In the Matter of the Disciplinary Proceeding Against Sanai

Sanai, an Oregon attorney, wanted to help his mother with her divorce. He was admitted to Washington. During the course of the litigation, which was termed “extremely acrimonious” by the court, the WSBA filed eight counts of misconduct related to pleadings in the litigation.

The kicker came when Sanai requested a continuance due to health issues, along with a note from his doctor. The hearing officer refused, stating that he could not read the note. Sanai returned with a signed statement from his doctor stating that he had severe hypertension, and beginning the trial before blood pressure medication took affect would be very dangerous. Sanai also testified via phone that his bloodpressure was high, and that he couldn’t remember what the exact pressure was on which date, but gave two readings he remembered.

This is where it gets weird. The hearing examiner wanted nothing to do with the medical continuance:

frankly does [sic] not have the ring of truth, in my judgment. There is no indication in that letter as to what the blood pressure is; and as I understand it, and as Mr. Sanai has indicated, the major symptom of hypertension is high blood pressure. I find it inconceivable that Mr. Sanai would not remember the blood pressure that was taken twice from him on Friday, April 13th in order to be able to testify as to what that is here today.

The court also went on to note the examiner’s questioning of the doctor’s declaration:

He went on to note that the doctor’s letter was not on letterhead and carried a “rather strange certification” when it said, “‘I declare under penalty of perjury.’” Id. (“That’s not a certification that I’m familiar with and certainly different from the one that is normally used in the state of Washington.”).

Just to be clear here, this is the certification that I use on all of my declarations:

I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.

I’m having a little trouble distinguishing how the two are all that different. The hearing examiner also called into question the lack of letterhead of the doctor. Again, most of my declarations, regardless of the declarant, are submitted on plain ol’ bond paper.

As you can guess, the hearing examiner denied the continuance and proceeded without Sanai. The denial of a continuance is abuse of discretion. The court could in this case essentially review the same evidence de novo, the note, the declaration, and the telephone conversation.

Because the credibility assessment involves documents and a witness testifying by telephone, the hearing officer is not necessarily in a “better position to judge their veracity.”

     While a hearing officer’s discretionary decisions are entitled to great weight, this must be weighed against the right of a lawyer to be present to defend. In this case, [Sanai] provided a doctor’s note and detailed testimony as to his medical condition. Because “[a]ttorney disciplinary hearings must meet the requirements of due process,” we hold that the hearing officer abused his discretion by refusing to grant [Sanai] a continuance based on his medical condition so that he could attend and participate in the proceedings. In re Discipline of Meade, 103 Wn.2d 374, 381, 693 P.2d 713 (1985) (citing In re Ruffalo, 390 U.S. 544, 550, 88 S. Ct. 1222, 20 L. Ed. 2d 117 (1968); Metzenbaum, 22 Wn.2d at 79).

Remanded for a hearing with Sanai present. Unfortunately for Sanai, his attempt to subpoena judges as to the merits of his claims is out. Also out are several improper requests for admissions, which called for legal conclusions.

The dissent goes more into the merits of the underlying hearing, effectively saying: Sanai, you had your chance. If you’re looking to see the outcome of the hearing, my guess is this dissent will be cut and paste into the adoption of the hearing examiners findings and conclusions.

This entry was posted on December 31, 2009 at 12:07 pm and is filed under Attorney Discipline, Chief Justice Barbara Madsen - Draft Majority, Justice Charles Johnson - Concur in Dissent, Justice Debra Stephens - Concur in Majority, Justice Gerry Alexander - Concur in Majority, Justice Jim Johnson - Concur in Dissent, Justice Mary Fairhurst - Concur in Dissent, Justice Richard Sanders - Concur in Majority, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Draft Dissent, WA Supreme Court. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.