No Need To Remand

The Washington State Supreme Court found a Disciplinary Board order of remand improper 

Stephen Kenneth Monro is a Washington attorney facing discipline related to converting client funds, among several other charges. After an evidentiary hearing, the hearing officer recommended disbarment. The Washington State Bar Association (WSBA) Disciplinary Board (Board) remanded the matter to the hearing officer to clarify unspecified findings and conclusions and to conduct a proportionality review. This case asks us to determine whether the Board had the authority to order this remand and, if so, whether that authority was properly exercised here. The Rules for Enforcement of Lawyer Conduct (ELCs) do not expressly grant the Board this power and we have never addressed this issue. The Board may be able to remand in certain circumstances under its power to perform functions necessary and proper to carry out its duties. However, we hold that the Board’s remand here was not proper because the hearing officer’s findings and conclusions were adequate for appellate review and the Board’s order itself was impermissibly vague.

The hearing officer found a number of ethics violations and recommended disbarment

The hearing officer conducted a seven-day evidentiary hearing. Fifteen witnesses testified, and the parties submitted more than 10,000 pages of exhibits. After the hearing, the hearing officer issued 258 findings of fact, 14 conclusions of law, and recommended that Monro be disbarred. For example, the first conclusion of law states, “By using and converting client funds of SW, TC, KF, SA and the Estate of JK, the Respondent violated RPC 1.15A(b), RPC 8.4(b), RCW 9A.56.020, RPC 8.4(c), RPC 8.4(i).”

Respondent challenged the findings and the Board remanded the matter

After oral argument, the Board remanded to the hearing officer to clarify the findings of fact and conclusions of law, and to consider the proportionality of the hearing officer’s recommended sanction. The Board did not specify which findings and conclusions needed to be clarified, nor did it describe the level of specificity it required. One board member dissented, agreeing with the remand but stating that a new hearing officer should complete the revision.

ODC and Monro filed cross petitions for review. We granted review solely on the issue of the Board’s decision to remand to the hearing officer for clarification and a proportionality review.

The court

The hearing officer’s findings and conclusions here are adequate for meaningful appellate review. The decision contains 258 findings of fact, 14 conclusions of law, and recommendations as to the sanction Monro should receive, satisfying ELC 10.16(a). The decision also contains everything that is required under Johnson. It identifies the formal complaint, contains findings of fact, includes conclusions of law that state specific provisions of the RPCs Monro violated, contains presumptive sanctions for each count based on the ABA Standards, identifies and weighs the aggravating and mitigating factors, and finally states the officer’s recommended sanction of disbarment based on all of the above. Monro argues the conclusions of law are “defective” because they cite several RPCs and statutes without reciting the text of the rules or statutes or their specific elements, they do not state which clients’ cases involved what criminal conduct, and they do not identify the evidence in the record that supports each conclusion. However, nothing in the rules or our precedent requires a hearing officer’s conclusions to contain any of that information.

No remand

We hold that the Board’s remand order was improper because the hearing officer’s decision was adequate for meaningful appellate review and the Board’s remand order itself was deficient.

                                                                                    CONCLUSION

The Board may be able to remand to a hearing officer if a decision is particularly deficient. However, in situations like this, where a hearing officer’s decision is adequate for meaningful review, remand is improper. Moreover, if the Board chooses to remand, it must be specific in its order and must identify the defects in the decision that the hearing officer is to fix. We reverse and remand to the Board for review of the hearing officer’s decision.

(Mike Frisch)