In re Disciplinary Proceeding Against Joe Wickersham [Wash. Sup. Ct. No. 201,088-1]

Among the Washington Supreme Court’s many responsibilities is review of disciplinary actions.  Here, the circumstances were especially difficult because the attorney misconduct was caused by mental illness rather than neglect or incompetence.  Nevertheless, given the seriousness of the misconduct, the six-justice majority imposed a three-year sanction and directed that Wickersham pay restitution and undergo an independent psychiatric examination before returning to practice.  The three-justice dissent disagreed based on their view that Wickersham should not be punished for his mental illness.  The case is interesting in that it shows the wide latitude that our Supreme Court has in determining appropriate sanctions for attorney misconduct.

In August 2010, Wickersham developed the belief that he was the target of a criminal element and that his life was in danger.  As a result, he abruptly left Washington for approximately three months, during which time his office was closed.  During that time, he abandoned his practice and his clients.

The events at issue in this case began in June 2010, center on two clients (Zimcosky and Griffin), and include a three-month abandonment of  practice.

Wickersham represented Zimcosky on a charge of driving under the influence.  At a June 2010 hearing, Wickersham exhibited odd behavior, including baring his teeth and shadow boxing.  Wickersham continued to act strangely during subsequent proceedings, and Zimcosky eventually ended up representing himself.

Wickersham represented Griffen on a felony charge.  Wickersham failed to appear for an August 2010 motion hearing.  The trial was eventually set for September 2010, but Wickersham did not appear.  Nor did he file a notice of withdrawal or seek permission to withdraw in accordance with CrR 3.1(d).  Griffen eventually retained new counsel.

Lastly, Wickersham also abandoned his practice.  In August 2010, Wickersham developed the belief that he was the target of a criminal element and that his life was in danger.  As a result, he abruptly left Washington for approximately three months, during which time his office was closed.

Ultimately, the issue before the Supreme Court was whether to adopt or modify the sanction that had been determined by the WSBA disciplinary board:  a three-year sanction with restitution to Zimcosky in the amount of $3,500.  The Court began by stating the applicable standard of review:  conclusions of law are reviewed de novo, findings of fact are reviewed for substantial evidence.  The court then examined the following considerations:

• Mental state
• Injury
• Aggravators – prior offenses, pattern of misconduct, etc.
• Mitigators – personal or emotional problems, lack of dishonest motive, remorse, etc.

Lastly, the court considered proportionality:  whether the sanction is greater than the sanction in previous cases in which the conduct appears as or more grievous.

Based on these considerations, a six-justice majority (Stephens, Madsen, J.M. Johnson, Wiggins, Gonzalez, and Fairhurst) concluded that Wickersham had failed to show that a three-year suspension was unwarranted or disproportionate, particularly since the presumptive sanction where an attorney abandons his practice and causes serious or potentially serious injury to his clients is disbarment.  Three justices (McCloud, C. Johnson, and Owens) dissented.  They reasoned that “mental health problems require mental health solutions,” that Wickersham should not be punished for his mental illness, and that a “two-year suspension, followed by two years of probation, is a better response to the problems presented in this case.”