Petition for Writ of Certiorari — Barney v. Disciplinary Board of the Washington State Bar Ass'n

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g4-1589°) “Se

NO. anne APR 4 1985

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4 ALEXANDER L. STEVAS >

In The usm

Supreme Court of the United States

October Term, 1984

i We

dl

IN THE MATTER OF THE DISCIPLINARY

PROCEEDINGS BEFORE THE DISCIPLINARY

BOARD OF THE WASHINGTON STATE

BAR ASSOCIATION,

AGAINST

RICHARD B. BARNEY, JR., An Attorney at Law,

Petitioner.

sh

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF

WASHINGTON

ra

Vv

Harrison H. p—EMrrs*

30640 Pacific Highway, S.

Federal Way, WA 98003

Telephone: (206) 941-0234

JoHN J. KEoucH

1218 IBM Building

Seattle, WA 98101

Telephone: (206) 628-0890

Attorneys for Petitioner

* Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

QUESTIONS PRESENTED

1. Whether the Washington State Bar Association

disciplinary proceedings afforded Mr. Barney an opportu-

nity to adjudicate the constitutional claims.

2. Whether Mr. Barney should have been granted

the right to voir dire the members of the Disciplinary

Board of the Washington State Bar Association under the

appearance of fairness doctrine.

3. Whether the Rule for Lawyer Discipline 1.J(h),

as interpreted and applied by the Washington State Bar

Association, and Formal Opinion 171, are illogical, irra-

tional and unintelligible.

4. Whether Rule for Lawyer Discipline 1.1(h), as

applied and interpreted by the Washington State Bar

Association, and Formal Opinion 171, violate Freedom of

Association under the First Amendment and Due Process

and Equal Protection under the Fourteenth Amendment

of the United States Constitution and under Article 1,

Sections 3 and 12 of the Washington State Constitution.

5. Whether the relief to be granted in this case is

remanding the matter back to the Washington State Su-

preme Court and the Disciplinary Board of the Washing-

ton State Bar Association with instructions to permit a

meaningful opportunity to adjudicate the constitutional

claims raised by Mr. Barney.

il

TABLE OF CONTENTS

Pages

Questions Presented i

Petition 1

Opinions Below 2

Jurisdiction 2

How the Federal Question was Raised and Passed

Upon 2

Constitutional Provisions, Rules of Lawyer Discipline

and Opinion Involved in the Case 4

Bintanpent oC Tee CU ii ces 7

Reasons for Granting the Petition 10

I. The State Bar Disciplinary Proceedings did not

Provide an Opportunity to Adjudicate Constitu-

tional Claims ....... 10

A. The Disciplinary Board should have granted

Mr. Barney the right to voir dire the panel

under the appearance of fairness doctrine ..... 11

B. Rule of Lawyer Discipline 1.1(h), as inter-

preted and applied by the Bar Association,

and Formal pinion 171, are illogical, irra-

tional and unintelligible 12

II. Rule of Lawyer Discipline 1.1(h), as interpreted

and applied by the Bar Association, and Formal

Opinion 171, violate Freedom of Association un-

der the First Amendment and Due Process and

Equal Protection under the Fourteenth Amend-

ment of the United States Constitution and un-

der Article 1, Sections 3 and 12 of the Washing-

ton State Constitution 14

Conclusion 18

Appendix 20

TABLE OF AUTHORITIES

CasEs: Pages

Avery v. Midland County, 390 U.S. 474, 20 L.Ed.2d

48, 88 S. Ct. 390 (1965) pisleianit 15

Baggett v. Bullitt, 376 U.S. 360, 12 L. Ed. 2d 377,

i ccsepeabdedaleeietimneetianinsnn 16

Beard v. State Bar of Arizona, 401 U.S. 1, 27 L.

ce 15

Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d

a ceteenenmmanenneensn 16

Chicago, Milwaukee and St. Paul Pacific Railroad

v. State Human dig Commission, 87 Wn.2d a

557 P.2d 307 (1976) . 5 Ee Oa er aa a

Cramp v. Board of Public Instruction, 368 U.S. 278,

7 L. Ed. 2d 285, 82 S. Ct. 275 (1961) 0 16

Ferris v. Snively, 172 Wash. 167, 19 P.2d 942 0... 8

Florida Bar v. Thompson, 310 8. 2d 300 (FI. 1975)... 12

In Re Application of McKelvey, 255 Pac. 834

(Cal. 1927) 12

In re Belsher, 102 Wn.2d 844, 689 P.2d 1078 (1984)... 10

In Re Chantry, 84 Wn. 2d 153, 524 P.2d 909 (1974)__.12, pe

In Re Egger, 93 Wn.2d 706, 611 P.2d 1260 (1980) _12, 16, 17

In re Little, 40 Wn.2d 482, 244 P.2d 255 (1952).

In re Ming, 469 F.2d 1352 (7th Cir. 1972) 10

In Re Rosenbluth, 36 App. Div. 2d 383, 320 NYS

2d 839 (1971) 12

In re Stroh, 97 Wn.2d 289, 644 P.2d 289 (1982) 0. =—-10

Middlesex Ethics Comm. v. Gordon State Bar Assn.,

457 U.S. 423, 73 L.Ed.2d 116, 102 S.Ct. 2515 (1982). 18

iv

TABLE OF AUTHORITIES—Continued

Pages

Moose Lodge 107 v. Irvis, 407 U.S. 163, 32 L.Ed.2d

627, 92 S. Ct. 1967 (1972) .. coer es ‘Saneidtes a

Myrick v. Pierce County Commissioners, 102 Wn.2d

698, 687 P2d 1152 (1984) .- . a

Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570,

Fee 8 Pe ee Nee 16

Peterson v. State, 100 Wn.2d 421, 671 P2d 230 (1983). 15

Schware v. Board of Bar Examiners, 253 U.S. 232,

1 L. Ed. 796, 77 S. Ct. 752 (1957) . aetna. ae

State v. Phelan, 100 Wn.2d 508, 671 P2d 1212 (1983) om 15

Stockwell v. Washington State Chiropractic Dis-

ciplinary Board, 28 Wn. App. 295, 622 P.2d 910

CIEE diet woninthisiciniidiaiiiamaadaaanaiidianinaiinnnea ian 11

OrHER AUTHORITIES:

28 U.S.C. 1257(3) 2

7 Am. Jur. 2d Attorney at Law, § 33 12

16 Am. Jur. 2d Constitutional Law, Section 18 16

Amendment XIV, Section 1 U.S. Constitution 4, 14

Article 1, Section 3, Washington Constitution —... ane, 14

Article 1, Section 12, Washington Constitution —._. 4,14

| @2; E. ff . pee cee 5, 11

Formal Opinion 171 6, 13, 14

FEB SS) * eS 4,7, 8,9, 11, 12, 13, 14, 15, 16, 17, 18

RLD 6.7(e) id, D, 9

No.

——

Ww

In The

Supreme Court of the United States

October Term, 1984

fy

Vw

IN THE MATTER OF THE DISCIPLINARY

PROCEEDINGS BEFORE THE DISCIPLINARY

BOARD OF THE WASHINGTON STATE

BAR ASSOCIATION,

AGAINST

RICHARD B. BARNEY, JR., An Attorney at Law,

Petitioner.

4.

~ |

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF

WASHINGTON

ra’

Vw

Richard M. Barney, Jr., an attorney at law, licensed

to practice law in the State of Washington, petitions for

a writ of certiorari to review the order of the Supreme

Court of the State of Washington, denying his Petition

for Review, and to review and vacate the order of the

Disciplinary Board of the Washington State Bar Asso-

ciation, modifying the Hearing Officer’s Decision.

2

OPINIONS BELOW

The order of the Washington State Supreme Court

denying the attorney's Petition for Review (App. A, infra,

p. 1) is not reported. The orders of the Disciplinary

Board of the Washington State Bar Association modifying

and adopting the Hearing Officer's Decision (App. B, in-

fra, pp. 2-3) and denying the attorney’s Petition for

Clarification and Petition for Reconsideration (App. C,

infra, p. 4) are not reported. The decision of the Hearing

Officer (App. D, infra, pp. 5-18) is not reported.

JURISDICTION

The order of the Washington State Supreme Court

denying the attorney’s Petition for Review of the order

of the Disciplinary Board of the Washington State Bar

Association modifying the Hearing Officer’s decision was

entered on January 4, 1985. There is no provision for a

motion for reconsideration of this type of order. The jur-

isdiction of this Court is invoked under 28 U.S.C. 1257(3).

st.

—

HOW THE FEDERAL QUESTION

WAS RAISED AND PASSED UPON

The attorney raised the Federal questions here pre-

sented before the Hearing Officer in the attorney’s trial

memorandum of authorities and in pretrial motions. The

Hearing Officer concluded that he did not have authority

to decide the constitutional questions that had been raised

(App. D, infra, p. 5).

The attorney next raised the Fedeval questions here

presented before the Disciplinary Board of the Washing-

ton State Bar Association, in its review of the Hearing

Officer’s decision, in the attorney’s appellate brief and

in argument to the Disciplinary Board. The order of the

Disciplinary Board does not state whether it considered

the constitutional questions that had been raised (App. B,

infra, p. 2). The attorney filed a Petition for Clarifi-

cation and a Petition for Reconsideration of the order,

requesting the Disciplinary Board to state whether it

considered the constitutional challenges, and if it had,

to render a decision disposing of the issues, as required

by RLD 6.7(e). The Chairman of the Disciplinary Board

denied the petitions (App. C, infra, p. 4). It is not

known why the Disciplinary Board overruled the decision

of the Hearing Officer, and whether it considered the con-

stitutional challenges, because of its failure to give rea-

sons for its decision, as required by RLD 6.7(e), and be-

cause it refuses to disclose whether it considered the con-

stitutional challenges.

The attorney next raised the Federal questions here

presented in his Petition for Review filed with the Su-

preme Court of the State of Washington to review the

orders of the Disciplinary Board. The petitior was de-

nied, thereby refusing to consider the constitution chal-

lenges.

4

CONSTITUTIONAL PROVISIONS, RULES OF

LAWYER DISCIPLINE AND OPINION

INVOLVED IN THE CASE

Amendment XIV Section 1 of the United States Consti-

tution.

$1. Citizenship rights not to be abridged by states

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immu-

nities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

Article 1, Section 3 of the Washington Constitution.

§3. Personal Rights. No person shall be deprived of

life, liberty, or property, without due process of law.

Article 1, Section 12 of Washington Constitution.

$12. Special Privileges and Immunities Prohibited.

No law shall be passed granting to any citizen, class

of citizens, or corporation other than municipal, priv-

ileges or immunities which upon the same terms shall

not equally belong to all citizens, or corporations.

Rules for Lawyer Discipline (Washington).

RULE 1.1 GROUNDS FOR DISCIPLINE

A lawyer may be subjected to the disciplinary

sanctions or actions set forth in these rules for any

of the following:

(h) Practicing law with or in cooperation with

a disbarred or suspended lawyer, or maintaining an

office for the practice of law in a room or office oceu-

pied or used in whole or in part by a disbarred or

suspended lawyer, or permitting a disbarred or sus-

5

pended lawyer to use his or her name for the prac-

tice of law, or practicing law for or on behalf of a

disbarred or suspended lawyer, or practicing law

under any arrangement or understanding for division

of fees or compensation of any kind with a disbarred

or suspended lawyer;

RULE 6.7 DECISION OF BOARD

(e) Decision. The action of the Board shall be

set forth in a written order filed with the Association,

a copy of which shall be servea upon the respondent

lawyer. If the Board amends, modifies, or reverses

any finding, conclusion or recommendation of the

hearing officer or panel, the order of the Board shall

set forth the reasons for its decision.

Code of Professional Responsibility.

DR 7-110 CONTACT WITH OFFICIALS

(B) In an adversary proceeding, a lawyer shall

not communicate, or cause another to communicate,

as to the merits of the cause with a judge or an offi-

cial before whom the proceeding is pending, except:

(1) As required in the course of official pro-

ceedings in the cause.

(2) In writing if he promptly delivers a copy

of the writing to opposing counsel or to the ad-

verse party if he is not represented by a lawyer.

(3) Orally upon adequate notice to opposing

counsel or to the adverse party if he is not rep-

resented by a lawyer.

(4) As otherwise authcrized by law.

Code of Judicial Conduct.

CANON 3. A JUDGE SHOULD PERFORM THE

DUTIES OF HIS OFFICE IMPARTIALLY AND DIL-

IGENTLY.

es

6

The judicial duties of a judge take precedence

over all his other activities. His judicial duties in-

elude all the duties of his office prescribed by law.

In the performance of these duties, the following

standards apply. |

(A) Adjudicative Responsibilities.

(4) A judge should accord to every person who

is legally interested in a proceeding, or his lawyer,

full right to be heard according to law, and, except

as authorized by law, neither initiate nor consider

ex parte or other communications concerning a pend-

ing or impending proceeding. A judge, however, may

obtain the advice of a distinterested expert on the

law applicable to a proceeding hefore him, by amicus

curiae only, if he affords the parties reasonable oppor-

tunity to respond.

FORMAL OPINION 171

AN ATTORNEY IN GOOD STANDING MAY NOT

HIRE A DISBARRED ATTORNEY IN ANY

CAPACITY

An opinion has been requested regarding the re-

lationship between a disbarred attorney and attor-

neys authorized to practice law. The Code of Pro-

fessional Responsibility does not specifically address

this issue. The Code does prohibit a lawyer from

aiding a nonlawyer in the unauthorized practice of

law. DR 3-101(A). It further prohibits a lawyer

from sharing legal fees with a nonlawyer if any of

the activities of the partnership consist of the prac-

tice of law. DR 3-103.

The Discipline Rules for Attorneys do address

the issue and provides as follows at DRA 1.1(h):

An attorney at law may be subjected to the dis-

ciplinary sanctions or actions set forth in rule 1.2

for any of the following causes, hereinafter some-

times referred to as violations of the rules of

professional conduct:

(h) ... (P)racticing law under any arrangement

or understanding for division of fees or com-

pensation of any kind with a disbarred . . . attor-

ney. «..

This rule addressed how an attorney in good

standing must act. Therefore, DRA 1.1(h) clearly

prohibits an attorney in good standing from practic-

ing law under any arrangement or understanding for

division of fees or compensation of any kind with a

disbarred attorney.

This clear prohibition against attorneys practic-

ing law while compensating a disbarred attorney

means that an attorney in good standing who hires

a disbarred attorney in any capacity could be sub-

ject to discipline for a violation of the Discipline

Rules for Attorneys. Therefore, attorneys should re-

frain from such conduct.

o

STATEMENT OF THE CASE

The Hearing Officer’s Findings of Fact (App. D,

infra, p. 6), being from stipulated facts and being uncon-

tested, must be accepted as true. We proceed on that basis.

In the fall of 1983 Mr. Barney found his friend and

former partner, Robert Butler, a disbarred attorney, des-

titue and unable to support his minor children and himself.

At the time, Mr. Barney was preparing a case involving

complex accounting questions, and Mr. Butler had credible

qualifications as an accountant. After thorough research,

Mr. Barney concluded that it was not a violation of RLD

1.1(h) (or any other rule) to hire a disbarred attorney to

perform non-practice of law work. Thus, he hired Mr.

Butler to perform accounting work and some research,

(which under Ferris v. Snively, 172 Wash 167, 19 P2d 942

(1933) did not constitute the practice of law). (App. 61-

65).

Mr. Barney also determined to bring suit for Mr.

Butler to clarify once and for all if RLD 1.1(h) carried

any restrictions regarding the hiring of a disbarred at-

torney for non-practice of law work. Before he could do

so, he was notified by the Washington State Bar Asso-

ciation, in December, 1983, that his conduct violated RLD

1.1(h). Mr. Barney terminated Mr. Butler and so noti-

fied the Bar Association (App. 23-29). Six months later,

charges were filed (App. 33). The Bar Association refused

to reveal the name of the informer against Mr. Barney, but

it was subsequently determined by Mr. Barney and his

counsel that the informer was probably a disgruntled em-

ployee released at or about the time of the initial Bar

Association letter and she had made numerous unfounded

allegations against him to the Bar Association (App.

89-90).

Mr. Robert Carter, Hearing Officer, heard the mat-

ter ia August, 1984. Upon the Bar Association’s motion,

Mr. Carter refused to consider the constitutional questions

(App. 59). He also refused to consider evidence of dis-

barred or suspended attorneys working for practicing at-

torneys, although known to the Bar Association and/or

the Courts, and, in particular, a recent incident of the Bar

Association recommending admission of a suspended out

of state attorney partly by reason of his employment with

a King County attorney (App. 59-60). However, Mr. Car-

ter concurred with Mr. Barney’s interpretation of RLD

1.1(h) in his August 10, 1984 determination (App. 69-71).

The Bar Association appealed. The matter was ar-

gued before the Board on November 2, 1984. Because of

concern for what had been conveyed by the former dis-

gruntled employee and lack of knowledge of information

given to the Board in this respect, respondent’s counsel

moved to strike the three members who had originally

considered the charges against Mr. Barney and to voir dire

the balance of the Board (App. 88, 89). Only one member

of the original three member panel (a Mr. Ferguson) was

still on the Board, and he voluntarily withdrew. The mo-

tion to voir dire was treated as being out of place and was

denied. Based upon what occurred at the hearing, we be-

lieve we can advise the Court that the Board did not con-

sider constitutional questions.

The Disciplinary Board entered an Order (App. 93,

94) determining that Mr. Barney’s conduct violated RLD

1.1(h). The Board also concluded Mr. Barney acted in

complete good faith, and no sanctions were imposed. The

Order, signed by the Chairman on November 8, 1984, was

mailed to respondent’s attorney on November 12, 1984,

and received on November 13, 1984. The method of its

entry and form gave rise to other documents. The Board

directly conveyed its determination to Bar Counsel who

then prepared the Order and had it signed and entered

before it was seen by respondent’s attorney (App. 95, 96).

That Order does not give “reasons” as required by RLD

6.7(e), and, most important, it does not state whether the

Board considered constitutional questions, the argument

having been made by Bar Counsel that the Hearing Of-

ficer and Board, as administrative agencies, must leave

such issues to the courts (App. 59).

10

REASONS FOR GRANTING THE PETITION

AND MOTION

I. The State Bar Disciplinary Proceedings Did Not

Provide An Opportunity To Adjudicate Consti-

tutional Claims.

The practice of law in the State of Washington is a

privilege, not a right. In re Little, 40 Wn.2d 432, 244 P.2d

255 (1952); In re Belsher, 102 Wn.2d 844, 689 P.2d 1078

(1984). The Washington State Supreme Court does ac-

knowledge that discipline proceedings regarding the priv-

ilege to practice law must comport with due process. In

re Stroh, 97 Wn.2d 289, 644 P.2d 289 (1982), in the dis-

senting opinion at page 303, quoting from Jn re Ming, 469

F.2d 1352 (7th Cir. 1972), at page 1355:

Both licenses to practice law and welfare payments

can be viewed as a type of “new property,” Reich,

The New Property, 73 Yale L.J. 733 (1964), the dep-

rivation of which has drastic consequences to the in-

dividual. It is only fair and just that the Government

not subject any person to such a drastic divestment

without affording him substantial due process of law.

Nowhere in the disciplinary proceedings was Mr. Bar-

ney provided the opportunity to adjudicate constitutional

claims.

There were two occurrences in the disciplinary pro-

ceedings before the Disciplinary Board that establish Mr.

Barney was not afforded substantial due process of law.

They involve decisions which are in conflict with the

Court’s rules.

ssid

11

A. The Disciplinary Board Should Have Grant-

ed Mr. Barney The Right To Voir Dire The

Panel Under The Appearance Of Fairness

Doctrine.

The appearance of fairness doctrine has been broadly

adopted in Washington State. Stockwell v. Washington

State Chiropractic Disciplinary Board, 28 Wn. App. 295,

622 P.2d 910 (1981); Chicago, Milwaukee and St. Paul

Pacific Railroad v. State Human Rights Commission, 87

Wn.2d 802, 557 P.2d 307 (1976). A person appearing

before any agency has the right to assume an unbiased

panel and any reasonable concern of bias will be brought

into the open and examined. Manifestly, a concern will

exist when one counsel gives advice tu the panel and the

members rely upon his or her expertness.

The prohibition against communication to only one

counsel, whether a judge or administrative official be

involved, is patent. See DR 7-110, CJC 3A (4). This

concept was disregarded in preparation and entry of the

Order by the Disciplinary Board in the present case.

The net effect is that Mr. Barney’s counsel was de-

nied the opportunity to determine the Board member’s

proclivity for accepting Bar Counsel’s position. In the

end, the Board relied upon Bar Counsel to draft an Order

giving its reasons for its determination without any noti-

fication to, much less participation by, Mr. Barney’s coun-

sel. The end product is an Order which does not give

the Board’s reasons—except they all interpreted RLD

1.1 (h) in the same manner. (Query: Was that unified

conclusion in any way influenced by reliance on Bar

Counsel?) The same Order left unclear whether the

12

Board considered the constitutional questions. Perhaps

worst of all, the absence of the Board’s reasoning leaves

Mr. Barney without means of ascertaining if he can rely

upon the Board’s precise wording in determining whether

to continue employing Mr. Butler.

Any other profession would have a right to have the

procedural issues determined by a court. An attorney

should not be entitled to anything less.

B. Rule For Lawyer Discipline 1.1(h), As In-

terpreted And Applied By The Bar Associa-

tion, And Formal Opinion 171 Are Illogical,

Irrational And Unintelligible.

Not only is the Disciplinary Board’s interpretation

of RLD 1.1 (h) inconsistent with the Washington State

Supreme Court’s decision, but it is against the general

law in the United States. A disbarred attorney has the

same status as a person never admitted to practice law.

7 Am. Jur. 2d Attorney at Law, § 33, In Re Application

of McKelvey, 255 Pac. 834 (Cal. 1927). Florida Bar v.

Thompson, 310 S. 2d 300 (Fl. 1975). In Re Rosenbluth,

36 App. Div. 2d 383, 320 NYS 2d 839 (1971). We have

not been able to find, and the Bar Association has not

cited, an appellate case to the contrary.

In at least two prior Washington State cases, Jn Re

Chantry, 84 Wn. 2d 153, 524 P.2d 909 (1974) and In Re

Egger, 93 Wn.2d 706, 611 P.2d 1260 (1980), this court

found that a disbarred attorney’s work with and under

the supervision of practicing attorneys demonstrated re-

habilitation. In the latter case, the court had before it

fifty letters from practicing attorneys praising Mr. EKg-

Lcciiatenanimeiile iia

13

ger, and most related to the high quality of the research,

investigation and other similar work performed by Mr.

Egger for them during the term of his disbarment, 93

Wn.2d 708. Those same letters were considered by the

Hearing Officer in the present case (App. D, infra, p. 5).

The only contrary authority is Formal Opinion 171

which concludes that the employing of a disbarred at-

torney in any capacity by a practicing attorney “could

be” a violation of RLD 1.1 (h). Even if one concedes

Formal Opinion 171 prohibited the hiring of a disbarred

attorney, it is not a binding opinion (App. 68). Mr.

Barney was able to uncover the Bar Association’s file

pertaining to Opinion 171. The concern giving rise to

Opinion 171 was the hiring of disbarred attorneys in the

“capacity” of office managers, legal assistants and the

like so as to permit them to practice law (App. 1). It

was a stipulated fact that Mr. Butler was not in any way

engaging in the practice of law (App. 64).

There is another reason for this court to now give

consideration to RLD 1.1 (h) and the entire question of

disbarred attorneys. The rule in one form or another

has been in effect since 1922. No one can deny it is am-

biguous. The need for Formal Opinion 171 establishes

that.

We submit the following is an accurate description

of the logic inherent in Formal Opinion 171 and any de-

termination that RLD 1.1(h) prohibits any employment

of a disbarred attorney by a practicing attorney.

‘“‘RLD 1.1(h) ‘early prohibits an attorney in good

standing from practicing law under any arrangement

or understanding for division of fees or compensa-

tion of any kind with a disbarred attorney.

14

= equals =

‘“‘This clear prohtbition against attorneys practicing

law while compensating a disbarred attorney means

an attorney in good standing who hires a disbarred

attorney in any capacity could be subject to discipline

for a violation of the Rules for Lawyer Discipline. .

= equals =

‘‘An attorney in good standing may not hire a dis-

barred attorney in any capacity.”

Perhaps the last time this example of logic was em-

ployed was by Humpty Dumpty in Alice in Wonderland

when he stated that the meaning of a word was whatever

he wanted it to mean.

II. RLD 1.1(h), As Interpreted And Applied By The

Bar Association, And Formal Opinion 171, Vio-

late Freedom Of Association Under The First

Amendment And Due Process And Equal Protec-

tion Under The Fourteenth Amendment Of The

United States Constitution And Under Article 1,

Sections 3 And 12 Of The Washington State Con-

stitution.

The first clearly recognizable constitutional violation,

under the Bar Association’s construction, falls within the

right of association under the First Amendment of the

Federal Constitution. The Washington State Supreme

Court recently reaffirmed that the right of association

applies to business activities. Myrick v. Pierce County

Commissioners, 102 Wn.2d 698, 687 P2d 1152 (1984). The

state may not use a person’s associations to prohibit him

from practicing law unless it meets the heavy burden of

showing a necessity of protecting a legitimate state in-

eV

15

terest. Beard v. State Bar of Arizona, 401 U.S. 1, 27

L. Ed. 629, 91 S. Ct. 702 (1971). Schware v. Board of

Bar Examiners, 253 U.S. 232, 1 L. Ed. 796, 77 S. Ct. 752

(1957). Preventing the unauthorized practice of law by

disbarred attorneys is unquestionably a legitimate inter-

est. But what is the State interest in preventing disbarred

attorneys from earning a livelihood by performing non-

practice of law work for practicing attorneys? What

would be the constitutional justification in such ease when

it appears that Washington would be the only State where

the hiring of a disbarred attorney to perform research

and other similar work is unethical?

The Bar Association’s version of RLD 1.1(h) also

denies Mr. Barney equal protection under both.the Fed-

eral and State Constitutions. Those who are similarly

situated must be similarly treated. Peterson v. State, 100

Wn2d 421, 671 P2d 230 (1983). State v. Phelan, 100 Wn2d

508, 671 P2d 1212 (1983). The latter case recognized the

‘‘intermediate scrutiny test’’. Considering the potential

serious consequences flowing to any attorney which vio-

lates the canons of ethics, we suggest this case is gov-

erned by that test. However, even if the ‘‘rational re-

lationship test” is applicable, the respondent should still

prevail.

Equal protection applies to all levels of state power,

including administrative and regulatory agencies. Avery

v. Midland County, 390 U.S. 474, 20 L.Ed.2d 48, 88 S. Ct.

390 (1965); Moose Lodge 107 v. Irvis, 407 U.S. 163, 32

L.Ed.2d 627, 92 S. Ct. 1967 (1972).

Not only has Mr. Barney been the one attorney against

whom the Bar Association has sought to enforee RLD

1.1 (h) in over sixty years but his conduct cannot be dis-

16

tinguished between the almost fifty Judges and attorneys

who hired Mr. Egger during his disbarment. We are not,

as the Bar Association has sought to argue, merely ad-

dressing a lack of total enforcement. We are addressing

an absence of enforcement. Excepting this one case, a

disbarred attorney’s employment with a practicing attor-

ney has demonstrated rehabilitation.

The Bar Association’s interpretation also violates Mr.

Barney’s due process rights. A statute (rule) violates

due process when the language does not convey sufficiently

definite warning as to the prohibited conduct when meas-

ured by common understanding and practices. Baggett v.

Bullitt, 376 U.S. 360, 12 L. Ed. 2d 377, 84 8S. Ct. 316 (1964)

16 Am. Jur. 2d Constitutional Law, Section 18. Even

closer scrutiny occurs when the statute inhibits the exer-

cise of guaranteed individual freedoms (in this case, the

right of association). Cramp v. Board of Public Instruc-

tion, 368 U.S. 278, 7 L. Ed. 2d 285, 82 8. Ct. 275 (1961).

That Mr. Barney, after substantial research, and the hear-

ing officer can come to one conclusion and the Board can

arrive at another manifests competent attorneys in good

faith can have a different interpretation of RLD 1.1 (h).

To declare an ethical violation because of misinterpreta-

tion, particularly in view of this court’s decisions in Chan-

try and Egger, is patently a violation of due process.

Not the least of the constitutional considerations are

the due process rights denied Mr. Butler. A state may

not deprive a person of an employment contract without

due process. Board of Regents v. Roth, 408 U.S. 564, 33

L. Ed. 2d 548, 92 S. Ct. 2701 (1972). Perry v. Sindermann,

408 U.S. 593, 33 L. Ed 2d 570, 92 8. Ct. 2974 (1972). Note:

in Board of Regents v. Roth, the court held that Mr. Roth

17

was not entitled to a hearing because the State had taken

no action to prevent him from securing state employment

in his particular field. The Bar Association’s interpre-

tation of RLD 1.1 (h) has effectively prevented Mr. Butler

from not only using his ability at legal research but also

his accounting education .o obtain work from those per-

sons who would be most likely to hire him. Although a

hear:ng was afforded in the loss of his license as a lawyer,

he has not been given a hearing regarding his employ-

ment with lawyers fcr the non-practice of law work.

Egger and Chantry again have significance. Both

Mr. Chantry and Mr. Egger engaged in employment which

would have their employer or supervisor before the Dis-

ciplinary Board under the standards applied in this case.

The work they performed became a vital factor in dem-

onstrating their rehabilitation. There being no authority

to the contrary, Mr. Butler had every right to expect the

same treatment. He has not been given the slightest op-

portunity of showing his situation could be exactly the

same as Mr. Chantry and/or Mr. Egger. Concededly, the

Bar Association’s actions have been against the employ-

ing attorney; but it like any other governmental body, is

bound by the rule that it cannot indirectly do what is

directly prohibited.

Each of the foregrounds for attacking the constitu-

tionality of the Board’s construction of RLD 1.1 (h) have

been limited by the space available in a petition for re-

view. Included in the Appendix is a more extensive dis-

cussion contained in the brief filed before the Hearing

Officer (App. 44-53) and before the Disciplinary Board.

A new constitutional issue is now raised, i.e. the Hearing

Officer and the Board refused to consider the constitu-

18

tional issues on the theory that the same was in the sole

province of the court; now that the Washington State Su-

preme Court, in its discretion, denied review, the uncon-

stitutionality of RLD 1.1 (h) will never be considered. For

this to occur would be not only extremely unfair but in

and of itself a denial of due provess rights under both

Federal and State Constitutions.

—_ *

+d

CONCLUSION

The Order of the Disciplinary Board of the Washing-

ton State Bar Association modifying the Hearing Officer’s

decision should be vacated because of the failure to adhere

to the appearance of fairness doctrine and because of the

conduct of the Chairman and Bar Counsel in the prepara-

tion of the order.

The petition for a writ of certiorari should be grant-

ed as to the Order of the Supreme Court of the State of

Washington and as to the Order of the Disciplinary Board

of the Washington State Bar Association to permit a

hearing on the constitutional issues raised by Mr. Barney.

The state bar disciplinary proceedings did not permit an

opportunity to adjudicate the constitutional claims.

The case of Midd'esex Ethics Comm. v. Gordon State

Bar Assn., 457 U.S. 423, 73 L.Ed.2d 116, 102 S.Ct. 2515

(1982), lends itself to the proposition that if the Wash-

ington State Supreme Court and the Disciplinary Board

of the Washington State Bar Association will now state

that they will permit a meaningful opportunity to adjudi-

eate the constitutional claims raised by Mr. Barney, this

Court will remand this matter back to the State Court

19

and the Bar Association for such adjudication. This

disposition would be consistent with the relief sought by

Mr. Barney in this petition. He requests that the consti-

tutional issues that he raised be decided.

At this point, we feel compelled to explain why re-

view is sought. There being. no punishment, why should

Mr. Barney be entitled to review? There are sanctions!

If he ever seeks office in the Bar Association or the ju-

diciary, the stigma of having violated the canons of ethics

could prove an almost insurmountable obstacle. Most im-

portant, although the Hearing Officer and the Disciplin-

ary Board concede his actions were guided by decency and

humanity, Mr. Barney supposedly violated RLD 1.1 (h).

We call attention to the following language from the pre-

amble to the Code of Professional Responsibility:

‘‘But in the final analysis there is the desire for re-

spect and confidence of members of his profession

and the society which he serves that should provide

to a lawyer the incentive for the highest possible de-

gree of ethical conduct. The possible loss of that

respect and confidence is the ultimate sanction.” (Our

emphasis. )

Respectfully submitted,

Harrison H. peMers*

30640 Pacific Highway, S.

Federal Way, WA 98003

Telephone: (206) 941-0234

Joun J. Keoven

1218 IBM Building

Seattle, WA 98101

Telephone: (206) 628-0890

Attorneys for Petitioner

* Counsel of Record

20

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI AND

MOTION TO VACATE THE JUDGMENT BELOW

App. |

APPENDIX A

THE SUPREME COURT

State of Washington

Olympia

98504-0511

Reginald N. Shriver, Clerk \

January 4, 1985

John J. Keough

1218 IBM Building

Seattle, WA 98101

Washington State Bar Association

Attn: Robert T. Farrell

Re: CD #6754

In Re Richard M. Barney, Jr., an attorney at Law

Dear Mr. Keough and Mr. Farrell:

The above entitled Petition for Review was considered by

the Court on its January 4, 1985 Petition for Review Cal-

endar.

The Petition was denied by Order No. 131-174 filed on Jan-

uary 4, 1985.

Very Truly Yours,

Reginald Schriver.

App. 2

APPENDIX B

BEFORE THE DISCIPLINARY BOARD OF THE

WASHINGTON STATE BAR ASSOCIATION

In re

RICHARD M. BARNEY, JR.,

An Attorney at Law.

ORDER MODIFYING AND ADOPTING

HEARING OFFICER’S DECISION

On November 2, 1984, the decision of the hearing of-

ficer dismissing disciplinary proceedings regarding Rich-

ard M. Barney, Jr., entered on August 10, 1984, came be-

fore the Disciplinary Board for review, on the appeal filed

by state bar counsel. Review was based on the hearing

officer’s decision; the Association’s Statement in Opposi-

tion with attachments; Respondent Attorney’s Statement

in Support with attachments; the Association’s Counter-

. statement; and oral argument before the Board conducted

by attorney John J. Keough on behalf of respondent Bar-

ney and state bar counsel Robert T. Farrell. In addition,

Mr. Barney personally addressed the Board. By stipula-

tion, the transcript of the hearing was not before the

Board. Based on this review,

IT IS ORDERED that the decision of the hearing

officer is adopted in part and modified in part, as follows:

a. The Findings of Fact, paragraphs 1 through 16,

are adopted;

b. Conclusion of Law paragraph 1 is adopted;

e. Conclusions of Law paragraphs 2 and 3 are

stricken, and the following language substituted as a new

Conclusion of Law:

App. 3

It is the unanimous opinion of the Disciplinary Board

that the Employment of a disbarred lawyer in a law

office violates RLD 1.1(h), but under the circumstances

the good faith belief of respondent militates against

any discipline in this case.

d. Conclusion of Law paragraph 4 is adopted;

e. The Recommendation of the hearing officer, para-

graphs 1 and 2, is stricken and the following language

substituted:

The decision of the hearing officer dismissing this

proceeding is reversed, but no sanction shall be im-

posed on the respondent lawyer for the reasons set

forth above.

The vote on this matter was 9-0. Mr. Ferguson took

no part in the deliberation or vote.

DATED this 8 day 07 November, 1984.

WasHINGTON STATE Bar AssocraATION

Disciplinary Board

By

Homer Crollard, Chairman

———————oo EE

App. 4

APPENDIX C

BEFORE THE

DISCIPLINARY BOARD

OF THE

WASHINGTON STATE BAR ASSOCIATION

In re: RICHARD M. BARNEY, JR.,

An Attorney at Law.

ORDER DENYING PETITIONS BY RESPONDENT

Two petitions by respondent Richard M. Barney, Jr.,

have come before the undersigned as Chairman of the Dis-

ciplinary Board:

PETITION FOR CLARIFICATION OR, IN THE

ALTERNATIVE, FOR A SPECIAL RULING and PETI-

TION AND MEMORANDUM FOR RECONSIDERA-

TION. Neither of said petitions is dated, but apparently

they were filed with the Washington State Bar Associa-

tion on November 26, 1984.

Having reviewed and considered both of said Peti-

tions, and also reviewed the hearing officer’s Findings of

Fact, Conclusions of Law and Recommendation dated Au-

gust 10, 1984, and also this Board’s Order Modifying and

Adopting Hearing Officer’s Decision dated November 8,

1984, and being fully advised in the premises, the under-

signed is of the opinion that both of said Petitions should

be DENIED.

IT IS SO ORDERED.

DATED this 7th day of December, 1984.

WASHINGTON STATE BAR AS-

SOCIATION Disciplinary Board

By /s/ Homer Crollard, Chairman

ORDER DENYING PETITIONS

BY RESPONDENT

6

a

App. 5

APPENDIX D

BEFORE THE DISCIPLINARY BOARD OF THE

WASHINGTON STATE BAR ASSOCIATION

IN RE: Richard M. Barney, Jr.,

An Attorney at Law

FINDINGS OF FACT, CONCLUSIONS OF LAW

AND RECOMMENDATION

THIS. MATTER having come on regularly for hear-

ing on July 24, 1984, before the undersigned Hearing Offi-

cer on the Formal Complaint filed by State Bar Counsel

and the Answer of the Respondent; Robert T. Farrell,

State Bar Counsel, appearing on behalf of the Washington

State Bar Association; the Respondent appearing in per-

son and being represented by his attorney, John J.

Keough; the Hearing Officer having received the Stipu-

lation of Facts of the parties, signed by their respective

attorneys; having heard the testimony of the Respondent;

having read the exhibits attached to the Stipulation of

Facts and the Exhibits offered into evidence at the hear-

ing; and the Hearing Examiner having made the follow-

ing rulings at the commencement or during the hearing

to-wit:

1. Respondent’s objections based upon constitutional

grounds should not be considered at this level.

2. The Bar Counsel’s objections were sustained as

to offer proof that other attorneys—and judges—have in-

dulged in the employment of disbarred attorneys and the

enforcement of RLD 1.1 (h) has been lax, that Robert

Eggers’ employment by attorneys and judges while he

was disbarred was known to the Board of Governors of the

Washington State Bar Association and the Supreme Court

App. 6

of the State of Washington at the time of hi. reinstate-

ment proceedings and that, although an attorney suspend-

ed in Oregon State worked for a Seattle attorney during

the term of his suspension, his admission to practice was

recommended to the Board of Governors by the Washing-

ton State Bar Counsel and said admission was recom-

mended 8 to 1 by the Board of Governors to the Wash-

ington State Supreme Court.

3. Although the Hearing Examiner considered the

absence of prosecution of other cases not a defense to the

person who was charged, if in fact a violation of rule has

occurred, he did permit introduction of the record which

was before the Board of Governors and the State Su-

preme Court in the Egger’s case (93 Wn2d 706).

4. On the same basis as stated in 3, the Hearing Ex-

aminer permitted testimony from a Mr. David Olwell, of

Mr. Barney’s firm, to the effect that whatever complaint

might have been brought against him (of which he had

been unaware) had been dismissed.

And the Hearing Examiner having rendered a writ-

ten opinion on July 27, 1984, which is attached to these

Findings, Conclusions and Recommendations and incor-

porated herein, he now makes and enters the following:

FINDINGS OF FACT

1. Respondent Richard M. Barney, Jr., was ad-

mitted to the practice of law by the Supreme Court of the

State of Washington on September 28, 1970. At all times

hereto he has practiced law in the State of Washington

with his principal offices in King County, Washington.

2. Robert L. Butler was disbarred as an Attorney

at Law on October 14, 1981, following a criminal felony

App. 7

conviction for the theft of client funds. On August 24,

1981, Mr. Butler was placed on probation for 5 years as

a result of the conviction and ordered to make restitu-

tion in the amount of $10,726.68. In fulfillment of an ad-

ditional probationary requirement of providing 400 hours

community service, Mr. Butler worked 400 hours for the

Clerk of the King County Superior Court. He received a

letter of commendation from the Clerk for his work. Mr.

Barney read that letter on or before September 22, 1983.

3. On September 22, 1983, Mr. Barney, on behalf of

the law firm of Barney, Weiner & Olwell and Mr. Butler

entered into the Employment Agreement attached to the

Stipulation of Facts.

4. During the time Mr. Butler worked for Barney,

Weiner & Olwell, P.S., he was assigned office space in

the Federal Way offices occupied by the law firm. Mr.

Butler’s initial work for the law firm related to the re-

construction of accounting records in a complex case in

which Mr. Barney had been retained and was preparing

to commence suit. Mr. Barney knew at the time Mr. But-

ler was employed that Mr. Butler had completed approxi-

mately thirty hours of accounting courses at the univer-

sity level, had been employed by the Internal Revenue and

Army Audit Agency and had performed accounting and

auditing work for CPA firms in Seattle, Washington,

while attending law school. Beginning in October, 1983,

Mr. Barney, on occasions had Mr. Butler perform legal

research for him in other cases. On one occasion Mr. But-

ler attended a meeting at which Mr. Barney and his clients

were present.

———————

App. 8

5. Mr. Butler’s salary (per the attached Agreement)

was paid from funds deposited to the bank account of

Barney, Weiner & Olwell, P.S., which funds were used

to pay salaries of all the firm’s attorneys, secretaries, le-

gal assistants and a bookkeeper, rent and all other ex-

penses incurred in the operation of the law offices.

6. At the time Mr. Butler applied for work, Mr.

Barney found Mr. Butler in serious financial straits. He

was unable to pay for the necessities for his dependent

children and himself. Mr. Barney and Mr. Butler had

been friends for approximately fifteen years and they

had been law partners with another attorney during the

early 1970's.

7. At the time of Mr. Butler’s employment, Mr. Bar-

ney had knowledge of Mr. Butler’s disbarment. At that

time, Mr. Barney had knowledge of RLD 1.1 (h) and of

Formal Opinion 171 relating to an attorney in good stand-

ing employing a disbarred attorney.

8. Before hiring Mr. Butler, Mr. Barney researched

the issue of whether an attorney in good standing could

employ a disbarred attorney to perform services that did

not constitute the practice of law. In the course of his

research, he read Ethical Considerations EC-5 and EC-6,

Ferris v. Snwely, 172 Wash 167, 19 P2d 942 (1933); In

Re Eggers, 93 Wn2d 706, 611 P2d 1260 (1980); In Re

Batalt, 98 Wn2d 610, 657 P2d 775 (1983); Im Re Ressa,

94 Wn2d 882, 621 P2d 153 (1980) ; In Re Chantry, 84 Wn2d

153, 524 P2d 909 (1974); Florida Bar v. Thompson, 310

So. 2d 300 (1975) and Werner v. State Bar of California,

265 P2d 912 (1954), and numerous other cases and ma-

terials on the issue of the employment of a suspended or

pretation 6

App. 9

disbarred attorney. Mr. Barney was also aware that John

Rosellini, a disbarred attorney, worked for his father,

Albert D. Rosellini an attorney in good standing, in the

family beer business, and was not aware that disciplinary

action had been taken against Albert D. Rosellini by the

Bar Association. Based upon his research, Mr. Barney

concluded that Formal Opinion 171 did not apply to every

non-practice of law situation.

9. Shortly prior to Mr. Butler’s employment, Mr.

Barney had entered into an attorney-client relationship

with Mr. Butler to commence an action to clarify and to

establish Mr. Butler’s right to work for an attorney in a

non-practice of law capacity, and in the event of an ad-

verse ruling, to challenge the constitutionality of any rule,

opinion, or interpretation and/or application of any rule

that prohibited Mr. Butler from working and earning a

living from non-practice of law employment.

10. Mr. Butler’s employment by Barney, Weiner &

Olwell, P.S., was terminated on December 9, 1983, by let-

ter dated December 12, 1983 (attached to Stipulation of

Facts), as a result of the Bar Association’s letter to Mr.

Barney, dated December 8, 1983, received December 10,

1983 (attached to Stipulation of Facts).

11. Prior to Mr. Butler’s discharge on December 9,

1983, Mr. Barney had not sought any opinion of the Bar

Association (either state bar counsel or the Code of Pro-

fessional Responsibility Committee) as to the propriety

of his employment of Mr. Butler, nor had he brought the

action for which he had been hired by Mr. Butler.

12. Mr. Barney did not advise the attorneys in the

firm, other than the directors, that Mr. Butler was a dis-

App. 10

barred lawyer. Nor did he advise any employee that Mr.

Butler was a practicing attorney. Some associate attor-

neys did not learn of Mr. Butler’s status as a disbarred

lawyer until approximately December 8, 1983.

13. Mr. Butler’s work while in the employ of Mr.

Barney’s firm was in the nature of an accounting-trained

legal assistant and was conducted at all times under the

supervision of one of the attorneys of that firm. As such,

Mr. Butler’s work did not in itself constitute the prac-

tice of law.

14. Mr. Barney was aware of both RLD 1.1(h) and

Formal Opinion 171 prior to hiring Mr. Butler, but in good

faith adjudged Formal Opinion 171 to be an incorrect in-

terpretation of the rule of a disbarred attorney and in

good faith adjudged the rule not to enjoin the hiring of a

disbarred attorney if he were not in any way to engage

in acts which would constitute the practice of law in the

course of his employment.

15. That the Respondent considered the possilility

that a violation of RLD 1.1(h) might be asserted by reason

of his employment of Robert L. Butler and researched the

matter thoroughly before such employment does not in-

dicate guilty knowledge of Respondent’s part. Mr. Bar-

ney’s action in that respect exhibited the care a competent

attorney would take in approaching this type of situation.

16. In employing Mr. Butler, Mr. Barney was moti-

vated, in part, by compassion for a friend and former

partner who was then in severe economic distress.

From the foregoing Findings of Fact, the Hearing

Officer makes the following:

App. 11

CONCLUSIONS OF LAW

7

i. KLD 1.i(h) clearly prohibits any professional as-

sociation by an attorney with a disbarred attorney who

is in any way engaging in the practice of law or the un-

authorized practice of law.

2. The instant case does not involve unauthorized

practice of law by the disbarred attorney and involves only

two clauses of RLD 1.1(h):

(a) The final clause of RLD 1.1(h) which prohibits

“... practicing law under any arrangement or under-

standing for division of fees or compensation of any

kind with a suspended lawyer. .. .”

refers, for reasons explained in the attached letter, to a

sharing of fees between a practicing attorney and the dis-

barred attorney; and

(b) The second clause in RLD 1.1(h) which prohibits

“... maintaining an office for the practice of law in

a room or office occupied or used in whole or in part

by a disbarred lawyer. .. .”

refers, for reasons explained in the attached letter, to of-

fice sharing arrangements which exist between otherwise

unaffiliated attorneys but which may have the appearance

of a law association or partnership to the unsophisticated

layman.

3. RLD L.1(h) does not encompass the facts in the

instant case. The Respondent’s employment of Robert L.

Butler in a non-practice of law capacity did not violate

the rule.

4. The Respondent’s termination of Mr. Butler’s

employment on December 10, 1983, upon receipt of the

a

App. 12

letter dated December 8, 1983, from Mr. Farrell did not

constitute an admission that Respondent had viclated

RLD 1.1(h) for having employed Mr. Butler.

From the foregoing Findings of Fact and Conclusions

of Law, the Hearing Officer makes the following recom-

mendations to the Board of Governors of the Washington

State Bar Association:

RECOMMENDATION

1. That the Formal Complaint against Richard M.

Barney, Jr., an attorney at Law be dismissed witha preju-

dice, with the conclusion that his employment of Robert

L. Butler, a disbarred attorney, in a non-practice of law

capacity did not violate RLD 1.1(h).

2. In the event the legal determination supporting

Recommendation is overturned, that the sanction against

Richard M. Barney, Jr. be no greater than a reprimand.

DATED this 10th day of August, 1984.

/s/ Robert T. Carter

Hearing Officer

Presented by and certified a copy served on Bar Counsel

/s/ John J. Keough

Attorney for Respondent

App. 13

RANDALL & DANSKIN, P.S.

Attorneys and Counselors

1500 Seafirst Financial Center

Spokane, Washington 99201-0653

Telephone (509) 747-2052

July 27, 1984

Mr. Robert T. Farrell, State Bar Counsel

Washington State Bar Association

505 Madison Street

Seattle, WA 98104

Mr. John J. Keough

Keough & Mallett

1218 IBM Building

Seattle, WA 98101

Re: Inre RICHARD M. BARNEY, JR.

Gentlemen:

This letter is intended as a statement of my thoughts con-

cerning the matters raised at the July 24 hearing. ‘The

question is whether Mr. Barney violated RLD 1.1(h) by

his employment of Mr. Robert L. Butler, who is a dis-

barred attorney. The pertinent facts of the matter were

largely developed in the Stipulation of Facts and as hear-

ing officer I heartily appreciate the work and coopera-

tion which all counsel expended in putting these stipula-

tions together. They form the large part of the findings

which should be made for the benefit of the Board of

Governors. Beyond the stipulated facts, I would make

certain further findings as follows:

1. Mr. Butler’s work while in the employ of Mr. Bar-

ney’s firm was in the nature of an accounting-

trained legal assistant and was conducted at all

times under the supervision of one of the attor-

App. 14

neys of that firm. As such, Mr. Butler’s work did

not in itself constitute the practice of law.

Messrs. Farrell and Keough

July 27, 1984

Page 2

2. Mr. Barney was aware of both RLD 1.1(h) and

Formal Opinion 171 prior to hiring Mr. Butler,

but in good faith adjudged Formal Opinion 171

to be an incorrect interpretation of the rule and

in good faith adjudged the rule not to enjoin the

hiring of a disbarred attorney if he were not in

any way to engage in acts which would constitute

the practice of law in the course of his employment.

3. In employing Mr. Butler, Mr. Barney was moti-

vated in part by compassion for a friend and

former partner who was then in severe economic

distress.

Good faith in itself is not a defense, although it may in-

fluence the extent of sanctions appropriate if a violation

of the rule has occurred. This matter seems to come down

to an issue of interpretation of the rule. Although this

rule seems to have been in effect for at least 60 years—

either as a statute or a rule—I am not cited to any Wash-

ington case precedent on its interpretation. Neither am

I given any indication that decisions from other jurisdic-

tions actually address themselves to a substantially simi-

lar rule.

Formal Opinion 171 certainly addresses itself directly to

this type of situation. Perhaps it compromises its con-

clusion somewhat by its language that an attorney in such

App. 15

a case “could” be subject to discipline. Taken by its four

corners, however, the Formal Opinion seems to say that

what Mr. Barney did in this case would be considered a

violation of the rule. The Formal Opinion, however, is

conceded not to be a rule in itself or a binding interpreta-

tion of the rule, and the Supreme Court’s approval of the

Formal Opinion was not entered on the basis of any ad-

versary process.

The Supreme Court does seem to be sending a conflicting

signal in the Chantry, Egger, and Krogh opinions, to the

extent that work by disbarred attorneys for other attor-

neys or for the courts or other organs of the system of

justice are to be weighed in favor of such attorneys’ re-

instatement. Again, as indicated, these reinstatement

cases may nvt have been fully adversary in nature. What

I do apprehend is that the Supreme Court has not directly

faced the issue of this type of conduct in the context of

the rule invoked in this matter. The legislative history

of the rule seems to send. conflicting signals. It was ap-

parently reenacted subsequent to the publication of For-

mal Opinion 171. However, a proposed rule which would

have made it clearly applicable to a case like this has not

to date been accepted. My first working conclusion is that

we must interpret RLD 1.1(h) ourselves.

To start with, RLD 1.1(h) clearly prohibits any profes-

sional association with any disbarred attorney who is in

any way engaging in the practice of law, whether or not

such association can be said to aid the unauthorized prac-

tice of law. The present case, however, involves no un-

authorized practice by the disbarred attorney. At this

point the rule is less clear. In fact, it becomes confusing

at some points.

App. 16

RLD 1.1(h) consists of several separate clauses, any one

of which can describe a violation. Only two are argued

by bar counsel as applying to this case. The final clause,

which prohibits

... practicing law under any arrangement or under-

standing for division of fees or compensation of any

kind with a disbarred or suspended lawyer...

is quite unclear in its intent. Does it speak solely to di-

viding “fees or compensation of any kind” with a dis-

barred attorney? Or does it really prohibit “any arrange-

ment ... for compensation . . . with a disbarred...

lawyer”? The use of the term “with”, without using the

word “to”, leads to the conclusion that this clause speaks

strictly to the sharing of fees between the practising and

disbarred attorneys. It does not seem to enjoin compen-

sating the disbarred attorney for services which do not

involve his practising law.

Bar counsel also asserts a violation of the second clause

of the rule, in

. . maintaining an office for the practice of law in

a room or office occupied or used in whole or in part

by a disbarred or suspended lawyer...

One’s first reaction to this clause is that it speaks more

of joining with the established work place of a disbarred

attorney than in bringing him into one’s own established

practice location. The latter situation seems to be more

closely impacted by the first or final clauses of the rule

It may well be that under this second clause the mere

propinquity in a suite of offices would be enough to con-

stitute a violation. One need not speculate on this in the

present case, however, since Mr. Butler’s use of one of

App. 17

Mr. Barney’s offices was quite intentional on the part of

both. My interpretation of this second clause of the rule

is that it is simply an extension of the first clause. In

other words, not only are we prohibited from practicing

law in partnership with a disbarred attorney but we are

further prohibited from doing so under the looser office-

sharing arrangements which exist between otherwise un-

affiliated attorneys but which may have the appearance

of a law partnership to the unsophisticated layman. This

somewhat strict interpretation of this second clause of the

rule is encouraged by the fact that matters of compensa-

tion to or from a disbarred attorney are more directly

addressed in the final clause of the rule which I have dis-

cussed above.

At this point I have concluded that RLD 1.1(h) as writ-

ten does not encompass the case before us, and that Mr.

Barney’s employment of Mr. Butler in a non-practice-of-

law situation did not violate this rule.

Perhaps a cogent argument to the contrary might be

adopted. However, the fact that Mr. Barney considered

the possibility that a violation might be asserted as to

his employment of Mr. Butler, and researched the matter

thoroughly before dcing so, does not indicate guilty knowl-

edge on his part. It only indicates to me the care that a

competent attorney would take in approaching a situation

like this one.

At the hearing I upheld bar counsel’s objections as to

offered proof that other attorneys—and judges—have in-

dulged in similar employment of disbarred attorneys and

that enforcement of this rule in this situation has been

lax. I did permit counsel to introduce the record from

App. 18

Mr. Robert Eggers’ reinstatement hearing, in which some

letters showed that he had worked in law offices and

courts during his disbarred status. I also permitted testi-

mony from Mr. Olwell of Mr. Barney’s firm to the effect

that whatever complaint might have been brought against

him (of which he had been unaware) had been dismissed.

My feeling is that the absence of prosecution of other

cases is not a defense to the person who is charged, if in

fact a violation of the rule has occurred. All of these

matters, whether rejected or accepted by me at the hear-

ing, I would judge to be extraneous to the issue of inter-

pretation that is raised in this case, and I have not con-

sidered any of these matters in reaching the conclusions

I have stated in this letter.

In light of the conclusions stated herein, | would request

Mr. Keough to prepare and furnish to me proposed find-

ings, conclusions, and recommendations to the Board of

Governors consistent with the thoughts expressed in this

letter. I am supposed to do this within 20 days after

the July 24 hearing, and would request that Mr. Keough’s

work product be furnished to me in time that I may com-

ply with this rule.

Yours very truly,

/s/ Robert T. Carter

C :reb(C/2)

ec: Mr. Richard M. Barney, Jr.

19743 First Avenue South

Seattle, WA 98148