       FI L~E                                           This opinion was hied for record
       IN CLERKS OFFICE
•UPRBE COURT. STATE OF WASM!7IGT0N
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        cmEFJuanca                                            6i^

                                                                       L CARLSON
                                                         SUPREME COURT CLERK


       IN THE SUPREME COURT OF THE STATE OF WASHINGTON




  In the Matter ofthe Disciplinary                   No. 201,639-1
  Proceeding Against

  CARLLENE M.PLACIDE,                                En Banc


                    an Attorney at Law.
                                                     Filed           APR 1 2 2018


           JOHNSON,J.—Attorney Carllene M. Placide appeals the unanimous

  recommendation of the Washington State Bar Association Disciplinary Board

 (Board)that she be disbarred from the practice oflaw. The misconduct charged

  includes misappropriation, repeated lying, failure to deposit flat fees received from

  clients into a trust account, failure to deliver property to which a third party was

  entitled, and charging an unreasonable fee. We uphold the Board's unanimous

  recommendation and disbar Placide.


                                     Facts and Procedural History


           Placide was admitted to the practice of law in 1999. In November 2006,

  Placide joined the law firm of Dorsey & Whitney LLP as a "non-equity" partner
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


with base yearly compensation of $225,000. Decision Papers(DP)at 51 (Hr'g

Officer's Am. Findings of Fact, Conclusions of Law,& Recommendation

(AFFCLR)). Placide's practice emphasized labor and employment law and

immigration law. Dorsey had a firm policy stating that all compensation received

by Dorsey partners, associates, or other attorneys was property ofthe firm. That

policy states, in relevant part:

       Checks for legal services should be made payable to the Firm, and in
       any instance in which a check for legal or any other services
       representing compensation which is the property ofthe Firm is made
       payable to an individual payee, it should be endorsed immediately by
       the individual payee to the order ofthe Firm and delivered to the
       Finance Department with the Check for Deposit form. Similarly, any
       cash or other property representing any such compensation should be
       delivered immediately to the Finance Department with the appropriate
       identification.


Office of Disciplinary Counsel's(GDC)Ex. A-109, at 20, Placide knew ofthese

policies and agreed to comply with them by signing the offer of employment letter.

For several years prior to 2011 and while a partner at Dorsey, she represented

individual immigration clients who hired her personally (outside clients) and who

paid her directly. She failed to disclose the existence ofthese clients to Dorsey.

Placide attempted to conduct conflict checks, but those attempts were "wholly

inadequate." DP at 53(AFFCLR). She retained the funds she received as

compensation from her outside clients instead of turning them over to Dorsey. She

represented outside clients on a flat fee basis, with fees and expenses paid in
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


advance, Placide's engagement letters or agreements with outside clients failed to

include the language required by RPC 1.5(f)(2) in order to designate such fees as

the lawyer's property on receipt. She failed to deposit funds she received from

outside clients in a trust account as required by RPC 1.5(f) and RPC 1.15A(c)(2);

she did not have an interest on lawyer's trust account and either retained or

deposited into a personal bank account all such payments. On at least one occasion,

Placide was unable to refund unearned fees to a client because she failed to deposit

and hold those funds in a trust account.


       Placide occasionally used Dorsey's office space, equipment, e-mail,

letterhead, and the time and labor of Dorsey employees when working on outside

client matters. She attempted to conceal her representation of outside clients while

at Dorsey. In November 2011, Dorsey representatives learned about Placide's

outside clients. Dorsey's internal investigation revealed that Placide had received

more than $56,700 in fees from outside clients. At a November 8, 2011 meeting

with Dorsey representatives, Placide repeatedly denied representing outside clients.

Each time the Dorsey administrators presented Placide with an e-mail or other

document that showed her contact with outside clients, she would admit to

representing that client, but no others. Placide claims that "under the pressure of

the moment some of her statements were inaccurate but denies there was any intent

to deceive." Opening Br. of Appellant at 4-5.
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


       Dorsey terminated its relationship with Placide around November 14, 2011.

The separation agreement shows that Placide agreed to repay Dorsey $50,923 by

December 30, 2012, a sum that included $56,700 in fees that Placide received from

outside clients and also certain benefits that Placide had already received from

Dorsey, less any November partnership income already paid to Placide. Dorsey

filed an ethics complaint against Placide, alleging that Placide operated her off-the-

books practice from Dorsey's Seattle office, made significant efforts to hide the

practice from others in the office, was dishonest, and violated trust account

procedures for unearned fees.

       Placide did not complete the work she agreed to perform for client P.S., an

outside client, before her separation from Dorsey. P.S. paid a $2,500 flat fee to

Placide to perform work on an immigration matter. Dorsey attorneys completed the

work instead. After learning that other Dorsey attorneys had completed the work,

Placide asked P.S. if she should return his fee, and P.S. indicated that he wanted

Placide to give the fee to Dorsey. Placide nevertheless did not return those funds to

Dorsey, claiming that the funds were covered by the above-referenced separation

agreement.

       Prior to November 2011, and while still a partner at Dorsey, Placide was in

contact with the law firm of Ogletree, Deakins, Nash, Smoak & Stewart regarding

potentially leaving Dorsey and joining Ogletree. Although Placide believes she
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


was terminated by Dorsey at least in part because Dorsey found out about her

intention to move her practice to Ogletree, the hearing officer found no evidence

that Dorsey was aware of Placide's contacts with that firm. Placide falsely told

Ogletree representatives that Dorsey had terminated her because it had learned of

her discussions about moving her practice to Ogletree. In December 2011, Placide

accepted employment with Ogletree as a shareholder. While Ogletree had no

written policy prohibiting shareholders from representing clients in legal matters

outside of the firm, it intended and expected its shareholders to provide legal

services exclusively for Ogletree clients. The hearing officer found that Placide

knew of this expectation but began representing outside clients as she had at

Dorsey, and had performed legal services for at least seven outside clients.

       Placide received fees equal to at least $10,000 from outside clients while at

Ogletree, did not disclose those clients to Ogletree, and did not maintain a trust

account to hold those outside clients' payments. She deposited all fees into her

personal bank account. She did not perform conflict checks before representing

those clients; no evidence exists that her client engagement letters complied with

RPC 1.5(f)(2). Placide did not discuss with her outside clients, either at Dorsey or

Ogletree, whether their fees would be placed in a trust account, where the funds

would be deposited, or the fact that their flat fee arrangement did not alter the

client's right to terminate the client-lawyer relationship. In November 2012,
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


Dorsey notified Ogletree that it had filed an ethics complaint against Placide.

When Ogletree's general counsel contacted Placide to discuss the Dorsey ethics

complaint, Placide repeatedly lied, stating that Dorsey had approved her

representation of outside clients and that Dorsey terminated her because it became

aware ofthe discussions with Ogletree regarding potential employment.

       Ogletree requested that Placide provide a copy of her Dorsey separation

agreement, reviewed Placide's Ogletree e-mails, and discovered that Placide had

performed legal services for at least seven or eight outside clients. Ogletree

representatives then met with Placide without disclosing the purpose of the

meeting in advance. At that meeting, Placide acknowledged that she knew she was

prohibited from representing outside clients while at Ogletree, initially denied

representing outside clients while at Ogletree, and then admitted to representing

outside clients when shown documentary evidence.

       In January 2013, Placide and Ogletree entered into a settlement agreement,

in which Placide promised to pay to Ogletree a specified amount based on the

payments she received from her outside clients. The hearing officer noted that

Placide had made no payments pursuant to the agreed-upon schedule as ofthe time

ofthe disciplinary hearing.

       The ODC charged Placide with eight counts of misconduct:
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


       Count 1: "By unlawfully appropriating funds belonging to Dorsey,
       Respondent violated RFC 8.4(b) by committing crimes oftheft(RCW
       9A.56.040 and/or RCW 9A.56.050 and/or RCW 9A.56.060), and/or
       violated RFC 8.4(c), and/or violated RFC 8.4(i)."

       Count 2:"By misrepresenting the extent of her 'off-the-books'
       practice to Dorsey personnel, Respondent violated RFC 8.4(c)."

       Count 3:"By failing to deposit advance flat fees in trust, as is required
       in the absence of a flat fee agreement that conforms with RFC
       1.5(f)(2), Respondent violated RFC 1.15A(c)(2)."

       Count 4:"By failing to return unearned portions of[client F.S.j's fee
       on termination ofrepresentation and/or in failing to promptly return
       unearned portions of Client A's fee, Respondent violated RFC
       1.15A(f) and/or RFC 1.16(d)."

       Count 5:"By keeping $2,500 in legal fees paid to her by [client F.S.]
       without performing the work she agreed to perform on his behalf.
       Respondent charged an umeasonable fee in violation of RFC 1.5(a)."

       Count 6:"By unlawfully appropriating funds belonging to Ogletree,
       Respondent violated RFC 8.4(b) by committing crimes oftheft(RCW
       9A.56.040 and/or RCW 9A.56.050 and/or 9A.56.060), and/or violated
       RFC 8.4(c), and/or violated RFC 8.4(i)."

       Count 7:"By misrepresenting to Ogletree that she did not represent
       outside clients while employed at Ogletree and/or the number of
       outside clients she represented while at Ogletree, Respondent violated
       RFC 8.4(c)."

       Count 8:"By failing to deposit advance flat fees in trust, as is required
       in the absence of a flat fee agreement that conforms with RFC
       1.5(f)(2), Respondent violated RFC 1.15A(c)(2)."

DF at 37-38, 42, 43 (First Am. Formal Compl.(FAFC)).
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


       Following the disciplinary hearing, Hearing Officer Carl Carlson entered his

findings of fact, conclusions oflaw, and recommendation, which he later amended.

The hearing officer found that Placide was not a credible witness in part based on

her denying any knowledge ofthe Dorsey policies about representing outside

clients or turning all fees for legal services over to the firm, her belief that she was

permitted to perform legal services for outside clients while at Ogletree, her efforts

to conceal those clients from both firms, and her denials of such representation

when questioned by Dorsey and Ogletree representatives.

       For counts 1 and 6 (theft), the hearing officer concluded that Placide's legal

services she provided to outside clients did not become '"property of another,'"

and although her conduct in performing services for outside clients "breached her

contractual and fiduciary duties to her respective law firms," it did not constitute

"the theft of her services." DP at 68,69(AFFCLR). The hearing officer also found

that "the outside clients ... intended to hire [Placide] personally" and "intended to

pay their fees directly to [Placide]. . . with one exception,'' and that although the

firms "owned the contractual right to be paid all ofthe fees," the firms "did not

own the fees themselves before they were turned over to the firm." DP at 69

(AFFCLR)(emphasis added). The hearing officer concluded that Placide's "receipt

and retention offees for her legal services to outside clients breached her
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


contractual obligations and fiduciary duties to Dorsey and Ogletree, but did not

constitute the crime of theft." DP at 70(AFFCLR).

       As related to the exception in count 1 (theft from Dorsey), the hearing

officer concluded that Placide "acted knowingly in committing the crime oftheft

by exerting unauthorized control over the $2,050 of client P.S.'s fee which was not

covered by Respondent[']s Settlement Agreement with Dorsey, and by

appropriating $2,050 of that fee which had been misdelivered to her." DP at 73

(AFFCLR). The hearing officer concluded that standard 5.L of the American Bar

Association's Standardsfor Imposing Lawyer Sanctions(1991 & Supp. 1992)

applied to Placide's actions, but concluded that the presumptive sanction is

suspension over disbarment per ABA Standards std. 5.12 because Placide's

"failure to turn $2,050 of Client P.S.'s fee over to Dorsey [could not] be

characterized as 'serious criminal conduct.'" DP at 74(AFFCLR).

       For counts 1, 2, 6, and 7(dishonesty, deceit, misrepresentation), the hearing

officer concluded that Placide acted knowingly in committing conduct involving


       ^ ABA Standards std. 5.11 states that "[djisbannent is generally appropriate when:(a) a
lawyer engages in serious criminal conduct, a necessary element of which includes intentional
interference with the administration ofjustice, false swearing, misrepresentation, fraud,
misappropriation, extortion, or theft . ..; or(b) a lawyer engages in any other intentional conduct
involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the
lawyer's fitness to practice."
        ABA Standards std. 5.12 states that "[sjuspension is generally appropriate when
a lawyer knowingly engages in criminal conduct which does riot contain the elements
listed in Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to
practice."
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


dishonesty, deceit, and misrepresentation. The hearing officer concluded that

Placide's conduct caused Dorsey and Ogletree actual and potential injury and that

Placide's "ongoing pattern of dishonesty, deceit and misrepresentations was so

extensive and consistent that it 'seriously adversely reflects on the lawyer's fitness

to practice.'" DP at 76(AFFCLR). The hearing officer applied ABA Standards std.

5.11(b) in concluding that the recommended sanction for these violations is

disbarment.


       For counts 3 and 8 (trust account violations), the hearing officer found that

Placide, by failing to deposit client flat fee payments into a trust account and not

providing clients with the information and disclosures required by RFC 1.5(f)(2),

was negligent and violated RPC 1.15A(c)(2). The hearing officer concluded that

Placide's violations caused clients actual injury (inability to refund unearned fees)

and potential injury(exposure to risk ofinability to timely refund unearned fees).

The hearing officer applied ABA Standards std. 4.1 and concluded that the

presumptive sanction for these violations is a reprimand.

       For count 4(failure to return property), the hearing officer concluded that

Placide knowingly failed to deliver $2,050 of client P.S.'s fee to Dorsey after client

P.S. told Placide to do so, causing Dorsey actual injury and thereby violating RPC

1.15A(f). The hearing officer further concluded that ABA Standards std. 4.12




                                             10
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


(dealing improperly with client property) applied, and that the presumptive

sanction for this violation is suspension.

       For count 5 (charging unreasonable fee), the hearing officer concluded that

Placide knowingly retained client P.S.'s $2,500 in fees without performing the

work to earn the fees, thereby charging an umeasonable fee in violation ofRPC

1.5(a). The hearing officer applied ABA Standards std. 7.2 in concluding that the

presumptive sanction is suspension.

       The hearing officer considered the following aggravating factors set forth in

ABA Standards std. 9.22:(1) dishonest or selfish motive,(2)pattern of

misconduct,(3) multiple offenses,(4)false statements or other deceptive practices

during the disciplinary process,(5)refusal to acknowledge wrongful nature of

conduct,(6)substantial experience in the practice oflaw, and (7)indifference to

making restitution. The hearing officer concluded that the first factor considered—

dishonest or selfish motive—did not apply. The hearing officer found (1)Placide's

absence of a prior disciplinary record and (2) her timely good faith effort to make

restitution as applied to count 5 only, to be mitigating factors.

       The hearing officer recommended that Placide be disbarred. The Board

voted unanimously to adopt the hearing officer's decision. The Board noted that

"the existence of a contractual or fiduciary duty between Placide and the partners

at Dorsey and/or Ogletree [was] not necessary to establish the violations and to the


                                             11
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


Board's decision." Bd. Order Adopting Hr'g Officer's Decision (Board Order) at

1-2. The Washington State Bar Association(WSBA)then petitioned this court for

an interim suspension ofPlacide under ELC 7.2(a)(2), which we granted.

         Placide now appeals. In her opening brief, Placide makes 11 assignments of

error.



                                           Issues


       1.    Does Placide's conduct identified in counts 1 and 6 qualify as an
"intrapartnership dispute" not susceptible to the Board's or this court's disciplinary
authority?

      2.    Did the Board correctly determine that Placide knew about Dorsey's
and Ogletree's policies regarding representation of outside clients?

      3.     Did the Dorsey separation agreement release Placide from her
obligation to repay $2,050 she received from client P.S. for legal work not
performed?

         4.    Did the Board correctly determine that RCW 9A.56.020(1) applies to
the theft at issue in count 1?


      5.    Did the Board correctly determine that under RPC 1.5(a), Placide
charged an unreasonable fee by never performing legal services client P.S. was
entitled to receive?


      6.     Did counts 1 and 6 give Placide sufficient notice of the charges
against her?

      7.     Did the Board correctly determine that Placide engaged in conduct
involving dishonesty, fraud, deceit, or misrepresentation regardless of the existence
of policy manuals or firm policies at Dorsey and Ogletree?

         8.    Was the Board's recommendation of disbarment for counts 2 and 7
disproportionate?


                                              12
In re Discipline ofPlacide (Carllene M.), No. 201,639-1




      9.     Does the challenged aggravating factor offalse statements or other
deceptive practices during the disciplinary process apply?

      10. Did the hearing officer properly exclude Placide's proposed
testimony about her conversation with the "Ethics Hotline" under APR 19(e)(5)?

      11. Did the hearing officer apply the correct standard to determine the
presumptive sanctions for counts 1, 2, 6, and 7?

                                         Analysis


       Standard ofReview

       This court is the definitive authority for attorney discipline. In re

Disciplinary Proceeding Against Kuvara, 149 Wn.2d 237, 246,66 P.3d 1057

(2003). Unchallenged findings offact are verities on appeal. In re Disciplinary

Proceeding Against Marshall, 160 Wn.2d 317, 330, 157 P.3d 859(2007)

{Marshall I). Where challenged, this court will uphold those findings provided they

are supported by substantial evidence.In re Disciplinary Proceeding Against

Guarnero, 152 Wn.2d 51, 58, 93 P.3d 166(2004). We recognize "that the hearing

officer is in the best position to determine factual findings regarding a lawyer's

state of mind and his [or her] decision is given 'great weight' on review."In re

Disciplinary Proceeding Against Cramer, 165 Wn.2d 323, 332, 198 P.3d 485

(2008)(quoting/« re Disciplinary Proceeding Against Longacre, 155 Wn.2d 723,

744, 122 P.3d 710 (2005)). We review conclusions oflaw de novo, and when the

Board is unanimous with regard to the recommended sanction, we will uphold its


                                              13
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


decision absent a clear reason for departure. In re Disciplinary Proceeding Against

Fossedal, 189 Wn.2d222, 233, 399 P.3d 1169 (2017).

       1. Placide's conduct does not qualify as an intrapartnership dispute, and her
           reliance on In re Disciplinary Proceeding Against Rice^ to characterize it
           as such is unavailing

       Placide argues that her conduct at Dorsey and Ogletree stemmed from an

"intrapartnership accounting" dispute and argues that counts 1 and 6 should be

dismissed because "[b]ar proceedings are not the place for unhappy partners and

shareholders to fight about their contractual differences which was the point of

RiceP Opening Br. of Appellant at 15. She asserts that there is nothing inherently

improper about a partner/shareholder having outside clients and keeping the fees.

       GDC responds that the inquiry's focus is on whether Placide's conduct

"violated the RPC, not whether it resulted in a dispute with her law partners."

Answering Br. of GDC at 22. It cites to In re Disciplinary Proceeding Against

Selden^ as well as out-of-state case law for the proposition that this court and

courts in other states have adjudicated similar violations and disbarred lawyers for

misappropriating funds from their law firms.

       In Rice, a "member" of a law firm that was organized as a public service

corporation was suspended by the Board for "allegedly appropriat[ing] legal fees



       2 99 Wn.2d 275, 661 P.2d 591 (1983).
       ^ 107 Wn.2d 246, 728 P.2d 1036(1986)(plurality opinion).

                                              14
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


for his personal use without aecounting for use ofthose funds to his law firm

partners." Rice, 99 Wn.2d at 275-76. Rice's alleged misconduct involved taking

"monies paid to him as legal fees for work he had done for his personal use and

fail[ing] to account to the law firm for the receipt ofthese funds." Rice, 99 Wn.2d

at 276. This court disagreed with the Board's recommendation of suspension,"^

citing several factors:(1)the case did not involve "misappropriation of client

funds" but rather "internal problems of a law firm,"(2)there was "no showing that

Mr. Rice demonstrated an intent to permanently deprive the partnership ofthe

disputed funds," and (3)"according to the record ..., his behavior was not out of

character with the nature of the firm's accounting procedures." Rice, 99 Wn.2d at

277-79. We noted that Rice "acknowledged the truth of his takings, but maintained

that he intended to account for all the funds" at a later time. Rice, 99 Wn.2d at 277.

       Placide relies on our pronouncement in Rice that "[t]his court under no

circumstances should involve itself in intrapartnership accounting disputes." Rice,

99 Wn.2d at 279. Placide's actions, however, are readily distinguishable from the

actions ofthe partner in Rice. Here, unlike in Rice, Placide did, in fact,

permanently deprive Dorsey and Ogletree of at least some of the disputed funds,

and the record amply demonstrates that her actions in taking on outside clients and


        Rice was alleged to have violated two ofthe former Discipline Rules for Attorneys
(DRA): former DRA 1.1(a)(1982)(act involving moral turpitude, dishonesty or corruption) and
former DRA 1.1(i)(1982)(conduct involving dishonesty, fraud, deceit, or misrepresentation).


                                              15
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


keeping those client fees were out of character with the nature of the firms'

accounting procedures. Placide does not show that she intended to account for all

the funds and has yet to do so. The findings pertaining to the charged conduct in

counts 1 and 6 are supported by substantial evidence and bear no resemblance to

the intrapartnership dispute in Rice.

       ODC cites Selden for the proposition that we have in fact adjudicated similar

violations ofthe Rules of Professional Conduct. At issue in Selden was "the

appropriate sanction for a lawyer who misappropriated funds from his law firm."

Selden, 107 Wn.2d at 248. Selden was an associate with a Tacoma law firm when

he began keeping some of the client checks made payable to him and depositing

them into his own bank account in violation ofthe law firm's accounting

procedures. The firm discovered this practice when several clients protested being

billed twice. When confronted, Selden initially "tried to bluff but finally admitted

[to] taking some money." Selden, 107 Wn.2d at 249. He later repaid the firm in full

and admitted that "he knew what he had done was wrong," but "stole yet additional

funds after his firm discovered his misappropriations and fired him." Selden, 107

Wn.2d at 250, 256. This court concluded that "it [was] necessary to disbafi^^




       ^ It is also noteworthy that in Selden, where we disbarred the attorney, the hearing officer
recommended a 60-day suspension, which the Board adopted, with one member abstaining and
two members dissenting and urging a 120-day suspension instead. Selden, 107 Wn.2d at 250.


                                                16
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


[Selden] to protect the integrity ofthe legal profession and preserve the public's

confidence in it." Selden, 107 Wn.2d at 256.

       We distinguished Rice and reiterated that in that case, the relevant concerns

were the lack of a finding that the attorney there intended to permanently deprive

the law firm ofthe funds and the fact that the attorney's behavior "was not out of

eharacter with that law firm's loose accounting procedures." Selden, 107 Wn.2d at

254. We also stated that Rice "stands for the proposition that when there has been

nofinding offraud, this court will not entertain an accounting action in the guise of

a disciplinary proceeding." Selden, 107 Wn.2d at 255. In Selden, we further noted

that although Selden appeared to imply that "under Rice, a partner may take funds

from his or her firm with no danger of retribution," that issue was not before us,

declining to address it. Selden, 107 Wn.2d at 255 n.22. We now hold that engaging

in extensive and repeated theft offirm funds is sanctionable attorney conduct,

regardless of whether an attorney is an associate, a partner, or a shareholder. ODC

correctly notes that under Rule 1.2 of the Rules for Enforcement of Lawyer

Conduct(EEC),Placide is '"subject to the disciplinary authority ofthis

jurisdiction'" as an attorney "'admitted to practice in this jurisdiction.'" Answering

Br. of ODC at 24(quoting EEC 1.2). Placide's conduct is therefore within the

purview ofthe attorney disciplinary proceedings.




                                              17
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


       2. The record supports the hearing officer's determination that Placide knew
          about Dorsey and Ogletree policies regarding representation of outside
           clients


       Placide next contends that the hearing officer erroneously determined that

the Dorsey and Ogletree firm policies regarding representation of outside clients

created a fiduciary relationship, which required Placide to turn over fees earned

from outside clients. We agree with the Board's unanimous determination that the

existence of a contractual or fiduciary duty between Placide and the partners at

Dorsey and/or Ogletree is not necessary to establish the violations.

       Placide does appear to challenge, however, the hearing officer's findings

that "she had actual knowledge" ofthe Dorsey policies or any knowledge "ofthe

expectations at Ogletree" regarding representation of off-the-books clients.

Opening Br. of Appellant at 16, 18."An attorney's knowledge may be inferred

from the facts."/n re Disciplinary Proceeding Against Preszler, 169 Wn.2d 1, 20,

232 P.3d 1118 (2010). There appears to be substantial evidence in the record of

Placide's knowledge ofthe policies, practices, and expectations at Dorsey and

Ogletree, and even if there are several reasonable interpretations of the evidence,

evidence is substantial if it reasonably supports the finding. In re Disciplinary

Proceeding Against McGrath, 174 Wn.2d 813, 818, 280 P.3d 1091 (2012). Here,

Placide had Dorsey policy manuals, which explicitly stated that all compensation

received by any lawyer for professional services was the property of Dorsey. ODC


                                              18
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


Ex. A-109. Dorsey's partner manual similarly states that "all compensation

received by any partner for professional services is the property of the Partnership

and shall be turned over to the Partnership." ODC Ex. A-110. Kenneth Jorgensen,

an ethics partner at Dorsey, testified that "for most partners—frankly even

probably for associates—it goes without saying they understand that the fees

belong to the firm, and they are not to be representing clients outside the firm." 1

Verbatim Report ofProceedings(VRP)at 58-59. There was testimony that Placide

"was probably the only lawyer in the whole office that told her secretary not to

open packages that came for her," and that she took extraordinary measures to hide

her in-office activities from other Dorsey staff members. 1 VRP at 86; see 2 VRP

at 520. For example, Placide requested to have a printer installed in her office,

which at the time was highly unusual for Dorsey, whose lawyers' typical practice

was to print the document to a shared printer location and then retrieve it or have

staff print the document. Placide refiised to allow her secretary to organize her

office. Based on this evidence, the hearing officer could reasonably infer, and did

infer, that Placide took measures to conceal her off-the-books clients from Dorsey.

Likewise, from the fact that Placide had repeatedly lied^ about representing outside

clients during her November 8, 2011, meeting with the Dorsey representatives, the


       ^ Each time the Dorsey administrators presented Placide with an e-mail or other
document that showed her contact with outside clients, she would admit to representing that
client, but no others.


                                              19
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


hearing officer could reasonably infer that Placide knew that what she was doing

was prohibited.

       Similarly, at Placide's January 9, 2013, meeting with the Ogletree

representatives, she told the representatives that at Dorsey she was expressly

authorized to represent private clients, expressly admitted that she knew it was

wrong to represent off-the-books clients while at Ogletree and not turn over her

fees to the firm, and then repeatedly lied about representing private outside clients

while at Ogletree. ODC argues that the hearing officer could reasonably infer from

this testimony that Placide knew what she was doing was prohibited. We agree and

uphold the hearing officer's findings regarding Placide's knowledge ofthe

existence of the Dorsey and Ogletree policies addressing representation of off-the-

books clients as supported by substantial evidence.

       3. The Dorsey separation agreement did not release Placide from her
          obligation to repay $2,050 she received from client P.S. for legal work
          she did not perform

       Placide next asserts that her "[sjettlement" agreement with Dorsey resolved

all "client fee issues" and that because she had a "good faith belief that the firm did

not have a claim on [those] funds," she did not wrongfully exert unauthorized

control over the money. Opening Br. of Appellant at 3, 27. We disagree and affirm

the hearing officer's conclusion that the separation agreement did not release

Placide from her obligation to repay the funds.


                                             20
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


       The hearing officer concluded that Placide committed thefl^ and violated

RFC 8.4(b) by misappropriating the $2,050 paid to her by client P.S. ODC points

out that the hearing officer's conclusion that Placide committed theft, thereby

violating RPC 8.4(b), is supported by findings offact 49-52, and that those

findings are unchallenged and therefore verities on appeal. The hearing officer

established that client P.S. paid Placide $2,050 as a retainer and $450 as a

consultation fee to represent him in an immigration matter, for a $2,500 total fee.

Placide never completed the work; Dorsey completed the work instead, for which

it received no compensation. P.S. subsequently told Placide that Dorsey had

completed the work for him and that she should contact Dorsey about returning the

unearned fees he had paid her. Placide never returned the unearned fees. She now

relies on the separation agreement to argue that Dorsey had given up any claim to

the fees once it signed the separation agreement.

       The "Separation Agreement and General Release" provides, in relevant part:

       Effective upon payment ofthe sums specified in this Agreement,
       Dorsey... hereby releases and discharges Placide ... from all
       liability for all claims Dorsey may have against Placide arising from
       or relating to any fact or event occurring prior to the time Dorsey
       signed this Agreement.




       ^ Under RPC 8.4(b), it is professional misconduct for a lawyer to "commit a criminal act
that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other
respects." The hearing officer relied on RCW 9A.56.020(1)for the definition of"theft." The
applicability ofthe statute is discussed infra in Section 4 of this opinion.


                                                21
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


ODC Ex. A-129, at 1-2(emphasis added). Placide never paid the sums specified in

the agreement and therefore cannot rely on its existence to argue that "Count 1 as it

relates to the P.S. fees must be dismissed since Placide did not misappropriate the

funds" and that "Count 4 cannot stand since the premise that the funds belonged to

a third party(Dorsey)is not accurate." Opening Br. of Appellant at 27, 28.

Furthermore, the release of a claim for theft, or for any other wrongful act, alone,

does not mean that the theft or other wrongful act did not occur. Placide never

informed Dorsey of her receipt ofthe P.S. fee, and we uphold the hearing officer's

determination that her belief that she was excused by the separation agreement

from turning the money over to Dorsey was not reasonable or credible.

       4. The Board correctly determined that RCW 9A.56.020(1) applies to the
          conduct charged in count 1

       Placide next argues that she did not "wrongfully obtain or exert unauthorized

control over the property or services of another or the value thereof, with intent to

deprive him or her of such property or services" under RCW 9A.56.020(l)(a). She

also argues that she did not "appropriate lost or misdelivered property or services

of another, or the value thereof, with intent to deprive him or her of such property

or services" under RCW 9A.56.020(l)(c).

       In addition to the separation agreement, discussed supra, Placide points to

the fact that "P.S. told Placide that he did not own the funds since he had received




                                             22
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


the services he asked for"; that P.S. "would have no way of knowing what kind of

severance agreement Placide and Dorsey had"; and that "Placide believed that once

P.S. gave up any claim of ownership it then became a matter oflooking to the

Separation Agreement which provided that she did not owe Dorsey anything."

Opening Br. of Appellant at 26. Essentially, she attacks the hearing officer's

determination on the basis that the $2,050 was never abandoned or misdelivered by

P.S., and on the basis of lack of any intent on Placide's part to deprive Dorsey of

the fee.


       As previously stated, findings offact will not be overturned based simply on

an alternative explanation of the facts or on a version of the facts previously

rejected by the hearing officer. In re Disciplinary Proceeding Against Marshall,

167 Wn.2d 51, 67, 217 P.3d 291 (2009){Marshall II). Even if there are several

reasonable interpretations ofthe evidence, it is substantial if it reasonably supports

the finding. McGrath, 174 Wn.2d at 818. The hearing officer found Placide not to

be a credible witness. Placide's contention that she did not intend to deprive

Dorsey of the $2,050 fee that she did not earn and that P.S. suggested she contact

Dorsey about returning is an alternative explanation that, although plausible, does

little to counter the substantial evidence at issue. The evidence, as discussed supra,

points to the fact that the hearing officer's factual determinations were correct. The

hearing officer's legal conclusion, reviewed de novo, that Placide wrongfully


                                             23
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


exerted unauthorized control over Dorsey's property or appropriated misdelivered

property belonging to Dorsey is therefore sound.

       The remaining issue, however, is whether, for purposes ofRCW

9A.56.020(l)(a) and (c), the requisite element of intenthsiS been established.

Placide argues that she could not have intended to deprive Dorsey ofthe P.S. fee

for purposes of RCW 9A.56.020(l)(a) and (c) and that therefore ODC failed to

prove she had engaged in theft. Alternatively, Placide claims she is entitled to the

defense provided by RCW 9A.56.020(2)(a), which states that "In any prosecution

for theft, it shall be a sufficient defense that: ... The property or service was

appropriated openly and avowedly under a claim of title made in good faith, even

though the claim be untenable."

       Placide contends that "she claimed the funds with the full knowledge of

them by firm" and that she "claimed [the funds] under the good faith belief that the

firm did not have a claim on the funds." Br. of Appellant at 27.

       It appears that the hearing officer did not specifically examine the issue of

whether Placide intended to "wrongfully obtain or exert unauthorized control" or

intended to "appropriate lost or misdelivered property" for purposes of finding that

she committed a crime oftheft under RCW 9A.56.020(l)(a) and (c). To the extent

this was a legal determination, we conclude that that was error. The statutory

provision that the hearing officer used to conclude that Placide committed a crime


                                             24
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


of theft clearly and explicitly lists "intent" as an element of the crime. The hearing

officer omitted entirely that portion of the statutory language when quoting the

statute he later relied on to conclude that Placide's actions constituted a criminal


act of theft.


       "A person acts with intent or intentionally when acting with the objective or

purpose to accomplish a result that constitutes a crime." 11 Washington

Practice; Washington Pattern Jury Instructions: Criminal 10.01 (4th ed.

2016). It is unclear from the record whether the hearing officer's findings offact

and the record would support a factual finding that Placide acted intentionally as

provided under ROW 9A.56.020(l)(a) and (c) and the resulting legal finding that

Placide committed a crime oftheft. Without citing to the record, ODC argues that

"[t]he hearing officer could reasonably infer, and did infer, that [Placide] kept the

money with intent to deprive another ofthat money," and that "[i]t is abundantly

clear . .. that the hearing officer found [Placide's] dishonest and deceitful conduct

to be intentional." Answering Br. of ODC at 38, 45. While the hearing officer

could have reasonably inferred that Placide was "acting with the objective or

purpose to accomplish a result that constitutes a crime," he did not explicitly do so.

See DP at 70(AFFCLR). Because we "review conclusions oflaw de novo and

will uphold them ifthey are supported by the findings offact," Marshall I, 160

Wn.2d 330, we conclude that the hearing officer's findings offact as to the


                                             25
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


intentional nature ofthe alleged criminal act are insufficient or missing and decline

to uphold the hearing officer's legal conclusion that Placide's retention ofthe

$2,050 fee constituted theft,

       ODC argues, however, that a hearing officer's recommendation can be

affirmed on any grounds supported by the record, citing to State v. Costich, 152

Wn.2d 463, 98 P.3d 795 (2004).^ ODC now argues that although the hearing

officer determined otherwise, ODC did, in fact, prove that Placide committed theft

with respect to all the funds she misappropriated from Dorsey and Ogletree, and

that the hearing officer's conclusion otherwise was in error.

       ODC first argues that the hearing officer's "conclusions rest on the

misconception that the thefts at issue in Counts 1 and 6 are thefts of[Placide's]

services." Answering Br. of ODC at 42. But the hearing officer explicitly discusses

"[Placide's] receipt and retention offees" as a separate ground the hearing officer

considered in determining whether or not Placide committed theft. DP at 70

(AFFCLR). Therefore, the hearing officer considered both the theft of services and

the theft of fees in arriving at the challenged conclusions.

       ODC next argues that the hearing officer's "conclusions rest on the

misconception that the phrase 'property ... of another' in RCW 9A.56.020(1)


       ^ "This court may affirm a lower court's ruling on any grounds adequately supported in
the record." Costich, 152 Wn.2d at All (citing/n re Marriage ofRideoiit, 150 Wn.2d 337, 358,
77P.3d 1174 (2003)).


                                              26
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


'cannot be intended' to cover property that has not yet been delivered to the party

entitled to receive it." Answering Br. of ODC at 42(alteration in original)(citing

DP at 68,69(AFFCLR)). ODC relies on RCW 9A.56.010(23)(b) and (c) and states

that theft may be accomplished not only by taking the property or services of

another, but also by "appropriating property to one's own use where that property

has never been delivered to the party entitled to receive it." Answering Br. of ODC

at 43. Because ODC is in effect challenging the hearing officer's legal conclusion

based on an interpretation of a statute, we review the hearing officer's legal

determination de novo.


       We agree with ODC and conclude that Placide's retention offees from

outside clients, regardless of whether those clients intended to pay them directly to

her, constitutes "theft" as defined by RCW 9A.56.020(l)(a). As ODC correctly

points out,"wrongfully obtains" or "exerts unauthorized control" are defined for

purposes of chapter 9A.56 RCW as not only "tak[ing] the property or services of

another," RCW 9A.56.010(23)(a), but also:

             (b)Having any property or services in one's possession, custody
       or control as bailee, factor, lessee, pledgee, renter, servant, attorney,
       agent, employee, trustee, executor, administrator, guardian, or officer
       of any person, estate, association, or corporation, or as a public officer,
       or person authorized by agreement or competent authority to take or
       hold such possession, custody, or control, to secrete, withhold, or
       appropriate the same to his or her own use or to the use ofany person
       other than the true owner or person entitled thereto', or




                                             27
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


             (c)Having any property or services in one'spossession, custody,
       or control as partner, to secrete, withhold, or appropriate the same to
       his or her use or to the use of any person other than the true owner or
       person entitled thereto, where the use is unauthorized by the
       partnership agreement.

RCW 9A.56.010(23)(emphasis added). The unambiguous language of the statute

suggests that a person may commit theft while possessing, having custody, or

control of property such as client fees, as an attorney or a partner, and

appropriating such property to one's own use even where such property has never

been delivered to the party entitled to receive it. Therefore, the hearing officer's

legal conclusion as to Placide's retention ofthe fees she received from outside

clients was incorrect. Any compensation received became the property of Dorsey

per the language of Dorsey's policies, i.e., that "'all compensation received by any

Dorsey partner, associate, or other attorney . ..[was] property ofthe firm.'" DP at

51 (AFFCLR);see ODC Ex. A-109. We conclude that Placide's actions meet the

legal definition of"wrongfully obtains" or "exerts unauthorized control" under

RCW 9A.56.020(l)(a) as to her retention of the fees paid to her by her off-the-

book clients while Placide was a partner at Dorsey, as there was an explicit policy

or agreement. Although there was no similar explicit agreement or provision with

regard to Ogletree, we nevertheless also conclude that Placide's actions meet the

legal definition of"wrongfully obtains" or "exerts unauthorized control" under




                                             28
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


RCW 9A.56.020(l)(a) as to her retention ofthe fees paid to her by her off-the-

book clients while Placide was a shareholder at Ogletree as well.

       However, similar to the P.S. $2,050 fee discussed supra, the hearing officer

never explicitly concluded that Placide intended to deprive Dorsey of the fees she

received from the outside clients. Unlike the $2,050 fee, because the hearing

officer found that Placide "intentionally mislead Dorsey as to the amounts she had

received" from her outside clients and that a clear preponderance shows that

Placide "was aware of Dorsey's [fee] policy" yet took steps to conceal those fees

and clients, as well as "intended to retain [the Ogletree] funds personally, without

disclosing them to Ogletree," the hearing officer could have reasonably concluded

that Placide acted intentionally. DP at 56, 51,62(AFFCLR). Therefore, as a matter

oflaw, Placide committed "theft" as defined in RCW 9A.56.020(l)(a) and thus

violated RPC 8.4(b) as charged in counts 1 and 6.

       5. The hearing officer correctly determined that under RPC 1.5(a), Placide
          charged an unreasonable fee by never performing legal services client
          P.S. was entitled to receive


       Placide next argues that the "finding of violation at Count 5 is based on the

premise that Placide charged an excessive fee since she kept the entire $2,500 P.S.

fee even though she did not do $2,500 worth of work." Opening Br. of Appellant at

28. Placide fails to rebut meaningfully the hearing officer's findings of fact or

conclusions oflaw on this point. She appears to contend that Dorsey had no claim


                                             29
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


to the funds, even though the fact that Dorsey's lawyers completed the work on

P.S.'s matter is unchallenged. The hearing officer correctly determined that while

Placide did offer to return the fee to P.S., who declined the offer in favor of

Dorsey, Placide knew that the fee had not been earned by her, and the offer to

return the fee, alone, did not satisfy her obligation not to charge or to collect an

umeasonable fee. The hearing officer's conclusion that Placide therefore collected

$2,500 in legal fees from client P.S. is correct.

       It appears from the record, however, that $450 of the fee was referred to in

Placide's engagement letter to P.S. as an "advanced paid consultation fee." ODC

Ex. A-102, at 1. The record indicates that Placide did consult P.S. See 3 VRP at

724(P.S. testifying that Placide "definitely did the consultation"). The record also

indicates that the rest ofthe work was performed by the Dorsey lawyers. We

conclude that substantial evidence in the record supports the finding only as to the

$2,050 portion of the fee retained by Placide ofthe amount she charged P.S. We

nevertheless uphold the hearing officer's legal conclusion that her retention ofthe

unearned portion ofthe fee violates RPC 1.5(a) as a charge of an unreasonable fee

for the work she never performed.

       6. Counts 1 and 6 gave Placide sufficient notice ofthe charges against her

       Placide next contends that "Counts 1 and 6 give her no notice much less

clear and specific charges regarding ongoing dishonesty by performing legal


                                             30
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


services for outside clients and concealing those receipts from the firm" because

"they were not charged." Opening Br. of Appellant at 30. Specifically, Placide

argues that "those counts were limited to unlawful appropriation of fees in

violation ofRPC 8.4(c) so any findings of violations of Counts 1 and 6 other than

the P.S. fees were not charged and cannot serve as the basis of any rules violation."

Opening Br. of Appellant at 30-31. Placide's argument appears to stem from the

fact that the conduct charged in counts 1 and 6 was "committing crimes oftheft."

DP at 37,42(FAFC). She argues she has a due process right to be notified of clear

and specific charges against her and to be afforded an opportunity to anticipate,

prepare, and present a defense, citing to our decision in In re Disciplinary

Proceeding Against Romero, 152 Wn.2d 124, 94 P.3d 939(2004).

       As we have previously stated,"ELC 10.3(a)(3) explains [that the]'formal

complaint must state the respondent's acts or omissions in sufficient detail to

inform the respondent ofthe nature ofthe allegations of misconduct.'" Marshall I,

160 Wn.2d at 340. The formal complaint at issue is replete with specific detail as

to the respondent's acts or omissions regarding acts of dishonesty, deceit, and

misrepresentation.^ Furthermore, even though the wording ofthe language of

counts 1 and 6 is not ideal, it puts Placide on notice as to her conduct regarding


       ^ See, e.g., DP at 34, 35(FAFC)("Respondent made the misrepresentation to Dorsey
personnel to conceal from them the full extent of her 'off-the-books' practice.""Respondent
intentionally misappropriated the $56,700 knowing that she was not entitled to the funds.").


                                               31
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


unlawfully appropriating funds and violating RPC 8.4(c) in so doing. Including

RPC 8.4(c), of course, necessarily gives Placide sufficient notice as to the nature of

the allegations per its very language: that "[i]t is professional misconduct for a

lawyer to: . .. engage in conduct involving dishonesty, fraud, deceit or

misrepresentation." Placide was properly notified ofthe charges against her

regarding dishonesty, deceit, and misrepresentation.

      7.     The hearing officer correctly determined that Placide engaged in
conduct involving dishonesty, fraud, deceit, or misrepresentation regardless ofthe
existence of policy manuals or firm policies at Dorsey and Ogletree

       Placide next argues that the Dorsey and Ogletree policies, manuals, and

intentions and expectations regarding partners and shareholders providing legal

services exclusively for the firms' clients "did not create a fiduciary duty which

required Placide to be 100% accurate when she had her meetings with the firms."

Opening Br. of Appellant at 3. As previously stated, the Board unanimously

adopted the hearing officer's decision and recommendation, noting that "the

existence of a contractual or fiduciary duty between Placide and the partners at

Dorsey and/or Ogletree is not necessary to establish the violations and to the

Board's decision." Board Order at 1-2.


       The hearing officer's determination that Placide repeatedly and insistently

lied to Dorsey and Ogletree representatives when asked about the extent of her

legal services for outside clients, as well as the amount offees she received for


                                             32
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


those services, is supported by substantial evidence in the record. Such evidence

includes testimony by Dorsey representatives Kenneth Jorgensen, Michael Droke,

and Kelli Kohout, and Ogletree representatives Charles Baldwin and Christopher

Mixon, that amply supports the hearing officer's conclusions. At both meetings,

when firm representatives confronted Placide with an e-mail or other document

that showed her contact with outside clients, she would admit to representing that

client, but no others, essentially, as the hearing officer concluded, repeatedly and

insistently Ijdng about the extent of her off-the-books practice and the amount of

fees received.


       Placide's alternative explanation that she was flustered and pressured in

these surprise meetings is an alternative explanation at best and a continued effort

to mislead at worst. As previously stated, findings of fact will not be overturned

based simply on an alternative explanation ofthe facts or on a version of the facts

previously rejected by the hearing officer. Marshall II, 167 Wn.2d at 67. Even if

there are several reasonable interpretations of the evidence, that evidence is

substantial if it reasonably supports the finding, and circumstantial evidence is as

good as direct evidence. McGrath, 174 Wn.2d at 818. We therefore uphold the

Board's determination as to counts 2 and 7. We expressly reject Placide's

remaining arguments that an attorney can freely mislead and lie because she did




                                             33
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


"not owe a duty of honesty of some sort," and that "no .. . contractual or

expectation duty" or "fiduciary duty" existed. Opening Br. of Appellant at 33-34.

       8. The hearing officer's recommendation of disbarment for counts 2 and 7
          was not disproportional

       Placide next argues that the hearing officer's recommendation of disbarment

for counts 2 and 7 relating to lack of candor is "excessively disproportional

compared to the ChristopheA^'^^ case." Opening Br. of Appellant at 4. Placide

complains that in Christopher, the attorney "was found to have been dishonest

when she gave very clear testimony under oath in a trial," but that although "[s]he

was not found guilty of peijury," she "was found to have nonetheless not been

honest on the stand." Opening Br. of Appellant at 36-37. Placide essentially claims

that because here she lied not under oath but in private meetings, "[a]

recommendation of disbarment is wildly disproportional," and instead a reprimand

is the appropriate sanction. Opening Br. of Appellant at 37.

       In reviewing proportionality,"we analyze whether a presumptive sanction is

proper by comparing the case at hand with other similarly situated cases in which

the same sanction was approved or disapproved."/« re Disciplinary Proceeding

Against Miller, 149 Wn.2d 262, 285,66 P.3d 1069(2003). The attorney facing

discipline bears the burden of bringing cases to the court's attention that


          In re Disciplinary Proceeding Against Christopher, 153 Wn.2d 669, 105 P.3d 976
(2005).


                                              34
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


demonstrate the disproportionality of the sanction imposed.In re Disciplinary

Proceeding Against Kagele, 149 Wn.2d 793, 821, 72 P.3d 1067(2003). Plaeide

cites only to Christopher.

       In Christopher, the attorney, after realizing she forgot to submit an offer of

judgment to preserve her clients' right to an award of attorney fees, forged her

secretary's signature on a declaration of mailing and attached it to an offer of

judgment pleading that she backdated and mailed to opposing counsel. "She also

created a declaration in support of attorney fees, which stated that the offer of

judgment was a true and correct copy of[her clients'] offer to settle." Christopher,

153 Wn.2d at 674-75. Christopher was found to have "committed the criminal act

offorgery" as well as to have "intentionally made false statements under oath with

the intent to deceive the arbitrator and the parties." Christopher, 153 Wn.2d at 679.

Christopher argued that ABA Standards std. 5.11(b), at issue here, did not apply to

her conduct. We held ABA Standards std. 5.11(b) applied to her conduct, but

"after balancing the aggravating and mitigating factors and considering unanimity

and proportionality [determined that] a departure from the presumptive sanction is

justified." Christopher, 153 Wn.2d at 688.

       In reviewing the applicable standard for imposing sanctions, we apply the

ABA Standards. The ABA Standards provide a two-step process to determine the

proper sanction after a finding oflawyer misconduct:(1)the presumptive sanction


                                             35
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


is deteraiined by considering the ethieal duty violated, the lawyer's mental state,

and the extent ofthe actual or potential harm caused and (2) aggravating and

mitigating factors are weighed to determine whether a deviation is appropriate.

Kiivara, 149 Wn.2d at 252. As noted in Christopher, we then eonsider whether the

"faetors of unanimity and proportionality should alter the sanction." Christopher,

153 Wn.2d at 678 (citing ia/vara, 149 Wn.2d at 259).

       The hearing officer determined, in relevant part:

       [Placide's] violations ofRPC 8.4(e) alleged in Counts 2 and 7, in
       misrepresenting the fact, extent and number of her outside client
       representations, caused Dorsey and Ogletree
             a. actual injury by concealing the extent of her breaches of
                  eontract and violations offiduciary duties, thereby
                  preventing the firms from recovering from her the amounts
                  she actually owed to them for those breaehes; and
             b. potential injuiy, in that if[Placide] had sueceeded in
                  misleading them about her conduct, she would have
                  continued to engage in sueh eonduct eausing additional
                  actual and potential injuries deseribed.

DP at 75(AFFCLR). Unlike in Christopher,^^ the Board unanimously agreed with

the hearing officer's recommendation that ABA Standards std. 5.11(b) applied to

eounts 2 and 7. But in Christopher, we relied on seven mitigating faetors to

eonclude that "the predominance of mitigating factors justifies a departure from

the presumptive sanetion [of disbarment]." Christopher, 153 Wn.2d at 686



       In Christopher, we agreed with the divided 6-4 Board's recommendation that ABA
Standards std. 5.11(h) applied and that the presumptive sanction was disbarment.

                                             36
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


(emphasis added). In contrast, here the hearing officer found two mitigating

factors, and the balance weighs in favor of disbarment. We therefore reject

Placide's proportionality argument.

       9. The challenged aggravating factor of false statements or other deceptive
          practices during the disciplinary process does not apply; the remaining
          aggravating and mitigating factors support the hearing officer's and the
           Board's unanimous recommendation of disbarment


       Applying ABA Standards std. 9.22, the hearing officer found six

aggravating factors;(1) a pattern of misconduct,(2) multiple offenses,(3)false

statements or other deceptive practices during the disciplinary process,(4)refusal

to acknowledge the wrongful nature ofthe conduct,(5)substantial experience in

the practice oflaw, and (6)indifference to making restitution. The hearing officer

found two mitigating factors:(1) absence of a prior disciplinary record and (2)

timely good faith effort to make restitution as applied to count 5 only.

       Placide challenges only one ofthe aggravating factors: false statements or

other deceptive practices during the disciplinary process. As to that factor, the

hearing officer found as follows: "Respondent repeatedly made false

representations offact in presenting questions posed to witnesses at the hearing,

while asking them to agree with her factual representations." DP at 79(AFFCLR).

Placide asserts that the hearing officer "based this on his findings . . . that four

times during her pro se examinations of witnesses she asked questions based on




                                              37
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


premises which he claimed were contradicted by overwhelming evidence."

Opening Br. of Appellant at 37. Placide's concerns are warranted.

       "Falsifying information during an attorney discipline proceeding is one of

the most egregious charges that can be leveled against an attorney." In re

Disciplinary Proceeding Against Whitt, 149 Wn.2d707,720, 72 P.3d 173 (2003).

The hearing officer concluded that Placide frequently included false or misleading

assertions in the form of questions she posed to witnesses, in effect testifying

herself. For example, in cross-examining a Dorsey witness, Kenneth Jorgensen, the

following colloquy ensued:

              [Placide:] Do you recall at the end ofthe conversation where
       after I discussed or we identified the non-firm clients, you made a
       comment that said,"These non-firm clients, it's not—it's not a big
       deal; but the fact that you're planning to leave and take members of
       the firm, that's where your partners don't trust you."
              Do you recall that?
              [Jorgensen:] That couldn't have happened. We didn't know you
       were going to Ogletree until you were there.

1 VRP at 110-11. Placide had insisted throughout the investigation that she was, in

fact, terminated by Dorsey in a retaliatory fashion.

       Another example is representative of her style of questioning on cross-

examination of an Ogletree witness, Charles Baldwin:

             [Placide:] Okay. During our meeting, what was supposed to be
       our meeting in January, 2013, that occurred, do you recall how the
       meeting was scheduled and organized?




                                              38
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


       [Baldwin:] I think the exchange of e[-]mails, maybe a phone call. I
       don't remember exactly.
              [Placide:] Do you recall, Mr. Baldwin, that I called the meeting,
       that I repeatedly would ask you to come visit us in the Seattle office to
       discuss the office plans for expansion and the support we needed from
       Ogletree Deakins?
              [Baldwin:] No. I know that's not true because the plans for this
       meeting were set up after Chris Mixon did the investigation and we
       found all the information about you receiving funds for work done on
       behalf of firm clients.


3 VRP at 615. Placide had insisted throughout the investigation that the surprise

nature ofthe meetings had been a factor affecting her ability to respond with

precision when confronted with accusations of off-the-books representation.

       While it is evident from the record that the form ofPlacide's questions posed

to witnesses may have been questionable at times and perhaps, in the eyes ofthe

hearing officer, misleading, reading the transcript reveals that Placide, at least in

several ofthe portions ofthe record cited to, was attempting to reveal on cross-

examination certain inconsistencies in the testimony of the Dorsey and Ogletree

witnesses.


       GDC concedes that the presence ofthis aggravating factor does not

significantly matter. Citing to Romero, 152 Wn.2d at 136-37, where we said that

"[a]n attorney has a cognizable due process right... to be afforded an opportunity

to anticipate, prepare, and present a defense," Placide argues that "[i]n presenting a

defense the lawyer is entitled to present his/her theory of the defense[,] which




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In re Discipline ofPlacide (Carllene M.), No. 201,639-1


includes asking witnesses if they recall events a certain way." Opening Br. of

Appellant at 38. Attorney discipline proceedings are quasi-criminal in nature. In re

Ruffalo, 390 U.S. 544, 551, 88 S. Ct. 1222, 20 L. Ed. 2d 117(1968). As part of her

presentation of a defense, an attorney is entitled to challenge witnesses. We

therefore agree with Placide and conclude that there is not substantial evidence in

the record to suggest that Placide was making "false representations in the course

of her questions posed to witnesses at the hearing" as to the hearing officer's

factual finding. DP at 66(AFFCLR). To conclude otherwise might chill the right

of an attorney accused of misconduct to put the WSBA to a vigorous proof, as

Placide suggests. In Whitt, where this aggravator was found to apply, an attorney

submitted "fabricated documents" and falsified information, we stressed that

"[mjisrepresentations and fabrications during the disciplinary process reflect

adversely on the lawyer's ability to practice law, the public perception of the legal

system, and the judicial process as a whole." Whitt, 149 Wn.2d at 721. Placide's

questioning of adverse witnesses on cross-examination does not rise to the

requisite level. We therefore conclude that the aggravating factor in question was

improperly applied. The five remaining aggravators nevertheless still outweigh the

two mitigating factors and therefore support the hearing officer's and the Board's

recommendation of disbarment.




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In re Discipline ofPlacide (Carllene M.), No. 201,639-1


       10. The hearing officer properly excluded Placide's proposed testimony
          about her conversation with the "ethics hotline" under APR 19(e)(5)

       Placide next argues that the hearing officer improperly excluded Placide's

proposed testimony concerning her alleged conversation with an ethics line

professional responsibility counsel regarding "her situation in 2012." Opening Br.

of Appellant at 39; see 1 VRP at 18. At the disciplinary hearing, Hearing Officer

Carl Carlson informed Placide that APR 19(e)(5)"expressly says that contact with

or information given or even the fact of contact with the Bar Association's ...

ethics line is not admissible in a proceeding like this." 1 VRP at 19. Carlson

granted ODC's motion in limine to exclude her proposed testimony over Placide's

objection that the proposed testimony went to her "frame of mind" and that the rule

was improperly weighed in favor ofthe WSBA. 1 VRP at 19. Placide now argues

that "[sjeeking advice from a recognized source of wisdom and following that

advice could tend to show good faith," and that, as "overbroad," the rule amounts

to "a denial of substantive due process." Opening Br. of Appellant at 40-41.

       APR 19(e)(5) states:

       Neither the making of an inquiry nor the providing ofinformation by
       professional responsibility counsel under this rule creates a client-
       lawyer relationship. Any information or opinion provided during the
       course of an ethics inquiry is the informal, individual view of
       professional responsibility counsel only. No information relating to an
       ethics inquiry, including the fact that an inquiry has been made, its
       content, or the response thereto, may be asserted in response to any
       grievance or complaint under the applicable disciplinary rules, nor is


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In re Discipline ofPlacide (Carllene M.), No. 201,639-1


       such information admissible in any proceeding under the applicable
       disciplinary rules.

There is no dispute that the rule is directly applicable to Placide's proposed

testimony and that the hearing officer was obligated to follow it. The question of

the rule's constitutionality appears to be an issue of first impression, reviewed de

novo.In re Disciplinary Proceeding Against King, 168 Wn.2d 888, 232 P.3d 1095

(2010). We conclude that the application of APR 19(e)(5) does not violate

Placide's constitutional rights and consequently uphold the decision by the hearing

officer to exclude the testimony.

       APR 19(e) was adopted by this court in 2007."The new provisions codified

the WSBA's practice of responding to inquiries about compliance with the Rules

of Professional Conduct(commonly known as the ethics hotline)," establishing

"the ground rules for advice given by the WSBA,[as well as] record-keeping

requirements, and ... rules of confidentiality." 2 KarlB.Tegland, Washington

Practice: Rules Practice: APR 19 author's cmt. at 314(8th ed. 2014). Placide

challenges the rule's application essentially as it pertains to her ability to introduce

evidence and present a defense.

       In the criminal context, state and federal rule makers have broad latitude to

establish evidentiary rules excluding evidence. United States v. Scheffer, 523 U.S.

303, 308, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998). In              the United States




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In re Discipline ofPlacide (Carllene M.), No. 201,639-1


Supreme Court stated that "[s]uch rules do not abridge an accused's right to

present a defense so long as they are not 'arbitrary' or 'disproportionate to the

purposes they are designed to serve.'" Scheffer, 523 U.S. at 308 (quoting Rock v.

Arkansas, 483 U.S. 44, 58, 107 S. Ct. 2704, 97 L. Ed. 2d 37(1987); Michigan v.

Lucas, 500 U.S. 145, 149, 111 S. Ct. 1743, 114 L. Ed. 2d 205 (1991)). Because

attorney discipline is a quasi-criminal proceeding, similar considerations likely

apply.

       Placide's argument is that a rule preventing her from offering her best

defense is arbitrary and capricious, with no rational basis for a blanket rule denjdng

her the right to put on her state-of-mind defense. ODC counters that the rule

"serves the legitimate and important interest of preventing a lawyer . .. from lying

about an ethics inquiry without the possibility of being contradicted'^            by the other

party to the communication." Answering Br. of ODC at 27. ODC points out that in

order to preserve the confidentiality of communications between an inquirer and

professional responsibility counsel, the latter is prohibited from making or

maintaining "any permanent record ofthe identity of an inquirer or the substance

of a specific inquiry or response," but "may keep records of the number of

inquiries and the nature and type of inquiries and responses." APR 19(e)(6). We


          APR 19(e)(7) states that "[ejommunications between an inquirer and professional
responsibility counsel are confidential and shall be privileged against disclosure except by
consent of the inquirer or as authorized by the Supreme Court."


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In re Discipline ofPlacide (Carllene M.), No. 201,639-1


agree with ODC and conclude that APR 19(e)(5) is not arbitrary or

disproportionate to the purposes it is designed to serve, and does not violate

Placide's constitutional rights. Placide was not prevented from presenting any and

all evidence or testimony regarding her state of mind in 2012, but only that

evidence which the WSBA would have had no opportunity to verify or counter.

The evidence of Placide's ethics inquiry was therefore correctly excluded by the

hearing officer.

       11. The hearing officer applied the correct legal standard to determine the
           presumptive sanctions for counts 1, 2, 6, and 7 with respect to dishonesty,
           deceit, and misrepresentation

       Finally, Placide argues that the hearing officer erred in his application of

ABA Standards std. 5.11(b) to determine the presumptive sanction for Placide's

violation of RPC 8.4(c) as to counts 1, 2, 6, and 7 related to the hearing officer's

findings that "Respondent's ongoing pattern of dishonesty, deceit and

misrepresentations was so extensive and consistent that it 'seriously adversely

reflects on [her] fitness to practice.'" DP at 76(AFFCLR).

       Placide points to the hearing officer's finding that in committing conduct

charged in counts 1, 2, 6, and 7,Placide acted "knowingly." DP at 74(AFFCLR).

ODC states that "[i]t is abundantly clear, however, that the hearing officer found

[Placide's] dishonest and deceitful conduct to be intentional," pointing to "the

many factual findings" ofthe hearing officer regarding Placide's lying and


                                              44
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


concealment. Answering Br. of ODC at 45. ODC relies on the definition of a "lie"

to argue that as such, it is an intentionally false statement.

       For purposes ofimposing lawyer sanctions, the ABA Standards define

"knowledge" as "the conscious awareness of the nature or attendant circumstances

of the conduct but without the conscious objective or purpose to accomplish a

particular result." ABA Standards Definitions at 17. The Standards define "intent"

as "the conscious objective or purpose to accomplish a particular result." ABA

Standards Definitions at 17. An attorney's state of mind may be inferred from the

facts. Preszler, 169 Wn.2d at 20."An attorney's mental state 'is a factual

determination and the officer's finding is given great weight.'" Preszler, 169

Wn.2d at 20-21 (quoting Longacre, 155 Wn.2d at 744). In determining whether a

factual finding is supported by substantial evidence, we look to the entire record.

Longacre, 155 Wn.2d at 735-36.

       It is unclear from the record why the hearing officer found that Placide acted

only "knowingly" as opposed to "intentionally" with regard to counts 1, 2, 6, and 7

(dishonesty, deceit, and misrepresentation). It is clear, however, that the conclusion

that Placide acted "knowingly" does not fit the presumptive legal standard applied,

and, at most, the conduct charged fits ABA Standards std. 5.12, with a

presumptive sanction of suspension. We agree with ODC,however, to the extent

that the factual findings, including the hearing officer's finding that "[Placide]


                                             45
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


intentionally mislead Dorsey as to the amounts she had received," DP at 56

(AFFCLR), support the conclusion that Placide's conduct was intentional as to

counts 1 and 2, and to the extent that the finding that Placide "intended to retain

[the Ogletree] funds personally, without disclosing them to Ogletree," DP at 62

(AFFCLR), supports the same conclusion as to counts 6 and 7. We conclude that

Placide acted intentionally and apply ABA Standards std. 5.11(b) with the

presumptive sanction of disbarment.

       ODC argues that the hearing officer incorrectly determined that for counts 1

and 6(theft from Dorsey and Ogletree) the presumptive sanction for respondent's

violation of RPC 8.4(b) is suspension under ABA Standards std. 5.12. Because we

conclude that the conduct charged in counts 1 and 6 constitutes theft as discussed

in Section 4 ofthis opinion, and given the requisite factual findings of

intentionality by the hearing officer as to counts 1 and 6, we agree with ODC that

the correct legal standard is ABA Standards std. 5.11(a), which provides that

disbarment is the presumptive sanction when "a lawyer engages in serious criminal

conduct a necessary element of which includes .. . misappropriation, or theft."

                                       Conclusion


       We uphold the hearing officer's findings offact and conclusions oflaw with

the following exceptions: we(1) conclude that the hearing officer failed to

consider or establish intent for purposes ofrelying on RCW 9A.56.020(1)in


                                             46
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


concluding that Placide committed theft as to client P.S. funds,(2) agree with ODC

that Placide's retention offees from outside clients, regardless of whether those

clients intended to pay them directly to her, constitutes "theft" as defined by RCW

9A.56.020(l)(a), and that the hearing officer erred in concluding otherwise,(3)

disagree with the hearing officer and ODC and conclude that the aggravating factor

offalse statements or other deceptive practices during the disciplinary process was

improperly applied,(4) conclude that the hearing officer's determination that

Placide acted "knowingly" does not fit the presumptive legal standard as applied to

counts 1, 2, 6, and 7 by the hearing officer, and (5)that because the record shows

that Placide engaged in intentional conduct in violating RPC 8.4(c), and committed

theft as charged in counts 1 and 6, conclude that the correct legal standards are

ABA Standards stds. 5.11(b) and 5.11(a), and the correct presumptive sanction is

disbarment.


       Having considered the challenged findings and the correct presumptive

sanctions, having weighed the aggravating and mitigating factors to determine

whether a deviation from the presumptive sanctions is warranted, and having

considered factors of unanimity and proportionality,^"^ we agree with the Board's



       13
            See Kuvara, 149 Wn.2d at 252-53.

        See Kuvara, 149 Wn.2d at 259 (citing In re Disciplinary Proceeding Against Noble,
100 Wn.2d 88, 667 P.2d 608 (1983)).


                                               47
In re Discipline ofPlacide (Carllene M.), No. 201,639-1


unanimous recommendation and disbar Placide.




WE CONCUR:




                                                          Q^tA?,p.




                                              48
