In re Disciplinary Proceeding Against Fossedal

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SUSANC CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Disciplinary )
Proceeding Against ) No. 201,600-6
)
DANA KRISTIN FOSSEDAL, ) En Banc
)
an Attorney at Law. ) AUG 1 7 2.017
Filed ----''--"-"'-'"----'---"-=--'"----
)
_ _ _ _ _ _ _ _ _ _)
OWENS, J. - Dana K. Fossedal misappropriated more than $117,000 in client

funds for which she was convicted of first degree theft. The Washington State Bar

Association (WSBA) charged her with five violations of the RPCs stemming from this

misconduct. After a disciplinary hearing, the hearing officer noted that the

presumptive sanction for theft of client funds is disbarment, but nevertheless

recommended a three-year suspension. On review, the WSBA Disciplinary Board

(Board) modified the hearing officer's decision and unanimously recommended

disbarment instead of suspension.
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In re Disciplinary Proceeding Against Fossedal
No. 201,600-6

Fossedal asks us to reject the Board's unanimous recommendation of

disbarment. However, she is unable to identify any clear reason to depart from the

Board's recommendation. Accordingly, we disbar Fossedal from the practice of law.

FACTS

Fossedal has been a licensed attorney in Washington since 1998. In 2005, she

opened her own law office, focusing on family law. As of 2009, she employed an

associate and a paralegal. F ossedal personally maintained the firm's finances, and

was the only person in the office who handled financial matters and signed checks.

By the end of 2009, Fossedal was almost never in the office. By 2011,

Fossedal spent "essentially no time" there. Findings of Fact & Conclusions of Law

(FF/CL) at 4.

i. Theft ofBrian Schoof's Funds

Around this time, Brian Schoof, a part-time King County Metro bus driver,

hired Fossedal to represent him in the dissolution of his marriage. He and Fossedal

entered into a fee agreement for an hourly fee of $250 and an advance fee deposit of

$5,000. Fossedal assigned the matter to her associate, Misty Hayes, a recent law

school graduate. Hayes managed the client file, including attending a mediation. In

December 2009, the court entered a ,"Decree of Dissolution" in the Schoof matter. It

awarded $117,225.17 to Schoof as an equalization payment for his interest in the

family residence.

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On January 20, 2010, F ossedal received a check for $117,225.17 on behalf of

Schoof. Fossedal personally endorsed the check and deposited it into her KeyBank

trust account. She did not tell Schoof that she had received his funds and did not

disburse any of the money to him.

Fossedal moved all her business and personal accounts, including her trust

account, from KeyBank to Chase Bank later that year. On September 3, 2010, she

issued a check for $122,434.96 from her KeyBank trust account and deposited it into

her new Chase Bank trust account. That check included the $117,225.17 of Schoof s

funds.

Over the next year, Fossedal made many withdrawals from the Chase Bank

trust account. Most of her withdrawals from trust were wire transfers to her general

account or personal account. She testified that she made these transfers based on

estimates rather than by keeping track of hours worked. By September 16, 2011, the

trust account balance had dropped to a mere $24.74.

Fossedal never disbursed any of Schoofs funds to him. Instead, she used

Schoof s funds "for her own benefit, directly or indirectly, without authorization to do

so." Id. She used his funds for daily business and personal expenses such as payroll,

office supplies, rent, symphony and Mariners tickets, groceries, pet food, restaurants,

and manicures. Fossedal never sent Schoof any billing statements or accountings

before removing his funds from trust.

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ii. Letter from Misty Hayes

In March 2011, F ossedal' s firm was fifteen months delinquent on billing.

Hayes, her associate, sent Fossedal a letter expressing her concerns about the firm's

financial management and her ethical obligations to its clients, writing:

I am more than a little concerned about the status of my clients' funds in
trust since we have not billed in such a long time. Logic suggests if we
are not billing, we cannot be transferring monies out of trust. If we are
working on cases, we are earning our fees and that money cannot stay in
trust. This creates quite an ethical conundrum. Further, if we are not
billing then we are not receiving any payments from our clients. With
such high overhead and no incoming funds, I am unclear how you can
sustain this firm.

Ex. 9; FF/CL at 6; 1 Verbatim Report of Proceedings (VRP) (Mar. 7, 2016) at 74.

Hayes then requested the most recent trust account statements and reconciliations for

the client accounts on which she had been working.

Fossedal responded by e-mail the following week, informing Hayes that "you

have absolutely no access nor any responsibility as pertains to any of the office

financial accounts," and that failure to turn over documents relating to the firm's

financial accounts within 24 hours "shall be considered insubordination and cause for

possible termination." Ex. 10. In closing, she added that "[t]his letter is intended to

relieve you of any ethical obligations regarding the firm's financial business,

including the trust accounts." Id.; FF/CL at 6; 1 VRP (Mar. 7, 2016) at 86. Hayes left

the firm soon thereafter.

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iii. Schoof's Efforts To Recover His Funds: WSBA Grievance and Civil Suit

In April 2010, Schoof learned from Hayes that his settlement proceeds had

been transferred to Fossedal. He made several attempts to contact Fossedal and

recover the funds.

Schoof called Fossedal's office on a monthly basis, seeking disbursement. He

was never able to speak with Fossedal, and she never returned his calls. Fossedal

either failed to respond to his e-mails or, when she did, failed to provide substantive

information or stated that she was sick and "needed time to get back to him with

regard to the funds." FF/CL at 7; Ex. 28 (Certification for Determination of Probable

Cause at 3).

Schoof filed a grievance with WSBA in May 2012. Fossedal never filed a

response.

In July 2012, Schoof hired a lawyer, Hans Juhl, to collect his funds from

Fossedal. Juhl unsuccessfully tried to contact Fossedal about the money. However,

after getting in touch with Hayes, he obtained a copy of the disbursement check from

the title company.

Schoof, through Juhl, sued Fossedal and obtained a default judgment for

$161,186.75, which included the amount that F ossedal stole from Schoof, the advance

fees Schoof paid, attorney fees, and interest. Juhl tried to get in touch with Fossedal

to set up a plan for repayment, to no avail. Ultimately, Schoof was able to collect less

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than $4,000 by garnishing Fossedal's husband's wages. That money went toward

attorney fees to Juhl.

F ossedal filed for bankruptcy in 2014. She listed the default judgment she

owed Schoof as an unsecured debt on her bankruptcy schedules. Schoof hired another

lawyer to bring an adversary proceeding to contest the dischargeability of the debt

based on fraud and defalcation. After Fossedal's husband got a job that paid enough

to avoid bankruptcy, Fossedal later abandoned the banlauptcy without obtaining a

discharge. Schoofs adversary proceeding was dismissed without prejudice.

In August 2015, the WSBA' s Lawyers' Fund for Client Protection (LFCP)

made a $117,225.17 gift to Schoof. 1 FF/CL at 9.

iv. Fossedal 's First Degree Theft Conviction

On March 5, 2014, the King County Prosecuting Attorney's Office charged

Fossedal with first degree theft, with an aggravating factor of abuse of trust.

Fossedal pleaded guilty as charged on July 16, 2014. She filed a "Statement of

Defendant on Plea of Guilty" that read, "[W]ith intent to deprive another of

property ... , I executed unauthorized control over money belonging to Brian

Schoof. . . . I used my position of trust, confidence, and fiduciary duty as his attorney

to facilitate the commission of the theft." Id. at 8.

1
This is nearly $44,000 less than the default judgment: the LFCP reimburses claimants for only
the actual loss caused by a lawyer's dishonest conduct, not consequential damages. APR 15
Procedural Rules 5(A), (D)(8).

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At sentencing, the prosecutor argued for an exceptional sentence of 12 months.

She noted that during the time frame that Fossedal was spending Schoofs money,

Schoof was financially destitute, sleeping on a friend's couch, and waiting for his

divorce settlement funds to help get him back on his feet. The court sentenced

F ossedal to a six-month jail term, later amended to nine months of electronic home

monitoring.

The court also ordered Fossedal to pay restitution of$131,065.07, to be applied

against Schoofs default judgment. In March 2015, Fossedal began working part time

caregiving for a friend's mother, earning $20 per hour. As of March 8, 2016 (the time

of the disciplinary hearing), she had still not made any restitution payments to Schoof.

PROCEDURAL HISTORY

Based on the above conduct, the WSBA Office of Disciplinary Counsel (ODC)

charged Fossedal with five violations of the RPCs by formal complaint. In her

answer, Fossedal admitted the factual allegations in the complaint but contended that

"extreme mitigating circumstances" compromised her judgment. Clerk's Papers at

50.

i. Fossedal 's Disciplinary Hearing

During a three-day disciplinary hearing, Fossedal, her doctors, her family, and

her friends described Fossedal's personal and health problems during the time period

when she stole Schoof s funds.

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Fossedal explained that she was in car accidents in 2003, 2004, and 2006. She

suffered neck injuries and experienced chronic pain from 2006 onward. She tried a

variety of pain management techniques including massage, ablation, physical therapy,

and medications.

In 2006, under the care of her primary care physician, Dr. Dane Travis,

F ossedal was prescribed a variety of opioid pain medications, including Opana,

Fentanyl, Vicodin, Gabapentin, and benzodiazepine. She started taking these

medications in increased amounts. While Dr. Travis was not concerned that Fossedal

was abusing drugs, he did testify that "[t]here's, you know, clearly an inappropriate

lack of control and misuse potential, but I didn't see it as drug-seeking behavior as in

I'd like to get --enjoy this more, ever, with Dana." 3 VRP (Mar. 9, 2016) at 467.

F ossedal' s family and friends recounted that by 2009, F ossedal' s personality

changed significantly. She was lethargic, slept a lot, and was inactive even when

awake. She would pass out midsentence and was unable to complete simple tasks.

On the few occasions when F ossedal would leave home for a court appearance, she

would need to start sleeping a couple days in advance in order to complete the

hearing.

Fossedal was also experiencing other personal and health problems from 2009

to 2011. Her grandparents passed away, she was experiencing marital issues, and she

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also suffered from sleep apnea, type 2 diabetes, fungal infections, broken bones, and

mononucleosis.

Sometime in 2010 or early 2011, Fossedal told Dr. Travis that she was worried

about her finances. At this point, Fossedal had not yet removed all of Schoofs funds

from trust. Sometime in 2012, Fossedal told Dr. Travis more about her financial

problems. According to Dr. Travis, Fossedal told him that she had misused $80,000

to $100,000 of client funds and that she intended to "use it briefly and pay it back."

Id. at 493.

In 2009 and 2010, Dr. Travis repeatedly implored Fossedal to enter a

detoxification program for increasing opioid use. She did not do so at that time. She

finally did enter detox in 2012 under the care of a new physician, Dr. Gregory Rudolf,

a specialist in pain management and addiction medicine. Dr. Rudolf started her on a

different drug, Suboxone, which controls pain but does not have as many side effects

as other opioids. Dr. Rudolf testified that as of the time of the disciplinary hearing,

"[Fossedal] ha[d] presented me with no evidence or reason to be concerned about

altered mental status." Id. at 447. He also noted, however, that relapse rates for

people who have weaned off opioids are typically high.

When asked about particular events, Fossedal often explained that she did not

clearly remember what had happened. She also stated that she did not realize

Schoofs money was gone until after she got an e-mail from him in approximately

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May 2012. She stated, "[T]hat's what prompted me to actually start digging and

looking into this and realized he hadn't gotten paid, and the money was gone." 1 VRP

(Mar. 7, 2016) at 99. She added that she "felt horrible." 2 VRP (Mar. 8, 2016) at 394.

ii. Hearing Officer Decision

Following the disciplinary hearing, the hearing officer issued his findings of

fact and conclusions oflaw. He concluded that ODC had proved all of the charged

violations. Applying the American Bar Association's Standards for Imposing Lawyer

Sanctions (1991 ed. & Feb. 1992 Supp.), he noted that the presumptive sanction for

each of the five counts is disbarment. FF/CL at 10-11. He found that Fossedal "acted

knowingly and intentionally in committing theft and conversion of client funds and, at

least, knowingly in committing other trust account violations." Id. at 10. He also

found that the "injury to Schoof was serious because he was denied funds he was

entitled to receive." Id.

The hearing officer found three aggravating factors: multiple offenses,

substantial experience in the practice of law, and indifference to making restitution.

However, he declined to find the aggravating factors of "dishonest or selfish" motive

or "[r]efusal to acknowledge wrongful nature of conduct." Id. at 12 (underline

omitted). In his oral and written findings, he distinguished "motive" from "intent"

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and stated that instead of trying to get rich, Fossedal willfully failed to maintain

proper control over her accounts. 2 3 VRP (Mar. 9, 2016) at 586-87; FF/CL at 11.

He also found eight mitigating3 factors: absence of a prior disciplinary

record, absence of dishonest or selfish motive, personal or emotional problems,

full and free disclosure to the disciplinary board or cooperative attitude towards

proceedings, character and reputation, physical disability, mental disability or

chemical dependency, and remorse. FF/CL at 12-13. Particularly, he

concluded that the mitigating factors of physical disability and mental

disability/chemical dependency sufficed to mitigate the sanction from

disbarment to suspension. However, he found that the six other factors

standing alone were not sufficient to mitigate the presumptive sanction of

disbarment. Id.

The hearing officer recommended that F ossedal be suspended from the

practice of law for three years followed by two years of probation. He also

recommended that she reimburse $117,225.17 to the LFCP and set out a

schedule for such repayments. Id. at 13-14.

2
On appeal to the Board, ODC argued that these and other similar findings were inconsistent
with Fossedal's plea of guilty to first degree theft, in which she admitted that she "exerted
unauthorized control over Schoof's money with the intent to deprive him of his property."
Answering Br. of ODC at 47; Ex. 29.
3
A typographical error in the FF/CL labeled these as "aggravating" rather than "mitigating"
factors. FF/CL at 12.

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iii. Appeal to Disciplinary Board

ODC appealed the hearing officer's decision to the Board. It argued that (1) no

extraordinary mitigating factors existed to justify reducing the presumptive sanction

from disbarment and (2) under ELC 10.14(c), 4 any findings inconsistent with the

mental state of intent, which ODC argues was conclusively proved by the theft

conviction, were unsupported.

By a unanimous vote (l l-0), the Board modified the hearing officer's decision

and recommended that Fossedal be disbarred. Disciplinary Bd. Order Modifying Hr'g

Officer's Decision (Board Order) at 1-3. It determined that (1) the mitigating factor

of physical disability, alone or in combination with the mitigating factor of mental

disability/chemical dependency, was insufficient to establish extraordinary mitigation

and (2) the mitigating factor of mental disability/chemical dependency did not apply

because the element of causation had not been established. The Board also

recommended that F ossedal be required to pay all court-ordered restitution to Schoof

and to fully reimburse the LFCP before reinstatement. It did not address ODC's

argument regarding ELC 10.14(c).

4 ELC 10.14(c) states that "[i]f a formal complaint charges a respondent lawyer with an act of
misconduct for which the respondent has been convicted in a criminal proceeding, the court
record of the conviction is conclusive evidence at the disciplinary hearing of the respondent's
guilt of the crime and violation of the statute on which the conviction was based."

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ISSUE

Should Fossedal be disbarred from the practice of law?

ANALYSIS

This court has the ultimate responsibility for disciplining lawyers. In re

Disciplinary Proceeding Against Van Camp, 171 Wn.2d 781,797,257 P.3d 599

(2011). We give considerable weight to the hearing officer's findings of fact and treat

unchallenged factual findings as verities on appeal. In re Disciplinary Proceeding

Against Marshall, 160 Wn.2d 317, 329-30, 157 P .3d 859 (2007).

The Board is '"the only body to hear the full range of disciplinary matters"' and

has "'unique experience and perspective in the administration of sanctions."' In re

Disciplinary Proceeding Against Anschell, 141 Wn.2d 593,607, 9 P.3d 193 (2000)

(internal quotation marks omitted) (quoting In re Disciplinary Proceeding Against

Dann, 136 Wn.2d 67, 84,960 P.2d 416 (1998)). Accordingly, while we review

conclusions of law de novo, we give greater weight to the conclusions of the Board

with regard to the recommended sanction than we give to the conclusions of the

hearing officer. In re Disciplinary Proceeding Against McMullen, 127 Wn.2d 150,

162, 896 P.2d 1281 (1995). When the Board is unanimous, we uphold its decision

absent a "'clear reason"' for departure. Anschell, 141 Wn.2d at 607 (quoting In re

Disciplinary Proceeding Against Haskell, 136 Wn.2d 300,318,962 P.2d 813 (1998)).

Relying on the ABA Standard'J, we use a well-established, three-step analysis

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to review the Board's recommended sanction. In re Disciplinary Proceeding Against

Preszler, 169 Wn.2d 1, 18,232 P.3d 1118 (2010); Marshall, 160 Wn.2d at 342. First,

we evaluate whether the Board properly determined the presumptive sanction.

Second, we evaluate whether aggravating or mitigating circumstances call for a

departure from the presumptive sanction. Preszler, 169 Wn.2d at 18. Third, we

examine (1) the proportionality of the sanction to the misconduct and (2) the extent of

agreement among the members of the Board. Id. (quoting In re Disciplinary

Proceeding Against Schwimmer, 153 Wn.2d 752, 764, 108 P.3d 761 (2005)).

Fossedal does not dispute the hearing officer's factual findings, nor does she

dispute that disbarment is the presumptive sanction in her case. Instead, she argues

that due to "extraordinary" mitigating factors, we should reject the Board's unanimous

disbarment recommendation and reinstate the hearing officer's recommendation of a

three-year suspension. We disagree and uphold the Board's unanimous

recommendation to disbar Fossedal.

i. There Is No Extraordinary Mitigation That Warrants Deviation from the
Presumptive Sanction

Disbarment is the presumptive sanction when a lawyer steals client funds. See

STANDARDS std. 4.11; see also In re Disciplinary Proceeding Against Rentel, l 07

Wn.2d 276, 286, 729 P.2d 615 (1986). In such a circumstance, only "'extraordinary"'

mitigation will suffice to reduce the sanction from disbarment. Schwimmer, 153

Wn.2d at 760 (quoting Rentel, 107 Wn.2d at 286).

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Here, the hearing officer found that two factors, standing either alone or in

combination with one another, constituted extraordinary mitigation: (1) physical

disability due to Fossedal's "significant pain" and (2) Fossedal's opioid dependence.

FF/CL at 12-13. As we explain below, the Board properly rejected both of these

conclusions. Neither of these factors-either standing alone or in combination-

justifies a departure from the presumptive sanction of disbarment.

a. Significant Pain Is Not an Extraordinary Mitigating Factor

ABA Standards std. 9.32(h) states that "physical disability" may be considered

a mitigating factor. The hearing officer found that "[t]his factor applies because of

Fossedal's significant pain." Id. at 12. He also found that this factor, either standing

alone or combined with Fossedal's chemical dependency, sufficed to warrant a

departure from the presumptive sanction of disbarment. The Board disagreed. It

accepted that this factor applied but found that it was "insufficient to establish an

extraordinary mitigator as required to depart from the presumptive sanction of

disbarment." Board Order at 2. We agree with the Board.

Fossedal merely argues that "[e]xtreme pain is a sufficient symptom to support

the conclusion that an attorney's judgment and decision making ability have been

impaired to the point that an ethical violation has occurred." Appeal by Dana Kristin

Fossedal of Disciplinary Bd. Order Modifying Hr'g Officer's Decision (Appeal) at 21.

However, she cites no precedent to support the argument that pain, however severe,

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constitutes an extraordinary mitigating factor that could serve to reduce the

presumptive sanction for theft of client funds.

We do not wish to minimize the debilitating and disabling impact that chronic

pain has on many individuals' lives. Nevertheless, such pain does not excuse extreme

lapses of an attorney's moral judgment. We agree with the Board's decision that here,

significant pain is insufficient to serve as an "extraordinary" mitigator-even when

combined with other mitigating factors.

b. Fossedal 's Opioid Dependence Is Not an Extraordinary Mitigating Factor

Next, the hearing officer found that under ABA Standards std. 9.32(i), the

mitigating factor of chemical dependency, either standing alone or in combination

with Fossedal's chronic pain, sufficed to justify a departure from the presumptive

sanction of disbarment. The Board disagreed, stating that the element of causation

had not been met. We affirm the Board. Even ifFossedal did show that her opioid

dependence caused her to steal client funds, it would not constitute extraordinary

mitigation here.

Under ABA Standards std. 9.32(i), mental disability or chemical dependency

including alcoholism or drug abuse can serve as a mitigating factor when:

( 1) there is medical evidence that the respondent is affected by a
chemical dependency or mental disability;
(2) the chemical dependency or mental disability caused the misconduct;
(3) the respondent's recovery from the chemical dependency or mental
disability is demonstrated by a meaningful and sustained period of
successful rehabilitation; and

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(4) the recovery arrested the misconduct and recurrence of that
misconduct is unlikely.

Fossedal argues that she was in an "opioid haze" and that her chemical dependency

caused her to "overlook the proper disbursal of the trust funds owed to Mr. School

[sic]." Appeal at 25, 19. 5 She asserts that the testimony by friends and family

contains examples of Fossedal's inability to function during the time the Schoof

incident occurred, and that we should defer to the hearing officer's evaluation here.

Id. at 19.

Neither party disputes that F ossedal was affected by a chemical dependency.

Indeed, Dr. Travis testified that in November 2009, F ossedal was dysfunctional and

that someone on the medications prescribed to her "might not think clearly, rationally,

or be able to function very well." 3 VRP (Mar. 9, 2016) at 466. However, as ODC

notes, the record does not contain evidence supporting Fossedal's contention that her

opioid dependency affected her moral judgment and caused her to steal client funds.

In fact, Dr. Travis indicated that Fossedal at times emerged from her sedation and

dysfunction. In particular, he testified that in 2010 F ossedal' s cognitive ability

5 She also argues that the ABA Standards do not explicitly require medical evidence to support
the notion that Fossedal's opioid dependency caused her to steal client funds. Fossedal is correct
that the ABA Standards do not explicitly require medical evidence to demonstrate the causation
element. However, we have held that expert testimony is required to prove medical facts in
attorney discipline cases. See In re Disciplinary Proceeding Against Petersen, 120 Wn.2d 833,
846 P.2d 1330 (1993) (expert testimony required to establish mitigating factor of depression).
Therefore, medical evidence is indeed required here to show that Fossedal's opioid dependence
caused her to steal client funds.

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"improved some" and that she had "stabilized," and that through 2010 things "looked

a little better." Id. at 471, 470.

But even ifFossedal did prove that her drug dependence caused her to steal

client funds, it would not be enough to justify a departure from the presumptive

sanction of disbarment. We have repeatedly declined to find that drug or alcohol

dependence is an extraordinary mitigating factor in cases involving theft of client

funds, even if an attorney did not clearly recall actually taking the funds. See

Schwimmer, 153 Wn.2d at 762 (drug and alcohol addiction did not mitigate attorney's

misconduct even when the attorney had "little recollection" of actually taking client

funds); In re Disciplinary Proceeding Against Johnson, 114 Wn.2d 737, 753, 790

P.2d 1227 (1990) (chronic alcoholism, which attorney claimed affected his "'moral

judgment,"' was not an '"extraordinary mitigating circumstance"'); Rentel, 107

Wn.2d at 287-88 (drug and alcohol addictions are not extraordinary mitigating

factors).

F ossedal cites one situation in which we did find extraordinary mitigation in a

theft case: In re Disciplinary Proceeding Against McLendon, 120 Wn.2d 761, 845

P.2d 1006 (1993). lnMcLendon, an attorney suffering from bipolar disorder

misappropriated over $90,000 of client funds from his trust account and was

convicted of theft pursuant to an Alford plea. See North Carolina v. Alford, 400 U.S.

25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). The attorney had sought treatment for his

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mental illness but was misdiagnosed and prescribed the wrong medication.

Mclendon, 120 Wn.2d at 763-64, 766-77. This court reduced the sanction from

disbarment to a two-year suspension (the longest suspension authorized by rule at that

time). Id. But Mclendon is distinguishable from this case for several reasons.

First, the court in Mclendon made a point to distinguish between mental illness

(an "organic brain disease") and alcohol and drug addiction cases. Id. at 771-72. It

noted that in McLendon's case, there was "uncontroverted psychiatric testimony" that

bipolar disorder "altered his judgment and behavior to the extent that his ability to

know he acted was severely impaired." Id. at 772. The court stressed that

McLendon's actions were involuntary, stating that "there is no time when McLendon

chose the path which ultimately led to his misconduct." 1d.

Fossedal's case is different. Dr. Travis indicated that a person on Fossedal's

medications might not be able to think clearly, but nothing in the record indicates that

her drug use directly affected her moral judgment. Dr. Travis also indicated that

Fossedal was, to some degree, aware of her financial situation: Fossedal told him in

January 2011 that she was worried about her finances, and later she told him that she

had misused client funds and that "her intent was to use it briefly and pay it back."

3 VRP (Mar. 9, 2016) at 493.

Mclendon is distinguishable for additional reasons. McLendon took actions to

repay his clients, selling his belongings in order to do so. Mclendon, 120 Wn.2d at

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767. But here, Fossedal has does done nothing to repay Schoof any of the funds that

she stole, even in small amounts. Finally, in McLendon the Board's decision

recommending disbarment was not unanimous (10-2), id. at 769, where here, the

Board recommended disbarment by an 11-0 vote.

While at times Fossedal may indeed have been in an "opioid haze," the record

indicates that to some degree, she was culpable and responsible for her actions. At

some point, she "chose the path" that led to her misconduct. Id. at 772. We voiced

similar reasoning in Johnson, where we disbarred an attorney suffering from

alcoholism who stole client funds. 114 Wn.2d at 749; see also Rentel, 107 Wn.2d

276. We quoted the following language from the Illinois Supreme Court:

"Not all alcoholics appropriate the money of their clients; the slide from
drink to dishonor may be smooth, but it is neither automatic nor
uncontrollable. We can understand it; we cannot excuse it or overlook
misconduct as serious as respondent's. Alcoholics need not be treated
just like other people; our duty to uphold the standards and reputation of
the profession is not incompatible with sympathy and leniency for
victims of alcoholism. But their tragedy cannot be used as a license to
exploit clients by taking their money."

Rentel, 107 Wn.2d at 287 (quoting In re Driscoll, 85 Ill. 2d 312,316,423 N.E.2d 873,

53 Ill. Dec. 204 (1981)). By the same token, while we sympathize with those

suffering from opioid dependence, we cannot regard Fossedal as an "innocent victim

of forces beyond [her] control." Driscoll, 85 Ill. 2d at 316. We must hold her

responsible for the harm she caused to the real victim here, Schoof.

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In sum, we decline to find that Fossedal' s chemical dependency-either alone

or in combination with her chronic pain-"caused" her to steal client funds, or that it

serves as an extraordinary mitigating factor here.

c. The Remaining Mitigating Factors Do Not Warrant a Lesser
Sanction

Hearing Officer Keith Scully also found that eight other mitigating factors

apply, but found that standing alone, none of them were sufficient to warrant a

departure from the presumptive sanction of disbarment. Fossedal asks us to review

each of these mitigating factors and find that they should reduce her sanction.

However, she merely lists the factors without explaining why they should have any

mitigating effect. Thus, we decline to analyze these factors.

d. We Decline To Address Whether the Hearing Officer's Findings
regarding Fossedal 's Motive Are Supported by the Record

Relatedly, ODC takes issue with certain hearing officer findings regarding

Fossedal's motive and mental state. Hearing Officer Scully found that Fossedal

"acted knowingly and intentionally in committing theft and conversion of client

funds." FF/CL at 10. However, he also-perhaps paradoxically-found that

"Fossedal's motive was neither selfish nor dishonest" and that she did not clearly

remember most of2009-2011. Id. at 9-10. He also found that Fossedal "was not

aware, although she should have been aware, that Mr. Schoof s money was used for

firm and personal expenses." Id. at 9.

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ODC argues that these and other hearing officer findings "inconsistent with the

mental state of intent" 6 are unsupported by the record because F ossedal' s mental state

of intent was conclusively proved by her first degree theft conviction. Answering Br.

of ODC at 17, 46. It notes that ELC 10 .14(c) states that a "' court record of the

conviction is conclusive evidence at the disciplinary hearing of the respondent's guilt

of the crime and violation of the statute on which the conviction was based."' Id. at

45 (quoting ELC 10.14(c)).

But the Board did not address this issue, and it is not necessary for us to

invalidate the hearing officer's findings in order to disbar Fossedal. See Schwimmer,

153 Wn.2d at 760 (distinction between knowingly misusing client funds rather than

intentionally misappropriating them immaterial because in either case, a lawyer's

failure to preserve the integrity of client funds leads to disbarment absent

extraordinary mitigating circumstances). Thus, we decline to address this issue.

ii. Disbarment Is a Proportionate Sanction

Finally, we may depart from a recommendation of the Board ifwe are

persuaded that the sanction is inappropriate in light of two factors: (1) proportionality

6
In particular, these challenged findings are as follows:
• FF/CL i114 states that Fossedal does not clearly remember most of 2009-2011.
• FF/CL i141 states Fossedal did not realize that Schoof had not been paid until May 2012,
after he filed his grievance.
• FF/CL i1 53 states that Fossedal "was not aware, although she should have been aware,
that Mr. Schoof s money was used for firm and personal expenses."
• FF/CL i164(b) and 65(b) state that Fossedal lacked a dishonest or selfish motive.
Answering Br. of ODC at 17.

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of the sanction to the misconduct and (2) the extent of agreement among the members

of the Board. In re Disciplinary Proceeding Against Kuvara, 149 Wn.2d 237,259, 66

P.3d 1057 (2003).

Fossedal has cited five cases 7 in which "this Court has imposed suspension as

the appropriate sanction when disbarment seems automatic." Appeal at 23. However,

all of those cases are different from this one. First, they all involve a nonunanimous

recommendation of the Board. Second, they all involve factual situations that are

distinguishable from this case. See, e.g., In re Disciplinary Proceeding Against

Dynan, 152 Wn.2d 601, 621, 98 P.3d 444 (2004) (lawyer submitted altered billing

statements to a court, but did not steal client funds); In re Disciplinary Proceeding

Against Christopher, 153 Wn.2d 669, 684-85, 105 P.3d 976 (2005) (lawyer falsified

court documents and forged secretary's signature but did not steal client funds). The

only case that is factually similar to this one is McLendon, which we have already

discussed at length above.

The purpose of attorney discipline is to protect the public and preserve

confidence in the legal system. Rentel, 107 Wn.2d at 282. Here, the Board

unanimously voted to recommend disbarment, which is a proportionate sanction that

7
In re Disciplinary Proceeding Against Christopher, 153 Wn.2d 669, 105 P.3d 976 (2005); In re
Disciplinary Proceeding Against Dynan, 152 Wn.2d 601, 619, 98 P.3d 444 (2004); In re
Disciplinary Proceeding Against Tasker, 141 Wn.2d 557, 9 P.3d 822 (2000); Haskell, 136
Wn.2d 300; Mclendon, 120 Wn.2d 761.

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In re Disciplinary Proceeding Against Fossedal
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serves both of these goals. Fossedal took all of Schoof s settlement funds. She

possessed these funds only because of the position of trust she occupied as Schoof s

lawyer. Meanwhile, Schoof was financially destitute, sleeping on a friend's couch.

And although Fossedal has expressed remorse, she has done nothing to repay any of

the money she misappropriated. In light of this court's "strong policy against client

fund violations," disbarment is the only acceptable sanction here. Rentel, 107 Wn.2d

at 289. Any other sanction would send an untenable message to the public that opioid

use may excuse stealing client funds.

CONCLUSION

We adopt the Board's recommendation and disbar Fossedal from the practice

of law. We also affirm the Board's recommendation that F ossedal be required to pay

all court-ordered restitution to Schoof and restitution to the LFCP before

reinstatement.

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In re Disciplinary Proceeding Against Fossedal
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WE CONCUR:

(

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