Dui Attorney Comes Under Fire -- Plateau Death Returns To Haunt Bellevue Lawyer

BELLEVUE

The Washington State Bar Association has concluded that disciplinary action should be considered against Stephen Hayne, a Bellevue attorney who represented a woman later convicted in a hit-and-run fatality on the Sammamish Plateau.

Disciplinary counsel Sachia Stonefeld, in a summary report of the bar's inquiry, contended Hayne "knowingly misstated" client Susan West's criminal and probationary history in 1992 to an Issaquah district judge.

Stonefeld's report made it clear, however, that Hayne's alleged lack of candor in that case about West's previous drunken-driving history did not directly lead to the Plateau fatality.

In short, the state bar found that Hayne succeeded in gaining deferred prosecution for West in an Issaquah drunken-driving case by not disclosing that she was on deferred prosecution in an earlier driving-under-the-influence case in Marysville.

Five years later, last July 26, a minivan driven by West struck and killed Mary Johnsen, 38, as she was walking along a road, holding hands with her husband.

West, 39, pleaded guilty and was sentenced to nine years in prison for vehicular homicide. The judge called her a "human bomb." West's blood-alcohol level at the time of the accident - 0.34 percent - was three times the legal intoxication limit.

West previously had been a client of Hayne's, a nationally known drunken-driving defense attorney and a founder of the National College for DWI Defense at Harvard Law School.

Stonefeld said the state bar opened an investigation into Hayne's previous representation of West after a November 1997 Seattle Times story, which described how West had been arrested on drunken-driving charges in 1989 and 1992, and several subsequent complaints.

The story reported that West had received two overlapping deferred prosecutions in those cases, although only one such deferral is allowed in a five-year period.

West was arrested for drunken driving in Marysville Dec. 12, 1989. In June 1990, she was granted a deferred prosecution in Marysville. She was arrested again for drunken driving Oct. 7, 1991, after an accident on Fall City-Snoqualmie Road. Three months later, she applied for deferred prosecution in Issaquah District Court and filed an affidavit saying she was not on probation in any court. Hayne represented her in both cases.

Stonefeld's summary said Hayne furnished documents to the bar in his defense, arguing that while an "unofficial" deferred prosecution had been granted by a Marysville court, it had not been reported to the state Department of Licensing and therefore did not need to be disclosed to the Issaquah court.

Hayne told the bar investigators that he met with the Issaquah judge in court chambers and told him about the "informal deferred prosecution" in Marysville and that the Issaquah judge allowed the deferred prosecution there to stand.

Neither the Issaquah judge nor a deputy prosecutor could recall such a meeting in chambers, the summary said.

The bar noted that court rules require a lawyer "to be candid toward a tribunal."

Instead, Stonefeld wrote, "Mr. Hayne signed and submitted Ms. West's . . . petition for a deferred prosecution in the Issaquah District Court, stating she was not on probation and was eligible for a deferred prosecution. Neither of these things were true at the time.

"Mr. Hayne does not explain how the Marysville probation was an `unofficial' probation. Thus, when Mr. Hayne submitted the petition, he submitted a false statement to the court," Stonefeld continued. "Mr. Hayne knowingly misstated Ms. West's criminal and probationary history."

Stonefeld found, however, that the Issaquah case had been disclosed to a Marysville probation officer and that copies of the Issaquah violation were in a Marysville court file.

"We do not find that Mr. Hayne committed any violation of the Rules of Professional Conduct with regard to the Marysville DUI case," she noted.

Stonefeld also said that neither case directly led to Johnsen's death because even if West had been sent to jail in the Issaquah case for the maximum allowable one year, she would have been released by July 1997 and "could still have consumed alcohol and gotten behind the wheel. Therefore, we do not find this unfortunate result to be an aggravating factor nor even an adverse effect on a legal proceeding."

Stonefeld recommended that the investigation be forwarded to a review committee and ordered to a hearing. At such a hearing, the grievance could be dismissed or sanctions imposed. Stonefeld said the suggested sanctions range from a reprimand or admonition, to a suspension or censure.

Hayne could not be reached for comment yesterday.

Hayne and his associates have previously contended that simultaneous deferred prosecutions were commonplace in the state early in the 1990s and that better court computer systems have decreased their frequency.

Mary Johnsen's death served to focus widespread attention on drunken driving. The Legislature and Gov. Gary Locke approved more than a half-dozen drunken-driving bills this year, including lowering the legal limit of intoxication and requiring "ignition interlock" devices on cars being operated by convicted drunken drivers.

Peyton Whitely's phone message number is 206-464-2259. His e-mail address is: pwhi-new@seatimes.com