In re the Disciplinary Proceeding Against King
In re the Disciplinary Proceeding Against King
Opinion of the Court
¶1 Following a plea of guilty to federal mail fraud, the Washington State Bar Association Disciplinary Board (Board) recommended attorney-appellant Paul King be disbarred. King does not dispute the premise that
FACTS AND PROCEDURAL HISTORY
¶2 Paul King was admitted to practice law in Washington in 1977. In July 2008, King was charged in the United States District Court for the Western District of Washington with five counts of mail fraud in violation of 18 U.S.C. § 1341, based on allegations that he helped an individual fraudulently obtain benefits from the Washington State Employment Security Department. On November 24, 2008, King signed a plea agreement, admitting he was guilty of the charged offense and admitting to the facts necessary to establish the elements of mail fraud. Before entering the plea, King testified under oath that his plea was made knowingly, intelligently, and voluntarily. The trial court entered findings to this effect. King was convicted of mail fraud and sentenced to 10 months of imprisonment, followed by three years of supervised release, and ordered to pay $44,858 in restitution to the Washington State Employment Security Department.
¶3 Based on the conviction, the Washington State Bar Association (WSBA) commenced disciplinary proceedings against King. A disciplinary hearing was held in front of a hearing officer. The hearing officer noted in his written recommendation that King previously had been suspended three times from the practice of law for conduct involving
¶4 While King’s appeal was pending, we ordered his disbarment in an unrelated case decided in June 2010. Disbarment was imposed for, among other things, practicing law while suspended. In re Disciplinary Proceeding Against King, 168 Wn.2d 888, 232 P.3d 1095 (2010) {King I). In part because of our decision in King I, the WSBA filed a motion to decide this case without oral argument. King in turn filed a motion to dismiss the case. We granted the WSBA’s motion to decide this case without oral argument and denied King’s motion to dismiss.
ANALYSIS
¶5 At the outset, it should be made clear that King assigns no error to the hearing officer’s findings of fact. They are therefore treated as verities. In re Disciplinary Proceeding Against Marshall, 167 Wn.2d 51, 66, 217 P.3d 291 (2009) (Marshall II). Nor does King assign error to the presumptive sanction applied here or to the conclusion that there were aggravating factors present but no mitigating factors. His appeal raises only questions of law concerning the fairness of the disciplinary proceedings. Our review is de novo. In re Disciplinary Proceeding Against Whitt, 149 Wn.2d 707, 717, 72 P.3d 173 (2003) (observing that in lawyer disciplinary proceedings, questions of law are reviewed de novo).
A. Should disciplinary counsel have been disqualified?
¶6 King argues disciplinary counsel, Scott Busby, should have been disqualified for lack of appearance of fairness.
¶7 King alleges that Busby had impermissible ex parte contact with the Board. Br. of Att’y at 5. But his argument is based on supposition and conjecture, weaving together a chronology of events from several different proceedings to arrive at the unsupported conclusion that Busby had ex parte contact with the Board. There being no support for King’s argument, we reject it.
¶8 In addition, the hearing officer did not err in declining to rule on King’s motion to disqualify Busby. King served his motion by mail just one day before the hearing officer released his findings of fact and conclusions of law. Clerk’s Papers (CP) at 115. It is not clear that the hearing officer even received the belated motion before he released his findings of fact and conclusions of law.
¶9 King has not demonstrated disciplinary counsel engaged in misconduct warranting disqualification, and the hearing officer did not err in issuing his findings of fact and conclusions of law without ruling on King’s late-filed motion to disqualify.
B. Did the hearing officer fail to settle the transcript in accordance with the Rules for Enforcement of Lawyer Conduct (ELC)?
¶10 King argues the hearing officer failed to properly settle the transcript. Br. of Att’y at 2. But perplexingly, King’s discussion of this issue seems to indicate the transcript was in fact settled.
¶11 In accordance with ELC 11.4(c), King filed a proposed correction to the hearing transcript, moving to strike the word “never” from page 21, line four of the transcript, CP at 96, and the WSBA filed an opposition to King’s proposed correction. CP at 99. Once a proposed correction
[T]he hearing officer, upon review of the proposed corrections and objections, enters an order settling the transcript. Otherwise, the transcript is deemed settled and any proposed corrections deemed incorporated in the transcript.
ELC 11.4(d). The hearing officer took no action on the proposed correction or the WSBA’s objection to it. Thus, under ELC 11.4(d), the transcript is deemed settled and King’s proposed correction is incorporated.
C. Is disbarment properly predicated on King’s guilty plea in federal court where he was not allowed to enter an Alford plea?
¶12 ELC 10.14(c) mandates that a court record of an attorney’s criminal conviction is conclusive evidence of the attorney’s guilt at a disciplinary proceeding. In the underlying criminal case here, King was not allowed to enter an Alford plea as a matter of policy set by the Office of the United States Attorney for the Western District of Washington. Citing to this court’s opinion in Clark v. Baines, 150 Wn.2d 905, 84 P.3d 245 (2004), King argues that an Alford plea would not be conclusive evidence of guilt in a subsequent civil action because in entering an Alford plea, the pleading party does not have a full and fair opportunity to litigate the issues in the underlying criminal case. Br. of Att’y at 23-24 (citing Clark, 150 Wn.2d 905). Thus, argues King, if he had been able to enter an Alford plea, his conviction would not have been conclusive evidence of guilt at his disciplinary hearing. He asks this court to hold that absent the opportunity to enter an Alford plea, a federal plea of guilty should not be conclusive of guilt under ELC 10.14(c).
¶13 King’s request is problematic in the first instance because it seems to assume a prosecutor’s office must offer
¶14 Moreover, the premise of King’s argument is that had he been allowed to enter an Alford plea, then “the factual issue of whether he committed the crime of Mail Fraud as defined by 18 U.S.C. § 1341 would have to be litigated herein to be established as a felony upon which a disbarment or other lawyer discipline could be based.” Br. of Att’y at 25. This is wrong.
¶15 Whatever the basis for King’s conviction, the federal judgment and sentence evidences a felony conviction upon which ELC 10.14(c) operates. We recognize as much in In re Disciplinary Proceeding Against Smith, 170 Wn.2d 721, 246 P.3d 1224 (2011) where we cite to a portion of In re Proceedings for Disbarment of Finch, 156 Wash. 609, 287 P. 677 (1930), explaining a predecessor statute to ELC 10.14(c):
“[The rule] provides that ‘the record of conviction shall be conclusive evidence.’ The purpose of this last quoted clause is apparent. We have no power to review the judgments of the Federal courts and must accept them as binding on us. The legislature, realizing the futility of going behind the record of conviction in any such case, made that record conclusive evidence and we must accept it as such.”
Smith, 170 Wn.2d at 730 (alteration in original) (quoting Finch, 156 Wash, at 610) (quoting Rem. Comp. Stat. § 139-14). Consistent with Smith and Finch, we reject King’s invitation to relitigate his criminal offense.
¶16 King’s reliance on Clark is misplaced. We said in Clark that a defendant who enters an Alford plea has not had a full and fair opportunity to litigate the issues in a criminal action, so principles of collateral estoppel did not preclude the defendant’s malicious prosecution counterclaim as a matter of law. Clark, 150 Wn.2d at 913-17. Even if we were to accept the underlying notion that ELC
¶17 We hold that King’s plea of guilty provided conclusive evidence of guilt under ELC 10.14(c) to support his disbarment.
CONCLUSION
|18 We order King’s disbarment. His arguments regarding misconduct by disciplinary counsel and alleged missteps by the hearing officer are unsubstantiated. We reject his argument concerning the effect of an Alford plea because King was not entitled to enter an Alford plea and the fact of conviction remains. Consistent with Smith, the plea was properly given conclusive effect under ELC 10.14(c) as a collateral consequence of the conviction.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
King makes no argument as to how the deletion of the word “never” in the hearing testimony affected the hearing officer’s conclusions.
Reference
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- In the Matter of the Disciplinary Proceeding Against Paul King, an Attorney at Law
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