In re Disciplinary Proceeding Against Jackson

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In re Disciplinary Proceeding Against ) No. 201,017-2
ROBERT B. JACKSON, )
) En Bane
Attorney at Law. )
)
) Filed APR 1 7 2014
WIGGINS, J.-After an 11-day disciplinary hearing, a hearing officer concluded
that Robert B. Jackson had committed 14 counts of misconduct The presumptive
sanction for 10 of the 14 counts is disbarment Accordingly, the hearing officer
recommended -that Jackson be disbarred and a unanimous Washington State Bar
Association Disciplinary Board (Board) agreed.
On appeal, Jackson generally assigns error to all of the hearing officer's
findings of fact but fails to support any assertion with argument, legal authority, or
references to the record. We hold that the hearing officer's credibility determinations
and findings of fact are supported by substantial evidence and her conclusions of law
are correct There is no evidence of bias or misconduct on the part of the hearing
officer or disciplinary counsel. In addition, the record supports the finding of seven
aggravating factors and three mitigating factors and we hold that disbarment is not
disproportionate. Thus, we accept the Board's unanimous recommendation and order
Jackson disbarred.
No. 201,017-2
FACTS
Robert B. Jackson was admitted to practice law in the state of Washington on
November 16, 1989. This proceeding arises out of two separate matters: the
Simonson matter (counts 1-5) and the Dainard matter (counts 6-14). Each matter
involves thousands of pages of exhibits that, along with hours of testimony, evidence
a complex web of fraud, deceit, conflicts of interest, and other serious violations of the
Rules of Professional Conduct (RPC). The hearing officer made 391 detailed findings
of fact. Although Jackson purports to assign error to all findings, he never argues this
assignment of error. Accordingly, we treat the findings as verities on appeal. In re
Disciplinary Proceeding Against Marshall, 160 Wn.2d 317, 329, 157 P.3d 859 (2007)
(unchallenged findings of fact are verities on appeal). For context, we provide a short
summary of the facts related to each matter prior to delving into the details.
I. Simonson Matter (Counts 1-5)
In the Simonson matter, Jackson assisted his client and business partner Doug
Simonson in transferring real property that had previously been abandoned in
Simonson's bankruptcy. Jackson helped Simonson obtain a loan on the property by
falsely signing documents as an agent of the seller (Michael Levenhagen). Later,
when the bankruptcy court froze Simonson's assets in an adversary proceeding,
Jackson used his lawyer trust accounts to transfer funds for Simonson, in violation of
the court's orders.
Jackson then represented three other couples (the Levenhagens, Laings, and
Lanings) who were sued by the bankruptcy trustee for their participation in the
Simonson property transactions. Jackson did not inform these clients (1) that he was
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No. 201,017-2
personally involved in the transactions at issue, (2) that he was concurrently providing
legal advice to Simonson, or (3) that his interests and those of Simonson were adverse
to theirs. In response to discovery requests, Jackson intentionally withheld
documents that would have assisted his clients' defense because the evidence
contradicted Simonson's defenses and revealed Jackson's own culpability.
A. The Real Estate Transaction
In early 2004, Doug and Karen Simonson owned a residence in Kirkland,
Washington. On April 27, 2004, the property was appraised for sale at $1.1 million.
Two days later, the Simonsons filed a petition for bankruptcy, listing the Kirkland
residence. Based on representations that the residence property had no equity
beyond the secured loans, the bankruptcy court entered an order abandoning the
property.
Soon thereafter, Doug Simonson, acting as an agent for Global Financial
Solutions (GFS), contacted Michael Levenhagen-a potential buyer from Minnesota.
GFS is a company that structures real estate investments by pairing investors with
good credit with investment properties. Simonson did not tell Levenhagen that the
residence property had been in bankruptcy, that he was living in it, or that he expected
to receive a commission from the sale. Levenhagen purchased the property for $1
million. As part of the purchase agreement, GFS agreed to pay a buying partnership
fee to Levenhagen for the use of his credit and to pay the mortgage.
GFS failed to perform on its promise. Levenhagen contacted Simonson and
Simonson blamed GFS for all of the issues, casting himself as a fellow victim of GFS.
When Levenhagen traveled to Washington to explore selling the residence, he
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No. 201,017-2
learned for the first time that Simonson had owned the property and that it had been
involved in his bankruptcy. Simonson persuaded Levenhagen not to sell the property
by telling him it did not have enough value to pay off the loans. Simonson continued
to reside in the residence, while Levenhagen made the mortgage payments.
In April2005, Simonson retained Jackson, who helped him set up and carry out
a plan to transfer the residence so that it would ultimately end up back in Simonson's
control while allowing Simonson to pull out cash along the way. Jackson prepared
multiple documents to effectuate this complicated series of transfers.
The plan was implemented so that on June 7, 2005, Simonson transferred his
ownership interest in Network Builders LLC to Levenhagen; this transfer was not
recorded. Two days later, Levenhagen quitclaimed the residence to Network Builders
and sent the documents to Jackson; these documents were recorded. The reason for
this pair of transactions was that Simonson wished to obtain a hard money loan on
the Kirkland residence even though he no longer had an ownership interest in it. To
that end, Jackson drafted a real estate excise tax affidavit and signed it under penalty
of perjury as Levenhagen's agent (the affidavit was necessary for quitclaim deed to
be recorded). Jackson then recorded the affidavit and the quitclaim deed. By failing
to record the Network Builders transfer and recording the quitclaim deed, the public
record reflected that the residence belonged to Network Builders and that Network
Builders was still owned by Simonson.
On June 13, 2005, Simonson obtained a $167,775.56 loan against the
residence, signing the deed of trust as manager of Network Builders. Neither Jackson
nor Simonson told Levenhagen that the property had been further encumbered.
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No. 201,017-2
On June 16, 2005, still unaware of the new loan against the property,
Levenhagen transferred Network Builders (and, therefore, the residence) back to
Simonson. Simonson told Levenhagen that the transfer was necessary because
Kenneth North wanted Simonson to be the seller to a new buying partner. Even
though Simonson received substantial funds from the secret loan, he told Levenhagen
that he had no funds to make mortgage payments on the residence, so Levenhagen
continued to make the payments while Simonson lived at the residence.
The residence property changed hands a few more times. Mark Laing owned
the property in late 2005. 1 And in December 2007, David Laning took control of the
property and Levenhagen was finally repaid for the mortgage payments he had made.
B. Fraud on the Bankruptcy Court
In January 2006, the bankruptcy trustee instituted an adversary proceeding
against Simonson based on activity associated with Simonson obtaining a tax refund. 2
The bankruptcy court issued multiple restraining orders restricting the movement of
Simonson's assets and eventually froze his assets altogether.
Jackson failed to comply with these orders. In numerous transactions, Jackson
violated the court's orders by accepting funds on Simonson's behalf and disbursing
funds pursuant to Simonson's specific directions-e.g., agreeing to deposit
$170,488.86 into his IOLTA Trust Account on behalf of Simonson; issuing an IOLTA
1 Mark Laing bought Network Builders, which owned the property.
2
After the bankruptcy petition was filed, Simonson amended his prepetition tax returns and
obtained a tax refund of approximately two hundred thousand dollars. Simonson still had some
of the money in his personal accounts. The trustee filed the first adversary proceeding seeking
to recover the remainder of the tax refunds Simonson had acquired.
5
No. 201,017-2
account check to Key Bank payable to Merendon Mining, a tax shelter that was the
apparent source of Simonson's retroactive tax refund; and purchasing a certified
check also payable to Merendon Mining. Jackson then used multiple accounts to
conceal the trail of money. Accordingly, the bankruptcy court granted the trustee's
motion for sanctions against Jackson and his firm.
Jackson argued that he complied with court orders as soon as he became
aware of them. But based on the totality of Jackson's demeanor during his testimony,
the contradictions between his testimony and the exhibits, and the testimony of other,
credible witnesses, the hearing officer concluded that Jackson lied to the bankruptcy
court about his knowledge of the restraining orders to conceal his role in perpetrating
fraud on the court. Based on the overwhelming evidence, the hearing office found
that, in actively and intentionally participating in fraud on the bankruptcy court,
Jackson violated 18 U.S.C. § 152. Although the hearing officer acknowledged the
bankruptcy court's order granting a motion for sanctions against Jackson's firm, she
independently relied on abundant documents and testimony to find that Jackson had
violated discovery orders.
C. Conflicts of Interest
In April 2006, the trustee's attorney, Denise Moewes, filed a second adversary
proceeding against parties who had played some role in the Kirkland residence
transactions. The trustee sought to vacate the order of abandonment, to recover
unauthorized postpetition transfers, and to compel turnover of the property. Michael
Levenhagen, Mark Laing, David Laning, and their wives were among the named
defendants. Five months later, Moewes filed a second amended complaint, adding
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No. 201,017-2
Simonson as a defendant. Although there were obvious conflicts of interest among
Simonson, GFS, and the Levenhagens/Lanings/Laings, Jackson's firm accepted
representation of all parties. Jackson arranged for attorney Greg Cavagnaro to
represent Simonson but actively assisted Cavagnaro in the representation. Jackson
arranged for Stephen Araki to represent the Levenhagens/Lanings/Laings but
assisted in representing these clients as well.
Jackson and his firm had serious and intractable conflicts with the
Leven hag ens. 3 Recall that Jackson falsely signed the tax affidavit as Levenhagen's
agent, and Jackson's escrow company closed Simonson's secret loan against the
residence, knowing that Levenhagen actually owned the property. Levenhagen was
unaware of this misconduct. The hearing officer also found that Jackson had conflicts
with the Laings and Lanings. 4
In addition, Simonson's interests often conflicted with the
Levenhagens/Laings/Lanings. In representing all of these parties, Jackson actively
ignored or concealed relevant facts to protect Simonson, thus compromising his ability
to defend the Levenhagens/Laings/Lanings. For example, the complaint sought an
order vacating the order of abandonment, alleging that Simonson had fraudulently
misrepresented the value of the property to the bankruptcy court. In order to protect
3
When Simonson initially arranged for Jackson to represent the Levenhagens, Laings, and
Lanings and to pay their fees, Mike Levenhagen expressed concern about the potential for a
conflict of interest.
4 Asof June 21, 2006, the Levenhagens, Laings, and Lanings all had valid potential claims against
both Simonson and Jackson.
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No. 201,017-2
Simonson, Jackson withheld information that the three couples had no knowledge that
the property had ever been abandoned in bankruptcy. 5
The hearing officer found that Jackson and his firm violated the RPCs when
they failed to disclose any of these conflicts to the Levenhagens, Laings, or Lanings
and failed to obtain written consent to waive conflicts before accepting
representation. 6 The hearing officer rejected Jackson's argument that he was not the
attorney for Simonson or the Levenhagens, Laings, or Lanings during the bankruptcy
proceeding. Although Jackson's partner, Stephen Araki, was the attorney of record
for the Levenhagens, Laings, and Lanings, the hearing officer found that Jackson did
most of the work associated with the representation. And although Greg Cavagnaro
was Simonson's attorney of record in the bankruptcy proceeding, Jackson was
Simonson's primary legal advisor for all issues related to the proceedings.
5
For example, Jackson had an e-mail from Mike Levenhagen explaining that Simonson was one
of Levenhagen's initial contracts and that at the time of the purchase, Levenhagen had no
knowledge of the history or prior ownership of the property. Rather, he learned about Simonson's
bankruptcy after the purchase in late December 2004. This information was never mentioned in
the Levenhagen/Laing/Laning answer.
6
Jackson did not inform the Levenhagens, Laings, or Lanings that he had actively participated in
defending Simonson in the first adversary proceeding, that he was still providing legal services to
Simonson in connection with the bankruptcy proceeding, or that he was personally involved in the
transfers at issue in the lawsuit. The hearing officer found that Jackson's firm should have
informed the parties of these previous dealings, which created a significant risk of conflict, and
should have obtained written consent to waive those conflicts before accepting representation.
Instead, Jackson's firm simply sent a letter dismissing any notion that a conflict existed; the
hearing officer found that the letter did not comply with RPC 1.7(b) because it falsely represented
that there was no potential for a conflict of interest.
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No. 201,017-2
To conclude, the hearing officer found that there were serious conflicts of
interest but Jackson represented all of these clients to protect his and Simonson's
interests.
D. Discovery Violations
During the second adversary proceeding, which was brought to recover the
property, Moewes made numerous requests for production of documents from the
Levenhagens, Laings, and Lanings. These parties promptly sent the requested
documents to Jackson. Jackson, upon receipt of the documents, repeatedly withheld
highly relevant information and sometimes even modified documents to obscure their
relevance. 7 On October 27, 2008, the bankruptcy court issued a 47-page decision
finding that Jackson's firm had withheld relevant documents.
After a lengthy recitation of specific discovery violations, the hearing officer
found that Jackson repeatedly withheld documents during the bankruptcy proceeding,
and those he did produce, he produced late enough to prevent Moewes from being
able to prepare for court proceedings and depositions. The hearing officer found that
Jackson knowingly and intentionally withheld relevant documents to conceal his role
in the fraud and to avoid inculpating Simonson. These documents, had they been
provided, would have revealed Simonson's involvement with GFS and helped
establish that the Levenhagens, Laings, and Lanings were victims and not parties to
the bankruptcy fraud. Jackson never informed his clients that he was withholding the
documents, and they did not consent to the documents being withheld.
7 Exhibit A-284 is over 1200 pages and contains a full description of irregularities Moewes
discovered.
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No. 201,017-2
At the disciplinary hearing, Jackson was unable to explain why omitted
documents had not been produced. He claimed that he had no access to some of the
documents because another attorney had withheld documents and because he had
given between 6 to 10 boxes of documents to attorney Marc Stern, who only delivered
one or two boxes of requested copies back to Jackson. The hearing officer found
Jackson was not credible, concluding that Jackson had provided false testimony to
support his defense of this charge.
Jackson also argued that he was not aware that he needed to produce e-mails.
The hearing officer rejected this argument because the requests clearly applied toe-
mails and Jackson actually told his clients to forward e-mails to him.
II. Dainard Matter
In the Dainard matter, Jackson partnered with his clients Rob and Claire
Dainard to purchase an investment property. The property had development potential
because it was zoned multifamily and was adjoined by two properties that were also
amenable to development. Jackson lied on a mortgage application to obtain a loan
at a more favorable interest rate. Jackson then lied to the Dainards about his
involvement with another client and business partner, Kenneth North, who sought to
purchase the same three properties for development. Jackson intentionally deceived
the Dainards to induce them to offer to sell their interest in the property.
A. Misrepresentations on the Home Morlgage
Beginning in 2000 and continuing through 2007, Jackson was the attorney for
Robert and Claire Dainard. Jackson and his wife became friends with the Dainards
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No. 201,017-2
during this period. At the time of the events associated with this grievance, Jackson
was representing Claire Dainard in a personal injury action.
In October 2005, the Dainards became interested in a property at 115 Webster
in Chelan County for its development potential. With Jackson's help, they signed a
purchase and sale agreement for 115 Webster. Soon after, Jackson convinced the
Dainards to allow him and his wife to join in the investment. In November 2005, the
Jacksons and the Dainards formed RPC 8 Enterprises LLC to purchase the property.
But first, Jackson convinced the Dainards to transfer the purchase and sale
agreement for 115 Webster to Jackson and his wife because Jackson would be able
to obtain better financing through his contacts at Bank of America.
On June 7, 2006, Mr. Dainard received a copy of correspondence between
Jackson and Ancora Financial regarding a loan. When asked, Jackson told Mr.
Dainard that Bank of America had not worked out. A week later, to get a more
favorable loan agreement, Jackson misrepresented that the property was his second
home on a mortgage application. 9 At the same time, Jackson signed a "Second Home
Rider," which likewise stated that the property was to be used as the Jacksons' second
home. The hearing officer concluded that Jackson intentionally violated 18 U.S.C. §
1344 when he signed the Second Home Rider and falsely claimed the property as his
second home.
8
"RPC" is presumably an acronym for Robert/Patricia/Claire; it is ironic in light of the number of
RPC violations accompanying its formation.
9
Even though Jackson told the Dainards he would quitclaim the property immediately, he did not
file the paperwork to quitclaim 115 Webster to RPC Enterprises until September 2007, and even
then he incorrectly listed the grantee as "RPC LLC."
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No. 201,017-2
At the hearing, both Jackson and his wife argued that the Dainards had
arranged the financing and that they discovered the Second Home Rider language
only at closing. The Jacksons further argued that they signed the rider because they
were concerned that if they did not, the Dainards would lose their earnest money
deposit. The hearing officer rejected this testimony as false, finding that it was directly
contradictory to other, more credible evidence-e.g., the loan officer testified that he
dealt only with Jackson, and the original loan application, signed six weeks before
closing, stated that the property would be used as a second home. The hearing officer
also found that it was not credible that Jackson had missed the references to the
property being used as a second home because the evidence demonstrated that
Jackson paid great attention to detail. Accordingly, the hearing officer concluded that
the Dainards were not informed of and did not consent to the false representations.
B. Conflicts of Interest
During the time the Dainards/RPC Enterprises owned 115 Webster, Jackson,
acting on behalf of himself and North, attempted to acquire 115 Webster, along with
the two adjoining properties. He did this without apprising the Dainards, even though
he knew the Dainards had purchased 115 Webster with an eye towards acquiring the
adjoining properties for development. 10
In March 2007, Jackson signed a purchase and sale agreement binding RPC
Enterprises to purchase the Mack property (one of the adjoining properties) without
informing the Dainards. He did so to lock up the property so that he and North could
10
Early on, Mr. Dainard specifically asked Jackson if he represented North. Jackson lied and
said, "No."
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No. 201,017-2
explore the full investment potential of the three properties. Jackson did not have the
authority to enter into the agreement, and had the Dainards been aware of the
transaction, they would not have authorized it. In the ensuing months, Jackson
continued his efforts to secure the three properties for North. In September 2007,
North made a presentation at a Chelan winery regarding a condo development on the
three properties, even though he had not acquired 115 Webster yet. When the
Dainards learned about the presentation, they informed Jackson that they were not
interested in doing business with North. The Dainards eventually decided not to
accept any purchase offers on the property.
The hearing officer found that from the inception, there was a significant risk
that Jackson's representation of RPC Enterprises and the Dainards would be
materially limited by his personal interests and his responsibilities to other concurrent
clients-specifically Kenneth North. Nevertheless, Jackson persisted in his
representation of all parties, and never informed the Dainards of his involvement with
North, who was similarly interested in developing 115 Webster and its adjoining
properties. The hearing officer found that the Dainards provided credible evidence
that they had no knowledge of Jackson's actions; none of the numerous e-mails
concerning the three properties were copied to the Dainards.
The hearing officer rejected Jackson's argument that he had no attorney-client
relationship with North. Jackson admitted to representing one or more of North's
companies. In addition, Jackson drafted numerous documents for North and his
company, provided advice to North, and maintained North's funds in his trust account.
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No. 201 ,017-2
The hearing officer concluded that these activities created a reasonable belief on the
part of North that Jackson was his attorney. 11
PROCEDURAL HISTORY
On August 20, 2010, the Washington State Bar Association (Association) filed
a formal complaint, charging Jackson with 14 counts of misconduct. By agreement,
the matter was set for hearing on April 4, 2011. On March 8, 2011, Jackson moved to
continue the hearing until June 13, 2011, on the grounds that two potential witnesses
would be out of the area. The hearing officer denied the motion. The hearing
commenced as scheduled on April 4, 2011.
On August 17, 2011, the hearing officer issued her Findings of Fact,
Conclusions of Law, and Hearing Officer's Recommendation. The hearing officer
concluded that the Association had proved all of the violations alleged in the formal
complaint and recommended that Jackson be disbarred.
On September 2, 2011, the Board notified Jackson's counsel of the Board
briefing schedule and the date for oral argument if requested. Jackson never filed a
brief, and neither party requested oral argument.
On November 17, 2011, two business days before the Board was to consider
the case without oral argument, Jackson filed a motion to continue the Board's
consideration until January 2012. The Board denied the motion, noting that Jackson
11
At the disciplinary hearing, Jackson intentionally attempted to conceal the nature of his
relationship with North by resisting the Association's demands for documents and providing false
statements regarding the location of documents and his ability to retrieve documents. When
Jackson finally produced the materials, the Association was able to document the presence of
North's funds in Jackson's trust account, a fact that substantially undercut his contention that
North was not his client.
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No. 201,017-2
could raise whatever issues he wished to raise before this Court. On November 18,
2011, the Board adopted the hearing officer's decision and recommendation.
On December 8, 2011, the Association served and filed a timely statement of
costs and expenses under ELC 13.9(d). Jackson filed no exceptions. On January
11, 2012, the Board entered an order assessing costs and expenses against Jackson
in the amount of $25,517.49.
Jackson filed a timely notice of appeal on December 16, 2011, and submitted
his opening brief on March 4, 2013. 12 On August 20, 2013, we informed the parties
that the case had been set for oral argument on November 12, 2013. Jackson did not
acknowledge receipt of this letter. On October 18, 2013, the Association moved to
strike oral argument and have the case decided on the briefs. Jackson did not file an
answer. On October 30, 2013 we granted the Association's motion to strike oral
argument and decided to consider the case on the merits on November 12, 2013
without oral argument. RAP 11.4(j). On November 12, 2013, we received Jackson's
motion to withdraw his appeal. RAP 18.2. We denied the motion.
12
After filing his notice of appeal, Jackson made four motions to extend the deadline for filing his
opening brief, which we granted. The final deadline for filing was set for October 11, 2012. In the
meantime, Jackson filed a motion to exceed the brief page limitation. On October 19, 2012, we
received and rejected Jackson's opening brief, which was 104 pages in length, more than twice
the permitted length of 50 pages. See ELC 12.6(f); RAP 10.4(b ). Given the unique circumstances
of the case, we allowed Jackson to file an opening brief not to exceed 65 pages in length and to
be served and filed no later than November 9, 2012. Jackson also made a motion to supplement
the record, which the commissioner denied. Jackson then moved to modify the Commissioner's
ruling. On February 6, 2013, after multiple motions to extend briefing deadlines, we denied his
motion to modify. On February 11, 2013, we established a new briefing schedule, with Jackson's
opening brief due on February 28, 2013. We then granted Jackson's sixth motion to extend the
deadline for the filing of his opening brief, setting the final deadline for March 4, 2013. Jackson
met this deadline.
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No. 201,017-2
ISSUES PRESENTED
1. Did the hearing officer err in denying Jackson's motion to continue the
hearing?
2. Did the hearing officer err in failing to recuse herself for bias?
3. Did the hearing officer improperly consider the bankruptcy court orders
as evidence of Jackson's discovery violations?
4. Did the hearing officer err in admitting e-mail exchanges between
Jackson and Simonson into evidence?
5. Are the hearing officer's findings of fact supported by substantial
evidence?
6. Did the Association prove by a clear preponderance of the evidence that
Jackson violated RPC 1.8(a) and 18 U.S.C. § 152?
7. Did the disciplinary counsel commit misconduct?
8. Did the Disciplinary Board err in recommending disbarment?
ANALYSIS
This court "bears the ultimate responsibility for lawyer discipline in Washington."
Marshall, 160 Wn.2d at 329. Nevertheless, "we give considerable weight to the
hearing officer's findings of fact." /d. at 329-30. We treat unchallenged findings as
verities on appeal. /d. at 330. We accept challenged findings of facts as long as they
are supported by substantial evidence. /d. "Substantial evidence" is "evidence
sufficient 'to persuade a fair-minded, rational person of the truth of a declared
premise."' /d. (internal quotation marks omitted (quoting In re Disciplinary Proceeding
Against Poole, 156 Wn.2d 196, 209 n.2, 125 P.3d 954 (2006)).
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No. 201,017-2
We review challenged conclusions of law de novo. The Association must prove
misconduct by a clear preponderance of the evidence. !d.; ELC 10.14(b ). This
standard requires more proof than a simple preponderance but less than beyond a
reasonable doubt. /d.
I. Jackson's Procedural Challenges Fail
Jackson argues that the hearing officer erred in denying his motion to continue
the hearing and in failing to recuse herself due to bias. Both of these claims are wholly
unsupported by facts or law.
A. Hearing Officer Properly Exercised Discretion in Denying Jackson's Motion for
Continuance
Jackson contends that the hearing officer erred in denying his motion to
continue the hearing. Under ELC 10.12(f), a hearing officer has discretion to grant
either party's motion for a continuance of the hearing date. Generally, a reviewing
court will not disturb a discretionary act absent a showing of manifest abuse of
discretion. See In re Disciplinary Proceeding Against Whitney, 155 Wn.2d 451, 465,
120 P.3d 550 (2005). "'An abuse of discretion occurs only when no reasonable person
would take the view adopted."' !d. (quoting In re Disciplinary Proceeding Against
Bonet, 144 Wn.2d 502, 510, 29 P.3d 1242 (2001 )).
Here, Jackson's motion contended that necessary witnesses, including his wife
(Patti Jackson) and Clay Terry, were not available during the hearing. The hearing
officer denied Jackson's motion. The hearing officer found that Terry was available to
testify by telephone; Patti Jackson was present and testified.
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No. 201,017-2
On appeal, Jackson argues that denial of his motion prevented him from
presenting the testimony of a key witness who was in Iraq at the time of the hearing.
From the record, it appears this witness was Clay Terry. Jackson argues that contrary
to the hearing officer's findings, Terry was not available for a phone call because he
was in an "extremely hostile location in the front lines of Iraq." But the record shows
that Jackson was given multiple opportunities to obtain Terry's declaration but simply
decided not to. Although Jackson discussed the difficulty of obtaining Terry's
declaration due to the time difference, he never mentioned a hostile environment as
a barrier to communication. And Jackson's counsel ultimately agreed that the time
difference was not an insurmountable challenge. The record does not reveal, and
Jackson has not submitted, any evidence that Terry was unavailable for a phone call
due to a hostile environment in Iraq.
Jackson also unconvincingly argues that denying his motion was prejudicial.
Jackson vaguely contends that Terry had "considerable knowledge regarding Mr.
Dainard as he had worked with him for years and had personal knowledge of the
[115] Webster property." But Jackson fails to specify what Terry's testimony would
have revealed. Thus, Jackson has not shown that he was prejudiced by the hearing
officer's decision. The hearing officer correctly found that Jackson had failed to
establish either good cause for continuance or prejudice in the event the hearing
commenced as scheduled.
B. No Evidence of Hearing Officer's Bias
Due process of law, the appearance of fairness doctrine, and ELC 2.6(d)(4)
require a hearing officer to disqualify herself only if she is biased or if her impartiality
18
No. 201,017-2
may reasonably be questioned. See Wo/fki/1 Feed & Fertilizer Corp. v. Martin, 103
Wn. App. 836, 841, 14 P.3d 877 (2000); State v. Dominguez, 81 Wn. App. 325, 328,
914 P.2d 141 (1996); see also Hill v. Dep't of Labor & Indus., 90 Wn.2d 276, 279, 580
P.2d 636 (1978) (common law rules governing disqualification for conflict of interest
apply to administrative tribunals). A hearing officer is presumed to be impartial, and a
party who alleges bias must affirmatively establish his or her claim based on facts in
the record, not bald accusations, speculation, or innuendo. In re Disciplinary
Proceeding Against King, 168 Wn.2d 888, 904-06, 232 P.3d 1095 (201 0). Jackson
fails to rebut the presumption of impartiality.
Jackson unconvincingly argues that the hearing officer was biased. First, he
argues that the hearing officer showed bias by denying Jackson's motion for
continuance and commenting that the absent witness was available via phone.
Jackson claims this was biased because it was "an absurd request and would have
been life threatening" for the witness to speak on the phone. But, as explained, Clay
Terry was available to speak on the phone and the hearing officer gave Jackson many
opportunities to secure Terry's testimony. In any event, this is not evidence of bias.
Jackson also argues that the hearing officer was biased because she found
that Jackson was slow or deficient in providing financial records when requested but
ignored testimony and exhibits to the contrary. But the portions of the transcript
Jackson cites to do not evidence any bias on the part of the hearing officer. In fact,
the transcript indicates that Jackson was indeed slow in providing financial documents
when requested.
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No. 201,017-2
Last, Jackson argues that the hearing officer's comments that she did not find
him or his wife to be credible confirm her bias. We give great weight to the hearing
officer's evaluation of the credibility and veracity of the witnesses she observes
firsthand. In re Disciplinary Proceeding Against Marshall, 167 Wn.2d 51, 67, 217 P.3d
291 (2009). Here, there is no evidence that would require us to overturn the hearing
officer's determination that Jackson and his wife were not credible witnesses. The
hearing officer examined hundreds of exhibits, and compared the contents and dates
from those exhibits to Jackson's and his wife's testimony. On numerous occasions,
documents directly contradicted Jackson's and his wife's sworn statements.
On appeal, in support of his and his wife's credibility, Jackson offers e-mails
and letters that allegedly corroborate his wife's testimony. But, it is unclear how the
two e-mails and two letters corroborate his wife's testimony because Jackson does
not additionally cite to the transcript. Moreover, even assuming his wife's testimony
is identical to these four documents, that, in and of itself, does not render her and her
husband credible witnesses in light of the numerous contradictions noted by the
hearing officer.
Jackson's complaints are unfounded. Jackson fails to make a persuasive
argument that any of the hearing officer's adverse rulings were the result of bias or
prejudice. Moreover, Jackson never moved to disqualify the hearing officer. We hold
that there is no cause to dismiss or remand for a new hearing.
II. Jackson's Evidentiary Challenges Fail
Jackson argues that the hearing officer erred in giving preclusive effect to the
bankruptcy court's sanctions order and in admitting e-mails that should have been
20
No. 201,017-2
protected under attorney-client privilege. Both of these claims fail because the
hearing officer independently determined that Jackson had violated discovery orders
and the e-mails were admitted without objection, subject to a protective order.
A. Hearing Officer Independently Found Jackson Had Violated Discovery Orders
Jackson argues that the bankruptcy court's order granting the trustee's motion
for sanctions against Jackson's law firm was error and should not have been admitted
in his disciplinary hearing. He contends that Bankruptcy Judge Karen Overstreet's
decision violated his due process rights because "no motion was before her and no
evidentiary hearing was held." This is false because the bankruptcy judge clearly
considered and ruled on the pending sanctions motion. Jackson, his wife, and his law
firm all submitted materials to oppose the sanctions motion. The court heard oral
argument on the motion on July 11, 2008, and asked the parties for supplemental
materials. The trustee submitted a supplemental declaration. Jackson and his
codefendants submitted 10 additional supplemental pleadings. Upon reviewing the
materials, the bankruptcy judge issued a 47-page decision, finding that Jackson's firm
had withheld relevant documents, in violation of a discovery order. The bankruptcy
judge thoroughly considered the issue. Jackson has not argued that the bankruptcy
judge ruled incorrectly on the motion. Furthermore, Jackson has not offered any
authority for why he should have received an evidentiary hearing.
Jackson also argues that "[n]o guilt or disciplinary action should have been
inferred" from the bankruptcy court's decision because Judge Overstreet was biased.
But Jackson offers no evidence of bias. Jackson points to a single "telling" comment
he believes substantiates Judge Overstreet's bias: "the defendants have submitted all
21
No. 201,017-2
this information about the bad acts of Langford and GFS and all these other cases.
It's completely irrelevant to this case." It is not clear how this statement evidences
bias on the part of Judge Overstreet. The judge was just stating that evidence of other
parties' bad acts are irrelevant-i.e., they do not excuse or justify Jackson's bad acts
in the current proceeding.
Also, the hearing officer made clear that she would not give preclusive effect to
Judge Overstreet's decision granting the motion. The hearing officer admitted Judge
Overstreet's ruling but noted that she had independently resolved the discovery
violation issue by comparing the documents that were in Jackson's possession with
those actually produced in response to the trustee's requests. The hearing officer
reviewed exhibits and independently verified each of the entries on the exhibits before
reaching her conclusions. In other words, the hearing officer found that Jackson
violated discovery orders, based on the overwhelming evidence before her, not on the
bankruptcy court's decision.
B. Hearing Officer Properly Admitted the E-mails, Subject to a Protective Order
This court reviews evidentiary rulings for abuse of discretion. See Cox v.
Spangler, 141 Wn.2d 431,439,5 P.3d 1265 (2000). In disciplinary hearings, evidence
is admissible if the hearing officer determines it is "the kind of evidence on which
reasonably prudent persons are accustomed to rely" on and not irrelevant, immaterial,
or unduly repetitious. ELC 10.14(d)(1 ). In the instant case, the hearing officer did not
abuse her discretion in admitting thee-mails at issue, subject to a protective order.
22
No. 201,017-2
Jackson argues that e-mails he exchanged with Simonson should have been
protected under attorney-client privilege. 13 He acknowledges that attorney-client
privilege does not protect attorney-client communications made in furtherance of
crime or fraud. State v. Richards, 97 Wash. 587, 591, 167 P. 47 (1917)
(communications involving proposed blackmail); Cede// v. Farmers Ins. Co. of Wash.,
176 Wn.2d 686, 699, 295 P.2d 239 (2013). But he argues that the crime-fraud
exception does not apply here because the Association had not proved that a crime
or fraud was committed and that communications were made in furtherance of that
crime. 14 He specifically takes issue with the admission of Ex. A-170.
However, the hearing officer admitted exhibit A-170 into evidence on April 8,
2011 without objection, and not through application of the crime-fraud exception. The
only issue was whether the exhibit should be protected. The hearing officer noted that
exhibit A-170 included e-m ails between Jackson and Simonson and asked for briefing
on whether the crime-fraud exception applied to these communications. If it did, the
hearing officer explained that she would lift the protective order on some of the
communications, including exhibit A-170.
The Association ultimately argued that the exception did apply but that exhibit
A-170 should, nevertheless, be subject to a protective order under ELC 3.2(e). See
13
Note that elsewhere in his brief, Jackson argues that he was not Simonson's attorney.
14
Although the crime-fraud exception used to apply only to criminal activity, the exception now
applies to advice or assistance for the purpose of perpetrating a civil fraud as well. Escalante v.
Sentry Ins. Co., 49 Wn. App. 375, 394, 743 P.2d 832 (1987). A court engages in a two-step
process whenever the civil fraud exception is asserted. See Cede//, 176 Wn.2d at 700. But this
procedure is not required when evidence is admitted without objection.
23
No. 201,017-2
In re Disciplinary Proceeding Against Schafer, 149 Wn.2d 148, 166-67, 66 P.3d 1036(2003) (even if disclosure required, court can still restrict disclosures to only those
matters necessary for court proceedings). The hearing officer determined that exhibit
A-170 was subject to a protective order. Again, Jackson did not object. Jackson's
claim is a nonissue. See generally CR 37(d) (because discovery is intended to be
broad, party wishing to assert privilege cannot simply keep quiet; it must either reveal
information, disclose it has it and assert it is privileged, or seek protective order).
Ill. Substantial Evidence Supports the Hearing Officer's Findings of Fact
Jackson generally claims that all of the hearing officer's 391 findings of fact are
unsupported, noting that it is impossible to specifically assert error to each of the
findings within the page limitation set forth by our court. Acknowledging this difficulty,
we review his entire brief, and consider Jackson's specific assignments of errors as
they arise within his other arguments. But we are not required to address findings not
specifically referred to, and we reject challenges he fails to support with citations to
the record or legal authority. Marsha//, 167 Wn.2d at 67 (providing that a challenge is
sufficient only if the attorney cites to the record in support of argument); RAP
10.3(a)(6) (arguments in a brief should contain citations to the record and legal
authority).
24
No. 201,017-2
A. Jackson Had a Financial and an Ownership Interest in Various Companies
Jackson argues that there is no evidence that he had a financial interest in New
Century Builders or Chelan Landing LLC "or any other company for that matter." 15 The
fact that he has no ownership or financial interest in New Century Builders is not
pertinent to any of the counts alleged against him. 16 And we should reject Jackson's
other challenges because he does not cite to the record or any legal authority to rebut
the hearing officer's findings on this issue. The hearing officer found that Jackson
participated ·in the formation of Chelan Landing, LLC and was the registered agent
and organizer of this company. In addition, his company, Jackson-Field Enterprises,
LLC, was a member of the Chelan Landing, LLC and entitled to participate in its
management. The hearing officer specifically rejected Jackson's claim that he had no
interest in Chelan Landing.
Also, the record directly contradicts Jackson's statement that he had no
financial interest in "any other company." Jackson and his wife co-owned RPC
Enterprises with the Dainards and co-owned Jackson-Field Enterprises with the
Fields. Thus, Jackson's claim that he had no financial interest in any of these
companies fails.
15Jackson's interest in these companies implicates Counts 11-13, which deal with Jackson's duty
to avoid conflicts of interest. Of these, only Counts 11 and 12 carried with them a presumptive
sanction of disbarment.
16 New Century Builders is owned by Kenneth North.
25
No. 201,017-2
B. Jackson Was Simonson's Attorney during the Bankruptcy Proceeding
Jackson argues that there is no evidence he represented Simonson in the
bankruptcy proceeding. He points out that he did not have a PACER (Public Access
to Court Electronic Records database) account with the bankruptcy court at the time,
and he never signed any of the pleadings. Also, he was not the attorney of record for
Simonson. Accordingly, he argues that it was wrong for the hearing officer to attribute
attorney misconduct during the bankruptcy proceeding to Jackson.
Jackson made similar arguments during his disciplinary hearing, and the
hearing officer rejected them. The hearing officer found that although Greg
Cavagnaro was Simonson's attorney of record in the bankruptcy proceeding, Jackson
was Simonson's primary legal advisor for all issues related to the proceedings.
Jackson's time records reflected many hours of researching, attending meetings, and
preparing for the first and second adversary proceedings. E-mails reflect that Jackson
was Simonson's primary legal advisor regarding the bankruptcy. After Jackson began
representing the Levenhagens, Laings, and Lanings, he continued to spend hours
conferencing with Simonson, often without Cavagnaro present. And when Simonson
was added to the second adversary proceeding, Jackson continued to advise him and
draft and edit his pleadings. Thus, the mere fact that he did not have PACER account
or that he did not sign pleadings is not sufficient to rebut the hearing officer's findings,
which are supported by substantial evidence.
Jackson additionally argues that he could not have violated discovery orders
because he had no records. But he offers no new evidence and instead relies on the
26
No. 201,017-2
same facts and testimony he offered at his disciplinary hearing. 17 The hearing officer
specifically rejected Jackson's contrary evidence and found that Jackson, acting as
Simonson's attorney, knowingly violated the bankruptcy court's restraining orders.
Thus, we reject this claim. Marshall, 160 Wn.2d at 331 (not sufficient for attorney to
merely re-argue his version of facts); Poole, 156 Wn.2d at 212 (we will not overturn
findings of fact based merely on alternative explanations or versions of the facts
already rejected by the hearing officer and board).
C. Jackson Was Kenneth North's Attorney
As he did at his disciplinary hearing, Jackson argues generally that he was
never Kenneth North's attorney and, specifically, that he was not involved in North's
presentations at the winery regarding the condo development. These facts implicate
counts 8-14, which involve Jackson's duty to avoid conflicts of interest. Jackson does
not offer any compelling evidence in support of this contention.
Jackson first argues that he had no attorney-client relationship with North
because Jackson merely acted as a messenger, conveying information between
North and other parties to various transactions. However, he does not cite to the
record for support.
He also argues that there was no attorney-client relationship because the
record is devoid of any evidence that North believed Jackson was his lawyer. He cites
17
Jackson asserts that he and Stephen Araki turned over all pleadings and files to Marc Stern,
who failed to return copies. It is true that Leanne Volz, who worked with Jackson, testified that
they sent boxes of documents to Stern and received a portion of those boxes back. But the
hearing officer heard this testimony and rejected it, reasoning that Araki's testimony directly
contradicted Jackson's and Volz's statements concerning the files.
27
No. 201,017-2
State v. Hansen, 67 Wn. App. 511, 837 P.2d 651 (1992), for the proposition that the
existence of an attorney-client relationship turns on the client's subjective belief that it
exists. However, Hansen also held that the client's belief will control only if it is
reasonably formed based on attending circumstances, including the attorney's words
or actions. !d. (aff'd, 122 Wn.2d 712, 720, 862 P.2d 117 (1993) (no attorney-client
relationship where total contact consisted of only one phone call where attorney said
he would not take the case)); see also Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d
71 (1992). Here, Jackson provided legal advice to multiple legal entities owned by
North and helped North form companies, including Cedar Hollow Development, New
Century Builders and Chelan Landing, LLC. E-mails between North and Jackson
show that Jackson acted at North's direction when he made offers on various
properties, negotiated contracts, and held funds. And, Jackson kept North's funds in
his trust accounts and made payments at North's direction. Thus, we find that
substantial evidence supports the hearing officer's finding that Jackson had an
attorney-client relationship with Kenneth North.
D. The Dainards Had No Knowledge of Jackson's Involvement with North
Jackson reasserts his argument that Mr. Dainard knew of Jacksons'
involvement with North the entire time. But, Jackson has not offered any evidence to
rebut the hearing officer's findings that Jackson intentionally concealed his
involvement with North in order to benefit himself and North. Jackson points to e-
mails wherein Dainard does not mention North. This is not evidence that Mr. Dainard
knew of Jackson's involvement with North.
28
No. 201,017-2
To conclude, we hold that Jackson's general assignment of error to all of the
hearing officer's findings of fact and law are insufficient. In re Disciplinary Proceeding
Against Kronenberg, 155 Wn.2d 184, 191, 117 P.3d 1134 (2005) (to challenge findings
of fact, respondent attorney must argue why specific findings are unsupported and
cite to the record to support the argument). Jacksons' specific assignments of error
to certain findings of fact also fail. He offers little to no evidence to support his claims.
And ultimately, many of the hearing officer's findings of fact were the result of
credibility determinations based on abundant testimony and exhibits. Considering we
give great weight to the hearing officer's evaluation of the credibility and veracity of
the witnesses he observes firsthand, there is not enough evidence to overturn the
hearing officer's findings. See Marshall, 167 Wn.2d at 71.
IV. The Hearing Officer's Conclusions of Law Are Supported by the Facts
Jackson explicitly challenges the hearing officer's conclusions that he violated
RPC 1.8(a), charged in counts 8 and 9, and 18 U.S.C. § 152, charged in count 2. In
addition, Jackson appears to challenge the hearing officer's conclusion that he
violated RPC 8.4(b) and (c), charged in count 6.
We review each of Jackson's challenges to the hearing officer's conclusions of
law de novo. Marshall, 160 Wn.2d at 330. "The Association must prove misconduct
by a clear preponderance of the evidence." /d.; see also ELC 10.14(b). We will uphold
the hearing officer's ultimate conclusion relating to any misconduct "if it is supported
by substantial evidence in the record that the lower court could reasonably have found
would meet the clear preponderance standard." Marshall, 160 Wn.2d at 330.
29
No. 201,017-2
The hearing officer issued conclusions of law regarding each charged count of
misconduct. In each of the counts discussed below, the hearing officer found that
Jackson acted knowingly, causing injury or potential injury. 18 We find that the
Association has met its burden of proving misconduct by a clear preponderance of the
evidence.
A. Count 2: Jackson's Conduct Violated 18 U.S. C.§ 152
Count 2 involves Jackson's participation in the fraud on the bankruptcy court.
We hold there was substantial evidence that Jackson committed fraud, in violation of
18 U.S.C. § 152, which prohibits the concealment of the debtor's assets.
As he did at his disciplinary hearing, Jackson argues that there was no
evidence that he made payments and transferred funds in knowing violation of any
court order. The hearing officer found Jackson's testimony was not credible.
Specifically, the documents, the timing of the events, and the substance of his
communications with Simonson all rebutted Jackson's claim that he acted without
knowledge. The hearing officer concluded that by transferring funds into and out of
his trust account in February and March 2006, in contravention of a restraining order,
Jackson knowingly violated 18 U.S.C. § 152 and RPC 8.4(b). Thus, we reject
Jackson's claim that the "record is devoid" of any proof of this violation.
18Under the American Bar Association's Standards for Imposing Lawyer Sanctions (1991 ed. &
Supp.1992) (ABA Standards), a lawyer acts with "knowledge" "'when the lawyer acts with
conscious awareness of the nature or attendant circumstances of his or her conduct but without
the conscious objective or purpose to accomplish a particular result."' In re Disciplinary
Proceeding Against Stansfield, 164 Wn.2d 108, 123, 187 P.3d 254 (2008) (quoting ABA
STANDARDS at 6).
30
No. 201,017-2
B. Count 6: Jackson's Conduct Violated RPC 8.4(b) and/or RPC 8.4(c)
Count 6 alleges that Jackson made a false statement on a mortgage application
and on a Second Home Rider involving 115 Webster. The hearing officer found that
this conduct violated RPC 8.4(b) (by violating 18 U.S.C. § 1344) and RPC 8.4(c). 19
As he did at the hearing, Jackson denies that he had the mental state for fraud and
denies his conduct violated the law. We find that substantial evidence supports the
hearing officer's findings.
Jackson's argument that it was the Dainards who obtained the financing for 115
Webster is as unconvincing now as it was at his hearing. He offers no credible
evidence as support. Because substantial evidence supports the hearing officer's
finding that Jackson violated the law, causing harm to the Dainards, we reject
Jackson's challenge.
C. Counts 8 and 9: Jackson's Conduct Violated RPC 1.8(a)2°
Counts 8 and 9 allege that Jackson violated the rules pertaining to business
transactions with or adverse to a client. Because the presumptive sanction for both
of these counts was admonition and not disbarment, we need not review Jackson's
19 The RPC's were amended effective September 1, 2006. The formal complaint charged Jackson
with violating RPC's in effect as of the date of the alleged conduct. Where amendments did not
change the RPC provisions at issue, we cite to the current RPC's. Current RPC 8.4(b) states that
it is professional misconduct to "commit a criminal act that reflects adversely on the lawyer's
honesty, trustworthiness or fitness as a lawyer." Current RPC 8.4(c) states that it is professional
misconduct to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation."
2
°
Current RPC 1.8(a) states, "A lawyer shall not enter into a business transaction with a client or
knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a
client" unless the terms are fair and reasonable, the client is advised in writing, and the client
gives informed consent.
31
No. 201,017-2
challenges. 21 In re Disciplinary Proceeding Against Petersen, 120 Wn.2d 833, 854,
846 P.2d 1330 (1993) (if facts sufficient to disbar on certain counts, court need not
review other charged counts).
To conclude, we reject Jackson's challenges to the hearing officer's conclusions
of law. Nowhere does Jackson actually argue that the hearing officer's conclusions
are not supported by findings of fact or that the findings are not supported by
substantial evidence. He merely renews arguments that were raised and rejected at
his hearing.
V. There Is No Evidence of Misconduct on the Part of Disciplinary Counsel
Jackson argues that various improper acts by Association's counsel violated
his due process rights. All of these claims fail because there was no misconduct on
the part of disciplinary counsel.
First, Jackson takes issue with Mr. Dainard's presence in the hearing room, and
with the fact that disciplinary counsel conferred with Mr. Dainard during the disciplinary
hearing. But, Jackson specifically stated during the hearing that he had no objection
to Mr. Dainard's presence. See ELC 5.1 (c)(5) (grievant has right to attend disciplinary
hearing, subject to these rules and any protective orders). And, Jackson does not cite
to any legal authority for the proposition that disciplinary counsel is forbidden from
speaking with grievants. Thus, this claim fails.
21
Briefly, however, Jackson does not raise any new arguments with regard to Counts 8 or 9. The
hearing officer concluded that both violations were proved. The conclusions of law are supported
by substantial evidence and by the unchallenged findings of fact. Jackson's bald assertion on
appeal that there was no violation of RPC 1.8(a) fails.
32
No. 201,017-2
Next, Jackson argues that Association's counsel intentionally presented the
Dainards' perjured testimony. He argues that Mr. Dainard lied when he said he
thought Bank of America was doing the loan for 115 Webster. Jackson claims that Mr.
Dainard knew Ancora Financial was doing the loan because Mr. Dainard was copied
on e-mails between Jackson and Jarred Teague (owner of An cora Financial) and
because Mr. Dainard was the one who corrected the original loan documents, which
bore Ancora Financial's name. However, Mr. Dainard was not copied on the e-mails
to which Jackson cites, and there is no evidence that Mr. Dainard corrected the original
loan documents.
Jackson also claims that Mrs. Dainard falsely testified that she relied on
Jackson to review the quitclaim deed when, in fact, David Hilyer prepared the deed.
But Jackson's citations to the record indicate that it was Jackson who signed the
quitclaim deed incorrectly transferring 115 Webster to "RPC, LLC," prepared and
signed the excise tax affidavit, and who later corrected the original document to list
the grantee as "RPC Enterprises, LLC."
Third, Jackson argues that disciplinary counsel intentionally delayed sending
out Mr. Dainard's second grievance against Greg Cavagnaro, submitted on March 5,
2011, to the Association. He contends that the grievance would have "clearly revealed
Mr. Dainard's lack of credibility." However, he does not specify how the grievance
would have revealed a lack of credibility. He does not cite to any facts, evidence, or
law to support this claim. Thus, Jackson has not alleged facts or law requiring us to
overturn the hearing officer's evaluation of the credibility and truthfulness of the
witnesses.
33
No. 201,017-2
Jackson next argues that disciplinary counsel improperly submitted evidence
relating to the bankruptcy proceedings even though those proceedings were
erroneously conducted. He argues that it was improper to submit evidence of the
bankruptcy proceedings without explaining that some of the missing documents (that
were the subject of discovery violations) had been found. But, Jackson does not
specify what documents had been found. Jackson stated that he recalled Ms.
Moewes' stating that she had found some of the missing documents, but he cited
generally to two incredibly lengthy documents that mostly contain information adverse
to him. Jackson's equivocal statement is not sufficient to undermine the hearing
officer's findings related to the discovery violations.
Last, Jackson argues that Association's counsel improperly subpoenaed
Jackson's adult children's bank records even though Jackson's name is not on those
accounts. Jackson contends that this violated privacy statutes. Under 12 U.S.C. §
3405, a government authority may obtain financial records protected by the Right to
Financial Privacy Act of 1978 pursuant to an administrative subpoena only if (1) there
is reason to believe that the records sought are relevant to a legitimate law
enforcement inquiry and (2) a copy of the subpoena or summons has been served
upon the customer or mailed to his last known address on or before the date on which
the subpoena or summons was served on the financial institution together with a
notice stating with reasonable specificity the nature of the law enforcement inquiry.
Jackson does not allege any facts or evidence that the subpoenas violated this
statute. Simply stating that the Association subpoenaed his adult children is not
sufficient to allege a violation of§ 3405.
34
No. 201,017-2
VI. Disbarment Is the Appropriate Sanction
The American Bar Association's Standards for Imposing Lawyer Sanctions
(1991 & Supp. 1992) (ABA Standards) "govern lawyer sanctions in Washington."
Marshall, 160 Wn.2d at 342. Based upon the ABA Standards, we use a three. . step
process to analyze a recommended sanction. In re Disciplinary Proceeding Against
Preszler, 169 Wn.2d 1, 18, 232 P.3d 1118 (201 0). First, we determine the presumptive
sanction by analyzing "'the ethical duties violated, ... the lawyer's mental state, and
... the actual or potential injury caused by the lawyer's conduct."' /d. (quoting
Marshall, 160 Wn.2d at 342). Second, "we determine whether any aggravating or
mitigating circumstances call for a departure from the presumptive sanction." /d.
Third, if raised by the attorney being disciplined, "we evaluate the Board's
recommended sanction based on '(1) [the] proportionality of the sanction to the
misconduct and (2) the extent of agreement among the members of the Disciplinary
Board."' /d. (quoting In re Disciplinary Proceeding Against Schwimmer, 153 Wn.2d
752, 764, 108 P.3d 761 (2005)).
Although we are not bound by the Board's recommendation, "[w]e should not
lightly depart from recommendations shaped by [the Board's] experience and
perspective." In re Disciplinary Proceeding Against Noble, 100 Wn.2d 88, 94, 667
P.2d 608 (1983). "Accordingly, we will adopt the sanction recommended by the
Disciplinary Board unless we are able to articulate specific reasons for adopting a
different sanction." /d. at 95.
Here, the hearing officer concluded that the presumptive sanction was
disbarment for 10 of the 14 counts. A unanimous board agreed. Jackson makes no
35
No. 201,017-2
compelling argument that would warrant our reversal of the sanction. We hold that
the hearing officer correctly concluded that the presumptive sanction should be
disbarment.
A. The Presumptive Sanction Is Disbarment for 10 of the 14 Counts
The hearing officer concluded, and the Board agreed, that disbarment was the
presumptive sanction for 10 of the 14 counts, pursuant to standards 4.31, 6.61, 5.11,
6.11, 6.21, and 7.1. Although Jackson has assigned error to this conclusion, he does
not set forth any argument to support the contention. 22 Jackson never argues that the
hearing officer incorrectly applied the ABA Standards to determine the presumptive
sanctions. Thus, we adopt the Board's decision in this regard.
B. The Balance of Aggravating and Mitigating Factors Does Not Demand a
Departure from the Presumptive Sanction of Disbarment
Aggravating or mitigating factors can alter the presumptive sanction, but only if
they are sufficiently compelling to justify a deviation. In re Disciplinary Proceeding
Against Cohen, 149 Wn.2d 323, 339, 67 P.3d 1086 (2003). In this case the hearing
officer determined the applicable aggravating factors were dishonest or selfish motive,
pattern of misconduct, multiple offenses, bad faith obstruction of a disciplinary
proceeding, submission of false evidence during a disciplinary proceeding, refusal to
22
Jackson argues that he was not Simonson's attorney during the bankruptcy proceeding and
that Mr. Dainard did not suffer harm because he always controlled 115 Webster and the property
was never actually sold to Kenneth North. Jackson's attack on these factual findings fails. The
first finding is dealt with earlier in this opinion: there was sufficient evidence to support a finding
that Jackson was Simonson's attorney. Also, Jackson fails to allege facts or law to support his
argument that the Dainards did not suffer any harm. Thus, we accept the hearing officer's finding
that Jackson's misrepresentations injured the Dainards.
36
No. 201,017-2
acknowledge misconduct, and substantial legal experience. She found three
mitigating factors: absence of prior discipline record, character or reputation, and
imposition of other penalties with regard to count 4.
Jackson challenges only standard 9.22(g): his refusal to acknowledge the
wrongful nature of his conduct. 23 This aggravating factor is appropriate where a
lawyer admits that he engaged in the alleged conduct but denies that it was wrongful,
or where he rationalizes the improper conduct as error. In re Disciplinary Proceeding
Against Ferguson, 170 Wn.2d 916, 943-44, 246 P.3d 1236 (2011) (citing In re
Disciplinary Proceeding Against Holcomb, 162 Wn.2d 563, 588, 173 P.3d 898 (2007)).
It is also appropriate where the lawyer is unrepentant and continues to justify his
actions despite abundant contrary evidence and his own conflicting testimony or
where the lawyer excuses the violation as merely '"technical"' or "'unfortunate
labeling."' /d. at 945. These were all present in the current case. As the hearing
officer noted, throughout the proceedings, Jackson denied wrongdoing or attempted
to justify his conduct. He refused to acknowledge the conflicts of interest that arose
from his representation of Simonson, the Levenhagens, the Lanings, and the Laings.
He sought to blame others, including the bankruptcy judge and other lawyers, for
much of what occurred. Thus, we reject Jackson's contention that this aggravating
factor does not apply.
23
Jackson also contends·that the "vulnerable victim" factor is questionable. But this was not one
of the aggravating factors the hearing officer listed or relied on.
37
No. 201,017-2
We accept the hearing officer's finding that numerous and substantial
aggravating factors outweighed mitigating factors. A balance of the enumerated
factors does not justify a departure from the presumptive sanction of disbarment.
C. Disbarment Is a Proportionate Sanction and the Board's Unanimous Sanction
Recommendation Deserves Considerable Deference
While we do not generally depart from a Board's recommendation, we will do
so if we are persuaded that the sanction is inappropriate in light of the (1)
disproportionality of the sanction to the misconduct or (2) the extent of disagreement
among the members of the Board. In re Disciplinary Proceeding Against Kuvara, 149
Wn.2d 237, 259, 66 P.3d 1057 (2003).
Here, Jackson cites three dissimilar cases in an attempt to illustrate that
disbarment is a disproportionate sanction for his misconduct: Holcomb, 162 Wn.2d
563; In re Disciplinary Proceeding Against Greenlee, 158 Wn.2d 259, 143 P.3d 807(2006); In re Disciplinary Proceeding Against McKean, 148 Wn.2d 849, 64 P.3d 1226(2003). We hold that these cases are not "similarly situated" to Jackson's. In re
Disciplinary Proceeding Against Christopher, 153 Wn.2d 669, 686-87, 105 P.3d 976(2005) (when evaluating proportionality, "we analyze whether the recommended
sanction is proper when compared to similarly situated cases"). In Holcomb, we
approved the Board's recommendation of a six-month suspension for two counts of
misconduct where the presumptive sanction was suspension. In Greenlee, we
approved the Board's recommendation of a six-month suspension for one violation of
RPC 1.8(h) where the presumptive sanction was suspension. And in McKean, we
approved the Board's six-month suspension recommendation for misconduct
38
No. 201,017-2
involving a business transaction with a client and loans of client funds, and where the
presumptive sanction for two of the three counts was suspension.
None of these cases is remotely similar to Jackson's. Here, we have fourteen
counts of misconduct, 10 of which carry a presumptive sanction of disbarment.
Notably, none of the above cases concerns fraud, deceit, and abuse of the legal
process demonstrating a lawyer's unfitness to practice law. Given the pervasive
misconduct in this case, we find that disbarment is a proportionate sanction.
Moreover, the Board's unanimous sanction recommendation is entitled to great
deference. In re Disciplinary Proceeding Against Day, 162 Wn.2d 527, 538, 542, 173
P.3d 915 (2007). Jackson has provided no reason for us to reject the sanction. Poole,
156 Wn.2d at 209-10 (we generally affirm the Board's recommended sanction unless
there is specific reason to reject it).
CONCLUSION
In conclusion, Jackson committed the acts of misconduct alleged in counts 1
through 14. The misconduct was serious and pervasive. In light of the presumption
that such misconduct should generally result in disbarment, we adopt the Disciplinary
Board's recommendation and order that attorney Robert B. Jackson be disbarred from
the practice of law.
39
No. 201,017-2
WE CONCUR