In re the Disciplinary Proceeding Against Day

¶1

Fairhurst, J.

Attorney Jeffrey K. Day appeals the Washington State Bar Association (WSBA) Disciplinary Board’s (Board) unanimous adoption of the hearing officer’s recommendation to disbar him. Day was convicted of first degree child molestation under RCW 9A.44.083 and sentenced to a term of confinement of 60 months to life. Day molested a former client, D.J., who at the time was 11 years old.

¶2 After his conviction, the WSBA filed a formal complaint alleging that Day violated RPC 8.4(b), a criminal act, and RPC 8.4(i), an act involving moral turpitude and an unjustified assault of another. Day argues that although the hearing officer properly applied the presumptive sanetion of suspension under the American Bar Association’s Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) (ABA Standards), he misapplied the ABA Standards' aggravating and mitigating factors and improperly deviated from the presumptive sanction. The WSBA asks this court to uphold the Board’s unanimous recommendation but argues we should apply a presumptive sanction of disbarment for sex crimes of this nature rather than the presumptive sanction of suspension currently required by the ABA Standards. It also argues that because the ABA’s Model Rules of Professional Conduct (2004) (Model Rules) do not recognize acts involving moral turpitude and the ABA Standards are based on the Model Rules, Washington case law governs presumptive sanctions for acts involving moral turpitude and, under the facts of this case, the sanction should be disbarment.

¶3 We affirm the Board’s unanimous recommendation. We conclude that, while the appropriate presumptive sanction for Day’s violation of RPC 8.4(b) was suspension under standard 5.12, the hearing officer did not err in ultimately deviating to disbarment based on Day’s abuse of D.J.’s and D.J.’s mother’s trust. We conclude the ABA Standards does not apply in determining the appropriate presumptive sanction for violations of RPC 8.4(i) involving acts of moral turpitude and the appropriate presumptive sanction under RPC 8.4(i) for conviction of first degree child molestation, a class A felony involving an act of moral turpitude, is disbarment based on Washington case law. We conclude the hearing officer erred in finding that the aggravating factor of dishonest or selfish motive did not apply, but he did not err regarding the remaining factors. Lastly, we conclude that Day’s sanction is not disproportionate when compared to other cases similarly situated.

I. FACTUAL AND PROCEDURAL HISTORY

¶4 The parties do not contest the essential facts relating to the conduct that led to this disciplinary action.

¶5 Day was admitted to the practice of law in Washington on October 22,1993. During the relevant time, Day also served as a judge pro tempore. In early 2002, Day began to represent D.J., who was then nine years old, in a criminal matter. While representing D.J., Day learned that D.J. was being raised by a single mother and the family had limited means. After D.J.’s criminal matter was dismissed, Day became friendly with D.J. and D.J.’s mother. Over time, D.J.’s mother began to trust Day and to allow D.J. to spend time with Day. D.J.’s mother trusted Day because he was an attorney and a judge.

¶6 D.J.’s mother began to allow her son to stay overnight at Day’s house. The record is conflicting about how many times D.J. stayed overnight at Day’s house. At his criminal trial, Day testified that he instructed D.J. to sleep in another room of Day’s house when D.J. stayed overnight. However, Day testified that during one night, D.J. came to Day’s room and got into bed with Day. Day stated he was uncomfortable about having D.J. in his bed but he did not confront D.J. about it at the time or inform D.J.’s mother.

¶7 On February 14-15, 2004, D.J. was 11 years old. D.J. and Day watched a movie at Day’s house and D.J. fell asleep. While D.J. was asleep, Day removed D.J.’s pants, leaving him in his boxer shorts, and Day went to his own bedroom to go to sleep. D.J. woke later in the night and again went to Day’s bedroom and got into bed with Day. D.J. claimed he later woke during the night and found Day’s hand inside his boxer shorts touching his testicles.

¶8 The Pierce County Prosecuting Attorney charged Day with first degree child molestation under RCW 9A.44.083, a class A felony. A jury convicted Day and sentenced him to a minimum term of confinement of 60 months and a maximum term of life.

¶9 After his conviction, the WSBA filed a complaint, charging Day with violating RPC 8.4(b) and/or RPC 8.4(i). This court ordered Day’s interim suspension in accordance with ELC 7.1.

¶10 Hearing officer Gregory J. Rosen found that the court record of Day’s conviction was conclusive evidence of his guilt of the crime of first degree child molestation under ELC 10.14(c). He found that Day acted intentionally because “the crime of child molestation requires ‘sexual contact,’which is defined as ‘any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.’ ” Findings of Fact and Conclusions of Law (FFCL) at ¶ 19 (quoting RCW 9A.44.010(2)). He also found that the evidence presented at the hearing established that Day’s conduct caused harm to D.J. and his mother.

¶11 In his conclusions of law, the hearing officer determined, in accordance with ELC 10.14(b), that the WSBA had proved by a clear preponderance of the evidence that Day violated RPC 8.4(b)¹ and RPC 8.4(i).²

¶12 The hearing officer found that Day’s criminal conduct violated RPC 8.4(b) for two reasons. First, because the crime of first degree child molestation is a class A felony and, by definition, a “ ‘violent offense,’ ” it clearly cast doubt on Day’s “fitness” as an attorney. FFCL at ¶ 25. Second, the criminal act implicated Day’s trustworthiness because Day abused the trust of both D.J. and his mother by his criminal act. The hearing officer noted that Day had abused D.J.’s mother’s trust because the only reason she had allowed Day to pursue a relationship with D.J. was that Day was an attorney and a judge. He also noted that Day’s conduct “callfed] into question [Day’s] ability to create and maintain such attorney-client relationships in the future, given his enormous violation of trust as to D.J. and his mother.” FFCL at ¶ 25.

f 13 The hearing officer also found that Day violated RPC 8.4(i) for two reasons. First, he concluded Day’s conduct constituted an “unjustified act of assault.”³ FFCL at ¶ 27 (citing State v. Hupe, 50 Wn. App. 277, 282, 748 P.2d 263 (1988) (for the definition of “assault” as “an unlawful touching with criminal intent”)). Second, he concluded Day’s “criminal conduct involved moral turpitude.” FFCL at ¶ 28 (citing In re Disciplinary Proceeding Against McGrath, 98 Wn.2d 337, 342-43, 655 P.2d 232 (1982)). The hearing officer based his second conclusion, that Day’s criminal conduct involved moral turpitude, on the facts that (1) Day was convicted of committing “an extremely serious offense, a class A felony, punishable by a maximum term of life in prison”; (2) Day’s conduct required an intent to gratify his or another’s sexual desire; (3) the victim was substantially younger than Day; and (4) Day’s conviction had an intent element of knowledge which is “some evidence” of moral turpitude. Id.

¶14 In determining the appropriate sanction for both of Day’s violations, the hearing officer applied the ABA Standards. First, he determined that two potential presumptive sanctions in the ABA Standards were applicable in this case, standard 5.11⁴ and standard 5.12.⁵ He noted that the commentary to the ABA Standards suggests that the presumptive standard for sexual offenses like the one involved here is standard 5.12.⁶ Although acknowledging that Day acted intentionally when he committed the criminal act of child molestation, the hearing officer concluded that the presumptive sanction that applied here was suspension.

¶15 Lastly, the hearing officer evaluated the aggravating factors and mitigating factors.⁷ The WSBA argued that three aggravating factors applied: (b) dishonest or selfish motive (sexual gratification), (h) vulnerability of the victim (11 year old child), and (i) substantial experience in the practice of law (admitted in 1993). ABA Standards std. 9.22. Day argued that five mitigating factors applied: (a) absence of a prior disciplinary record,⁸ (b) absence of a dishonest or selfish motive, (e) full and free disclosure to Board or cooperative attitude toward proceedings, (g) character or reputation, and (k) imposition of other penalties or sanctions. ABA Standards std. 9.32.

¶16 The hearing officer determined that the only aggravating factor that applied was the vulnerability of the victim and determined the only mitigating factor that applied was the absence of a prior disciplinary record. He expressly concluded that three of Day’s proposed mitigating factors, (e) cooperative attitude toward the proceedings, (g) character, and (k) other penalties or sanction, did not apply. He stated that cooperative attitude toward the proceedings has been held by this court not to be a mitigating factor even though it is listed in the ABA Standards because attorneys are expected to cooperate. FFCL at ¶ 34 (citing In re Disciplinary Proceeding Against Dynan, 152 Wn.2d 601, 622, 98 P.3d 444 (2004); In re Disciplinary Proceeding Against Whitt, 149 Wn.2d 707, 721, 72 P.3d 173 (2003)). He noted the evidence submitted regarding Day’s character and competence as an attorney but did not comment on whether he considered it a mitigating factor. Lastly, he concluded that Day’s criminal penalties and sanctions did not mitigate his sanction but did not explain why.

f 17 In summarizing his recommendation of disbarment, the hearing officer commented that this court has held that an attorney may be sanctioned for conduct that occurs outside the practice of law. FFCL at ¶ 38 (citing In re Disciplinary Proceeding Against Huddleston, 137 Wn.2d 560, 577-78, 974 P.2d 325 (1999)). He stated that Day’s conduct was an “extreme abuse of the trust that both D.J. and D.J.’s mother had placed in [Day].” FFCL at ¶ 40. Although he acknowledged Day’s competence as an attorney and lack of prior discipline as an attorney, he concluded that Day’s “criminal act as to a highly vulnerable young victim, a former juvenile client, coupled with the enormous breach of trust associated with that act,” justified a “deviation from the presumptive sanction of [suspension to the more appropriate sanction of [d]isbarment.” FFCL at ¶ 44. He emphasized that D.J.’s mother trusted Day based on his position as an attorney and a pro tempore judge.

¶18 The matter came before the Board on automatic review of the hearing officer’s decision recommending disbarment. After reviewing briefs of the parties, the Board unanimously adopted the hearing officer’s recommendation to disbar Day. In accordance with ELC 12.3(a), Day timely sought review by this court.

II. ISSUES

A. What are the appropriate presumptive sanctions for Day’s violations?

B. Did the hearing officer err by not finding additional aggravating and mitigating factors?

C. Is Day’s sanction proportional?

III. ANALYSIS

¶19 “ ‘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 In re Disciplinary Proceeding Against Carmick, 146 Wn.2d 582, 594, 48 P.3d 311 (2002)). We review conclusions of law de novo and will uphold them if they are supported by the findings of fact. In re Disciplinary Proceeding Against Marshall, 160 Wn.2d 317, 330, 157 P.3d 859 (2007) (citing In re Disciplinary Proceeding Against Cohen, 150 Wn.2d 744, 754, 82 P.3d 224 (2004)).

¶20 Because Day does not challenge the hearing officer’s findings of fact, we accept as verities the hearing officer’s findings that Day acted intentionally when he committed the offense of which he was convicted, and that Day’s conduct caused harm to D.J. and D.J.’s mother. Day also does not challenge the hearing officer’s conclusions of law that he violated RPC 8.4(b) and RPC 8.4(i). Our review is limited to determining whether the hearing officer imposed the appropriate sanctions for Day’s violations of RPC 8.4(b) and RPC 8.4(i).

¶21 Washington has adopted the ABA Standards for use when imposing sanctions in attorney disciplinary proceedings, as a “basic, but not conclusive, guide.” Whitney, 155 Wn.2d at 468. The court’s purpose in adopting the ABA Standards was to promote consistency in disciplinary sanctions. In re Disciplinary Proceeding Against Heard, 136 Wn.2d 405, 424, 963 P.2d 818 (1998).

¶22 When determining the proper sanction, the Board conducts a two-step process. In re Disciplinary Proceeding Against Blanchard, 158 Wn.2d 317, 331, 144 P.3d 286 (2006). First, it determines the presumptive sanction by considering the ethical duty/duties the attorney violated, the attorney’s mental state, and the harm caused by the attorney’s conduct. Id. “The lawyer’s mental state may be one of intent, knowledge, or negligence.” ABA Standards std. 3.0, Commentary at 25. The harm caused may be “harm to a client, the public, the legal system or the profession that is reasonably foreseeable at the time of the lawyer’s misconduct.” ABA Standards, Definitions at 7. Second, the Board determines if the presumptive sanction should be modified by applying any applicable aggravating or mitigating factors. Blanchard, 158 Wn.2d at 331.

¶23 This court does not “lightly depart from recommendations shaped by [the] experience and perspective” of the Board. In re Disciplinary Proceeding Against Noble, 100 Wn.2d 88, 94, 667 P.2d 608 (1983). We adopt the Board’s sanction “unless we are able to articulate specific reasons for adopting a different sanction.” Id. at 95. Nevertheless, “the ultimate responsibility for determining the nature of discipline rests with this court and not the [Board].” Id.

¶24 “We review the proportionality of sanctions only if the issue is raised by the attorney who is being disciplined.” Whitney, 155 Wn.2d at 469. Because Day raised the issue of proportionality, that issue is properly before us.

¶25 “With respect to unanimity, we give great deference to the decisions of a unanimous Board, and we give less deference to the decision of a divided Board.” Id. Day did not question the unanimity of the Board’s decision so we need not analyze that issue, but the fact that the Board’s recommendation was unanimous is entitled to deference based on our prior jurisprudence. See id.; Noble, 100 Wn.2d at 98.

A. Presumptive sanctions for violations of RPC 8.4(b) and RPC 8.4(i)

¶26 Day argues the appropriate presumptive sanction for his violations of both RPC 8.4(b) and RPC 8.4(i) was suspension under standard 5.12.

¶27 Regarding RPC 8.4(b), the WSBA responds that the ABA Standards is archaic and is of limited value with respect to sex crimes. The WSBA argues that generally disbarment is appropriate when the attorney acts intentionally and for his or her own benefit and causes serious harm. It argues those conditions are met here and disbarment is appropriate.

¶28 Regarding RPC 8.4(i), the WSBA argues that because the Model Rules does not address violations for acts of moral turpitude, the presumptive sanctions in the ABA Standards do not apply and the court should turn to its own case law for guidance. The WSBA argues our case law would call for disbarment.

1. RPC 8.4(b)

¶29 Day argues that suspension is the appropriate presumptive sanction for a violation of RPC 8.4(b) primarily because the commentary to standard 5.12 refers to sexual assaults as the types of cases that are normally subject to suspension. See supra note 6.

¶30 The WSBA argues that the ABA Standards does not reflect changing societal attitudes toward sexual assault crimes. Specifically, the WSBA contends that case law and statutes have changed regarding criminal sanctions for sex crimes and, therefore, the ABA Standards is outdated. For example, at the time the ABA Standards was adopted, the conduct for which Day was convicted would have been indecent liberties, a class B felony, subjecting him to a sentence of up to 10 years. Answering Br. of the WSBA at 13 n.2. Now it is first degree child molestation, a class A felony, punishable by up to life in prison. Id. at 13 n.3. The WSBA also compares a 1976 California case in which the court suspended an attorney for child molestation to a 2001 California case in which the court disbarred an attorney for attempting to commit a lewd act on a child. Id. at 13-14 (citing In re Safran, 18 Cal. 3d 134, 554 P.2d 329, 133 Cal. Rptr. 9 (1976); In re Lesansky, 25 Cal. 4th 11, 17 P.3d 764, 768, 104 Cal. Rptr. 2d 409 (2001)). It also cites increases in the severity of criminal sanctions related to sex crimes against children. Id. at 13.

¶31 We do not deny that the WSBA’s arguments are compelling. Greater societal awareness of sexual crimes against children and the resulting abuse of trust are arguably justifiable reasons for increasing presumptive sanctions for attorneys who engage in such misconduct. But our case law clearly affirms that the ABA Standards provides the basis for imposing standards for attorney discipline for Washington rules that are based on the Model Rules and we are disinclined to lightly discard that precedent. See In re Disciplinary Proceeding Against Halverson, 140 Wn.2d 475, 492, 998 P.2d 833 (2000); Whitney, 155 Wn.2d at 468. Because this court has established that Washington adopted the ABA Standards when imposing sanctions for attorney discipline for Washington rules that are based on the Model Rules, we conclude that the hearing officer properly determined that suspension was the appropriate presumptive sanction under standard 5.12 for Day’s violation of RPC 8.4(b).

f 32 Having concluded that the appropriate presumptive sanction for Day’s violation of RPC 8.4(b) was suspension under standard 5.12, we must decide whether the hearing officer erred in ultimately concluding it was appropriate to deviate from that presumptive sanction and increase Day’s sanction to disbarment, based on his determination that Day abused D.J.’s and D.J.’s mother’s trust.

¶33 Day argues the hearing officer improperly deviated from the presumptive sanction based on Day’s alleged abuse of D.J.’s and D.J.’s mother’s trust because Day’s conduct occurred outside the practice of law. The WSBA responds that the deviation was appropriate because Day met D. J. in his capacity as an attorney, and Day had access to D.J. only because D.J.’s mother knew he was an attorney.

¶34 This court has clearly established that an attorney may be sanctioned for misconduct that occurs outside the practice of law. Whitney, 155 Wn.2d at 462; Huddleston, 137 Wn.2d at 577-78 (concluding the fact the lawyer’s misconduct occurred outside the practice of law is not a mitigating factor). But we have held that “ ‘conduct reflecting adversely on a lawyer’s fitness to practice law can only be found when there is some nexus between the lawyer’s conduct and those characteristics relevant to law practice.’ ” In re Disciplinary Proceeding Against Plumb, 126 Wn.2d 334, 341, 892 P.2d 739 (1995) (quoting In re Disciplinary Proceeding Against Curran, 115 Wn.2d 747, 768, 801 P.2d 962 (1990)); see also Huddleston, 137 Wn.2d at 577. We have also made it clear that “ ‘evidence of the practitioner’s capability will not always be determinative of whether an act reflects adversely on an attorney’s fitness.’ ” Plumb, 126 Wn.2d at 341 (quoting Curran, 115 Wn.2d at 768).

¶35 Plumb was convicted of first degree theft for failing to report earnings he received while participating in a public aid program. Id. at 335. The court noted that theft was “an archetypal criminal act ‘that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’ ” Id. at 341 (quoting RPC 8.4(b)). It held that Plumb’s conviction “temper [ed] any evidence of -his competence” and provided the required nexus between his crime of dishonesty and his unfitness to practice. Id. In Curran, the court concluded there was an insufficient nexus between the lawyer’s conduct and “those characteristics relevant to law practice” where the lawyer committed vehicular homicide. 115 Wn.2d at 768.

¶36 Here, the hearing officer did not err when he found that Day’s conduct arose out of his practice and Day’s conduct constituted “an extreme abuse of the trust that both D.J. and D.J.’s mother had placed in [Day].” FFCL at ¶ 40. And even if the misconduct were determined to be outside the practice of law, the nexus required by Plumb and Curran exists between Day’s conviction for child molestation and his unfitness to practice law because his crime involved a profound violation of trust, a necessary component of the practice of law. The hearing officer properly found that despite Day’s competence as an attorney, the “enormous breach of trust” associated with his misconduct justified deviating from the presumptive sanction of suspension. FFCL at ¶ 44.

¶37 This court does not depart from the Board’s recommended sanction unless we can articulate specific reasons for adopting a different sanction. Noble, 100 Wn.2d at 95. We have recognized that the ABA Standards “ ‘leaves room for flexibility and creativity in assigning sanctions in particular cases of lawyer misconduct.’ ” Halverson, 140 Wn.2d at 497 n.16 (quoting ABA Standards, Preface at 1). Although standard 5.12 states that suspension is the presumptive sanction for criminal acts that are not listed in standard 5.11, the hearing officer set out his reasoning for departing from the presumptive sanction based on the specific facts of this case. There is no question that Day acted intentionally, Day’s victim and the victim’s mother were harmed, Day’s victim was highly vulnerable, and Day abused the trust he had established with the victim and his mother.

¶38 We conclude that while suspension was the appropriate presumptive sanction under standard 5.12 for Day’s violation of RPC 8.4(b), the hearing officer did not err in deviating from suspension to disbarment based on Day’s abuse of D.J.’s and D.J.’s mother’s trust.

2. RPC 8.4(i)

¶39 Next, we determine whether standard 5.12 applies to violations of RPC 8.4(i).⁹ If standard 5.12 applies, we must decide whether the hearing officer erred in deviating from the presumptive sanction and increasing Day’s sanction to disbarment, based on Day’s abuse of D.J.’s and D.J.’s mother’s trust. If we conclude standard 5.12 does not apply, we must determine what the appropriate presumptive sanction should be based on Washington case law. Both parties rely on two cases issued by this court, McGrath, 98 Wn.2d 337, and Curran, 115 Wn.2d 747. McGrath was issued before this court adopted the ABA Standards and Curran was issued after we adopted the ABA Standards.

¶40 McGrath involved an attorney who pleaded guilty to second degree assault, a class B felony, for shooting and injuring a man at a restaurant. 98 Wn.2d at 339-40. He was sentenced to serve 10 years probation and 1 year in the King County Jail on work release, in addition to paying restitution and making a payment to the crime victim compensation fund. Id. at 340. This court concluded Mc-Grath’s conduct constituted moral turpitude under the former Discipline Rules for Attorneys (DRA) 1.1(a) (1978) and warranted disbarment.¹⁰ Id. The court noted that

“the cases dealing with the disbarment or other discipline of lawyers involve two distinct characteristics, although the distinction is often not clearly recognized:

“1. Cases in which the lawyer’s conduct has shown him to be one who cannot properly be trusted to advise and act for clients

“2. Cases in which his conduct has been such that, to permit him to remain a member of the profession and to appear in court, would cast a serious reflection on the dignity of the court and on the reputation of the profession.”

Id. at 345 (alteration in original) (quoting Henry S. Drinker, Legal Ethics 42-43 (1953)). It concluded McGrath’s conduct fell in the second category and was “repugnant to the basic standards of our legal profession to allow one who is serving a 10-year probation sentence for a felony conviction, for an act involving moral turpitude, to practice law and represent clients in the courts of this state.” Id. It also noted that McGrath’s competence as an attorney was irrelevant to the question of whether his remaining a lawyer would cast a serious reflection on the dignity of the court and on the reputation of the profession. Id. at 345-46.

¶41 Curran involved an attorney convicted of vehicular homicide and sentenced to 26 months of confinement after two passengers in his car were killed while he was driving under the influence of alcohol. 115 Wn.2d at 752. The WSBA charged Curran under former Rules for Lawyer Discipline (RLD) 1.1(a) (1985).¹¹ Id. at 753. Former RLD 1.1 stated that a lawyer may be sanctioned for

(a) The commission of any act involving moral turpitude, dishonesty, or corruption, or any unjustified act of assault or other act which reflects disregard for the rule of law, whether the same be committed in the course of his or her conduct as a lawyer, or otherwise, and whether the same constitutes a felony or misdemeanor or not; and if the act constitutes a felony or misdemeanor, conviction thereof in a criminal proceeding shall not be a condition precedent to disciplinary action, nor shall acquittal or dismissal thereof preclude the commencement of a disciplinary proceeding.

¶42 Curran was charged with violating the portion of former RLD 1.1(a) related to an “ ‘act . . . which reflects disregard for the rule of law.’ ” Curran, 115 Wn.2d at 753. However, as part of its analysis, the court commented that, contrary to the Model Rules, Washington rules forbid all acts involving “ ‘moral turpitude.’ ” Id. at 757 (quoting former RLD 1.1(a)). The court concluded that because the ABA Standards does not provide direct guidance for violations of former RLD 1.1(a), it must determine on its own what the presumptive sanction should be. Id. at 770-71.

¶43 Day argues that one of the court’s primary purposes in adopting the ABA Standards was to promote uniformity in disciplinary sanctions and this court should not rely on any pre-ABA Standards case law. He claims that because McGrath is a pre-ABA Standards case, its reasoning is suspect and should be rejected. He argues that Curran emphasized the ABA Standards’ “ ‘modern trend’ of putting more emphasis on disciplining lawyers for violation of practice norms.” Reply Br. at 4. Day urges us to follow the reasoning of Justice Williams’ dissent in McGrath, which he claims represents the “modern trend” that was later adopted in the ABA Standards. Br. of Appellant at 12. Justice Williams argued that although McGrath’s conduct was an act of moral turpitude, not all acts of moral turpitude are alike and crimes involving dishonesty are more incompatible with the practice of law than other crimes. McGrath, 98 Wn.2d at 347-48 (Williams, J., dissenting). Day argues that, like Justice Williams’ dissent in McGrath, the ABA Standards reflects the trend toward disciplining attorneys for “violations of practice norms” rather than “actions not directly related to the practice of law.” Br. of Appellant at 12.

¶44 The WSBA, while acknowledging that McGrath predates the ABA Standards, argues that it is still good law and this court should continue to apply it. It argues that because the Model Rules does not acknowledge violations for acts of moral turpitude, the presumptive sanctions in the ABA Standards do not apply, and the court should turn to its own case law for guidance. It notes that despite Day’s assertions, Curran acknowledged that Washington rules “ ‘do not fully embrace the modern trend.’ ’’Answering Br. of the WSBA at .14 (quoting Curran, 115 Wn.2d at 757). The WSBA argues that a presumptive sanction for acts of moral turpitude should be disbarment because it would “protect [ ] the public from lawyers who lack the basic fitness to practice law.” Id. at 16. It argues that Day’s actions were more “culpable” than either Curran’s or McGrath’s because he acted both knowingly and in his own interest. Id. at 17.

¶[45 We agree with the WSBA. Even under Justice Williams’ analysis, a lawyer molesting a former client who is a minor qualifies as an act of moral turpitude warranting disbarment. “[C]onduct reflecting adversely on a lawyer’s fitness to practice law” exists “when there is some nexus between the lawyer’s conduct and those characteristics relevant to law practice.” Curran, 115 Wn.2d at 768. As noted supra, with regard to RPC 8.4(b), there is a nexus between Day’s conviction for child molestation and his unfitness to practice law because his crime involved a profound violation of trust, a necessary component of the practice of law.

¶46 We reject Day’s arguments for three additional reasons. First, the McGrath majority explicitly recognized that acts that “ ‘cast a serious reflection on the dignity of the court and on the reputation of the profession’ ” merited disbarment, not just acts involving dishonesty. 98 Wn.2d at 345 (quoting Drinker, supra, at 42-43). Second, the majority's reasoning in McGrath has not been overruled. Third, irrespective of this court’s express adoption of the ABA Standards, Washington rules continue to recognize acts involving moral turpitude while the Model Rules does not. Thus, the ABA Standards provides no guidance for sanctions related to acts involving moral turpitude. Additionally, we are persuaded that acts of moral turpitude are substantively different from acts involving a mere disregard for the rule of law and merit a greater presumptive sanction because the practice of law involves more than mere adherence to practice norms.

¶47 We hold that the ABA Standards does not apply to presumptive sanctions for violations of RPC 8.4(i) involving acts of moral turpitude because the Model Rules does not address acts of moral turpitude. We also hold the appropriate presumptive sanction for first degree child molestation, a class A felony involving an act of moral turpitude, is disbarment based on Washington case law.

B. Aggravating and mitigating factors

¶48 Both Day and the WSBA argue that the hearing officer erred in not finding other aggravating and mitigating factors.

¶49 Day argues the hearing officer should have considered his criminal sentence as an additional mitigating factor.¹² He relies primarily on Curran for this argument, claiming the Curran court considered Curran’s criminal sentence for vehicular homicide a mitigating factor when it reduced Curran’s disciplinary sanction. He also cites Justice Williams’ dissenting opinion in McGrath as support for the argument that a disciplinary sanction should relate only to the practice of law, whereas criminal sanctions punish criminal conduct.

¶50 The WSBA responds that Day’s criminal sentence does not reduce the need to discipline the attorney. It notes that the commentary to the ABA Standards does not cite any cases in which criminal sanctions were used as mitigating factors, nor do the standards require the hearing officer to give aggravating and mitigating factors any particular weight when determining the appropriate sanction. It also argues that the hearing officer in Curran considered only Curran’s interim disciplinary sanction, not his criminal sentence, when it reduced his sanction and the McGrath court cited the criminal sanction as a factor supporting disbarment.

¶51 The WSBAis correct that the Curran court considered only Curran’s interim disciplinary sanction, not his criminal sentence, when it reduced Curran’s sanction, and in discussing the mitigating factors, the court did not even mention Curran’s criminal sentence. Curran, 115 Wn.2d at 774. However, In re Disciplinary Proceeding Against Immelt, 119 Wn.2d 369, 372, 831 P.2d 736 (1992), provides that a previous criminal prosecution may be a mitigating factor as “other penalties or sanctions.” In Immelt, the hearing officer had recommended disbarment, and Immelt had argued his conviction of a crime prior to discipline by the Bar outweighed the aggravating factors, making disbarment an inappropriate sanction. Id. at 371-72. This court found that while the mitigating factor was present, it did not mitigate in favor of a sanction less than disbarment, given that the record “indicated an otherwise appropriate sanction should not be modified.” Id. at 372; see also In re Disciplinary Proceeding Against Perez-Pena, 161 Wn.2d 820, 835-36, 168 P.3d 408 (2007) (refusing to apply municipal court sanctions as a mitigating factor because Curran applied the mitigating factor only to the interim suspension applied by this court, and not to his prison sentence). The weight, if any, given to the mitigating factor will depend on the circumstances of the specific case. The record supports our not modifying the sanction of disbarment.

¶52 Further, the WSBA is correct that the McGrath court considered McGrath’s conviction to be a key factor supporting disbarment. 98 Wn.2d at 345-46. While this court’s decision in McGrath predates both the RPCs and ELCs, we find no less persuasive our reasoning that it is “repugnant to the basic standards of our legal profession to allow one who [has been convicted of a felony] for an act involving moral turpitude, to practice law and to represent clients in the courts of this state.” Id. at 345. Because the record supports not deviating from the sanction of disbarment and because Day’s criminal conviction supports disbarment, we find no error with the finding of the hearing officer and the Board that the factor of other penalties and sanctions did not mitigate Day’s sanction.

f 53 The WSBA argues that the hearing officer improperly rejected two of its proposed aggravating factors: (b) dishonest or selfish motive and (i) substantial experience in the practice of law. ABA Standards std. 9.22.

¶54 The WSBA argues the hearing officer should have applied the aggravating factor of dishonest or selfish motive, under standard 9.22(b), because the crime of child molestation requires touching for the purpose of sexual gratification. Day responds that the WSBA does not point to any cases in which Washington courts have applied this factor in cases involving sexual assault. Cases that have applied the aggravating factor of dishonest or selfish motive related to attorney misuse of client funds, forgery, perjury, and theft. See, e.g., Blanchard, 158 Wn.2d at 320-25 (failed to keep clients informed and return fees); Whitney, 155 Wn.2d at 455 (testifying falsely); In re Disciplinary Proceeding Against Schwimmer, 153 Wn.2d 752, 754-57, 108 P.3d 761 (2005) (misappropriated funds and miscommunicated with client); In re Disciplinary Proceeding Against Christopher, 153 Wn.2d 669, 674-75, 105 P.3d 976 (2005) (forged client’s signature). Nevertheless, we agree with the WSBA that conviction for a crime that involves touching for the purpose of sexual gratification, such as child molestation, demonstrates a selfish motive and the hearing officer erred in not finding that it was an aggravating factor.

155 The WSBA argues the hearing officer should have applied the aggravating factor of substantial experience in the practice of law, under standard 9.22(i), because Day had more than 10 years experience before the misconduct occurred. Day responds that the sole case the WSBA cites, In re Disciplinary Proceeding Against Lopez, 153 Wn.2d 570, 575-76, 106 P.3d 221 (2005) (missed court deadlines and failed to communicate with the court), is irrelevant because it involved an attorney disciplined for failing to follow procedures he was required to perform as an attorney. Reply Br. at 10-11. Other cases that have applied the aggravating factor of substantial experience in the practice of law support Day’s position. See, e.g., Blanchard, 158 Wn.2d at 320-24 (failed to keep clients informed and return fees); Whitney, 155 Wn.2d at 455 (testified falsely); Schwimmer, 153 Wn.2d at 754-57 (misappropriated funds and miscommunicated with client); Christopher, 153 Wn.2d at 674-75 (forged client’s signature). In only one case involving conduct unrelated to the practice of the law did the hearing officer apply the aggravating factor of substantial experience in the practice of the law, Halverson, 140 Wn.2d at 496-99 (consensual sexual relationship with client), but the Halverson court did not discuss the weight it gave the factor in determining the attorney’s sanction. We conclude the hearing officer did not err in not applying the aggravating factor of substantial experience in the practice of law.

C. Proportionality

¶56 Day argues that under proportionality review, the court must compare the case at hand with other cases similarly situated to determine if the sanction is lower or higher than warranted. The WSBA points out that the Board’s unanimity supports the Board’s recommendation in this case and argues that Day failed to support his claim that other similarly situated cases support adopting a lesser sanction.

¶57 Day relies primarily on two cases, Heard and Halverson, both of which involved sexual misconduct and resulted in sanctions of suspension. But both cases are distinguishable from this case.

¶58 Heard involved an attorney who had sex with a client suffering from head injuries. 136 Wn.2d at 409. Although the client was arguably vulnerable, she was not a minor, she and Heard had consensual sex, and Heard was not convicted of committing a crime. Id. at 409-13. The Heard court found that Heard’s conduct was an act of moral turpitude and even though there were arguable grounds for Heard’s disbarment, it declined to disturb the Board’s unanimous recommendation of suspension. Id. at 425.

¶59 Halverson involved an attorney who had consensual sex with a client he was representing in a dissolution action. 140 Wn.2d at 478-79. Despite the fact that Halverson had the sexual relationship with the client while he was representing her, the court expressly held that Halverson did not “ ‘blatantly misuse [ ] his professional status to exploit [a] client’s vulnerability.’ ” Id. at 491 (first alteration in original) (quoting Heard, 136 Wn.2d at 423 n.9). It distinguished the facts from other cases because the client was not a juvenile and was not vulnerable. Id. at 491.

¶60 Day attempts to analogize this case to cases in other jurisdictions that applied sanctions of suspension for conduct similar to Day’s. Br. of Appellant at 22-23 (citing In re Disciplinary Action Against Kimmel, 322 N.W.2d 224, 226-27 (Minn. 1982) (attorney’s license suspended for conviction of touching a 13 year old boy); Iowa Supreme Court Bd. of Prof’l Ethics & Conduct v. Blazek, 590 N.W.2d 501, 502, 504 (Iowa 1999) (attorney’s license suspended for conviction of sexually assaulting 11 year old nephew); In re Disciplinary Proceedings Against Lyons, 2003 WI 139, 266 Wis. 2d 55, 670 N.W.2d 550, 551-52 (attorney’s license suspended for conviction of sexual assault and inappropriate contact with minors); In re Disciplinary Proceedings Against Strigenz, 185 Wis. 2d 370, 517 N.W.2d 190, 191 (1994) (attorney’s license suspended for conviction of nonconsensual sexual assault of a client)).

¶61 The WSBA responds that the attorneys in Kimmel and Blazek were undergoing rehabilitation and that fact was relevant to their sanctions. Kimmel, 322 N.W.2d at 227; Blazek, 590 N.W.2d at 504. It notes that the client in Strigenz was not a minor and, therefore, that case was more comparable to Heard and Halverson than this one. Strigenz, 517 N.W.2d at 191. The WSBA also cites cases in other jurisdictions in which disbarment was imposed for sexual assaults of minors. Lesansky, 17 P.3d at 768 (attorney disbarred for conviction of attempt to commit a lewd or lascivious act on a minor); In re Bewig, 791 A.2d 908, 909 (D.C. 2002) (attorney disbarred for conviction of misdemeanor sexual contact with a minor); In re Hudgins, 540 N.E.2d 1200, 1203 (Ind. 1989) (attorney disbarred for conviction of child molestation); People v. Grenemyer, 745 P.2d 1027, 1029-31 (Colo. 1987) (attorney disbarred for conviction of sexual assault of a child).

¶62 Here, Day engaged in sexual touching that could not have been consensual, even if D.J. had instigated it, and D.J. was an extremely vulnerable victim. This case is distinguishable from the cases Day cites from other jurisdictions in which attorneys were suspended because two of the attorneys were undergoing rehabilitation and one did not involve a minor and is more analogous to the cases the WSBA cites in which the attorneys were disbarred. We conclude that Day’s sanction was not disproportionate in comparison to other cases similarly situated.

IV. CONCLUSION

¶63 We affirm the Board’s unanimous recommendation to disbar Day. We conclude that while the appropriate presumptive sanction for Day’s violation of RPC 8.4(b) was suspension under standard 5.12, the hearing officer did not err by ultimately deviating to disbarment based on Day’s abuse of D.J.’s and D.J.’s mother’s trust. We conclude the ABA Standards does not apply in determining the appropriate presumptive sanction for violations of RPC 8.4(i) involving acts of moral turpitude and the appropriate presumptive sanction under RPC 8.4(i) for conviction of a class A felony involving an act of moral turpitude is disbarment based on Washington case law. We conclude the hearing officer erred in finding that the aggravating factor of selfish motive did not apply but he did not err in his conclusions regarding the remaining factors. Lastly, we conclude that Day’s sanction is not disproportionate as compared to other cases similarly situated.

Alexander, C.J., and C. Johnson, Madsen, Bridge, Chambers, Owens, and J.M. Johnson, JJ., concur.

1 RPC 8.4(b) states that it is misconduct for an attorney to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

2 RPC 8.4(i) states that it is misconduct for an attorney to “commit any act involving moral turpitude ... or any unjustified act of assault or other act which reflects disregard for the rule of law, whether the same be committed in the course of his or her conduct as a lawyer, or otherwise.”

3 Day conceded that the crime of child molestation in the first degree constitutes an unjustified act of assault, but he is currently appealing his conviction and does not admit his guilt. FFCL at ¶¶22, 27.

4 ABA Standards std. 5.11 states:

Disbarment is generally appropriate when:

(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or

(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.

5 ABA Standards std. 5.12 states, “Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.”

6 The commentary to ABA Standards std. 5.12 states, “[l]awyers who engage in criminal conduct other than that described ... in Standard 5.11 should be suspended in cases where their conduct seriously adversely reflects on their fitness to practice. . . . The most common cases involved lawyers who commit felonies . . . such as the possession of narcotics or sexual assault.” (Emphasis added.)

7 The ABA Standards sets out a list of aggravating and mitigating factors that may be considered at standard 9.2 and standard 9.3.

8 The WSBA agreed that this mitigating factor applied.

9 The hearing officer conflated his discussion of the presumptive sanctions for violations of RPC 8.4(b) (criminal acts) and RPC 8.4(i) (acts of moral turpitude). We discuss them separately because we previously held that the hearing officer should determine a presumptive sanction for each ethical violation. In re Disciplinary Proceeding Against Anschell, 149 Wn.2d 484, 502, 69 P.3d 844 (2003).

10 Former DRA 1.1 stated an attorney could be subject to disciplinary sanctions for:

(a) The commission of any act involving moral turpitude, dishonesty, or corruption, whether the same be committed in the course of his or her conduct as an attorney, or otherwise, and whether the same constitutes a felony or misdemeanor or not; and if the act constitutes a felony or misdemeanor, conviction thereof in a criminal proceeding shall not be a condition precedent to disciplinary action. Upon such conviction, however, the judgment and sentence shall be conclusive evidence at the ensuing disciplinary hearing of the guilt of the respondent attorney of the crime described in the indictment or information, and of his or her violation of the statute upon which it is based. A disciplinary hearing as provided in Rule 3.2 of these rules shall be had to determine, (1) whether moral turpitude was in fact an element of the crime committed by the respondent attorney and, (2) the disciplinary action recommended to result therefrom.

11 Former RLDs were superseded effective October 1, 2002. Former RLD 1.1(a) was recodified as RPC 8.4(i).

12 Day also argues that the hearing officer should at least have determined that if the criminal sentence did not apply as a mitigating factor, the aggravating and mitigating factors offset one another and the ABA Standards presumptive sanction of suspension should stand. However, as this court noted in Halverson, “an approximately equal number of aggravating and mitigating factors [does not] necessarily warrant [ ] a minimal suspension. Rather, a minimal suspension seems more appropriate in a case where there are either no aggravating factors and at least some mitigating factors, or where the mitigating factors clearly outweigh any aggravating factors.” 140 Wn.2d at 497.