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6i^ L CARLSON 

### SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter ofthe Disciplinary Proceeding Against CARLLENE M.PLACIDE,

an Attorney at Law. No. 201,639-1

En Banc

Filed APR 1 2 2018 JOHNSON,J.—Attorney Carllene M.Placide appeals the unanimous 

### recommendation ofthe 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 oflaw in 1999. In November 2006, 

### Placide joined the law firm ofDorsey & Whitney LLP as a "non-equity"partnerIn 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 ofFact, Conclusions ofLaw,& 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 ofDisciplinary Counsel's (GDC) Ex.A-109,at 20,Placide knew ofthese 

### policies and agreed to comply with them by signing the offer ofemployment 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 ofturning them over to Dorsey. She represented outside clients on a flat fee basis, with fees and expenses paid inIn 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 ofDorsey employees when working on outside client matters. She attempted to conceal her representation ofoutside 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 ofher statements were inaccurate but denies there was any intent to deceive." Opening Br. ofAppellant 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-thebooks 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. ifshe 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 ofOgletree,Deakins,Nash,Smoak & Stewart regarding potentially leaving Dorsey and joining Ogletree. Although Placide believes sheIn 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 ofPlacide'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 ofthe firm,it intended and expected its shareholders to provide legal services exclusively for Ogletree clients. The hearing officer found that Placide 

### knew ofthis 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 ofoutside clients and that Dorsey terminated her because it became
aware ofthe discussions with Ogletree regarding potential employment. Ogletree requested that Placide provide a copy ofher 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 ofthe 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 ofmisconduct: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 ofher '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 ofa 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 ofClient 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 ofRFC 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 ofa 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 offact, 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 beliefthat 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 ofsuch 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 ofanother,'" 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 ofher 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 herIn re Discipline ofPlacide (Carllene M.),No. 201,639-1

contractual obligations and fiduciary duties to Dorsey and Ogletree,but did not constitute the crime oftheft." 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 ofclient P.S.'s fee which was not covered by Respondent[']s Settlement Agreement with Dorsey,and by appropriating $2,050 ofthat fee which had been misdelivered to her." DP at 73 

### (AFFCLR).The hearing officer concluded that standard 5.L ofthe American Bar Association's Standards for 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 ofClient 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 ofwhich 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 ri ot 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 ofdishonesty, 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 ofclient 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

10In 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 ofa 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 ofa contractual or fiduciary duty between Placide and the partners at Dorsey and/or Ogletree [was]not necessary to establish the violations and to the

11In 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 ofoutside 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 ofthe charges against her? 7. Did the Board correctly determine that Placide engaged in conduct involving dishonesty, fraud,deceit, or misrepresentation regardless ofthe existence ofpolicy manuals or firm policies at Dorsey and Ogletree? 8. Was the Board's recommendation ofdisbarment for counts 2 and 7 disproportionate?

12In 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 of

Review This court is the definitive authority for attorney discipline.In re Disciplinary ProceedingAgainstKuvara, 149 Wn.2d 237,246,66 P.3d 1057 (2003).Unchallenged findings offact are verities on appeal.In re Disciplinary ProceedingAgainstMarshall, 160 Wn.2d 317, 330, 157 P.3d 859 (2007) {MarshallI). Where challenged,this court will uphold those findings provided they
are supported by substantial evidence.In re Disciplinary ProceedingAgainst 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 ofmind and his [or her]decision is given 'great weight' on review."In re Disciplinary ProceedingAgainst Cramer, 165 Wn.2d 323, 332, 198 P.3d 485 (2008)(quoting/« re Disciplinary Proceeding AgainstLongacre, 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

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

decision absent a clear reason for departure.In re Disciplinary ProceedingAgainst 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 ProceedingAgainstRice^ 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. ofAppellant 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. ofGDC at 22.It cites to In re Disciplinary ProceedingAgainst 

### 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" ofa 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).

14In 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 ofsuspension,"^ citing several factors: (1)the case did not involve "misappropriation ofclient funds"but rather "internal problems ofa 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 ofthe firm's accounting procedures."Rice, 99 Wn.2d at 277-79. We noted that Rice "acknowledged the truth ofhis 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 itselfin 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 ofat least some ofthe 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).

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



### keeping those client fees were out ofcharacter with the nature ofthe 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 ofProfessional 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 ofthe 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 bluffbut 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.

16In 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 ofa 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 of

fraud,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 ofretribution," 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 ofwhether an attorney is an associate, a partner, or a shareholder. ODC correctly notes that under Rule 1.2 ofthe Rules for Enforcement ofLawyer Conduct (EEC),Placide is '"subject to the disciplinary authority ofthis jurisdiction'" as an attorney "'admitted to practice in this jurisdiction.'" Answering Br. ofODC at 24 (quoting EEC 1.2). Placide's conduct is therefore within the purview ofthe attorney disciplinary proceedings.

17In 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 ofoutside clients Placide next contends that the hearing officer erroneously determined that the Dorsey and Ogletree firm policies regarding representation ofoutside 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 ofa 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 ofoff-the-books clients. Opening Br. ofAppellant at 16, 18. "An attorney's knowledge may be inferred from the facts."/n re Disciplinary ProceedingAgainstPreszler, 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 ifthere are several reasonable interpretations ofthe evidence, evidence is substantial ifit reasonably supports the finding.In re Disciplinary ProceedingAgainstMcGrath, 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 ofDorsey. ODC

18In 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 ofthe 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 staffmembers. 1 VRP at 86;see 2VRP 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 staffprint 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.

19In 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 ofthe Dorsey and Ogletree policies addressing representation ofoff-thebooks 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 beliefthat the firm did not have a claim on [those]funds," she did not wrongfully exert unauthorized control over the money. Opening Br. ofAppellant 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.

20In 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 uponpayment 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 ofthis opinion.

21In 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. ofAppellant at 27,28. Furthermore,the release ofa 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 ofher receipt ofthe P.S. fee,and we uphold the hearing officer's determination that her beliefthat 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 ofanother or the value thereof, with intent to deprive him or her ofsuch property or services"under RCW 9A.56.020(l)(a). She also argues that she did not "appropriate lost or misdelivered property or services ofanother, or the value thereof, with intent to deprive him or her ofsuch 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

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

the services he asked for"; that P.S. "would have no way ofknowing what kind of
severance agreement Placide and Dorsey had"; and that "Placide believed that once P.S. gave up any claim ofownership it then became a matter oflooking to the Separation Agreement which provided that she did not owe Dorsey anything." Opening Br. ofAppellant 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 oflack ofany 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 ofthe facts or on a version ofthe facts previously rejected by the hearing officer.In re Disciplinary ProceedingAgainstMarshall, 167 Wn.2d 51,67,217 P.3d 291 (2009){Marshall II). Even ifthere are several 

### reasonable interpretations ofthe evidence,it is substantial ifit 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 ofthe $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

23In re Discipline of Placide (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 ofintenthsiS been established. Placide argues that she could not have intended to deprive Dorsey ofthe P.S. fee for purposes ofRCW 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 oftitle 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 beliefthat the firm did not have a claim on the funds." Br. ofAppellant 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 offinding 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

24In re Discipline of Placide (Carllene M.),No. 201,639-1 oftheft clearly and explicitly lists "intent" as an element ofthe crime. The hearing officer omitted entirely that portion ofthe statutory language when quoting the
statute he later relied on to conclude that Placide's actions constituted a criminal
act oftheft. "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;WashingtonPattern 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. ofODC 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,"MarshallI, 160 Wn.2d 330,we conclude that the hearing officer's findings offact as to the

25In 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. ofODC 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 ofservices and the theft offees in arriving at the challenged conclusions. ODC next argues that the hearing officer's "conclusions rest on the misconception that the phrase 'property . . . ofanother' 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)).

26In 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. ofODC 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. ofODC at 43. Because ODC is in effect challenging the hearing officer's legal conclusion based on an interpretation ofa 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 ofwhether 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 ofchapter 9A.56 RCW as not only "tak[ing]the property or services of another,"RCW 9A.56.010(23)(a),but also:

(b) Having anyproperty or services in one'spossession,custody or control as bailee, factor, lessee, pledgee, renter, servant, attorney, agent, employee, trustee, executor, administrator, guardian, or officer ofany 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 ofanyperson other than the true owner orperson entitled thereto', or

27In re Discipline ofPlacide (Carllene M.),No.201,639-1 (c) Having anyproperty or services in one'spossession, custody, or control aspartner, 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 ofthe statute suggests that a person may commit theft while possessing,having custody,or control ofproperty 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 ofDorsey per the language ofDorsey'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 ofthe fees paid to her by her off-thebook 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

28In 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-thebook 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 ofthe 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 ofDorsey'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 ofviolation 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 ofwork." Opening Br. ofAppellant at 28.Placide fails to rebut meaningfully the hearing officer's findings offact or conclusions oflaw on this point. She appears to contend that Dorsey had no claim

29In 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 ofthe 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 ofthe 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 ofan 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

30In 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. ofAppellant at 30. Specifically,Placide argues that "those counts were limited to unlawful appropriation offees in violation ofRPC 8.4(c)so any findings ofviolations ofCounts 1 and 6 other than the P.S. fees were not charged and cannot serve as the basis ofany rules violation." Opening Br. ofAppellant 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 ofclear 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 ProceedingAgainstRomero, 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 ofmisconduct.'"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 ofdishonesty, 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) ("Respondentmade the misrepresentation to Dorsey personnel to conceal from them the full extent ofher 'off-the-books' practice." "Respondent intentionally misappropriated the $56,700 knowing that she was not entitled to the funds.").

31In 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), ofcourse,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 ofpolicy 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. ofAppellant at 3. As previously stated, the Board unanimously adopted the hearing officer's decision and recommendation,noting that "the 

### existence ofa 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 ofher legal services for outside clients, as well as the amount offees she received for

32In 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 ofher 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 offact will not be overturned based simply on an alternative explanation ofthe facts or on a version ofthe facts previously rejected by the hearing officer.Marshall II, 167 Wn.2d at 67. Even if there are several reasonable interpretations ofthe evidence,that evidence is substantial ifit 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

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

"not owe a duty ofhonesty ofsome sort," and that "no . . . contractual or 

### expectation duty" or "fiduciary duty" existed. Opening Br. ofAppellant at 33-34. 8. The hearing officer's recommendation ofdisbarment for counts 2 and 7 was not disproportional Placide next argues that the hearing officer's recommendation ofdisbarment for counts 2 and 7relating to lack ofcandor is "excessively disproportional 

### compared to the ChristopheA^'^^ case." Opening Br. ofAppellant 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 ofpeijury," she "was found to have nonetheless not been honest on the stand." Opening Br. ofAppellant at 36-37.Placide essentially claims that because here she lied not under oath but in private meetings, "[a] recommendation ofdisbarment is wildly disproportional," and instead a reprimand is the appropriate sanction. Opening Br. ofAppellant 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 AgainstMiller, 149 Wn.2d 262,285,66 P.3d 1069 (2003). The attorney facing discipline bears the burden ofbringing cases to the court's attention that

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

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

demonstrate the disproportionality ofthe sanction imposed.In re Disciplinary ProceedingAgainstKagele, 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 ofattorney fees,forged her secretary's signature on a declaration ofmailing and attached it to an offer of judgment pleading that she backdated and mailed to opposing counsel. "She also created a declaration in support ofattorney 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

35In 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 ofunanimity 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 ofher outside client representations, caused Dorsey and Ogletree a. actual injury by concealing the extent ofher 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 "thepredominance ofmitigating factors justifies a departure from the presumptive sanetion [ofdisbarment]." 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.

36In 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 ofdisbarment. We therefore reject Placide's proportionality argument. 9. The challenged aggravating factor offalse 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 ofdisbarment Applying ABA Standards std. 9.22,the hearing officer found six aggravating factors; (1)a pattern ofmisconduct,(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 ofa 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 ofwitnesses she asked questions based on

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



### premises which he claimed were contradicted by overwhelming evidence." Opening Br. ofAppellant 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.2d707,720,72P.3d 173 (2003). The hearing officer concluded that Placide frequently included false or misleading assertions in the form ofquestions 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 ofher style ofquestioning on crossexamination ofan 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?

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

[Baldwin:]I think the exchange ofe[-]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 offirm 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 ofoff-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 crossexamination certain inconsistencies in the testimony ofthe 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 ofthe defense[,] which

39In re Discipline ofPlacide (Carllene M.),No. 201,639-1

includes asking witnesses ifthey 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 ofher presentation ofa 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 ofher 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 ofan attorney accused ofmisconduct 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 ofthe legal system,and the judicial process as a whole." Whitt, 149 Wn.2d at 721.Placide's questioning ofadverse 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 ofdisbarment.

40In 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. ofAppellant 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 ofcontact 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 ofmind" 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 ofwisdom and following that advice could tend to show good faith," and that, as "overbroad," the rule amounts to "a denial ofsubstantive due process." Opening Br. ofAppellant at 40-41. APR 19(e)(5)states: Neither the making ofan inquiry nor the providing ofinformation by professional responsibility counsel under this rule creates a clientlawyer relationship. Any information or opinion provided during the course ofan 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

41In 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 offirst impression,reviewed de
novo.In re Disciplinary ProceedingAgainstKing, 168 Wn.2d 888, 232 P.3d 1095 (2010). We conclude that the application ofAPR 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 ofresponding to inquiries about compliance with the Rules ofProfessional 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 ofconfidentiality." 2KarlB.Tegland,Washington Practice:RulesPractice: 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

42In 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 ofpreventing a lawyer . . .from lying 

### about an ethics inquiry without the possibility ofbeing contradicted'^ by the other party to the communication."Answering Br. ofODC at 27. ODC points out that in order to preserve the confidentiality ofcommunications between an inquirer and professional responsibility counsel,the latter is prohibited from making or 

### maintaining "any permanent record ofthe identity ofan inquirer or the substance ofa specific inquiry or response,"but "may keep records ofthe number of 

### inquiries and the nature and type ofinquiries 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 ofthe inquirer or as authorized by the Supreme Court."

43In 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 ofmind in 2012,but only that evidence which the WSBA would have had no opportunity to verify or counter. 

### The evidence ofPlacide'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 ofRPC 8.4(c)as to counts 1, 2,6,and 7 related to the hearing officer's 

### findings that "Respondent's ongoing pattern ofdishonesty,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

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

concealment. Answering Br. ofODC at 45. ODC relies on the definition ofa "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 ofthe nature or attendant circumstances ofthe 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 ofmind 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 ofsuspension. We agree with ODC,however,to the extent 

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

45In 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 ofdisbarment. 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 ofRPC 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 ofwhich 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

46In 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 ofwhether 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 7by 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 ofunanimity 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 ProceedingAgainstNoble, 100 Wn.2d 88,667 P.2d 608 (1983)).

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

unanimous recommendation and disbar Placide.

WE CONCUR: 

# Q^tA?,p.

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