166 Wn.2d 594, IN RE DISCIPLINARY PROCEEDING AGAINST VANDERVEEN

[No. 200,569-1. En Banc.]

Argued January 13, 2009. Decided July 16, 2009.

In the Matter of the Disciplinary Proceeding Against A. MARK VANDERVEEN, an Attorney at Law.

A. Mark Vanderveen, pro se.

Kurt M. Bulmer, for attorney.

Christine Gray, for the Bar Association.

En Banc

1 C. JOHNSON, J. -- A. Mark Vanderveen appeals the Washington State Bar Association (WSBA) Disciplinary Board's (Board) recommendation of disbarment arising from his guilty plea for willful failure to file a currency report, a felony, in violation of 31 U.S.C. $$ 5331(a) and 5322(a). The WSBA filed five counts against Vanderveen and sought the presumptive sanction of disbarment. The hearing officer dismissed four counts but found Vanderveen violated two Rules of Professional Conduct, 8.4(b) and 8.4(c), as the WSBA charged in count 5. The hearing officer determined disbarment was the presumptive sanction but found mitigating factors and recommended a three-year suspension. The Board modified several of the hearing officer's findings, including two mitigating factors, and instead recommended disbarment. Vanderveen assigns error to multiple findings and the Board's recommendation of disbarment. We affirm the Board's recommendation.

FACTS

2 On March 1, 2005, former attorney James White asked Vanderveen 1 to represent Wesley Cornett. Cornett was under investigation by the FBI (Federal Bureau of Investigation) for involvement in a major drug ring. White represented Robert Kesling, one of the top men in the drug ring and Cornett's superior. Knowing these facts, Vanderveen agreed to represent Cornett and told him at their first meeting that Cornett's "friends or associates" would pay his attorney fees. Transcript (TR) (Nov. 30, 2007) at 55-56. Cornett agreed. 2

1 Vanderveen was admitted to the Washington State Bar in 1989.

2 Unbeknownst to Vanderveen, Cornett had agreed to be an FBI informant and was already represented by a public defender.

3 White paid Vanderveen $ 20,000 cash in two installments for Vanderveen's representation of Cornett. On March 17, 2005, White left the first cash payment of approximately $ 10,000 in a paper bag in the court chambers at Edmonds Municipal Court, where both White and Vanderveen sat as pro tempore judges. White gave Vanderveen the remaining $ 10,000 cash within a couple of weeks by delivering it to him in a parking lot outside of a bank. According to Vanderveen, White told him "the people [Cornett] works with have given me some money, and I can pass it on to you." TR (Jan. 10, 2007) at 346.

4 Vanderveen's ordinary business practice with regard to receipt of legal fees in the form of cash was to deposit them in the bank on the same day he received them, photocopy the payments for his records, and enter them into his Quickbooks accounting system. When he received White's cash payments, Vanderveen did not follow his ordinary practice. Instead, he placed each of the payments in his home safe. TR (Jan. 9, 2007) at 141-42. Further, Vanderveen failed to report the receipt of the cash payments as required by 31 U.S.C. $$ 5331(a) and 5322.

5 In exchange for the $ 20,000 he received from White, Vanderveen represented Cornett beginning in early March 2005. During that time, Vanderveen acceded to requests from White, on behalf of Kesling, to help them get information from or about Cornett. 3 For example, Vanderveen helped White conduct surveillance of Cornett without Cornett's knowledge or approval. WSBA Answering Br. at 5; TR (Jan. 8, 2007) at 83-84. With Vanderveen's assistance White had Cornett followed to discover if Cornett had taken a trailer full of marijuana or was cooperating with law enforcement. WSBA Answering Br. at 6; TR (Jan. 8, 2007) at 62, 74; TR (Jan. 11, 2007) at 523.

3 We include only those facts directly relevant to the challenged findings and count 5.

6 In early May 2005, federal authorities informed White he was under investigation for involvement in Kesling's drug ring. White agreed to cooperate with authorities and recorded a phone conversation between him and Vanderveen in which they discussed the cash payments White made to Vanderveen and Vanderveen's failure to report them. 4 As a result, on July 22, 2005, Vanderveen was charged with and entered a guilty plea to violations of 31 U.S.C. $$ 5331(a) and 5322. Section 5331(a) requires persons in trade or business, such as lawyers, to report the receipt of more than $ 10,000 cash in one transaction (or two or more related transactions) in connection with that trade or business. Section 5322(a) makes it a felony for a person to "willfully" violate the reporting requirement. 5

4 This conversation can be found in exhibit 126B and in part in Respondent's Brief at 7-8.

5 The report is made to the Financial Crimes Enforcement Network; it is designed to assist law enforcement officers in the detection of criminal activity. WSBA Answering Br. at 15-16.

7 The court imposed a three-month prison sentence to be followed by home detention. WSBA Answering Br. at 11. After serving his prison term, Vanderveen served his 90-day home detention during which he was required to wear an ankle bracelet. Near the end of his detention, Vanderveen asked his probation officer if he could cut off his ankle bracelet. Although the officer refused the request, Vanderveen removed his bracelet and left his home on the last day of his detention. Due to this probation violation, Vanderveen was sentenced to 6 additional days in prison and 30 additional days in home detention.

PROCEDURAL HISTORY

8 On July 27, 2005, the WSBA filed disciplinary charges against Vanderveen. The WSBA initially charged Vanderveen with five counts. The hearing officer dismissed four counts. Findings of Fact (FF) and Conclusions of Law (CL) and Recommendations 31, 32, 33, and 34. However, he found Vanderveen violated two of the three RPCs in count 5, arising from his guilty plea to violations of 31 U.S.C. $$ 5331(a) and 5322. Count 5 reads:

By committing the acts that resulted in the guilty plea to failing to file a currency transaction report (IRS form 8300), as set forth above, Respondent violated RPC 8.4(b), RPC 8.4(c), and/or RPC 8.4(i). [6]

The hearing officer found Vanderveen violated RPC 8.4(b) because his act "adversely reflects on his honesty, trustworthiness or fitness as a lawyer." He found Vanderveen had violated RPC 8.4(c) because his act consisted of "dishonesty" in that it reflected "untrustworthiness and a lack of integrity." However, the hearing officer found that Vanderveen had not violated RPC 8.4(i) because the act did "not involve moral turpitude, corruption, an unjustified act of assault or other act which reflects disregard for the law." CL 35.

6

RPC 8.4: MISCONDUCT

It is professional misconduct for a lawyer to:

. . . .

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

. . . .

(i) commit any act involving moral turpitude, or corruption, or any unjustified act of assault or other act which reflects disregard for the rule of the law . . . .

9 The hearing officer found that Vanderveen's mental state arising from his conviction was "willful" and that willful meant "intentional" conduct. The hearing officer then determined the presumptive sanction for each violation by applying the American Bar Association (ABA) Standards for Imposing Lawyer Sanctions (1991). Under standard 5.11(b), the presumptive sanction is disbarment for violations of RPC 8.4(b) and 8.4(c) because they involve "intentional conduct" and "dishonesty." The hearing officer found one aggravating factor: substantial experience in the practice of law. He also found five mitigating factors: absence of a disciplinary record, full and free disclosure, remorse, character or reputation, and a mitigator related to Vanderveen's guilty plea of "willful" conduct. Based on the aforementioned mitigators, the purposes of discipline, and the notion of "individualized justice," the hearing officer recommended a three-year suspension.

10 On appeal, the Board agreed with the hearing officer's dismissal of counts 1-4. However, it modified two findings of fact relating to those dismissed counts. FF 25, 26. 7 With regard to count 5, the Board struck the hearing officer's finding of two mitigating factors, one relating to character or reputation and the other to Vanderveen's state of mind in his plea agreement. The Board also changed the sanction to disbarment by a 10 to 1 vote.

7 The Board modified FF 25 and 26, but it did not modify the conclusions of law relating to those findings.

11 Vanderveen appeals to this court, asking us to consider the appropriate sanction. He assigns several errors to the findings and conclusions, namely to: the Board's modifications of the hearing officer's findings, 8 the Board's and hearing officer's finding that he acted "intentionally," 9 the application of Rules for Enforcement of Lawyer Conduct 10.14(c), the Board's and the hearing officer's findings he acted "dishonestly," 10 the Board's and the hearing officer's application of standard 5.11(b), 11 and the Board's recommendation of disbarment.

8 FF 25, 26, 29.

9 FF 36; CL 40.

10 CL 35.

11 CL 37.

ANALYSIS

[1, 2] 12 This court bears the ultimate responsibility for lawyer discipline in Washington. The court will give great weight to the hearing officer's findings of fact. This court will not disturb findings of fact made on conflicting evidence, and it will uphold findings of fact that are supported by substantial evidence. Substantial evidence is evidence in sufficient quantum to persuade a fair-minded, rational person of the truth of a declared premise. In re Disciplinary Proceeding Against Poole, 156 Wn.2d 196, 208-09, 125 P.3d 954 (2006).

[3-5] 13 The court reviews conclusions of law de novo, and it will uphold those conclusions if they are supported by the findings of fact. We also review sanction recommendations de novo but generally affirm the Board's sanction recommendation unless we can articulate a specific reason to reject it. In re Disciplinary Proceeding Against Guarnero, 152 Wn.2d 51, 60, 93 P.3d 166 (2004).

A. Challenged Findings of Fact Related to Dismissed Counts

[6] 14 Vanderveen assigns error to the Board's modification of two related findings, FF 25 12 and 26, 13 but he explicitly excludes detailed argument regarding the findings because they relate to dismissed counts. 14 Although the WSBA does not argue that the hearing officer erred in dismissing the counts that relate to these findings, it contends that substantial evidence does not exist to support the findings of fact. In light of Vanderveen's deliberate omission of persuasive argument on this point, we find that the Board properly struck FF 25 and 26. 15

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