Thursday, June 14, 2018

"Compassion Fatigue" And Bar Discipline

The Washington State Supreme Court has disbarred an attorney

Attorney William H. Waechter committed multiple lawyer trust account violations. Among other things, he converted client funds and most egregiously, he forged a client's signature on a check. Waechter appeals the Washington State Bar Association (WSBA) Disciplinary Board's (Board) unanimous recommendation to disbar him. He contends that the Board erred by failing to consider the emotional problems mitigating factor and that double jeopardy principles apply. While we agree that the emotional problems mitigator should have been considered in relation to his trust account practices, it carries little weight in this case and does not affect his sanction. We agree with the Board's recommendation and disbar Waechter from the practice of law.

There were issues in five client matters

The hearing officer found four aggravating factors: dishonest or selfish motive, pattern of misconduct, multiple offenses, and substantial experience in the practice of law. Four mitigating factors ultimately applied, including absence of prior discipline, full and free disclosure to the disciplinary board, character or reputation, and remorse. The hearing officer recommended disbarment and payment of restitution.

The mitigation issue

Here, Waechter argues the testimony of Dr. Marta Miranda that Waechter likely suffered vicarious traumatization or compassion fatigue constitutes an emotional or personal problems mitigating factor. Dr. Miranda testified that compassion fatigue often occurs in "the helping professions" like social workers and lawyers. 3 VRP (May 18, 2016) at 502. These professionals do not experience trauma themselves, but they suffer as a result of working with traumatized populations. Relevant to Waechter's case, symptoms of compassion fatigue include avoiding traumatic material, mental dissociation from daily life, avoidance, and becoming "jaded." Id. at 504. Dr. Miranda testified that Waechter's three successive personal injury case losses in 2012 and his overidentification with his clients led to compassion fatigue. The doctor stated it was likely these losses and; the resulting secondary trauma caused Waechter to be careless and avoid stresses, such as his bookkeeping duties. Dr. Miranda further testified that she did not believe Waechter took his clients' funds or transferred trust account funds with a conscious intent...

We agree with the ODC in part. Dr. Miranda's testimony does not establish a connection between the trauma and Waechter's decisions to convert client funds and forge his nephew's signature. However, the testimony does establish a connection between Waechter's compassion fatigue and his poor bookkeeping. Accordingly, the Board erred in failing to consider this mitigator when it considered the sanction for Waechter's trust account violations.

No double jeopardy

Assuming, without deciding, that Waechter may raise the issue for the first time on appeal, we conclude double jeopardy does not apply to attorney discipline.

This appears to be a matter of first impression in Washington. As such, we look to other jurisdictions for information and guidance...

Our sister jurisdictions that have addressed the issue have concluded that the double jeopardy clause is not implicated in attorney disciplinary proceedings.

[The Pennsylvania] court explained that should disciplinary actions be viewed, for constitutional purposes, as placing an individual in jeopardy, an attorney convicted of a crime could not be then disbarred for that crime. Id. If an attorney sanction and criminal prosecution would bar the other, the State would have little ability to protect the public. Id.

Conclusion

While the Board erred in failing to consider Waechter's emotional or personal problems as a mitigating factor, the mitigator is afforded little weight under the circumstances of this case and does not affect the sanction. We conclude that double jeopardy does not apply to attorney discipline proceedings. Therefore, we disbar Waechter from the practice of law and order the hearing officer's recommended restitution payments.

Justice Madsen

I concur in the majority's outcome but disagree with respect to the majority's holding that the Board erred when it adopted the hearing officer's decision not to apply the emotional or personal problems mitigating factor.

(Mike Frisch)

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