In re Disciplinary Proceeding Against Osborne

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Disciplinary )
Proceeding Against ) No. 201,435-6
)
DONALD PETER OSBORNE, ) EnBanc
) --. .-· ... {" .-·
An Attorney at Law. ) Filed __________________
)
______________________)
OWENS, J. - A hearing officer for the Washington State Bar Association
Office of Disciplinary Counsel (ODC) found that attorney Donald Peter Osborne
committed five violations of the Rules of Professional Conduct (RPC) because of
events surrounding a will he drafted for a sick, elderly woman that made him the
residual beneficiary of her $600,000 estate. Following a disciplinary hearing, the
hearing officer recommended disbannent. Osborne did not appeal to the Washington
State Bar Association Disciplinary Board (Board).
Since Osborne did not appeal, the Board considered whether to order sua
sponte review under the Rules for Enforcement of Lawyer Conduct (ELC). Here, the
rules provide, "The Board should order sua sponte review only in extraordinary
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circumstances to prevent substantial injustice or to correct a clear error." ELC
11.3(d). The Board declined sua sponte review. After sua sponte review was
declined, Osborne filed a notice of appeal to this court. We issued an en bane order
limiting the scope of review in this case to whether the Board was required to order
sua sponte review under ELC 11.3(d). Osborne asks us to decide whether the hearing
officer's recommendation of disbarment was unjust or clear error. He also makes
several other arguments, but they are beyond the scope of review we granted.
Since the hearing officer's recommendation of disbarment was neither unjust
nor clear error, we hold that the Board was not required to order sua sponte review.
Additionally, after conducting our own independent review of the record, we find no
reason to depart from the hearing officer's recommendation. We affirm the hearing
officer's recommendation to disbar Osborne from the practice oflaw.
FACTS
In 1986, Osborne drafted wills for husband and wife George and Elizabeth
Hancock. After George Hancock died in 2003, Osborne revised Elizabeth Hancock's
will. The 2003 will named a few charities as residual beneficiaries. In 2009, Hancock
fell ill and Osborne revised her will, making himself the residual beneficiary of her
estate.
Starting after Hancock's husband died in 2003, her neighbors and friends,
William and Susan Spencer, spent time with her and helped her around the house.
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They lived across the street from each other for many years. The Spencers could view
Hancock's home through a large window. They took care of her house and yardwork,
cooked meals, and sometimes gave her sponge baths. They had a signaling system
using a porch light and kitchen blinds that Hancock could use to alert the Spencers
that she needed help. J. Scott Greer, an attorney, was also familiar with the
happenings at the Hancock home as he likewise lived across the street from Hancock
and next to the Spencers.
In August 2009, Hancock experienced a fall and was hospitalized. During her
hospital stay, Hancock asked the Spencers to contact "a lawyer" to help her update her
will. Hancock did not identify Osborne by name and only told them to look in her
address book under "lawyer." Her address book contained the entry "'Donald P.
Osborne, Attorney at Law'" with an address and phone number. Hr'g Officer's
Findings of Fact, Conclusions of Law & Recommendations (FF/CL) at 4 (Opening Br.
of Appellant, App. A).
On September 22, while hospitalized, Hancock gave Osborne power of attorney
over her financial affairs, but not over health care decisions. Hancock indicated that
she wanted her daughter to have decision-making power over her health care.
However, on the same day, Osborne signed a "Physician's Order for Life Sustaining
Treatment" (POLST) on Hancock's behalf, despite not having power of attorney over
her health care. Osborne told hospital employees that he was not authorized to sign
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the POLST, and even struck that part of the form indicating he signed it pursuant to
having power of attorney. The hospital later voided the POLST because Osborne
lacked authority. Despite admitting that he lacked authority to sign the POLST, he
testified at the hearing that his power of attorney gave him authority to sign it.
During October of that year, Hancock consulted with Osborne about revising
her 2003 will. No one else was present for their conversation. Osborne directed his
assistant, Jean Phillips, to prepare the will based on his handwritten notes. The
primary difference between the 2003 will and the 2009 will was that charities were no
longer the residual beneficiaries of her estate; instead, Osborne was named as the
residual beneficiary. The residue included her home, valued at $600,000. Hancock
executed the will on October 14, 2009. It bore witness signatures of Phillips and
Elaine Kerns-a person that Phillips admits was not actually in the room to witness
Hancock's signing. Phillips has never seen or met Elaine Kerns. Hancock died 13
days after executing the revised will. Two days after, Osborne sought to probate the
2009 will and had himself appointed as personal representative of Hancock's estate.
The relationship between Osborne and Hancock was described at Osborne's
later attorney discipline hearing. Osborne admitted that he was not related to Hancock
either by blood or marriage. However, Osborne testified about their friendship,
stating that he checked on her at her home between 2003 and 2009. He said they
exchanged recipes and would socialize in her back yard. He admitted that no one else
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was present for these visits. He did not corroborate his testimony regarding their
friendship with any evidence or witnesses. After she became ill, Osborne began
taking care of her home and doing her laundry.
Prior to the 2009 will, the Spencers had never seen Osborne at Hancock's
house. Greer also testified that he had never seen Osborne at Hancock's home until
after she became ill. Several witnesses testified at the hearing regarding their long
friendships with Hancock, but none of them had heard of Osborne. For instance, Toni
Grandaw, who had known Hancock for over 50 years, testified that she socialized
with Hancock regularly. The two discussed Hancock's friends like the Spencers, her
daughter and family, and financial and legal matters. However, Hancock had never
mentioned knowing Osborne to Grandaw until she was hospitalized. Hancock told
Grandaw that she wished to change her will, but Grandaw was "flabbergasted" that
Hancock devised her estate to Osborne since Hancock never previously mentioned
him. !d. at 6.
After Osborne had himself formally appointed as personal representative
following Hancock's death, the Spencers saw Osborne remove personal property from
Hancock's home. They saw Osborne remove "boxes, plants and clothing" including
"fur coats." Id. at 15. Osborne gave the Spencers a check from Hancock's estate for
$15,000 even though Osborne had shown the Spencers a prior will that devised them
only $10,000. Since the amount was different, Mr. Spencer had concerns and visited
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Greer, since he is an attorney. When Greer saw that Osborne was both beneficiary
and personal representative, he became suspicious and contacted an estate attorney,
Randolph Petgrave.
Greer and Petgrave approached Osborne about the 2009 will and vocalized
their concerns. Osborne admitted to Greer and Petgrave that he drafted the will and
was named as a beneficiary and personal representative. He also told them that
Hancock did not seek independent counsel and that he had not advised her to do so.
Despite their account, Osborne later testified at his disciplinary hearing that he
advised her that she had a right to seek independent counsel. Osborne produced
handwritten notes he said Hancock initialed that indicated that she waived her right to
consult outside counsel.
In 2010, Hancock's daughter, represented by Petgrave, petitioned for Osborne's
removal as personal representative and for return ofHancock's personal property.
The superior court removed Osborne and appointed attorney Barbara Coster as
personal representative. In June 2010, the superior court twice ordered Osborne to
deliver Hancock's personal property to Coster. Osborne filed pleadings with the
superior court that he had relinquished all of Hancock's records and property to
Coster. He also gave deposition testimony in 2011 that he had disposed of Hancock's
identification card, credit cards, and financial documents. Following a superior court
judgment against Osborne, the sheriff executed a search on Osborne's home. The
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sheriff found Hancock's property at Osborne's residence, including her identification,
credit cards, and financial records. Eventually, in November 2011, the lawsuit settled
and Osborne paid $200,000.
Based on the above conduct, the ODC charged Osborne with five violations of
the Rules of Professional Conduct by formal complaint:
COUNT 1: By preparing the 2009 will, which gave him a
substantial gift from Ms. (Elizabeth) Hancock's estate, Respondent
violated RPC 1.8(c).
COUNT 2: By naming himself asP( ersonal) R( epresentative) of
Ms. Hancock's estate while simultaneously making himself the residual
beneficiary while representing Ms. Hancock, Respondent violated RPC
1.7(a)(2).
COUNT 3: By filing a declaration with the court on February 24,
2011, asserting that he had returned all property formerly belonging to
Ms. Hancock to the estate and/or successor PR when he knew had not
and/or by knowingly making similar false assertions in other pleadings,
Respondent violated RPC 3.3(a), RPC 4.1(a), and/or RPC 8.4(c).
COUNT 4: By failing to return property formerly belonging to
Ms. Hancock to the estate and/or the successor PR despite being ordered
to do so by the court, Respondent violated RPC 3.4(a), RPC 3.4(c),
and/or RPC 8.40).
COUNT 5: By purporting to have authority to execute the
September 2009 POLST and/or by entering Ms. Hancock's safety
deposit box on October 27, 2009, under purported authority of the power
of attorney granted him by Ms. Hancock, which had expired,
Respondent violated RPC 8.4(c).Pl
1ODC dismissed the portion of count 5 pertaining to entering Ms. Hancock's safety
deposit box; thus, the hearing officer's finding that Osborne violated RPC 8.4(c)
pertained only to Osborne's execution of the POLST without authority. FF/CL at 2.
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Id. at 1-2. On May 6, 2015, following a six-day disciplinary hearing, the hearing
officer issued her findings of fact and conclusions oflaw. She determined that
Osborne violated the RPC in each of the five counts and recommended disbarment.
Osborne did not appeal the decision, and the Board declined sua sponte review.
Osborne appealed to this court.
As explained in more detail below, this court ruled following its en bane
meeting on January 7, 2016, that an attorney can appeal the Board's decision
declining sua sponte review. This court limited the scope of this appeal, however, to
"whether the Disciplinary Board erred by not finding that sua sponte review was
required to 'prevent substantial injustice or to correct a clear error,"' under ELC
11.3(d). Order, In re Disciplinary Proceeding Against Osborne, No. 201,435-6, at 1
(Wash. Jan. 22, 2016).
Osborne raises a number of issues. Some are within the scope of this court's
review, and others are not. First, we discuss his four issues and whether sua sponte
review was necessary under ELC 11.3(d). Second, we discuss why Osborne's other
arguments do not merit finding that the Board erred.
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ISSUES
1. Did the Board err by declining sua sponte review under ELC 11.3(d)?
2. Do Osborne's other issues merit finding that the Board erred?
ANALYSIS
1. The Board Did Not Err by Declining Sua Sponte Review
Osborne identifies four specific issues that he argues required the Board's
review: (1) whether the exception of a "close, familial relationship" in RPC 1.8(c)
included Osborne, (2) whether disbarment was the proper sanction for Osborne's
conf1ict of interest as personal representative and residual beneficiary, (3) whether
Osborne's representations to the court that he had returned Hancock's property when
he had not were material false statements of fact, and (4) whether signing the POLST
form without authority violated the RPC. Opening Br. of Appellant at 14-15. We
conclude that the Board did not err by declining sua sponte review of any of these
ISSUeS.
As discussed below, if neither party appeals a hearing officer's decision, ELC
11.3 provides for ordering sua sponte review only in narrow circumstances. The rule
states, "The Board should order sua sponte review only in extraordinary
circumstances to prevent substantial injustice or to correct a clear error." ELC
11.3(d). Here, it was not a close call whether Osborne's conduct violated the RPC
since it clearly did. Notably, he does not challenge the hearing officer's findings of
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fact. None of Osborne's issues presented an extraordinary circumstance such that the
Board should have ordered sua sponte review to prevent substantial injustice or clear
error. Thus, sua sponte review was not required. Each of Osborne's issues are
discussed below.
a. Sua Sponte Review Was Not Required for the Hearing Officer's
Interpretation of "Close, Familial Relationship" in RPC 1.8(c)
Review was not required of Osborne's first issue because the hearing officer's
interpretation of"familial relationship" was neither unjust nor clear error under ELC
11.3(d). Count I charged Osborne with preparing Hancock's will giving him a
substantial gift under RPC 1.8(c). FF/CL at 1. Osborne contends that the Board's
review was required concerning the meaning ofRPC 1.8(c)'s "close, familial
relationship." As explained below, the hearing officer correctly found that Osborne
did not share a familial relationship with Hancock. Thus, this issue presents neither
injustice nor clear error.
Lawyers are prohibited from preparing a will giving the lawyer a "substantial
gift from a client ... unless the lawyer ... is related to the client." RPC 1.8(c).
Relatives include a "spouse, child, grandchild, parent, grandparent or other relative or
individual with whom the lawyer ... maintains a close, familial relationship." I d.
Formerly, the only exception was "where the client [was] related to the donee."
Former RPC 1.8(c) (1995) (emphasis added). In 2006, the rule was amended to
expand the relative exception. According to the committee on amendments to the
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mles, the intention was to allow for flexibility of who qualified as a relative.
Reporter's Explanatory Memorandum to the Ethics 2003 Committee's Proposed
Rules ofProfessional Conduct, in WASH. STATEBARASS'N, REPORT AND
RECOMMENDATION OF THE SPECIAL COMMITTEE FOR EVALUATION OF THE RULES OF
PROFESSIONAL CONDUCT (ETHICS 2003) TO THE BOARD OF GOVERNORS !55 (Mar.
2004), http://wsba.org/Resources-and-Services/Ethics/Ethics-2003/Final-Report
[http://perma.cc./ZA4P-LTDH]. However, the amendment is not so flexible it
includes casual acquaintances. If it did, the exception would swallow the rule
entirely. The amendment merely expands the term "relatives" but still requires a
"familial" relationship. Furthermore, the comments to the RPC state that if a gift is
given by will, "the client should have the detached advice that another lawyer can
provide. The sole exception to this Rule is where the client is a relative of the donee."
RPC 1.8 cmt. 7.
Osborne contends that the meaning of"close, familial relationship" should be
reviewed here; however, he makes no meaningful argument that he actually
maintained a close relationship with Hancock. At the hearing, Osborne admitted that
he was not a relative by blood or marriage to Hancock. Even if true, his testimony
that he checked on her over the years does not amount to a family-like relationship.
Hancock's close friends testified that they had never even heard of Osborne prior to
her hospitalization. Thus, the hearing officer correctly found that Osborne had only a
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"casual friendship" with Hancock. FF/CL at 8. And according to Greer and Petgrave,
Osborne admitted that he sought no independent counsel, which could have absolved
this violation. Since Osborne does not meet the relative exception, he plainly violated
RPC 1.8(c). Thus, as to count 1, it was neither unjust nor clear error that the hearing
officer found that Osborne violated RPC 1.8(c). As such, sua sponte review was not
required.
b. Sua Sponte Review Was Not Required for the Hearing Officer's
Finding That Osborne's Conflict ofInterest Was Improper
The Board was not required to review Osborne's second claim because
disbarment is appropriate for his conflict of interest. Count 2 charged Osborne with
violating RPC 1.7(a)(2) when he was simultaneously named personal representative
and residual beneficiary of Hancock's estate. Osborne apparently argues that the
Board should have reviewed whether disbarment was appropriate where "there was no
finding that Ms. Hancock lacked testamentary capacity." Opening Br. of Appellant at
14. However, disbarment is the appropriate sanction for a concurrent conflict of
interest in Osborne's circumstances.
Lawyers are prohibited from representing a client if a concurrent conflict exists.
RPC 1. 7(a). A concurrent conflict exists if "there is a significant risk that the
representation ... will be materially limited by ... a personal interest of the lawyer."
RPC 1.7(a)(2). Here, the hearing officer found that Osborne had a concurrent conflict
because he was both personal representative and residual beneficiary of Hancock's
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estate. The personal representative of an estate has a fiduciary duty to beneficiaries to
act in the estate's best interest; when he or she fails to meet that duty, the beneficiaries
can sue the representative. Traskv. Butler, 123 Wn.2d 835, 843,872 P.2d 1080(1994). This principle is plainly at odds with Osborne's simultaneous representation
of the estate while being the residual beneficiary of the estate. Osborne's interests to
the estate and to himself as beneficiary would be divided. As such, there is significant
risk that his representation of the estate would be materially limited by his own
interests.
Disbarment is the appropriate sanction. To review a recommended sanction,
this court follows a two-step process based on the American Bar Association's
Standards for Imposing Lawyer Sanctions (1991). In re Disciplinary Proceeding
Against Carpenter, 160 Wn.2d 16, 23 n.2, 155 P.3d 937 (2007). First, the court
considers the presumptive sanction and looks to the ethical duty violated, the lawyer's
mental state, and the harm caused. Id. Next, the court considers aggravating or
mitigating factors. Id.The presumptive sanction is disbarment where an attorney lmowingly
represents a client with intent to benefit the lawyer, without informed consent, and is
potentially injurious to the client. See STANDARDS std. 4.31(a). Here, Osborne
knowingly engaged in an apparent conflict of interest that was seriously injurious to
Hancock's estate and benefited only Osborne. He did not obtain informed consent or
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advise independent counsel. Thus, Osborne's conduct meets standard 4.3 1(a) and the
presumptive sanction is disbarment. The hearing officer cited several aggravating
factors, including selfish motive and vulnerable victim (Hancock was sick and
elderly), while the only mitigating factor was an absence of prior disciplinary record.
See FF/CL at 32-34. The mitigating factor does not outweigh Osborne's knowing and
purely self-interested conflict of interest. That Hancock was not specifically shown to
lack testamentary capacity is of no consequence. Disbarment was appropriate for
Osborne's violation ofRPC 1.7(a). Thus, sua sponte review was not required for this
ISSUe.
c. Sua Sponte Review Was Not Required To Evaluate Whether
Osborne's Actions Were "Material" to Counts 3 and 4
Next, the Board was not required to review the hearing officer's finding that
Osborne made false statements of material fact and failed to follow a court order.
Osborne removed Hancock's property from her home and did not return it despite
telling the court he had and being ordered to do so. Osborne argues that the Board
should have reviewed whether he violated the RPCs "when there was no factual
finding that anything he failed to turn over was material." Opening Br. of Appellant
at 14-15.
Count 3 charged Osborne with declaring he had returned Hancock's property
when he had not. Lawyers are prohibited from knowingly making "a false statement
of fact or law to a tribunal" or to another person. RPC 3.3(a)(l); RPC 4.l(a). RPC
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8.4(c) prohibits dishonest conduct. Here, Osborne filed pleadings with the court
stating that he had returned Hancock's personal property. FF/CL at 16. However, a
sheriff found her property at Osborne's home. I d. at 17. Thus, when Osborne filed
declarations that he had returned the property that was still inside his own home, it
was apparent that he made a false statement of material fact or law to a tribunal in
plain violation ofRPC 3.3(a)(l), 4.l(a), and 8.4(c).
Count 4 charged Osborne with failure to comply with a court order. Under the
ethics code, a lawyer may not "conceal a document or other material." RPC 3.4(a).
Additionally, RPC 3.4(c) states that a lawyer cannot "knowingly disobey an
obligation under the rules of a tribunal except for an open refusal based on an
assertion that no valid obligation exists." The hearing officer found that in June 2010,
the superior court twice ordered Osborne to deliver Hancock's personal property to
Coster. FF/CL at 15-16. Although Osborne gave deposition testimony that he
disposed of Hancock's identification card, credit cards, and financial documents, the
sheriff found those items in Osborne's house. /d. at 16-17. Thus, when Osborne
concealed Hancock's property after being ordered to return it, he violated RPC 3.4(a)
and 3.4(c).
Consequently, the facts plainly indicate that Osborne lied and failed to comply
with a court order. Since the court ordered Osborne to return all of Hancock's
property (including her financial documents) to the new personal representative, it can
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be inferred that the property was "material" because it was likely helpful to probate
the estate. His false statement about this property was also "material." Thus,
Osborne's argument fails. Since he plainly violated the RPC provisions based on this
conduct, the Board was not required to order sua sponte review of this issue.
d. Sua Sponte Review Was Not Required To Evaluate Osborne's
Violation When He Signed the POLST Form
The Board was also not required to review whether Osborne violated the RPCs
by signing the POLST form without authority. Osborne argues that admitting to
hospital staff he lacked authority should absolve any violation. RPC 8.4( c) states that
it is professional misconduct for an attorney to "engage in conduct involving
dishonesty, fraud, deceit or misrepresentation." This court questions "whether the
attorney lied. No ethical duty could be plainer." In re Disciplinary Proceedings
Against Dann, 136 Wn.2d 67, 77, 960 P.2d 416 (1998). Here, Hancock gave Osborne
power of attorney over her financial affairs, but not over her health care decisions.
FF/CL at 9-10. When he signed the form without authority, he engaged in an act of
dishonesty, misrepresented his authority in writing, and thus violated RPC 8.4(c).
Admitting his lack of authority and signing it anyway is no absolution because signing
the document was the error. To prevent this violation, Osborne simply could have
withheld his signature to comply with the RPC. Thus, the Board's sua sponte review
was not required as he plainly violated RPC 8.4( c).
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In sum, none of Osborne's claims that the Board was required to order sua
sponte review under ELC 11.3(d) have merit. Osborne also argues other issues that
are beyond the scope of review that we made clear by order on January 22,2016. We
discuss these issues in the next section.
2. Osborne's Other Issues Do Not Merit Finding That the Board Erred
Osborne asks us to consider additional issues, apparently to bolster his
argument that the Board erred by declining sua sponte review. He asks this court to
determine the following: (1) the standard of review for evaluating a Board order
declining sua sponte review and (2) whether review of only the hearing officer's
decision (instead of the full hearing record) is inadequate, denying him due process
and rendering ELC 11.3 unconstitutional. Importantly, Osborne's arguments ignore
the court's order limiting the scope of review in this case. As explained below, these
arguments are meritless.
For context, some additional facts are necessary. After the hearing officer
issued her recommendation on May 6, 2015, the parties had 30 days to appeal to the
Board. Neither party appealed. The members of the Board received the "Hearing
Officer's Findings of Fact, Conclusions of Law, and Recommendation" for their
consideration when deciding whether to order sua sponte review. On June 23, 2015,
by a 14-0 decision, the Board issued an order declining sua sponte review and
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adopting the hearing officer's recommendation. On July 1, 2015, Osborne filed a
notice of appeal to this court.
We have previously considered a procedural piece of Osborne's case-whether
the ELC rules allow him to appeal at all. The ODC filed a motion to strike Osborne's
notice of appeal, arguing that he could not appeal the Board's order declining sua
sponte review. The Supreme Court clerk denied it, finding that Osborne could appeal
under ELC 12.3(a). ODC filed a motion to modify the clerk's ruling and an
accompanying motion for an extension of time since the motion to modify was a few
days late. The matter was presented to the November and December 2015 meetings
of a department of this court, and eventually to the en bane meeting on January 7,
2016. The court issued a unanimous order that the Board's order declining sua sponte
review is appealable under ELC.l2.3(a). Order, supra, at 1. It limited this court's
review as follows:
Mr. Osborne's appeal of the Order Denying Sua Sponte Review
and Adopting the Hearing Officer's Decision is limited to ONLY the
record and scope of the Disciplinary Board's review as required by ELC
11.3(a);
The record of this review is therefore limited to the Hearing
Officer's Findings of Fact, Conclusions of Law, and Recommendation;
The scope of the issue on appeal is limited to whether the
Disciplinary Board erred by not fmding that sua sponte review was
required to "prevent substantial injustice or to correct a clear error," see
ELC 11.3(d).
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Id. As these facts illustrate, Osborne's additional arguments fail because they are
beyond this scope of review.
First, as a preliminary matter, Osborne asks this court to define a standard of
review for the consideration of a denial of sua sponte review by the Board. We have
well established the standard for reviewing appeals of hearing officers'
recommendations. The standard of review for consideration of an order by the Board
simply adopting the hearing officer's recommendation should be no different. This
court gives "considerable weight to the hearing officer's findings of fact" and treats
unchallenged findings as verities on appeal. In re Disciplinary Proceeding Against
Marshall, 160 Wn.2d 317, 329-30, 157 P.3d 859 (2007). We review conclusions of
law de novo. In re Disciplinary Proceeding Against Jackson, 180 Wn.2d 201, 220,
322 P.3d 795 (2014). Since Osborne tethered his appeal to his due process arguments,
he argues de novo review of the full record should apply. Our order limiting its
review to the hearing officer's findings implies that the traditional standard of review
will apply. No heightened standard is necessary.
Second, Osborne's principal argument is that the record on appeal is limited
and therefore inadequate for review and that such a limit violates his due process
rights, rendering ELC 11.3 unconstitutional. This argument fails for two reasons.
First, Osborne did not appeal to the Board. The rules provide that the Board will
review a hearing officer's decision if a party appeals within 30 days or if the Board
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orders sua sponte review. ELC 11.2(b). Osborne could have sought additional review
to take advantage of the process provided by the rules. Instead, he apparently relied
on sua sponte review. He failed to realize that sua sponte review is ordered only in
"extraordinary circumstances," with the goal of remedying injustice or clear error.
ELC 11.3(d). As described above, sua sponte review was not warranted here.
To be sure, there are due process concerns at issue in an attorney discipline
proceeding because financial penalties and the deprivation of a professional license
are at stake. See LK Operating, LLC v. Collection Grp., LLC, 181 Wn.2d 48, 68, 331
P.3d 1147 (2014). However, for that reason, the rules ensure adequate process by
allowing for an appeals process. Osborne failed to take advantage of that process.
Even still, the rules require board "consideration" of sua sponte review if parties do
not appeal. ELC 11.3(a). Osborne argues that no evidence exists showing that the
Board "considered" his matter. This is incorrect. The Board's ruling plainly states,
"This matter came before the Disciplinary Board for consideration of sua sponte
review pursuant to ELC 11.3(a). On June 11, 2015, the Clerk distributed the attached
decision to the Board." See Disciplinary Bd. Order Declining Sua Sponte Review and
Adopting the Hearing Officer's Decision, In re Osborne, No. 13#00082 (June 23,
2015) (Opening Br. of Appellant, App. B). About 12 days elapsed between receiving
the documents and issuing its order declining sua sponte review, which indicates that
the Board had time for consideration. The appeals process illustrates that ample
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process is available. That sua sponte review was not warranted in his case does not
render the process unconstitutional.
The second reason Osborne's argument fails is that we specifically limited the
scope of review "to only the record and scope of the Disciplinary Board's review as
required by ELC 11.3(a)," Order, supra, at 1 (emphasis omitted), which is the hearing
officer's decision. We sought to consider only "whether the Disciplinary Board erred
by not finding that sua sponte review was required to 'prevent substantial injustice or
to correct a clear error,' see ELC 11.3(d)." !d. Osborne's due process argument is
beyond that scope. By asking the court to find that due process concerns require it to
review the entire record before the hearing officer, Osborne asks us to overturn the
Board's unanimous order. Indeed, the order itself indicates that the full record is not
required.
Finally, Osborne contends that remedies are necessary to cure the alleged
defects in this process. Since we find that there are no defects rendering this process
unconstitutional, no remedies are necessary. Consequently, we find that Osborne's
extraneous arguments are beyond the scope of this court's order limiting review and
do not otherwise merit finding that the Board erred by declining sua sponte review.
CONCLUSION
We find that the Board did not err by declining sua sponte review because
review was not required to prevent injustice or correct clear error under ELC 11.3(d).
21
In re Disciplinary Proceeding Against Osborne
No. 201,435-6
Since the hearing officer's findings of fact plainly evidence Osborne's five violations
of the RPC, the hearing officer's recommendation is neither unjust nor clear error.
We conclude the Board did not err by declining sua sponte review.
We also find no reason to depart from the hearing officer's recommendation of
disbarment. The hearing officer's findings of fact establish that Osborne knowingly
and with dishonest intent violated multiple RPCs and caused serious injury to
Hancock's estate. Based on those findings and our own independent review of the
record, we order Donald Peter Osborne disbarred from the practice of law.
22
In re Disciplinary Proceeding Against Osborne
No. 201,435-6
WE CONCUR:
23
In re Disciplinary Proceeding Against Osborne (Donald Peter)
No. 201,435-6
WIGGINS, J. (concurring)-! concur in the court's unanimous decision to disbar
Donald Peter Osborne from the practice of law. I write separately to express my
opinion that the court should never have granted review of Osborne's case. If Osborne
did not even care enough to appeal to the Washington State Bar Association
Disciplinary Board (Board), we should not have granted him the right to appeal to this
court.
The beginning point of analysis is the Rules for Enforcement of Lawyer
Conduct's (ELC) description of the right of a respondent attorney to appeal. Under
ELC 12.2 ("Methods of Seeking [Supreme Court] Review"), there are two ways for a
party to appeal a written opinion or order entered by the Board under ELC 11.12(e):
(1) review as a matter of right and (2) discretionary review. ELC 12.2(a). For appeals
"as a matter of right," the ELCs state, "The respondent lawyer or disciplinary counsel
has the right to appeal a Board decision recommending suspen$ion or disbarment.
There is no other right of appeal." ELC 12.3(a).
Since the on!y appeal permitted by ELC 12.3(a) is "a Board decision
recommending suspension or disbarment," we look to determine when such a board
decision is made. ELC 11.12, titled "Decision of Board," describes the process of
reaching a board decision. To begin with, "[b]oard review is based on the hearing
officer's Decision, the parties' briefs filed under rule 11.9, and the record on review."
In re Disciplinary Proceeding Against Osborne (Donald Peter)
(Wiggins, J., concurring)
ELC 11.12(a). After consideration, the Board must enter a written order or opinion.
ELC 11.12(e ). Clearly, ifthere is an appeal and the Board follows these procedures,
there is a board decision that can be appealed to our court.
But Osborne did not appeal the hearing officer's decision to the Board. When
neither party appeals, the Board's only role is to decide whether to grant sua sponte
review. ELC 11.3(a). For the Board's consideration, the only record before it for review
is the hearing officer's decision. ELC 11.3(a). The Board does not receive or consider
hearing transcripts, exhibits, or briefing from the parties. ELC 11.3(a). The Board,
considering only the hearing officer's decision, "should order sua sponte review only
in extraordinary circumstances to prevent substantial injustice or to correct a clear
error." ELC 11.3(d). If the Board declines sua sponte review, "the hearing officer's
recommendation becomes the final decision upon entry of the Board's order declining
review." ELC 10.16(d). By declining sua sponte review, the Board did not make a
"decision recommending suspension or disbarment." Thus, there was no right to
appeal its declination.
Significantly, the Board includes not just lawyers, but four nonlawyer members
as well. ELC 2.3(b). By skipping board review, Osborne has evaded public
participation in the consideration of his case.
The court's opinion grants Osborne yet another favor when the court employs
the same standard of review afforded to a lawyer appellant who has properly appealed
to the Board and then to this court. Majority at 18-19. This is inappropriate because
the issue is not whether the hearing officer's decision was right or wrong, but whether
2
In re Disciplinary Proceeding Against Osborne (Donald Peter)
(Wiggins, J., concurring)
the Board should have found that sua sponte review was required to "prevent
substantial injustice or to correct a clear error." ELC 11.3(d). This is a more stringent
standard than the standard we employ when a lawyer appeals to the Board and then
to this court. As a result, there is little difference between the majority's full analysis of
Osborne's appeal and the analysis we afford a proper appeal through the Board to
this court.
Finally, denying Osborne's appeal of the Board's denial of sua sponte review
does not deprive Osborne of one last opportunity for review by this court. ELC 12.2(b)
reserves to the court the ability to grant our own sua sponte review: "This rule does
not affect the Court's power to review any Board decision recommending suspension
or disbarment and to exercise its inherent and exclusive jurisdiction over the lawyer
discipline and disability system." This court reviews every decision recommending
suspension or disbarment and decides whether to grant sua sponte review of any
decision recommending suspension or disbarment. Accordingly, instead of reviewing
whether the Board appropriately denied sua sponte review, we should be exercising
our own discretion to deny sua sponte review by this court.
3
In re Disciplinary Proceeding Against Osborne (Donald Peter)
(Wiggins, J., concurring)
For all these reasons, I would have denied review. But despite my
disagreement with the decision to grant review, I respectfully concur in the result.
4