95 Wn.2d 38, IN RE McNERTHNEY

CITE:          95 Wn.2d 38, 621 P.2d 731

               IN RE McNERTHNEY


FILE DATE:     December 31, 1980

CASE TITLE: In the Matter of the Disciplinary Proceeding
               Against Michael G. McNerthney, an
               Attorney at Law.

[1] Attorney and Client - Discipline - Purpose. The purposes of imposing discipline upon an attorney are to protect the public and to preserve confidence in the legal profession and the judicial system.

[2] Attorney and Client - Discipline - Degree of Punishment - Considerations. When determining the appropriate sanction to be imposed upon an attorney for professional misconduct, the Supreme Court must examine the particular facts and circumstances of each case, including the seriousness and circumstances of the offense and whether the sanction is sufficient to prevent recurrence, to deter others from such misconduct, to maintain respect for the legal profession, and to assure the public that it will be protected from unprofessional conduct.

[3] Attorney and Client - Discipline - Degree of Punishment - Mitigation. In its determination of the proper sanction for a breach of disciplinary rules, the Supreme Court may consider whether the conduct was recurrent or isolated, the attorney's intent in committing the act, his background and legal career, and his acknowledgement of wrongdoing.

[4] Attorney and Client - Discipline - Hearing - Delay - Effect. When disciplinary proceedings are delayed for an unreasonable time after the bar association learns of the attorney's misconduct, the Supreme Court may consider the attorney's conduct during the delay and the effect of the delay upon the attorney.

NATURE OF ACTION: A disciplinary proceeding was instituted against a former deputy prosecuting attorney almost 2 years after he had warned an acquaintance that a search warrant had been issued for his house. The Disciplinary Board, with two members dissenting and two members abstaining, recommended a 60-day suspension from the practice of law.

Supreme Court: Finding that suspension was too severe a sanction in light of various mitigating circumstances, the court orders that the attorney receive a LETTER OF ADMONITION.

COUNSEL:      ROBERT T. FARRELL, for Bar Association.

WILLIAM R. BOYLE and WILLIAM J. RUSH, for respondent.


MAJORITY OPINION: The Disciplinary Board of the Washington State Bar Association recommended to this court that respondent Michael G. McNerthney be suspended from the practice of law for 60 days for violating a confidence of his client. In view of special factual circumstances present, we find that suspension is inappropriate and hold that respondent shall receive a letter of admonition.

McNerthney was admitted to practice in Washington in 1974, and has practiced since that time in Pierce County. The incident leading to disciplinary action occurred while he was employed as a Pierce County Deputy Prosecuting Attorney.

On September 20, 1977, while working with the Tacoma Police Department's narcotics division, McNerthney saw an affidavit in support of a warrant to search for drugs in the home of an acquaintance, Tim Graston. Earlier that year, McNerthney had learned that Graston was dealing in PCP ("angel dust"), and had soundly lectured him about the dangers of controlled substances. McNerthney thought he had obtained assurances from Graston that he would get out of the drug business.

During the evening of September 20, while socially drinking with office friends and other acquaintances, McNerthney became intoxicated and enraged at Graston for having "gone back on his word" to stop dealing drugs. He drove to Graston's house, "shook him up" and accused him of betrayal. In the course of the resulting argument, McNerthney told Graston that a "paper" had been issued, thus warning him of the search warrant. After McNerthney left, Graston moved the drugs to the home of a friend, and the police found nothing in the subsequent search of Graston's house. Later, the police located the drugs. As a result of these events, McNerthney lost his job with the prosecutor's office. He later testified in support of the prosecution's position that the defendant in the drug charges was not entrapped. Respondent has worked subsequently at a Tacoma law firm without incident. In August 1979, almost 2 years after the incident, the bar association filed a complaint charging McNerthney with revealing a confidence of his client, ((CPR) DR 4-101(B)(1)), intentionally prejudicing his client, ((CPR) DR 7-101(A)(3)), and engaging in conduct prejudicial to the administration of justice, ((CPR) DR 1-102(A)(5)).

The hearing officer concluded that by warning prospective defendants of a search warrant, McNerthney had revealed a confidence of his client, the State of Washington, in violation of (CPR) DR 4-101(B)(1). He recommended that McNerthney be censured for the violation and that the other complaints be dismissed. The disciplinary board modified the recommended sanction to a 60-day suspension. Two members, one of whom was the hearing officer, dissented in favor of censure, and two members abstained. The case was then referred to this court pursuant to DRA 5.6(h).

[1] Disciplinary sanctions are imposed to protect the public and to preserve confidence in the legal profession and the judicial system. IN RE SALVESEN, 94 Wn.2d 73, 76, 614 P.2d 1264 (1980); IN RE SMITH, 83 Wn.2d 659, 663, 521 P.2d 212 (1974).

[2] What sanctions will further these purposes depends on the facts and circumstances of each case. IN RE KUMBERA, 91 Wn.2d 401, 404, 588 P.2d 1167 (1979). Factors to be considered include:

"(1) the seriousness and circumstances of the offense; (2) avoidance of repetition; (3) deterrent effect upon others; (4) maintaining respect for the legal profession; (5) assurance that those who seek legal services will be insulated from unprofessional conduct.

IN RE ZDERIC, 92 Wn.2d 777, 787, 600 P.2d 1297 (1979).

[3] McNerthney's offense, while demonstrating very poor judgment, was of an isolated nature. His good intention, to help a young person involved with drugs, unfortunately led him to interfere with the work of the police. However, the hearing officer, who had an opportunity to observe McNerthney's candor, found in unchallenged findings this result was neither intended nor deliberate.

The incident leading to disciplinary action stands in stark contrast to an otherwise good record. Three Pierce County superior court judges submitted affidavits praising McNerthney's character. McNerthney has shown total remorse for his conduct. The Tacoma News Tribune carried a front page article describing the incident and quoting McNerthney as saying that he had made the "'biggest mistake of [his] life.'" It would appear he has learned his lesson, and there is no need for suspension to deter repetition or protect the public.

[4] We are also influenced in this case by the delay which occurred between McNerthney's misconduct and the initiation of disciplinary proceedings. During oral argument, bar counsel acknowledged that McNerthney had discussed the matter with him in March 1978, when McNerthney testified in another disciplinary case. However, no action was taken until August 1979, almost 2 years after the incident. We find this delay unreasonable, under the facts of this case. CF. IN RE RESSA, 94 Wn.2d 882, 621 P.2d 153 (1980).

At the time McNerthney received notice of disciplinary action, he had been successfully engaged in private practice for 1 1/2 years, and at the time of hearing before this court, he had practiced for almost 2 1/2 years. To impose suspension at this time would serve no useful purpose.

Because McNerthney's dereliction while serious, was inadvertent, and because of the delay between the incident and disciplinary action, we find suspension unwarranted and that a letter of admonition is appropriate. In the usual case, the disciplinary board sends a letter of admonition when the misconduct charged is not of sufficient magnitude to warrant a hearing, and the letter does not constitute a finding of misconduct. DRA 2.4(f)(3). In this case, a hearing was held, and we concur in the finding of misconduct. However, we find that a letter of admonition, warning of future misconduct, is all that is warranted in this case, and so order.

CONCURRING JUDGES: Rosellini, Stafford, Brachtenbach, Horowitz, Dolliver, Hicks, and Williams, JJ., and Hamilton, J. Pro Tem., concur.