Dissent by Sanders, J., to Denial of Application to Practice Law

No. 67879-1

SANDERS, J. (dissenting)—Once again the majority turns aside the (this time unanimous) recommendation of the WSBA Character & Fitness Committee that Mr. Trapp be admitted to practice law before the courts of this state. In my view Mr. Trapp should be admitted for the reasons which follow.

1. Concerns relative to Trapp's prior misconduct and abuse of alcohol and drugs.

As a younger man Mr. Trapp engaged in an unfortunate course of conduct between 1985 and 1991 involving misdemeanor arrests for alcohol-related conduct, sometimes with drug overtones. As a result Mr. Trapp's application to join the California bar was denied in July 1991. Since then Mr. Trapp has married, is responsible for the support of his wife and two daughters, and has survived two bouts with cancer. The record does not disclose any antisocial much less criminal conduct over the last eight years, nor have any problems associated with alcohol and/or drugs during that period been alleged, much less found.

Mr. Trapp successfully passed the Washington State Bar examination. His application for admittance is supported by numerous laudatory letters from responsible individuals in his community and elsewhere.

One such letter was from Dr. Shinstrom, Mr. Trapp's personal physician, evidencing the doctor's opinion that Mr. Trapp did not have an alcohol or drug problem. In response, the majority states:

Majority at 3.

Although the majority apparently favors further professional alcohol evaluation of Mr. Trapp, I think it would be well advised to first read and consider the referenced Diagnostic Assessment Summary (8/29/96) prepared by R. Scott Rinker, M.S., wherein Mr. Rinker, under the heading, "Treatment Recommendations," states

Clerk's Papers (CP) at 53.

If a professional evaluator recommends no further action regarding "socially appropriate consumption" of alcoholic beverages, I fail to see why the majority would find same a problem significant enough to deny professional licensure. Moreover, why demand an alcohol evaluation from a professional in the field if the court is unwilling to credit the considered opinion and recommendation of the evaluator?

If the consumption of a few beers a week is inappropriate for a member of the Washington State Bar, then we certainly have our disciplinary work cut out for us. In the same vein, it is interesting to note that alcohol is served at virtually every social occasion sponsored by the bar association, including those involving the judiciary. Often alcoholic beverages are included with the price of the ticket but a soft drink is only provided at extra cost. Denial of Mr. Trapp's application on this ground is not justified.

2. Concerns relative to Mr. Trapp's judgment and maturity.

Here the majority evidences concern regarding Mr. Trapp's lawsuit emanating from his previous denial of admission to the Washington State Bar as well as his failure to repay his student loans.

A. Lawsuit

The majority faults Mr. Trapp for commencing a lawsuit against this court and dissenting members of the Character and Fitness Committee following the court's 1997 denial of his application for admission. The majority states facts about the litigation which are not in the record before us. The majority contends, "While it is inappropriate for this court to be influenced in any way by the maintenance of the suit against members of the court, we think it is entirely appropriate to consider the prudence of his action against members of the Committee." Majority at 4. The majority says that lawsuit "was entirely without merit." Majority at 5.

Consideration of Mr. Trapp's lawsuit for any purpose is highly problematic. Not only are we ignorant about the details of that suit but Mr. Trapp is entitled to access the courts as would any other citizen. He should not be penalized for bringing his grievance to an independent federal judiciary.

Although I would not go so far to say, as the majority does, that Mr. Trapp's litigation "was entirely without merit," (emphasis added) the fact of its dismissal does bespeak lack of merit. Notwithstanding no pleadings from that lawsuit are incorporated in the record of this proceeding and even if that lawsuit were indeed not meritorious, there would be no basis for this court to independently make that determination. I note, however, there was no finding by the United States District Court that Mr. Trapp's lawsuit was frivolous or in bad faith, nor were sanctions imposed against Mr. Trapp under FRCP 11, nor was it even dismissed on the merits but rather on technical grounds relating to federal abstention under the Rooker-Feldman doctrine.

But whether Mr. Trapp's lawsuit lacked merit or "was entirely without merit" is beside the point unless we first conclude that filing a nonmeritorious suit is inconsistent with "good moral character." That is the ultimate legal issue before us. APR 3(a). Far short of claiming Mr. Trapp's suit was an abuse of process, malicious, frivolous, or in bad faith, the majority characterizes it simply as a question of "Mr. Trapp's judgment and maturity," Majority at 4, particularly with respect to "the prudence of his action against members of the Committee."

Even assuming arguendo that Mr. Trapp's suit was mistaken, or evidence of poor judgment on his part, that is not necessarily a comment on his "moral character." APR 3(a). Indeed this court deals, as a matter of routine, with legal arguments asserted by attorneys we find to be lacking in merit; however, I know of no instance when this has caused us to make an adverse moral judgment against the attorney who asserts them. To do so would be to impermissibly chill the creative art of advocacy. Nor do I believe such is within the meaning of "good moral character" in light of previous case law construing the rule.

By dictionary definition, "moral" is "of or relating to principles or considerations of right and wrong action or good and bad character . . . ." Webster's Third New International Dictionary 1468 (1976). "Character" includes "outward and visible quality or trait." Id. at 376. "Good moral character" therefore must be a propensity to do right rather than wrong, to be honest rather than dishonest, to be fair rather than unfair, and to respect the rights of others rather than defeat them. The object of our inquiry is therefore to determine a trait or generalization based upon a general course of conduct rather than a particular event, unless that event is so significant so as to have overshadowing importance. In the case of In re Wright, 102 Wn.2d 855, 690 P.2d 1134 (1984), for example, the court concluded "second degree murder does not exhibit good moral character." Id. at 859. By the same token, prior engagement in criminal enterprise may also point to bad moral character. Cf. In re Belsher, 102 Wn.2d 844, 851-52, 689 P.2d 1078 (1984). The majority, however, does not really seem to be faulting Mr. Trapp for filing a nonmeritorious lawsuit ("[I]t is inappropriate for this court to be influenced in any way by the maintenance of the suit against members of the court . . . ." Majority at 4-5). The gravamen of the majority's position seems to be it is an immoral act, inconsistent with good character, to sue dissenting members of the Character and Fitness Committee because it "suggests to us that Trapp is simply unable to accept the fact that persons may disagree with him." Majority at 5. I do not, however, see this as a comment on Mr. Trapp's moral character, but rather a personality feature, arrogance perhaps, more or less common to mankind which prefers agreement with one's personal views over disagreement.

What is more troubling to me, however, is really the thrust of the majority decision which penalizes Trapp not for this human failing, if that it be, in a global sense but rather because it narrowly relates to maintenance of his lawsuit against certain members of the Character and Fitness Committee for the manner in which they discharged their voluntarily assumed duties for and on behalf of this court. If the majority is correct, and I believe it is, that we should not penalize Mr. Trapp for suing individual members of the court (including your undersigned) then I cannot see how it would be appropriate to similarly penalize Mr. Trapp for suing other persons who are equally entitled to the benefits of judicial immunity because they are acting on our behalf. Indeed the criticism of the majority seems to be fact-specific to protect members of the bar association hierarchy against litigation lacking in merit as opposed to application of a more general principle that any person who asserts a legal claim against another lacking in merit also lacks the "good moral character" requisite to the practice of law in this jurisdiction. If we are unwilling to generalize the principle, we ought not apply it.

The majority states "he lacks good judgment and is content to blame others for problems he has visited on himself." Majority at 5. I think not. Mr. Trapp realizes full well that for a period of his life he engaged in undesirable conduct, however, to summarize his argument, he has put that behind him and believes, as does a unanimous Character and Fitness Committee, that he possesses at least the minimum qualifications entitling him to membership in the Washington State Bar Association. I agree with Mr. Trapp: his application is rejected because a majority of this court has seen fit to reject it, not because of the petitioner's current condition.

B. Failure to Repay Student Loan.

Recently our court rejected a proposed rule which would deny admittance to applicants who default in repayment of their government guaranteed student loans. Nevertheless the majority faults Mr. Trapp for conduct we have refrained from condemning by express rule.

Moreover the majority cites no precedent indicative of a moral or character flaw associated with the nonpayment of civil debts. Were Mr. Trapp to simply bankrupt out these creditors he would be entitled to protection under 11 U.S.C. § 525 which protects bankrupts against discriminatory treatment by governmental agencies based upon the fact of bankruptcy. Historical and statutory notes to section 525 clarify congress's intent that "this section . . . prohibit[s] actions by governmental or quasi-governmental organizations that perform licensing functions, such as a State bar association or a medical society, or by other organizations that can seriously affect the debtors livelihood or fresh start . . . ." 11 U.S.C § 525, Historical and Statutory Notes (emphasis added). For further discussion, see In re Clark Garen, Bar Applicant, B.A. Number 61, Dissent by Sanders, J., to Denial of Application to Practice Law, at 34-37 (unpublished).

Although I personally accept the proposition that every individual should pay his just debts, I am constrained from incorporating that standard into professional licensure. Moreover, even if that were the standard, the record here shows that Mr. Trapp has experienced financial hardship, has a family to support, and has little income left for the satisfaction of his just debts. If Mr. Trapp is going to be denied admittance on this ground (which itself is not in the interest of his creditors), then I think the rule should be expressly stated, published, and consistently enforced against not only Mr. Trapp but all bar applicants and present members of the bar.

3. Consistency.

In conclusion I note the paucity of citations to authority in the unpublished majority opinion which might leave some to infer, rightly I think, that this court has denied the application without reference to how we treat others.

We have reinstated attorneys who have committed serious illegal and/or immoral acts including: second-degree assault (In re McGrath, 112 Wn.2d 481, 482, 772 P.2d 502 (1989)); misappropriation of client funds (In re Moynihan, 113 Wn.2d 219, 220, 778 P.2d 521 (1989); In re Rosellini, 108 Wn.2d 350, 355, 739 P.2d 658 (1987); In re Chantry, 84 Wn.2d 153, 154, 524 P.2d 909 (1974)); witness tampering (In re Stroh, 108 Wn.2d 410, 41, 739 P.2d 690 (1987); In re Shain, 24 Wn.2d 598, 166 P.2d 843 (1946)); lying to a client (In re Livesey, 94 Wn.2d 251, 252, 615 P.2d 1294 (1980)); possession of bank robbery proceeds (In re Egger, 93 Wn.2d 706, 707, 611 P.2d 1260 (1980)); burglary (In re Krogh, 93 Wn.2d 504, 505, 610 P.2d 1319 (1980)); grand larceny (In re Johnson, 92 Wn.2d 349, 350, 597 P.2d 113 (1979)); assault with intent to commit rape (In re Simmons, 81 Wn.2d 43, 44, 499 P.2d 874 (1972)); fraud (In re Eddleman, 79 Wn.2d 725, 489 P.2d 174 (1971)); mail fraud (In re Lonergan, 23 Wn.2d 767, 767, 162 P.2d 289 (1945)); embezzlement (In re Lillions, 196 Wash. 272, 82 P.2d 571 (1938)); and having an affair with a juror in a cause in which the attorney was counsel (In re Bruener, 178 Wash. 165, 34 P.2d 437 (1934).\Fn.1

\Fn.1--One case, In re Greenwood, 22 Wn.2d 684, 157 P.2d 591 (1945), does not report the misconduct for which the attorney was disbarred.

Moreover, we have recently considered and granted admission to several initial applicants who have: sold seven ounces each of cocaine and heroin (Bar Applicant No. 60); conspired to import and distribute marijuana and transported $250,000 to another country (Bar Applicant No. 59); engaged in vehicle tampering and shoplifting (Bar Applicant No. 58); sold over a pound of cocaine to undercover officers for $30,500 in addition to possessing over a half-a-pound of cocaine (Bar Applicant No. 57); furnished alcohol to a minor, delivered a controlled substance to a minor, and committed third degree sodomy with a 14-year-old girl (Bar Applicant No. 56); broke into a liquor store, burglarized a home, stole payroll checks, and drove under the influence (Bar Applicant No. 55); and possessed marijuana and attempted to commit fraud (Bar Applicant No. 54).

I also note our reported case in In re Walgren, 104 Wn.2d 557, 708 P.2d 380 (1985). Mr. Walgren, a prominent political figure and past Democrat majority leader of the Washington State Senate, was indicted in 1980 for 29 counts of racketeering. Some of the counts were dismissed. However ultimately Walgren was convicted on same and was sentenced to five years in prison and stipulated to disbarment. After completion of his prison term, but while he was still on parole, Walgren petitioned for reinstatement to the bar. This court granted Walgren's application\Fn.2\ for readmission provided he complete the conditions of his parole and pass the bar examination.

\Fn.2—Prior to reversal of the conviction on appeal.

Mr. Trapp's situation is very different from Mr. Walgren's. Mr. Trapp has not been convicted of a felony, he has not been sent to the federal penitentiary, he is not on supervised parole, and many uneventful years have passed since the problems of his younger years. He has grown older. He has married. He is responsible for a family. He has suffered mentally and physically. He has overcome some personal weaknesses associated with alcohol. He has won the praise and respect of those who know him best. He has taken and passed the Washington State Bar examination. He comes to this court with a unanimous recommendation in favor of readmission from the Character and Fitness Committee of the Washington State Bar Association, a recommendation which may be entitled to deference. Cf., In re Disciplinary Proceeding against Heard, 136 Wn.2d 405, 413, 963 P.2d 818 (1998).

If it is our charge to measure Mr. Trapp's application by the standard we have applied to others, I would be most interested to hear any explanation from the majority as to how Mr. Trapp has fallen below that standard. Cum tacent, clamant.\Fn.3

\Fn.3--Their very silence is a loud cry. Cicero, In Catilinam, I, 21.

I, for one, cannot oppose Mr. Trapp's application for admission to the Washington State Bar on this record. However, if Mr. Trapp were to reapply, which I encourage him to do, he might support his new application with an updated alcohol evaluation, make payments to his creditors or file bankruptcy, and dismiss his federal appeal. I would hope the majority would relent on such a showing, although I would not require such a showing myself.