintain individual client ledgers or equivalent records for each client that identified the purpose for which the client’s funds were received, disbursed, or transferred," and other information. Id. at 8. Nor did he "reconcile his trust account check register balance to his bank statements on a monthly basis," and he "did not keep copies of his reconciliation reports" on the occasions when he did reconcile the check register with the bank statements. Id. at 9. He thus "did not, and could not, reconcile his check register to the total of the balances on his client ledgers because he did not maintain client ledgers for all his clients." Id. "As a result of these deficiencies, [Muenster] could not always be certain that his trust account actually contained the amount of money reflected in his check register, and one could not readily identify whose funds were in the account at any given moment." Id. He also repeatedly withdrew funds from the trust account "as he needed the funds, e.g., to pay bills." Id. at 10. Over the course of one year, he appropriated approximately $100,000 in this manner. Id.

¶ 6 The second six counts against Muenster stemmed from his interactions with his client Myser beginning in 2012. Id. at 10-11. Muenster entered into a fee agreement with Myser in early 2012. Id. at 11. "Because the agreement did not include the requirements set forth in RPC 1.5(f)(2), Myser’s payments were not [Muenster’s] property upon receipt." Id. Nor were they a retainer. Id. Rather, "[u]nder RPC 1.5(f), RPC 1.15A(c)(2) and (h)(3)[,] [Muenster] was required to deposit and hold Myser’s payments [to Muenster as his attorney] in trust until the fees were earned and billed, or the expenses had been incurred." Id. This Muenster failed to do. Id. Instead, he deposited a number of Myser’s checks not into the trust account, as required, but into his own bank account. Id. He did not keep track of Myser’s funds and provided Myser with no notice whatsoever to inform Myser that he was withdrawing Myser’s funds. Id. In total, between December 1, 2013 and November 30, 2014, Myser sent Muenster $70,000 for fees—which Muenster had requested from him in excess of the $45,000 maximum in their fee agreement—and $28,000 for costs and expenses. Id. at 13-14. Yet at the end of that period, owing to Muenster’s withdrawals, the trust account held only $528.43. Id. Muenster never informed Myser of his withdrawal of Myser’s funds. Id. at 14.

¶ 7 Muenster did not ultimately keep every dollar he had received from Myser. Of the $28,000 Myser had sent him for costs and expenses, Muenster appropriated $20,000. Id. Muenster used $1,330.14 for costs and expenses, while he returned to Myser a $6,000 check Myser had written out to him. Id. He later mailed another $1,558.09 check to Myser. Id. at 17.

¶ 8 The hearing officer issued her "Findings of Fact, Conclusions of Law and Hearing Officer’s Recommendation" on December 4, 2018. The hearing officer concluded that the ODC proved ail 12 counts by "a clear preponderance the evidence." Id. at 18. She also concluded that six aggravators were applicable in this case: "dishonest or selfish motive," "a pattern of misconduct," "multiple offenses," "refusal to acknowledge wrongful nature of conduct," "substantial experience in the practice of law," and "indifference making restitution." Id. at 21. The hearing officer found one applicable mitigating factor: the "absence of a prior disciplinary record." Id. The hearing officer recommended that "Muenster be disbarred, and that he be ordered to pay restitution in the amount of $44,111.77,^{[2 ]} with 12% interest calculated from the date Myser terminated Respondent's services, i.e., March 23, 2015." Id. at 22.

¶ 9 Muenster filed a notice of appeal to the Board. Id. at 24. However, he failed to file a timely opening brief. Id. at 57 (WSBA Disciplinary Bd. Order Dismissing Appeal). The ODC successfully moved to dismiss his appeal under ELC 11.9(b)(2), which states that "[f]ailure to file an opening brief within the required period constitutes an abandonment of the appeal."

¶ 10 After the dismissal of the appeal for failure to timely file an opening brief, the matter next went to the Board. In this case, the Board declined sua sponte review and unanimously adopted the hearing officer’s decision 8 to 0. AR at 59 (Disciplinary Bd. Order Declining Sua Sponte Review & Adopting Hr’g Officer’s Decision).

¶ 11 Pursuant to ELC 13.9, the ODC also assessed costs and expenses against Muenster, in an amount of $11,312.13. Order Assessing Costs and Expenses, In re Muenster , Pub. File No. 16#00008 (WSBA Disciplinary Bd. July 16, 2019).

¶ 12 Muenster filed a notice of appeal to this court on May 30, 2019. AR at 197.

STANDARD OF REVIEW

¶ 13 "This court has plenary authority to determine the nature of lawyer discipline." In re Disciplinary Proceeding Against Cramer , 168 Wash.2d 220, 229, 225 P.3d 881 (2010). "This court bears the ultimate responsibility for lawyer discipline in Washington." In re Disciplinary Proceeding Against Vanderveen , 166 Wash.2d 594, 604, 211 P.3d 1008 (2009). We have, however, "delegated specific responsibilities" of managing lawyer discipline to the WSBA. Cramer , 168 Wash.2d at 229, 225 P.3d 881.

¶ 14 We review conclusions of law de novo and uphold them if they are supported by findings of fact. In re Disciplinary Proceeding Against Conteh , 187 Wash.2d 793, 800, 389 P.3d 591 (2017) (quoting Vanderveen , 166 Wash.2d at 604, 211 P.3d 1008 ). "This court also reviews sanction recommendations de novo, but will generally affirm the Board’s sanction recommendation unless the court can articulate a specific reason to reject it." Id. Nevertheless, "a hearing[ ] officer’s unchallenged findings of fact are treated as verities on appeal." Id. (citing In re Disciplinary Proceeding Against Marshall , 167 Wash.2d 51, 66, 217 P.3d 291 (2009) ). Further, we generally defer to the Board’s decisions, especially when the Board’s decision is unanimous. Id. (citing Vanderveen , 166 Wash.2d at 616, 211 P.3d 1008 ).

ANALYSIS

I. The Board sustainably declined sua sponte review

¶ 15 In the past, when an attorney has appealed the Board’s decision declining sua sponte review, we treated the sustainability of the Board’s decision as the sole issue on appeal. Id. ; see also In re Disciplinary Proceeding Against Osborne , 187 Wash.2d 188, 196, 386 P.3d 288 (2016) (same). We do the same here and treat the issue of whether the Board sustainably declined sua sponte review as the sole issue on appeal.

¶ 16 "The Board should order sua sponte review only in extraordinary circumstances to prevent substantial injustice or to correct a clear error." ELC 11.3(d). The attorney facing discipline has the burden of proving the sanction is erroneous. Conteh , 187 Wash.2d at 800, 389 P.3d 591 (citing Vanderveen , 166 Wash.2d at 616, 211 P.3d 1008 ). Muenster does not meet this burden. He presents no argument why the Board erred in declining sua sponte review. He does not argue the circumstances are extraordinary or that review is necessary to prevent a substantial injustice or to correct a clear error. See ELC 11.3(d). Without any argument that sua sponte review was necessary, Muenster cannot prevail. See Conteh , 187 Wash.2d at 800, 389 P.3d 591 (citing Vanderveen , 166 Wash.2d at 616, 211 P.3d 1008 ).

¶ 17 Muenster does claim to challenge the hearing officer’s findings of fact. Pet’r/Appellant’s Reply Br. at 9. However, he asserts, without explanation, only that the "proposed findings are incorrect." Id. (boldface omitted). He also refers to "the contents of the Answer and Affirmative Defenses to the first amended complaint." Id. This document is not in the record. He asserts that "[t]estimony given by [Muenster] and Andi Knight and exhibits... should have been considered." Id. at 10. There is no indication of to what or to whom this refers, and no such document can be found in the record. In any event, ...