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In re Disciplinary Proceeding Against Ben L. Hankin

January 31, 1991


En Banc. Smith, J. Dore, C.j., Utter, Brachtenbach, Dolliver, Andersen, Durham, and Guy, JJ., and Callow, J. Pro Tem., concur. Johnson, J., did not participate in the disposition of this case.

Author: Smith

This is a disciplinary proceeding against Ben L. Hankin, a member of the Washington State Bar Association, upon a show cause proceeding directed by this court to determine whether he should be disbarred.

Ben L. Hankin was suspended October 28, 1985, for failure to fulfill his 1984 Continuing Legal Education requirements and has remained suspended since that time.

After a series of proceedings through May 11, 1990, the Disciplinary Board of the Washington State Bar Association by an 8-to-3 vote recommended suspension of Mr. Hankin for a period of 1 year with credit for the time he has been suspended since July 6, 1988, and with probation for 2 years on stated conditions. We approve the recommendation of the Disciplinary Board.*fn1

This case has had a long and tortuous journey through this court. It brings into focus certain realities in the lawyer discipline process.

First is the matter of lawyer discipline generally.

[1] This court is the ultimate authority on lawyer discipline in this state.*fn2 This court will adopt the recommendation of the Disciplinary Board unless the court is clearly

persuaded by one or more of the following " Noble " factors*fn3 that the sanction recommended by the Disciplinary Board is inappropriate:

(1) The purposes of attorney discipline (sanction must protect the public and deter other attorneys from similar misconduct);

(2) The proportionality of the sanction to the misconduct (sanction must not depart significantly from sanctions imposed in similar cases);

(3) The effect of the sanction on the attorney (sanction must not be clearly excessive);

(4) The record developed by the hearing panel (sanction must be fairly supported by the record and must not be based upon considerations not supported by the record); and

(5) The extent of agreement among the members of the board (sanction supported by unanimous recommendation will not be rejected in the absence of clear reasons.)*fn4

Second is the matter of application of the American Bar Association's Standards for Imposing Lawyer Sanctions (Approved Draft, 1986).

[2] This court has previously made it clear that in determining an appropriate disciplinary sanction, we will apply the analytical framework provided by the Standards and require hearing officers and the Disciplinary Board in every case to indicate clearly in their findings (1) the formal complaint; (2) findings of fact; (3) conclusions indicating violations of specific provisions of the Rules of Professional Conduct; (4) the sanction suggested by the ABA Standards; (5) weighing of any aggravating or mitigating factors, based upon the ABA Standards considered in determining what

sanction to recommend; and (6) the sanction recommended by the hearing officer and the Disciplinary Board.*fn5

[3] Using the framework provided by the Standards, these questions are considered:*fn6

1. What ethical duty did the lawyer violate?

2. What was the lawyer's mental state?

3. What was the extent of the actual or potential injury caused by the lawyer's misconduct?

4. Are there any aggravating or mitigating circumstances?

After the first three questions have been answered, the Standards are then examined to determine the presumptive disciplinary sanction. Aggravating and mitigating circumstances are then considered to increase or decrease the presumptive sanction when determining the final sanction to be applied.*fn7

Third is the role of the Lawyers' Assistance Program in helping lawyers overcome problems contributing to the behavior resulting in the discipline.

The Lawyers' Assistance Program is a confidential state bar resource which was established in August 1987 to help lawyers explore, clarify and resolve their personal problems, including alcohol problems. The Lawyers' Assistance Program provides short-term counseling, assesses problems, and makes referrals to appropriate professionals, treatment facilities, and peer counselors.*fn8 This court is in agreement with the purposes of the Lawyers' Assistance Program and will acknowledge its appropriate intervention on a case-by-case basis.

Fourth is the broad question of the purpose and nature of disciplinary sanctions for lawyers.

The ABA Standards provide:

Purpose of Lawyer Discipline Proceedings.

The purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely properly to discharge their professional duties to clients, the public, the legal system, and the legal profession.*fn9

This court stated in 1983 that:

Because we are committed to the proposition that discipline is not imposed as punishment for the misconduct, then our primary concern is with protecting the public and deterring other lawyers from similar misconduct. The severity of the sanction should be calculated to achieve these ends.*fn10

Upon a finding of misconduct, a lawyer is subject to sanctions of disbarment, suspension, reprimand, censure, admonition, and probation which may include limitation upon practice, appointment of a receiver, retaking of bar examination substantive or professional responsibility test, attendance at continuing legal education courses, and any other reasonable requirement of the State's highest court or of the Disciplinary Board, as well as restitution and assessment of costs and expenses.*fn11

A primary purpose of lawyer discipline proceedings is protection of the public. But that protection may be achieved by rehabilitation of the lawyer, as well as by sanctions against the lawyer. The ultimate sanction is disbarment which, by its very nature, is punishment because it terminates the offending person's status as a lawyer. The appropriate sanction must be determined on a case-by-case basis. Whether disbarment should be imposed where the presumptive sanction is disbarment in any event depends

upon the conclusion reached after weighing appropriate aggravating factors and mitigating factors.

The Disciplinary Board Order re Show Cause, signed July 11, 1990, by Richard J. Schroeder, chairperson of the Disciplinary Board, provides the basis for the recommendation of the majority of the Board which we approve. We do not lightly dismiss the dissenting opinion by board member C.C. Bridgewater (concurred in by members Ms. Yvonne Banks and Dr. Charles W. Guildner) since it provides the court a balancing point of view which we must seriously weigh in reaching our conclusion.

Respondent Ben L. Hankin was admitted to the Washington bar on June 30, 1982. The first adverse action against him occurred on October 21, 1985, when this court entered an order suspending him for failure to comply with the 1984 Continuing Legal Education (CLE) requirements, effective October 28, 1985. His suspension has continued since that date.

Between October 28, 1985, and August 1986, Respondent Hankin practiced law in this state with knowledge of his suspended status. He advised and represented clients, accepted legal fees, and made court appearances in at least six courts during that period. He "knew since at least April 1986 and possibly before that he had been suspended from the practice of law."

In January 1986, Respondent Hankin prepared a petition for dissolution of marriage on behalf of Ms. Shelly M. Brown. The petition was served on her spouse on January 31, 1986. Ms. Brown recalled entering into a property settlement agreement and believed that Mr. Hankin had the agreement in his possession. He denied that he prepared or possessed such a document. He did not file the dissolution petition with the King County Superior Court. After several months elapsed, however, Ms. Brown "got the impression from Mr. Hankin" that her dissolution was final. She then remarried. She first learned that her dissolution was not final when she attempted to enforce child support obligations against her first husband. Mr. Hankin contends,

however, that there is "no evidence that anyone has suffered any damage" from his activities.

Respondent Hankin did not respond to bar counsel's written request for answer to a complaint filed by Ms. Deborah K. Sharick, who retained him in March 1986 for dissolution of her marriage. In June 1986, while undisputedly aware that he was suspended, Mr. Hankin requested from Ms. Sharick the balance of a $220 fee for his legal services. Ms. Sharick later had difficulty contacting him because his telephone had been disconnected. She lost contact with him altogether. Respondent Hankin failed to claim a subsequent certified letter sent him by bar counsel requesting an answer to the Sharick complaint. The letter was returned unopened and unclaimed. Respondent was operating his law practice out of the Buckaroo Tavern during this time. Approximately two weeks before his disciplinary hearing held November 16, 1987, Respondent Hankin made restitution of the fees collected from Ms. Deborah K. Sharick in 1986.

The hearing officer concluded that Mr. Hankin's conduct violated RLD 1.1(i) (violation of Rules of Professional Conduct); RLD 1.1(l) (practicing law while suspended); RPC 1.15(a)(1) (representing a client in violation of the Rules of Professional Conduct or other law); RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation); RPC 8.4(d) (conduct prejudicial to administration of justice); ...

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