In re Disciplinary Proceedings Against Jensen , 430 P.3d 262 ( 2018 )

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SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter ofthe Disciplinary No. 201,706-1
Proceeding Against
EN BANC
RUSSELL JAMES JENSEN, JR.,
Filed 29
an Attorney at Law.
FAIRHURST, C.J.—This attorney disciplinary action arises out of Russell
James Jensen Jr.'s conduct during his own divorce proceedings. Jensen repeatedly
violated court orders, engaged in frivolous litigation, made misrepresentations to the
court, and made threatening and harassing contacts with parties that he knew to be
represented by counsel. He also refuses to accept responsibility for his misconduct.
He acknowledges that the protracted litigation has harmed his wife but seems unable
to recognize that his own actions were the source of her injuries. Nor did he see fit
to show up to his own disciplinary hearing.
Following testimony from his wife, her brother, and her attorney, the
Washington State Bar Association (WSBA) hearing officer found that Jensen
violated the Rules of Professional Conduct(RPC) and recommended disbarment.
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1
The WSBA Disciplinary Board (Board) unanimously adopted the hearing officer's
recommendation. We adopt the Board's recommendation and disbar Jensen from the
practice oflaw.
I. FACTS AND PROCEDURAL HISTORY
A. Factual background
Jensen was admitted to practice law in Washington on October 27, 2008. On
August 15, 2013, Jensen's wife, Therese Jensen,' filed for dissolution of marriage in
Snohomish County Superior Court. Therese and Jensen owned their family home in
Mukilteo. Therese has severe multiple sclerosis and was dependent on Jensen for
care. After filing for dissolution, Therese moved to Nebraska.
1. The Mukilteo house
On December 24, 2013, the superior court entered an order granting Therese
control and authority to list the Mukilteo house for sale. Therese contacted listing
agent Leanne Finlay to help sell the Mukilteo house. In January 2014, Jensen placed
a "for sale by owner" sign on the front lawn. He reflised Finlay's request to remove
his sign. When workers later came to install Finlay's "for sale" sign, Jensen became
irate and tore the post out of the ground. Jensen also placed a Post-it Note on the
front door of the Mukilteo house, stating, "Buyer Beware Title is unlikely to be
'We use Therese Jensen's first name in this opinion for clarity and intend no disrespect.
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cleared for A sale - call [Jensen's phone number]." Ex. A-208; Findings of Fact,
Conclusions of Law and Hr'g Officer's Recommendation (FFCL) 22. On January
22,2014, Jensen sent an e-mail to Finlay and to Therese's attorney telling them that
they could not sell the home.
On February 10, 2014,the superior court found that Jensen had "obstruct[ed]
the listing and sale of the Mukilteo residence," and it ordered Jensen to "fully
cooperate with the sale ofthe Mukilteo residence up to [the] point ofsigning closing
document." Ex. A-220; FFCL 27. At the hearing, Jensen agreed to cooperate. On
February 11, 2014, Jensen filed a motion for revision in which he falsely stated that
he had "made no efforts of any kind" to obstruct Therese's efforts to list and show
the home. Ex. A-222; FFCL 28-29. On February 12, 2014, Finlay declared to the
superior court that Jensen's "for sale by owner" sign was still on the lawn.
Therese received a written offer to buy the Mukilteo house. On February 14,
2014, Jensen phoned the buyer's agent. Jensen told the agent that he intended to
block the sale by refusing to sign the sale documents. Jensen then offered to sign the
documents ifthe buyer agreed to pay Jensen an extra $50,000 outside ofthe sale and
escrow process. Jensen instructed the agent not to tell anyone about his offer. The
agent declined his offer.
On February 20,2014,the superior court denied Jensen's motion for revision.
On March 7, 2014, the superior court entered an order (1) approving the pending
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sale of the house,(2) ordering Jensen to "execute any and all necessary documents
to effectuate the closing of the sale," (3) authorizing Therese to sell the home
unilaterally if Jensen refused to sign documents, and(4)ordering Jensen to "remove
himself and his personal belongings" from the house. Ex. A-235; FFCL 38. Jensen
filed another motion for revision. The superior court denied it and ordered Jensen to
vacate the premises. Jensen vacated the house.
Jensen filed an emergency request with the Court of Appeals to stay the
superior court's order. Jensen and Therese filed multiple briefs; in addition to oral
argument, there were two emergency hearings. On April 17, 2014, the Court of
Appeals terminated review, finding that Jensen had consented to the sale and there
was no basis for discretionary review, and awarded Therese attorney fees. Jensen
still refused to sign the documents, and the buyer backed out of the sale. The stress
of these events exacerbated Therese's multiple sclerosis symptoms.
A second buyer made an offer on the house. On May 14, 2014, Jensen signed
an agreement under CR 2A awarding the Mukilteo house to Therese and agreeing to
transfer real property to her without further litigation, delay, appeal, or clouding of
title. Jensen then conveyed the house to Therese by quitclaim deed but listed his
name incorrectly on the deed. Jensen refused the title company's request to correct
the deed and threatened to sue the title company. On June 30, 2014, the superior
court ordered Jensen to execute the closing documents by close ofthe business day.
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Jensen did not comply. On July 9, 2014, the superior court sanctioned Jensen for
failing to cooperate in the closing and for creating further litigation and delay.
Therese eventually convinced a second title company to close the sale with
the existing quitclaim deed, but only after agreeing to indemnify it. Jensen then wrote
letters to the buyers and their mortgage company, claiming that the sale was void
and that he might still own the house.
On September 23, 2014, the superior court entered a decree of dissolution.
Jensen then filed an appeal, asking the Court of Appeals to overturn all superior
court orders that led to the sale ofthe house,including the final decree. On December
1, 2014, the superior court entered a judgment in the amount of $19,290.55 against
Jensen for attorney fees and debts owed to Therese. As of the disciplinary hearing,
Jensen had not paid the judgment.
On July 10, 2015, following a motion by Therese, the superior court entered
an order finding that Jensen had engaged in vexatious litigation against Therese and
requiring that Jensen post a $10,000 bond before filing further pleadings. Even at
oral argument, Jensen continued to argue that the superior court lacked authority to
compel the sale.
2. The Savage property
Prior to their marriage dissolution, the Jensens also jointly owned stock in
Apollo Land Company, whose sole asset was a parcel of real property in Savage,
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Minnesota. After vacating the Mukilteo house in spring 2014, Jensen moved to
Arden Hills, Minnesota. Jensen changed the mailing addresses filed with the state of
Minnesota regarding the Savage property so that real property tax notices for the
Savage property—including delinquency notices—^were sent to his Arden Hills
home.
On May 9, 2014, the Savage property was sold to the state of Minnesota to
pay delinquent real property taxes. On May 14, 2014, the Jensens signed an
agreement under CR 2A,see supra at section I.A.I, that awarded the Apollo stock
to Jensen.
On August 20,2014, Jensen registered the newly formed M.J. Scott Company
with the Minnesota secretary of state, listing himself as its registered agent. On
September 8, 2014, Jensen, through the M.J. Scott Company, repurchased the
Savage property for $500 or less.
On September 19, 2014, Jensen filed a signed declaration with the superior
court, stating(1)that Therese had lost the Savage property by failing to pay property
taxes,(2)that this had rendered the Apollo stock awarded to him under the CR 2A
agreement worthless, and(3)that he was entitled to $150,000 compensation for that
loss. Jensen did not disclose that the delinquency notices were sent to his home
address (not Therese's) or that he had repurchased the Savage property for under
$500. Nor did Jensen disclose these facts at a September 23, 2014 hearing on the
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No. 201,706-1
motion to which his declaration related. Instead, it was Therese's attorney who
informed the superior court ofthese facts after having discovered them herself. The
superior court denied Jensen compensation for the alleged loss of the Savage
property.
3. Communication with represented parties (Therese and James Brown)
The Jensens also owned other real property in Minnesota, some of it jointly
with Therese's brother, James Brown. Jensen, Therese, and Brown engaged in
litigation in Minnesota related to these properties. Therese and Brown were
represented in Minnesota by attorneys Stanford Hill and Daniel Olson; Therese was
represented in Washington by attorney Sabrina Layman.
Jensen, while acting pro se, repeatedly wrote letters and e-mails to Therese
and Brown. These communications included threats—for example, that Brown
would go to jail and that if Jensen were disbarred, Therese's alimony would be
lowered. Jensen knew that Therese and Brown were represented because he copied
their attorneys on these communications. Jensen also harassed the attorneys, calling
Olson a "shill" and Layman "dirtball scum." Ex. A-508; FFCL 92. Layman, Hill,
and Olson all asked Jensen to stop communicating with their clients, and Brown
asked Jensen to stop communicating directly with him.
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1
4. Further litigation
Jensen continued to litigate in Minnesota. On April 28, 2015, Minnesota's
Anoka County District Court granted Therese and Brown's motion for sanctions
against Jensen. The court found that Jensen had made misrepresentations of fact in
his pleadings and acted in a "vexatious and oppressive manner." Ex. A-601; FFCL
98. On June 2, 2015, it imposed $20,747.50 in sanctions against Jensen.
On June 16, 2015,the district court ordered Jensen to stop contacting Therese
and Brown. On June 21, 2015, the district court found that Jensen had repeatedly
brought motions and pleadings in which he misrepresented facts and which had little
or no basis in law.
5. Prior discipline
Jensen has been previously disciplined in Minnesota, where he was admitted
to practice law in 1985, for misconduct similar to that at issue in this case. In 1991,
the Minnesota Supreme Court reprimanded Jensen for mishandling money held in
trust, disobeying a court order to return funds, violating procedural rules of appeal,
disobeying Court of Appeals orders, making ex parte communications with Court of
Appeals judges, and incompetently representing a client.
In 1995, the Minnesota Supreme Court admonished Jensen for abusive
behavior toward someone who had filed an ethics complaint against him. In 1996,
the Minnesota Supreme Court suspended Jensen's law license indefinitely for
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asserting frivolous claims, making false statements to a tribunal, and disobeying
obligations under that tribunal's rules, and for conduct involving misrepresentations
and conduct prejudicial to the administration of justice. In 1999, Jensen was
reinstated to practice law in Minnesota.
B. Procedural history
Based on the above conduct, the WSBA charged Jensen with six counts of
violating the RPCs. Jensen filed an answer, and the parties engaged in informal
discovery under ELC 10.11. Acting under EEC 10.11(d), the hearing officer denied
Jensen's request for additional formal discovery, including, inter alia, requests to
serve interrogatories on nonparties and requests to produce privileged information.
Jensen then informed the WSBA,"I will not attend the hearing," and, "I will save
my arguing for the appeal to the Supreme Court." Clerk's Papers(CP)at 034(e-mail
from Jensen to Erica Temple, WSBA Disciplinary Counsel(June 22,2016,2:45 PM
PDT)).
Jensen did not attend his hearing. The hearing officer found that the WSBA
proved all six counts by a preponderance of the evidence. Applying the American
Bar Association's Standardsfor Imposing Lawyer Sanctions (1991 & Supp. 1992)
(ABA Standards), the hearing officer noted that the presumptive sanction was
disbarment. He found that no mitigating factors applied and that eight aggravating
factors applied:(1)prior disciplinary offenses,(2) dishonest or selfish motive,(3)a
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No. 201,706-1
pattern of misconduct, (4) multiple offenses, (5) bad faith obstruction of the
disciplinary proceeding by intentionally failing to comply with the rules or orders of
the disciplinary agency,(6)refusal to acknowledge wrongful nature of conduct,(7)
vulnerability of victim, and (8) substantial experience in the practice of law. The
hearing officer recommended disbarment and further recommended that "[a]s a
condition of reinstatement from any suspension or disbarment, [Jensen] shall pay
any and all judgements owed by him to Therese Jensen, James Brown, and/or the
Therese Brown Jensen Trust." FFCL 138. The Board unanimously adopted the
recommendation.
II. ANALYSIS
A. Jensen's conduct, as established in the unchallenged findings offact, supports the
hearing officer's conclusion that Jensen violated the RPCs
1. Standard ofreview
'"Unchallenged findings of fact made by the hearing officer and affirmed by
the Disciplinary Board will be accepted as verities on appeal.'" In re Disciplinary
Proceeding Against Whitney, 155 Wn.2d 451,461, 120 P.3d 550(2005)(quoting/i?
re Disciplinary Proceeding Against Carmick, 146 Wash. 2d 582, 594, 48 P.3d 311
(2002)).
We uphold a "hearing officer's ultimate conclusion that misconduct occurred
... if it is supported by substantial evidence in the record that the lower court could
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reasonably have found would meet the clear preponderance standard." In re
Disciplinary Proceeding Against Marshall, 160 Wash. 2d 317, 330, 157 P.3d 859
(2007). Evidence is substantial if it is "sufficient 'to persuade a fair-minded,rational
person of the truth of a declared premise.'" Id. (internal quotation marks omitted)
{quoting In re Disciplinary Proceeding Against Poole, 156 Wash. 2d 196, 209n.2, 125
P.3d 954 (2006)). The clear preponderance standard "requires more proof than a
simple preponderance but less than beyond a reasonable doubt." In re Disciplinary
Proceeding Against Ahele, 184 Wash. 2d 1, 13, 358 P.3d 371 (2015). We review
challenged conclusions oflaw de novo.Id.
2. Count 1
The hearing officer concluded that "[b]y failing to comply with court orders
regarding the sale of the Mukilteo home and obstructing the sale, [Jensen] violated
RPC 8.4(d) and RPC 8.4G)." FFCL 119. Under RPC 8.4(d), it is professional
misconduct for a lawyer to "engage in conduct that is prejudicial to the
administration of justice." Under RPC 8.4G), it is professional misconduct for a
lawyer to "willfully disobey or violate a court order directing him ... to do or cease
doing an act which he . . . ought in good faith to do or forbear."
There is substantial evidence in the record for the hearing officer to reasonably
have found by a clear preponderance ofthe evidence that Jensen violated RPC 8.4(d)
and G)- First, the record supports a finding that Jensen violated the December 24,
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2013 order granting Therese, as part oftheir dissolution proceedings, sole authority
to list the Mukilteo house for sale. Jensen placed his own "for sale by owner" sign
on the property, refused to remove his sign, tore the "for sale" sign of Therese's
listing agent out of the ground, placed a note on the front door warning potential
buyers that the property was unlikely to have clear title, and e-mailed Therese's
attorney and her listing agent, telling them that they could not sell the house.
Second, the record supports a finding that Jensen violated the February 10,
2014 court order directing Jensen to "fully cooperate" with the sale "up to [the] point
of signing closing document." Ex. A-220; FFCL 27. He continued to leave his "for
sale by owner" sign on the lawn. He also told the first prospective buyer's agent that
he intended to block the sale by refusing to sign the sale documents, unless the buyer
agreed to secretly pay Jensen $50,000 outside ofthe sale and escrow process.
Third,the record supports a finding that Jensen violated the February 20,2014
court order directing Jensen to "execute any and all necessary documents to
effectuate the closing of the sale." FFCL 38; Ex. A-235. He continued to refuse to
sign sale documents, causing the first buyer to back out ofthe sale.
Fourth, the record supports a finding that Jensen violated the June 30, 2014
order directing Jensen to sign the sale documents by the close of the business day.
Jensen never signed the sale documents. After Therese convinced a second title
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No. 201,706-1
company to close without Jensen's signature, he wrote letters to the buyers and their
mortgage company claiming that the sale was void.
Jensen argues that because these were interlocutory and not final orders, he
was not legally obligated to comply with them. Jensen cites no authority and offers
no argument to support this claim. We have held that when a party cites no authority,
we '"may assume that counsel, after diligent search, has found none.'" State v.
Young, 89 Wash. 2d 613, 625, 574 P.2d 1171 (1978)(quoting DeHeer v. Seattle Post-
Intelligencer, 60 Wash. 2d 122, 126, 372 P.2d 193 (1962)). We have also held that
"[t]he Supreme Court will not consider an assignment of error where there is no
argument in the brief to support it, "unless it is apparent without further research
that the assignments of error presented are well taken." DeHeer, 60 Wash. 2d at 126;
see also In re Disciplinary Proceeding Against Cottingham, 191 Wash. 2d 450, 465
n.l, 423 P.3d 818 (2018)(applying Young and DeHeer in the attorney discipline
context). As the WSBA suggests, the notion that interlocutory court orders have no
legal effect is a "remarkable proposition." Answering Br. of Office of Disciplinary
Counsel of WSBA at 28. Because it is not immediately apparent that the argument
is well taken, we disregard it. For the same reason, we also disregard Jensen's
argument that RPC 8.4(d)(prohibiting conduct "prejudicial to the administration of
justice") is overbroad and "does not bear any review." Opening Br. of Appellant at
33 n.62.
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3. Count 2
The hearing officer concluded that "[b]y repeatedly filing frivolous and/or
vexatious motions and appeals relating to the sale of the Mukilteo home,[Jensen]
violated RFC 3.1 and RPC 8.4(d)." FFCL 120. RFC 3.1 prohibits attorneys from
asserting claims or issues in litigation "unless there is a basis in law and fact... that
is not frivolous, which includes a good faith argument for an extension, modification
or reversal of existing law." RFC 8.4(d) prohibits conduct "prejudicial to the
administration ofjustice."
There is substantial evidence in the record for the hearing officer to reasonably
have found by a clear preponderance ofthe evidence that Jensen's litigation strategy
violated RFC 3.1 and 8.4(d). At several points, Jensen agreed to the sale of the
Mukilteo house. He failed to object to Therese's initial December 2013 motion
seeking '"control and authority'" to list their real property assets for sale. Ex. A-253
at 6. He wrote to Therese and her attorney in January 2014 that she could "go ahead
and sell the properties" and that he would not "get in the way." Ex. A-207. He also
represented to the superior court that he would "fully cooperate with the sale." Ex.
A-220. In this same period, he filed multiple motions with the superior court and an
appeal in the Court of Appeals, opposing the Mukilteo house sale. He has followed
a similar strategy with the Anoka County District Court. Both courts eventually
sanctioned Jensen for vexatious litigation.
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Jensen argues that his actions were justified by a good faith argument that
under RCW 26.16.030 and RCW 6.13.060, courts lack the authority to give one
spouse the right to unilaterally sell the community-owned family home. His
continuing failure to acknowledge directly on-point contrary authorities, even after
courts have brought them to his attention, undercuts this argument. Regardless, the
hearing officer could reasonably have found that Jensen's repeated agreements to
sell the properties rendered his simultaneous challenges to their sale frivolous.
4. Counts
The hearing officer concluded that "[b]y requesting the $50,000 pay-offfrom
the first purchasers,[Jensen] violated RFC 8.4(c) and RFC 8.4(d)." FFCL 121. RFC
8.4(c) prohibits lawyers from "engag[ing] in conduct involving dishonesty, fraud,
deceit or misrepresentation." RFC 8.4(d) prohibits conduct "prejudicial to the
administration ofjustice." Based on the testimonial and documentary evidence that
Jensen demanded an illegal secret payoff, the hearing officer could reasonably
conclude that Jensen engaged in dishonesty, fraud, deceit or misrepresentation and
that his actions were prejudicial to the administration ofjustice. Jensen's argument
that he has "unlimited right to sell [his] property at public or private sale for any
price [he] want[s], without any restrictions," is without merit. Opening Br. of
Appellant at 41.
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5. Counts 4 and 5
The hearing officer concluded that by making false statements to the court
"about not obstructing the sale ofthe Mukilteo home"(count 4)and "about the sale
ofthe Savage property"(count 5), Jensen "violated RFC 3.3(a)(1) and RFC 8.4(c)."
FFCL 122-123. RFC 3.3(a)(1) prohibits lawyers from knowingly making or failing
to correct false statements of material fact or law to a tribunal. RFC 8.4(c) prohibits
lawyers from "engag[ing] in conduct involving dishonesty, fraud, deceit or
misrepresentation."
There is substantial evidence in the record for the hearing officer to reasonably
have found by a clear preponderance of the evidence that Jensen made false
statements to both the superior court and the district court. The superior court entered
an order stating that Jensen "agreed with [the] court's request" that he not obstruct
the Mukilteo house sale, Ex. A-220, and Jensen stated in a subsequent motion that
he had "made no efforts of any kind" to obstruct the sale, Ex. A-222. Jensen argues
that these were statements of opinion, not fact, and thus do not fall under RFC
3.3(a)(1) and 8.4(c). But there is substantial evidence in the record to support the
hearing officer's finding that Jensen made false allegations of material fact to the
superior court. Frior to these statements, Jensen had placed his own "for sale by
owner" sign on the lawn, torn the listing agent's sign out of the ground, and placed
a "Buyer Beware" Fost-it Note on the door. After making these statements, Jensen
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left his sign on the lawn; called the first buyer's agent, threatening to block the sale;
and consistently refused to sign closing documents.
With respect to the Anoka County District Court, the record indicates that
Jensen had already repurchased the Savage property for under $500 when he
declared to the court that he was entitled to its $150,000 value. Jensen also declared
to the court that Therese lost the Savage property by failing to pay its taxes. But the
evidence that the Savage property tax delinquency notices were sent to Jensen—
rather than Therese—supports the hearing officer's finding that Jensen's statement
was knowingly false.
6. Count 6
The hearing officer concluded that "[b]y contacting [Therese] and [Brown]
directly about the subject of litigation, even though he knew they were represented
by counsel,[Jensen] violated RFC 4.2." FFCL 124. Under RPC 4.2,"a lawyer shall
not communicate about the subject of the representation with a person the lawyer
knows to be represented by another lawyer in the matter," unless either the other
lawyer has consented or the lawyer is authorized to do so by law or a court order.
Although parties may ordinarily communicate directly with each other,RPC 4.2 cmt.
4, we have held that RPC 4.2 applies to lawyers acting pro se. In re Disciplinary
Proceeding Against Haley, 156 Wash. 2d 324, 338, 126 P.3d 1262(2006).
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Jensen admits violating RFC 4.2 but argues that his doing so was justified by
"extenuating circumstances." Opening Br. of Appellant at 46. As extenuating
circumstances, he recites a series of factual allegations not contained in the record,
blaming Brown for driving up litigation costs in the dissolution proceedings. Jensen
here challenges both a finding of fact (by arguing that the facts are other than the
WSBA asserts them to be) and a conclusion of law (by arguing that it is not
professional misconduct to violate RPC 4.2 if there are extenuating circumstances).
We pay no heed to Jensen's factual allegations. "An attorney challenging
factual findings on appeal must do more than 'argu[e] his version of the facts while
ignoring testimony by other witnesses that supports each finding.'" In re
Disciplinary Proceeding Against Kronenberg, 155 Wash. 2d 184, 191, 117 P.3d 1134
(2005) (alteration in original) (quoting In re Disciplinary Proceeding Against
Kagele, 149 Wash. 2d 793, 814, 72 P.3d 1067 (2003)). He or she must "'present
argument to the court why specific findings offact are not supported by the evidence
and . . . cite to the record to support that argument.'" Id. (alteration in original)
(internal quotation marks omitted)(quoting In re Disciplinary Proceeding Against
Haskell, 136 Wash. 2d 300, 311,962 P.2d 813 (1998)). Jensen does not challenge any
specific findings offact, and he does not cite to the record to support his own factual
claims. If Jensen wished to argue his version ofthe facts, the appropriate time to do
so was at his disciplinary hearing.
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Moreover, Jensen's legal argument regarding RPC 4.2 is incorrect. To avoid
"reasonably certain injury," a lawyer may "seek a court order in exceptional
circumstances to authorize a communication that would otherwise be prohibited by
[RPC 4.2]." RPC 4.2 cmt. 6. If Jensen believed it was necessary to contact Therese
and Brown directly to avoid further depleting the Jensens' marital property, the
proper course of action under the RPCs was to seek a court order authorizing him to
do so.
There is substantial evidence in the record for the hearing officer to reasonably
have found by a clear preponderance of the evidence that Jensen, acting pro se,
communicated with Therese and Brown about the Minnesota property litigation.
And the fact that he copied their attorneys on these communications shows that he
knew they were represented by counsel. The record does not show that the other
lawyers consented to the communications or that court orders authorized the
communications. To the contrary, Therese's and Brown's attorneys, and Brown
himself, asked Jensen to stop.
B. Jensen's violations of the RPCs, together with his prior disciplinary record,
support the Board's recommendation of disbarment
We use a three pronged analysis to review whether the Board, using the ABA
Standards, properly determined lawyer sanctions. Marshall, 160 Wash. 2d at 342. First,
we determine whether the Board properly determined the presumptive sanction. Id.
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(citing re Disciplinary Proceeding Against Cohen, 150 Wash. 2d 744, 758, 82 P.3d
224 (2004)). Second, we consider aggravating and mitigating circumstances. Id.
Third, we determine whether the degree of unanimity among Board members and
the proportionality of the sanction justify departure from the Board's
recommendation. Id. (citing In re Disciplinary Proceeding Against Kuvara, 149
Wash. 2d 237, 259, 66 P.3d 1057 (2003)). "This court will uphold a sanction
recommended by a unanimous Board 'in the absence of a clear reason for
departure.'" In re Disciplinary Proceeding Against Behrman, 165 Wash. 2d 414, 422,
197 P.3d 1177 (2008)(quoting In re Disciplinary Proceeding Against Whitt, 149
Wash. 2d 707, 717, 72 P.3d 173 (2003)).
In this case the Board adopted the hearing officer's analysis, and the hearing
officer, applying ABA Standards stds. 8.1 and 6.1-6.3, properly determined the
presumptive sanctions. Under ABA Standards std. 8.1, "[djisbarment is generally
appropriate when a lawyer: . . . has been suspended for the same or similar
misconduct, and intentionally or knowingly engages in further acts of misconduct
that cause injury or potential injury to a client, the public, the legal system, or the
profession." Jensen has been suspended before in Minnesota for asserting frivolous
claims, making false statements to a tribunal, and disobeying obligations under that
tribunal's rules, and for conduct involving misrepresentations and conduct
prejudicial to the administration ofjustice. Jensen engaged in similar conduct in this
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case. Jensen's frivolous litigation caused Therese and Brown to incur hundreds of
thousands of dollars in legal fees and also wasted court resources, and his
misrepresentations to the public caused the first Mukilteo house buyer to back out
of the sale. Although Jensen's previous suspension occurred two decades ago,
"[t]his court. . . routinely considers similar misconduct dating back many years to
determine whether prior disciplinary offenses serve as an aggravating factor." In re
Disciplinary Proceeding Against VanDerbeek, 153 Wash. 2d 64, 92, 101 P.3d 88
(2004).
Under ABA Standards std. 6.11,"[d]isbarment is generally appropriate when
a lawyer, with the intent to deceive the court, makes a false statement . . . or
improperly withholds material information, and causes serious or potentially serious
injury to a party, or causes a significant or potentially significant adverse effect on
the legal proceeding." Jensen's repeated misrepresentations regarding the Mukilteo
house adversely affected the marriage dissolution proceedings. And his
misrepresentations and improper omissions to the superior court with respect to the
Savage property could have caused that tribunal to erroneously award him $150,000
for a piece of land that he allowed to go into tax delinquency and then repurchased
for under $500. Cf. In re Disciplinary Proceeding Against Christopher, 153 Wn.2d
669,680,105 P.3d 976(2005)("Christopher fully intended to perpetrate a fraudulent
scheme [against the court]. Had she succeeded, the court might have relied on [her
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misrepresentations] in awarding the prevailing party attorney fees....[Tjhis caused
serious injury to the profession and to the judicial system. We hold that standard
6.11 applies.").
Under ABA Standards std. 6.21,"[djisbarment is generally appropriate when
a lawyer knowingly violates a court order . . . with the intent to obtain a benefit for
the lawyer . . . and causes serious injury or potentially serious injury to a party, or
causes serious or potentially serious interference with a legal proceeding." Jensen
repeatedly violated superior court orders by interfering with the Mukilteo house sale.
He did so to obtain a financial benefit for himself, even going so far as to demand a
secret payoff. His efforts caused the first buyer to back out of the sale, thereby
causing potentially serious injury to Therese.
While the hearing officer found that the presumptive sanction for
communicating with represented parties (count 6) was suspension, see ABA
Standards std. 6.32, he correctly noted our holding that when multiple ethical
violations are found,'"the ultimate sanction imposed should at least be consistent
with the sanction for the most serious instance of misconduct.'" In re Disciplinary
Proceeding Against Petersen, 120 Wash. 2d 833, 854, 846 P.2d 1330(1993)(quoting
ABA Standards at 6). Thus, the hearing officer and the Board properly determined
that Jensen's presumptive sanction is disbarment.
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No. 201,706-1
Under MarshaWs second prong, we consider aggravating and mitigating
circumstances. The hearing officer properly found that eight aggravating factors
apply in Jensen's case: (1) prior disciplinary offenses, (2) dishonest or selfish
motive,(3) a pattern of misconduct,(4) multiple offenses,(5) bad faith obstruction
of the disciplinary proceeding by intentionally failing to comply with the rules or
orders of the disciplinary agency,(6) refusal to acknowledge wrongful nature of
conduct,(7)vulnerability of victim, and (8)substantial experience in the practice of
law. Jensen was disciplined multiple times in Minnesota for similar conduct. His
repeated misrepresentations to the superior and district courts suggest a dishonest
motive. Because lawyers "given notice of [their] hearing must attend the hearing"
and failure to attend without good cause may itself be grounds for discipline, ELC
10.13(b), Jensen's willful failure to attend his hearing constitutes an intentional
failure to comply with the disciplinary agency's rules and orders. Therese, whose
already severe multiple sclerosis is (according to the uncontested factual record)
aggravated by the stress of Jensen's misconduct, is an especially vulnerable victim.
And Jensen, who was admitted to the Minnesota bar in 1985, has substantial
experience in the practice of law. Despite this experience, Jensen maintains that he
did nothing wrong and refuses to acknowledge his role in his wife's physical and
financial suffering.
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No. 201,706-1
Jensen's briefs do not address either of the first two prongs. Instead, his
argument appears to be that under the third prong, the presumptive sanctions are
disproportionate enough when applied to his conduct to justify departure from the
Board's recommendation. Under Behrman, Jensen must provide a clear reason for
departure from the Board's unanimous recommendation. 165 Wash. 2d at 422. He
supports his disproportionality argument by briefly restating the reasons that he does
not believe his actions constitute violations of the RPCs. Because we hold that
Jensen did violate the RPCs, it follows that we reject his proposed reasons for
departing from the Board's unanimous recommendation. Moreover,"[t]he attorney
facing discipline bears the burden of bringing to the court's attention cases that
demonstrate the disproportionality of the sanction imposed." Cottingham, 191
Wn,2d at 470. Because Jensen offers no analogous cases and provides no clear
reason for departing from the Board's unanimous recommendation, he has failed to
meet his burden of proving that the sanction is disproportionate. We therefore adopt
the Board's proposed sanction of disbarment.
C. The disciplinary hearing did not violate Jensen's due process rights
Jensen argues for the first time on appeal that the disciplinary hearing violated
his procedural due process rights. First, he alleges that the WSBA denied him access
to the original copy of his bar file. Second, he argues that the hearing officer
improperly denied discovery. Third, he argues that the hearing officer is so
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No. 201,706-1
underqualified that he was denied due process. Fourth,he argues that the disciplinary
procedure violates due process because the Board "retain[s] the power to overrule
the hearing officer." Opening Br. of Appellant at 7.
We need not address Jensen's due process claims because he cites no authority
and offers no legal arguments to support them.See Young,89 Wn.2d at 625;DeHeer,
60 Wash. 2d at 126; Cottingham, 191 Wash. 2d at 465 n.l. We will nevertheless briefly
explain why each claim is without merit.
Jensen's first claim—^that the WSBA denied him access to his bar file—is a
factual allegation with no basis in the record.^ The Board would not be permitted to
consider his allegation. ELC 11.12(b)("Evidence not presented to the hearing officer
cannot be considered by the Board."); see also ELC 11.5(d). Because our factual
record is limited to the record before the Board and the hearing officer, see ELC
12.5(b), Jensen cannot raise this claim for the first time here. The proper time for
Jensen to raise this factual issue was at the hearing, which he willfully failed to
attend.
Jensen's second due process claim is that the hearing officer improperly
denied discovery. Discovery in disciplinary proceedings is mostly informal. See
^ Instead the record contains a declaration from the WSBA counsel, stating that the WSBA
provided Jensen with nonprivileged documents obtained during the course of its investigation and
that the WSBA public records officer confirmed with the WSBA counsel that as of April 8, 2016,
she had not received any requests from Jensen for information.
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No. 201,706-1
ELC 10.11(a). Other than requests for admissions, the parties must file motions to
request formal discovery. ELC 10.11(b)-(c). ELC 10.11(d)grants the hearing officer
"broad discretion" to limit discovery. In re Disciplinary Proceeding Against
Scanned, 169 Wash. 2d 723, 741-42, 239 P.3d 332 (2010) (holding that a hearing
officer who "largely denied" an attorney's discovery requests did not violate due
process).
The bar file shows that Jensen wrote to the hearing officer requesting to serve
interrogatories and requests for production of documents on Therese's attorney
Layman and to serve interrogatories and requests for production of documents on
the WSBA. Layman is a nonparty. See ELC 10.1(b)(2). CR 33-34 allow
interrogatories and requests for production to be served only on parties. CR 33(a),
34(a). Even if the hearing officer were to use his discretionary authority under ELC
10.11(c)-(d) to grant Jensen the right to serve interrogatories and requests for
production under CR 33-34, Jensen could not serve them on Layman. In contrast,
the WSBA is a party. But Jensen requested privileged information from the WSBA,^
without any showing that he had substantial need and was unable without undue
^ For example, Jensen requested production of notes from disciplinary counsel's internal
communications, information related to any "consulting experts," confidential disciplinary
information about any lawyers who might be called as witnesses, and "any notes of any attorney-
client privileged or other confidential client information in [the WSBA's] possession relative to
this case." CP at 016 (Interrogs. and Req. for Produe. of Docs. Directed to WSBA).
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No. 201,706-1
hardship to obtain their equivalent by other means. See CR 26(b)(4) (requiring
litigants to make such a showing when requesting discovery of privileged
information) and ELC 10.1(a)(stating that the superior court civil rules "serve as
guidance" in disciplinary hearings). Thus,the hearing officer properly exercised his
discretion in denying Jensen's requests for formal discovery.
Jensen's third due process claim, which attacks the hearing officer's
qualifications and volunteer status, is also meritless. Jensen argues that hearing
officers "do not even have to practice law." Opening Br. of Appellant at 28. This
ignores the rigorous qualifications that ELC 2.5(b)requires of hearing officers, who
must(1)be active members ofthe WSBA,(2)have been active or judicial members
for at least seven years, (3) have no record of public discipline, and (4) have
experience as adjudicators or advocates in contested adjudicative hearings. And
while Jensen accurately points out that hearing officers are volunteers, he provides
no argument as to why paid hearing officers would better ensure due process.
Jensen's fourth due process claim—^that the disciplinary procedure violates
due process because the Board "retain[s] the power to overrule the hearing officer,"
id. at 7—is nonsensical. Jensen argues, in effect, that his due process rights would
be better protected if he had no right of appeal to the Board. This goes against the
conventional wisdom in American jurisprudence that rights of appeal increase,
rather than decrease, procedural fairness. See, e.g.. In re Disciplinary Proceeding
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Against Osborne, 187 Wash. 2d 188, 205, 386 P.3d 288 (2016)(stating that the ELC
rules "ensure adequate [due] process by allowing for an appeals process"). It is also
at odds with his own purported strategy in this case, which was to skip the hearing
on the grounds that it was a "worse than useless . . . travesty," Opening Br. of
Appellant at 28, and save his arguments for the Board and this court. This claim, like
Jensen's other due process claims, is meritless.
III. CONCLUSION
Jensen did not attend his disciplinary hearing and entered no factual evidence
into the record. The hearing officer found that Jensen violated the RPCs and
recommended disbarment, and the Board unanimously affirmed. There is substantial
evidence in the record for the hearing officer to have reasonably found that Jensen
violated the RPCs, and Jensen presents no clear reason to depart from the Board's
unanimous recommendation of disbarment. For these reasons, we adopt the
recommendation of the hearing officer and the Board and disbar Jensen from the
practice oflaw. As a condition ofreinstatement, Jensen must pay alljudgments owed
by him to Therese Jensen, James Brown, and the Therese Brown Jensen Trust.
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No. 201,706-1
WE CONCUR:
i
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