                                                                                         .......   '




IN THE SUPREME COURT OF THE STATE OF WASHINGTON


In the Matter of the Disciplinary      )
Proceeding Against                     )      No. 201,256-6
                                       )
RUSSELL KENNETH JONES,                 )      EnBanc
                                       )
             an Attorney at Law.       )
                                                        - IJEC 6 lt 2014
                                              Filed ----------------------
-------------)


      FAIRHURST, J.-Russell Kenneth Jones appeals the Washington State Bar

Association (WSBA) Disciplinary Board (Board) recommendation that he be

disbarred from the practice of law. The WSBA charged Jones with four counts of

misconduct arising out of litigation involving his mother's estate. The counts include

failing to comply with discovery requests, engaging in frivolous litigation, and

dishonestly and intentionally manipulating the value of the estate. Jones challenges

each count. The hearing officer and a unanimous Board concluded that Jones
In re Disciplinary Proceeding Against Jones, No. 201,256-6


violated RPC 3.1, 1 3 .4(c) and (d),2 and 8.4(c) and (d). 3               The hearing officer

recommended that Jones be disbarred. The Board unanimously adopted the hearing

officer's recommendation. We find no reason to depart from the recommended

sanction and disbar Jones from the practice of law.

                           I.      FACTUAL BACKGROUND

      Jones was admitted to the practice of law in the state of Washington in 1980

(Bar No. 10887). Jones was a solo practitioner from 1984 until 2011 when he went

on inactive status.

       The current disciplinary proceeding arose out of the estate proceedings of

Jones' mother, Ms. Marcella Jones. Ms. Jones died testate in September 1995. Her

will was admitted to probate and named Jones as personal representative (PR). Ms.




       1
         RPC 3.1 states, "A lawyer shall not bring or defend a proceeding, or assert or controvert
an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which
includes a good faith argument for an extension, modification or reversal of existing law."
       2
         RPC 3.4 states:
        A lawyer shall not

                (c) knowingly disobey an obligation under the rules of a tribunal except for
       an open refusal based on an assertion that no valid obligation exists;
                (d) in pretrial procedure, make a frivolous discovery request or fail to make
       reasonably diligent effort to comply with a legally proper discovery request by an
       opposing party.
       3
         RPC 8.4 states, "It is professional misconduct for a lawyer to: ... (c) engage in conduct
involving dishonesty, fraud, deceit or misrepresentation; [or] (d) engage in conduct that is
prejudicial to the administration of justice."
                                                 2
In re Disciplinary Proceeding Against Jones, No. 201,256-6


Jones left her property equally to Jones and his three brothers, Peter, Jeffrey, and

David. 4

       Ms. Jones' property was located in Spokane, Washington. Jones was living

with his mother in the family home when she passed away. After Ms. Jones' death,

Jones continued to live and operate his law office in the house.

       Jones had the house appraised twice in November 1995 (hereinafter Meenach

appraisal or Ciszech appraisal). Jones did not produce the Meenach appraisal at any

proceeding. The Ciszech appraisal valued the house at approximately $155,000. An

appraiser hired by Jones in 1995 valued the estate's piano at $5,000.

       When Peter asked Jones to provide copies of the will or a summary of its terms

in October 1995, Jones refused. The brothers met in May 1996 to divide up the

estate's personal property, and at this meeting Jeffrey selected the piano valued at

$5,000. At this meeting, Jones also informed his brothers that the house was

appraised at $155,000, less defects. Despite their requests, Jones did not give Peter

or Jeffrey a copy of either appraisal. The hearing officer found Jones' testimony that

he showed Peter a copy of the appraisal not credible and rejected testimony from

Jones' brother David that the appraisals were available at the May meeting. Peter,

both at the meeting and in writing, offered to purchase the house at the price of



       4
         Jones' brothers, Peter Jones, Jeffrey Jones, and David Jones, will be referred to by their
first names throughout this opinion.
                                                3
In re Disciplinary Proceeding Against Jones, No. 201,256-6


$155,000, but Jones did not respond to Peter's offers. Even with Peter's offers and

without telling the cobeneficiaries, Jones deeded the house to himself at a value of

$125,866.27 and did not record the deed.

         In September 1996 Jones distributed the piano to Jeffrey at the appraised value

of $5,000. Jones made periodic distributions to his brothers from the estate. During

this time, Jones lived in the house rent free and had the estate pay the utilities and

taxes.

         Peter and Jeffrey, concerned about Jones' use of the house, as well as his

refusals to provide information, hired attorney Frank Gebhardt, 5 who contacted

Jones in January 1998 seeking check registers and estate accounts. Jones did not

provide the requested documents. The hearing officer found that Jones' claim that

he attempted to give the check register to Gebhardt not credible. At this time, Jones

began to pay the house utilities from his personal account and he contacted Jeffrey,

claiming that the piano needed to be reappraised.

         In June 1998 Peter and Jeffrey filed a petition to require Jones to provide basic

estate information. The court commissioner ordered that he provide the information

and documents, but Jones, as attorney for the estate, successfully moved to revise

the order. In November 1998, after still not receiving any of the requested documents

from Jones, Peter and Jeffrey petitioned for a judicial proceeding to remove Jones


         5
          Peter and Jeffrey were represented by Gebhardt from 1997-2001.
                                               4
In re Disciplinary Proceeding Against Jones, No. 201,256-6


as PR. Peter and Jeffrey also filed a complaint for use of estate assets by aPR for

personal benefit and for breach of fiduciary duty. In response to these actions, Jones

asserted that he occupied the house according to an agreement by all heirs. This

response was false because there was no such agreement among the heirs. In

December 1998 Jones filed a declaration of completion, swearing that he had

completed a final accounting. In January 1999 Peter and Jeffrey petitioned for an

accounting. The court consolidated the three actions.

       In May 2001 Peter and Jeffrey's new attorney, Robert Greer, sent Jones

interrogatories and requests for production. Jones responded and signed his

responses under oath. However, his answers were knowingly false and incomplete. 6

       In June 2001 the parties attended an unsuccessful mediation with Judge

Harold Clarke II. Before mediation, Jones sent Judge Clarke an accounting of the

estate distributions. This accounting purported to show that the distributions among

the brothers were equal. The accounting document was the first time that Peter and

Jeffrey learned that Jones had distributed the house to himself for $125,866.27 and

that Jones claimed the piano was valued at $14,950.00 rather than the original

valuation of $5,000.00. The hearing officer found that the increase in the piano's

value was to get back at Jeffrey for challenging Jones' administration of the estate.



       6
        Jones' answers to the discovery requests will be discussed in greater detail below. See
infra Part IV.2.
                                               5
In re Disciplinary Proceeding Against Jones, No. 201,256-6


Jones claims that the increase in amount was based on a conversation with Stephen

Bagmanyan, Jones' client and expert on pianos. Bagmanyan never saw the piano in

person.

       After the failed mediation, trial took place in September 2001 before Judge

Rebecca Baker. Before trial, Greer requested a copy of the appraisal on the house

from Jones, but Jones refused to produce it. Jones did not produce either appraisal

on the house at trial. Although Jones listed Bagmanyan as a witness, he did not call

Bagmanyan to testify or produce any other evidence to substantiate his claim that

the piano was worth more than $5,000.

       In October 2001 Judge Baker ordered that Jones be removed as PR. In

addition, Judge Baker set aside Jones' attempt to deed the house to himself, found

that the house was worth $159,000, that the piano was worth $5,000, and that Jones

must reimburse Peter and Jeffrey for rent and other expenses. Judge Baker stated

that her findings regarding the value of the house and piano would have a preclusive

effect on subsequent litigation. In addition, Judge Baker asserted that her findings

were necessary to reach her decision on other issues and that such findings "will then

be res judicata for any further factual determinations in this litigation." Ex. A-27, at

2. She then appointed James Woodward as the PR of the estate.




                                               6
In re Disciplinary Proceeding Against Jones, No. 201,256-6


A.     The first appeal and subsequent litigation

       In November 2001 Jones, represented by Philip Talmadge, appealed Judge

Baker's decision to the Court of Appeals, Division Three. Division Three reversed

Judge Baker's decision. In re Estate of Jones, 116 Wn. App. 353, 67 P.3d 1113

(2003). Peter and Jeffrey appealed Division Three's decision to this court, and we

reversed, reinstating the trial court's ruling that the record supported the trial court's

finding that the house was worth $159,000; that Jones' second appraisal of the piano

was questionable; that Jones breached his fiduciary duty; and that it was proper to

remove Jones as PR. In re Estate ofJones, 152 Wn.2d 1, 21-22, 93 P.3d 147 (2004).

On appeal, Jones did not assign error to the trial court's valuation of the piano and

house; as such, the findings were verities on appeal. The court remanded for a final

accounting. Id. at 22.

       After remand, Jones began to represent himself. Jones did not move for

reconsideration of this court's decision. However, from 2004-2005 Jones filed a

series of motions in superior court: three motions to disqualify Judge Baker, two

motions for a neutral judge, four motions for reappraisal of the estate's assets, and

one motion for witness testimony. In his second motion to disqualify Judge Baker,

filed in February 2005, Jones asserted that Judge Baker made comments about him




                                              7
In re Disciplinary Proceeding Against Jones, No. 201,256-6


at a reception in September 2001 ,7 during the 2001 trial. This motion was the first

time that Jones raised the issue of actual bias based on Judge Baker's alleged

comment three and a half years earlier. The hearing officer found that Jones'

allegations regarding the statement made by Judge Baker were not credible. In his

motions for reappraisal of the piano, Jones claimed that the piano's value had not

been fully litigated before the court. 8 Judge Baker denied these motions, finding that

they did not contain any factual or legal basis, and awarded attorney fees and costs

to Peter and Jeffrey.

       In March 2005 Jones filed another series of motions. These motions sought

relief from Judge Baker's 2001 judgment under CR 60(b)(4) and (11) 9 or CR 54(b). 10


       7
         Jones claimed that Judge Baker stated, "'Russell Jones, I can't listen to him'" to another
attendee at a reception at Gonzaga Law School. Opening Br. ofResp't Jones at 16.
        8
          Jones' arguments regarding the valuation of the piano and whether it was decided res
judicata will be discussed further below. See infra Part IV.A.2.
        9 CR 60(b) states:

        On motion and upon such terms as are just, the court may relieve a party or his legal
        representative from a final judgment, order, or proceeding for the following
        reasons:

              (4) Fraud (whether heretofore denominated intrinsic or extrinsic),
       misrepresentation, or other misconduct of an adverse party;

               (11) Any other reason justifying relief from the operation of the judgment.
       1oCR 54(b) states:
       When more than one claim for relief is presented in an action, whether as a claim,
       counterclaim, cross claim, or third party claim, or when multiple parties are
       involved, the court may direct the entry of a final judgment as to one or more but
       fewer than all of the claims or parties only upon an express determination in the
       judgment, supported by written findings, that there is no just reason for delay and
       upon an express direction for the entry of judgment. The findings may be made at
       the time of entry of judgment or thereafter on the court's own motion or on motion
       of any party. In the absence of such findings, determination and direction, any order
                                                 8
In re Disciplinary Proceeding Against Jones, No. 201,256-6


Through these motions Jones attempted to present evidence that he did not present

at the trial in 2001. Peter and Jeffrey moved for sanctions under CR 11, claiming

that. the issues in Jones' motions were fully litigated and thus his motions were

frivolous.

         All motions made by Jones were denied by Judge Baker and found frivolous

by the hearing officer. Judge Baker awarded Peter and Jeffrey sanctions against

Jones.

B.       The second appeal and subsequent litigation

         In June 2005 Jones, represented by Michael Schein, petitioned Division Three

for discretionary review of Judge Baker's orders denying the motions for relief from

judgment and granting of CR 11 sanctions. In August 2005 Judge Baker authorized

the sale of the house. Jones, represented by Schein, appealed this order. Woodward

filed suit for possession of the house, and the trial court granted summary judgment

authorizing his immediate possession. Jones, representing himself, appealed this

order. Jones' appeals were consolidated for review.

         Division Three affirmed Judge Baker's orders and summary judgment. In re

Estate of Jones, noted at 140 Wn. App. 1022, 2007 WL 2452725, at *7. Division



         or other form of decision, however designated, which adjudicates fewer than all the
         claims or the rights and liabilities of fewer than all the parties shall not terminate
         the action as to any of the claims or parties, and the order or other form of decision
         is subject to revision at any time before the entry of judgment adjudicating all the
         claims and the rights and liabilities of all the parties.
                                                   9
In re Disciplinary Proceeding Against Jones, No. 201,256-6


Three concluded that Jones' arguments were without factual or legal justification,

finding that the doctrine of res judicata precluded further review because the issues

in Jones' motions were fully litigated and upheld on appeal. Id. at *4. We denied

Jones' petition for review.       The hearing officer found that Jones' appeals and

petitions for review were frivolous and harmful.

       Jones was ejected from the house in March 2009, and it sold for $175,000. In

February 2010 Jones filed a separate action against Jeffrey and Peter, again

requesting relief from the 2001 judgment. Jones' complaint alleged that Judge Baker

acted without jurisdiction and that Jeffrey and Peter made misrepresentations of fact.

The hearing officer found that this complaint was filed without proper purpose and

was frivolous.

       In June 2010 Woodward filed a final accounting and petition for distribution.

Jones filed a pleading titled "Objection to Final Accounting" in which he argued

again that he was wrongfully removed as PR and that the piano was wrongfully

valued at $5,000. The hearing officer found that this complaint was frivolous, as it

was directly contrary to Division Three's 2007 decision. See Jones, 2007 WL

2452725, at *4.

       In August 2010 Jones filed another motion under CR 60(b), seeking relief

from the 2001 judgment. In this motion Jones reasserted arguments made in previous

motions, including that there were no grounds to remove him as PR and that res

                                              10
In re Disciplinary Proceeding Against Jones, No. 201,256-6


judicata did not apply to the valuation of the house and piano. This motion was

denied, and Judge Baker ordered Jones to cease filing motions on these issues. She

stated that if he did not cease, he would be ordered to show cause as to why he should

not be held in contempt and/or declared a vexatious litigant.

       Less than a week after Judge Baker threatened to declare Jones a vexatious

litigant, he filed an amended complaint, arguing again that the valuations of the

house and piano were incorrect and never finalized. The hearing officer found that

lawsuit frivolous.

C.     The third appeal and subsequent litigation

       In September 2010 Jones, representing himself, appealed Judge Baker's order

approving the final accounting and distribution. He argued that the decision should

be vacated because the value of the house and piano were based on inconsistent

appraisals, and he moved for reappraisal of the piano. In May 2011 Division Three

granted Jeffrey's and Peter's motion on the merits to affirm the superior court's

orders, held that Jones' appeal was frivolous, and imposed sanctions. Jones made a

motion to modify the ruling, and when it was denied he petitioned for review, which

was also denied.

       In August 2012, just before his disciplinary hearing and after the WSBA

distributed its witness list naming Peter and Jeffrey, Jones filed a new lawsuit




                                              11
In re Disciplinary Proceeding Against Jones, No. 201,256-6


naming Peter and Jeffrey as defendants. The suit again asked for relief from the 2001

judgment and asserted the same arguments Jones made in previous motions.

D.     Failure to pay sanctions

       Throughout the litigation about Ms. Jones' estate, Jones was sanctioned

multiple times, totaling over $138,881. As of the date of Jones' disciplinary hearing

he owed $123,901.93 in sanctions. He was held in contempt four separate times for

failing to provide access and documentation to his assets.

      II.    PROCEDURAL HISTORY AND COUNTS OF MISCONDUCT

       The WSBA filed a complaint under ELC 10.3, charging Jones with four

counts of misconduct. Count one charged Jones with violating RPC 3.4(c) and (d)

"[b ]y failing to make a reasonably diligent effort to comply with one or more legally

proper discovery requests served on him by Jeffrey and Peter's lawyers during the

course of the pre-trial litigation." Clerk's Papers (CP) at 42. Counts two and three 11

charged Jones with violating RPC 3 .1 and/ or 8 .4(d) "[b ]y filing motions for relief,

vacation or revision of judgment, disqualification, and/or neutral judge that were

frivolous" and for filing frivolous appeals. CP at 42-43. Count four charged Jones

with violating RPC 8.4( c) and/or (d) "[b]y seeking to inflate the value of the piano




        11
          Count two charged Jones with filing motions for relief, vacation or revision of judgments,
disqualifications, and neutral judge that were frivolous. Count three charged Jones with filing
frivolous appeals. Because these counts both charge Jones with violations ofthe same RPCs (RPC
3.1 and 8.4(d)), they will be discussed together.
                                                12
In re Disciplinary Proceeding Against Jones, No. 201,256-6


in retaliation against Jeffrey and/or valuing the estate house at only $126,000 despite

having and/or knowing of appraisals that valued the house at $155,000 or more." CP

at 43.

         The hearing officer applied the American Bar Association's Standards for

Imposing Lawyer Sanctions (1991 & Supp. 1992) to determine the appropriate

sanction. For count one, the hearing officer determined that Jones violated RPC

3.4(c) and (d) "[b]y failing to make a reasonably diligent effort to comply with one

or more legally proper discovery requests served on him" during the course of

pretrial litigation. CP at 187. The hearing officer determined that Jones acted

knowingly by making false responses to discovery requests and by withholding

documents to conceal his dishonest responses. Such violation was found to be

intentional discovery abuse that harmed the co beneficiaries of the estate, as well as

the legal system. Applying ABA Standards std. 6.21, the hearing officer found that

the appropriate presumptive sanction for count one was disbarment.

         As to counts two and three, the hearing officer found that Jones violated RPC

3.1 and 8.4( d) "[b ]y filing motions for relief, vacation and revision of judgments,

disqualifications, and neutral judge that were frivolous" and by filing frivolous

appeals. CP at 187. The hearing officer found that Jones acted with a knowing mental

state because he filed such motions "with the clear purpose and intent to further his

vendetta against brothers Jeffrey and Peter, co-beneficiaries, in an effort to

                                              13
In re Disciplinary Proceeding Against Jones, No. 201,256-6


intimidate them by the need to pursue and fund continuing litigation." CP at 189.

Such misconduct frustrated and prejudiced the administration of justice. Similarly,

for count three, the hearing officer found that Jones "engaged in knowingly frivolous

appeals with the clear purpose and intent to further his vendetta against his co-

beneficiaries." CP at 190. Applying ABA Standards std. 6.21, the hearing officer

found that the appropriate presumptive sanction for counts two and three was

disbarment.

       As to count four, the hearing officer found that Jones violated RPC 8.4(c) and

(d) "[b ]y seeking to inflate the value of the piano in retaliation against Jeffrey, and

by undervaluing the estate house despite knowing of appraisals that valued the house

at $155,000 or more." CP at 187. The hearing officer found that Jones made the

misrepresentations charged in count four lmowingly as part of a dishonest scheme

to defraud his cobeneficiaries. Such conduct "seriously adversely reflects on

Respondent's fitness to practice." CP at 190. The hearing officer applied ABA

Standards std. 5.11(b) to conclude that the presumptive sanction was disbarment.

       The hearing officer then considered if any aggravating or mitigating factors

should be applied to alter the presumptive sanction. The hearing officer found that

seven aggravating factors applied: (1) dishonest or selfish motive, (2) a pattern of

misconduct, (3) multiple offenses, (4) bad faith obstruction of the disciplinary

proceeding by intentionally failing to comply with the rules or orders of the

                                              14
In re Disciplinary Proceeding Against Jones, No. 201,256-6


disciplinary agency, (5) refusal to acknowledge the wrongful nature of conduct, (6)

substantial experience in the practice of law, and (7) indifference to making

restitution. CP at 190-92. The hearing officer determined that one mitigating factor

applied: absence of a prior disciplinary record. Pursuant to the ABA Standards'

presumptive sanctions and the application of the aggravating and mitigating factors

listed above, the hearing officer recommended that Jones be disbarred. The hearing

officer recommended that reinstatement be conditioned on Jones' paying all

unsatisfied judgments entered against him during the litigation.

       In September 2013, by a unanimous vote, the Board adopted the hearing

officer's amended findings of fact and conclusions of law (FFCL ). 12 Jones timely

sought review of the Board's order.

                               III.    ISSUES PRESENTED

       A.      Whether the hearing officer's conclusions that Jones filed frivolous

motions and appeals, failed to comply with discovery requests, and dishonestly

represented the value ofMs. Jones' estate assets were supported by sufficient factual

findings.

       B.      Whether disbarment is an appropriate sanction.



        12
          In April 2013, pursuant to ELC 10 .16(c)(1 ), the WSBA filed a motion to amend or correct
the hearing officer's FFCL. The WSBA's motion sought to correct the hearing officer's wording
regarding proposed presumptive sanctions to ensure that the ABA Standards cited by the hearing
officer and the recommended sanction were correctly aligned. Jones did not respond, and the Board
granted the WSBA's requested changes.
                                                15
In re Disciplinary Proceeding Against Jones, No. 201,256-6


                                    IV.    ANALYSIS

       Jones challenges the sufficiency of the evidence supporting the hearing

officer's FFCL. He also argues that disbarment is not the appropriate sanction. We

reject Jones' challenges.

A.     Substantial evidence supports the hearing officer's findings of fact, and the
       findings of fact sufficiently support the hearing officer's conclusions oflaw

       While this court bears the ultimate responsibility for lawyer discipline, it gives

considerable weight to the hearing officer's findings of fact. In re Disciplinary

Proceeding Against Marshall, 160 Wn.2d 317, 329, 157 P.3d 859 (2007).

Unchallenged findings of fact are considered verities on appeal. Id. at 330.

Challenged findings of fact are upheld so long as they are supported by substantial

evidence. Id. "Substantial evidence is evidence sufficient 'to persuade a fair-mined,

rational person of the truth of a declared premise."' I d. (internal quotation marks

omitted) (quoting In re Disciplinary Proceeding Against Poole, 156 Wn.2d 196, 209

n.2, 125 P.3d 954 (2006)). Conclusions of law and the hearing officer's ultimate

conclusion are reviewed de novo and will be upheld if they are supported by the

findings of fact. I d.

       The WSBA "must prove misconduct by a clear preponderance of the

evidence."     Id.   Clear preponderance "requires           more   proof than    simple

preponderance, but less than beyond a reasonable doubt." Id. Where a sanction is

recommended by a unanimous Board, the court will uphold it so long as there is not
                                              16
In re Disciplinary Proceeding Against Jones, No. 201,256-6


a clear reason for departure. In re Disciplinary Proceeding Against Sanai, 177

Wn.2d 743, 760, 302 P.3d 864 (2013). "Findings of fact that are unanimously

adopted and supported by a clear preponderance of the evidence generally will not

be disturbed by the court." In re Disciplinary Proceeding Against Cohen, 149 Wn.2d

323, 330, 67 P.3d 1086 (2003). The hearing officer's findings were established by

a clear preponderance of the evidence and unanimously adopted by the Board.

       Attorneys challenging a hearing officer's findings of fact must present

argument explaining why the specific findings are unsupported and cite to the record

to support that argument. Marshall, 160 Wn.2d at 331. The court will not overturn

findings of fact based simply on an alternative explanation or version of the facts

previously rejected by the hearing officer or Board.Id. When evaluating alternative

explanations, the court will give great weight to the hearing officer's credibility

determinations. Id. at 330. The hearing officer is permitted to draw reasonable

inferences from the evidence and disregard unreasonable alternative explanations.

Cohen, 149 Wn.2d at 333.

       Jones did not adequately brief his challenges to the findings of fact, and

therefore, we uphold the hearing officer's findings. If an attorney does not

sufficiently brief his challenges to the findings of fact and the record, the court will

affirm those findings adopted by the Board. In re Disciplinary Proceeding Against

Burtch, 162 Wn.2d 873, 895-96, 175 P.3d 1070 (2008). In Burtch, the court refused

                                              17
In re Disciplinary Proceeding Against Jones, No. 201,256-6


to consider the attorney's challenge to the findings of fact without separate

arguments explaining why each finding was incorrect. !d. at 895.

       Jones does not make separate arguments explaining why each factual finding

is incorrect. Instead, Jones makes a blanket challenge to the findings and conclusions

against him. By assigning error to the hearing officer's findings of fact, without

arguing why specific factual findings are incorrect by citation to the record, Jones is

asking the court to uncover arguments from the record for his benefit. See Burtch,

162 Wn.2d at 896 (noting that the court is not required to "unearth arguments from

the record"). Where Jones does specifically challenge the findings of fact, he fails to

cite to the record to demonstrate that the factual findings are not supported by

substantial evidence. 13 Instead, he makes conclusory statements that the findings of

fact are incorrect and asserts arguments that the hearing officer and Board rejected.

Moreover, Jones' arguments challenging the hearing officer's findings of fact ask us

to   disregard the hearing           officer's reasonable inferences             and credibility

determinations. Since Jones has not demonstrated a clear reason for departure, the

findings of fact will not be disturbed.




        13
          Jones specifically challenges findings of fact 17, 30, 34, 39-41, 48-51, 53-56, 69, 73, 185-
192, 194. CP at 170-86. Jones' specific arguments will be addressed further in the discussion of
his challenge to the particular counts charged against him.
                                                 18
In re Disciplinary Proceeding Against Jones, No. 201,256-6


       1.     Count one: failure to comply with discovery requests

       The hearing officer's conclusion of law that Jones violated RPC 3 .4( c) and (d)

is adequately supported by findings of fact that demonstrate Jones did not comply or

falsely responded to discovery requests.

       RPC 3 .4( c) states that a lawyer shall not "knowingly disobey an obligation

under the rules of a tribunal except for an open refusal based on an assertion that no

valid obligation exists." RPC 3 .4( d) states that a lawyer shall not "in pretrial

procedure, make a frivolous discovery request or fail to make reasonably diligent

effort to comply with a legally proper discovery request by an opposing party."

Based on the record, the hearing officer concluded that Jones violated the above

rules by knowingly providing false answers in response to discovery requests and

intentionally withholding requested documents in order to conceal his false answers.

       The hearing officer found that Jeffrey and Peter made valid discovery requests

and that Jones falsely responded or failed to respond to such requests. These findings

are supported by substantial evidence in the record. Review of the record

demonstrates that Jeffrey and Peter requested documents to show that Jones had

personally paid the utility bills for the house. Jones falsely responded that he

personally paid $4,084.25 for all utilities and did not provide further documentary

evidence of payment. In fact, he paid the utilities out of the estate and planned to

reduce his distributive share by the amount paid.


                                              19
In re Disciplinary Proceeding Against Jones, No. 201,256-6


       Jones did not produce the check register requested by his brothers because he

did not want Peter to receive it. Jones claims that a reasonable reading of the

discovery request demonstrates that Jeffrey and Peter dropped their interest in the

check register. However, the hearing officer found that the request clearly

encompassed the estate checkbook and the estate check register. Even if Peter and

Jeffrey could have received the information in the check register from the other

documents produced by Jones, this does not relieve Jones of his responsibility to

produce it because the document requests clearly asked for all documents related to

estate expenses.

       In addition to argumg that he complied with discovery requests, Jones

challenges the hearing officer's conclusion that he violated RPC 3.4(c) based on the

open refusal exception in the rule. This exception provides that a lawyer can openly

refuse to comply with a production request by asserting "that no valid obligation

exists." RPC 3.4(c). According to Jones, he openly refused in his answers to the

interrogatories by asserting that documents already produced contained the

information sought.

       Jones claims that the WSBA did not provide sufficient evidence and legal

authority to overcome Jones' affirmative open refusal defense. According to Jones,

the open refusal exception is an affirmative statutory defense and as such the WSBA

has the burden to produce evidence to overcome it. Jones asserts that we look at how


                                              20
In re Disciplinary Proceeding Against Jones, No. 201,256-6


the burden of proof is allocated in a criminal case. However, an attorney disciplinary

case is not civil or criminal in nature. Burtch, 162 Wn.2d at 892.

       We need not decide how the burden is allocated since Jones did not openly

refuse based on lack of a valid obligation to produce the requested documents.

Instead, the hearing officer found that Jones provided false information and chose

not to provide the requested documentation in his possession. Jones responded to the

interrogatories with one word responses like "None," "NA," and "Attached," but

nowhere did he openly challenge the validity of a particular request. Ex. A-24A at

4-6. The WSBA correctly argues that absent such an assertion, the open refusal

exception does not apply. The hearing officer appropriately concluded that Jones

violated RPC 3.4(c) and (d).

       2.      Counts two and three: frivolous motions and appeals

       Sufficient factual findings support the hearing officer's conclusion oflaw that

Jones violated RPC 3.1 and RPC 8.4(d) by filing frivolous motions (count two) and

frivolous appeals (count three). RPC 3.1 states, in relevant part, that "[a] lawyer

shall not bring or defend a proceeding, or assert or controvert an issue therein, unless

there is a basis in law and fact for doing so that is not frivolous, which includes a

good faith argument for an extension, modification or reversal of existing law." RPC

8.4(d) states that it is misconduct for a lawyer to "engage in conduct that is

prejudicial to the administration of justice."

                                              21
In re Disciplinary Proceeding Against Jones, No. 201,256-6


       The hearing officer concluded that Jones violated the above rules by engaging

in a series of knowingly frivolous motions with the clear purpose and intent to harm

his brothers by forcing them to pursue and fund further litigation. This conduct

frustrated the administration of justice by consuming substantial amounts of judicial

resources.

       Jones argues that the hearing officer did not have sufficient legal or factual

basis for finding that the motions and appeals were frivolous. According to Jones,

the WSBA did not meet its burden of proof and the hearing officer incorrectly relied

on the opinions of the superior court, the Court of Appeals, and the Supreme Court.

Jones asserts that such opinions were incorrectly admitted to show that Jones' filings

were frivolous and that the hearing officer should have made independent findings.

       As the WSBA asserts, Jones' argument misstates the law. The court in Sanai

found that findings from civil litigation cannot be the sole basis for establishing facts

at a disciplinary hearing but that such findings can be considered along with other

firsthand evidence in the record. 177 Wn.2d at 769. In Sanai, the court upheld the

hearing officer's finding that the attorney filed frivolous motions because the finding

was based both on judicial rulings and on facts established in the record. !d. The

sanctions issued by previous courts could be used by the hearing officer to conclude

that the attorney was on notice of the frivolous nature of his motions. !d. The Sanai

court noted that the hearing officer heard the testimony of several witnesses,

                                              22
In re Disciplinary Proceeding Against Jones, No. 201,256-6


resulting in many volumes of transcripts, and as such there was sufficient

independent evidence to support each finding. Id.

       In this case, the hearing officer reasonably concluded from the evidence

presented at the hearing that Jones filed frivolous motions and appeals that harmed

his brothers and the administration of justice. Jones filed numerous motions and

appeals in the trial court, the Court of Appeals, and this court. Each motion was

denied, and sanctions were awarded against Jones. Because Jones received

sanctions, the hearing officer reasonably concluded that Jones was put on notice of

the frivolous nature of his motions before refiling and appealing them. Like in Sanai,

the hearing officer did not rely solely on a particular judicial ruling, but rather used

judicial decisions as evidence that Jones filed repetitive frivolous motions that

resulted in sanctions. The hearing officer's conclusions were additionally supported

by the testimony of six witnesses, resulting in over 1,500 pages of transcripts, as

well as nearly 200 exhibits.

       Jones also argues that the WSBA must prove he was not acting in good faith

when he filed his motions and appeals. According to Jones, RPC 3.1 creates a good

faith affirmative defense to its violation and, as such, the WSBA needed to make an

affirmative showing that he was not acting in good faith. Jones relies on the

comments to RPC 3.1. Specifically, RPC 3.1 cmt. 2 states, "The action is frivolous,

however, if the lawyer is unable either to make a good faith argument on the merits

                                              23
In re Disciplinary Proceeding Against Jones, No. 201,256-6


of the action taken or to support the action taken by a good faith argument for an

extension, modification or reversal of existing law." According to Jones, cmt. 2

demonstrates that the lawyer's state of mind is paramount and that so long as the

lawyer believed he was making a good faith argument, the motion cannot be

frivolous.

       A frivolous position is one that a lawyer of ordinary competence would

recognize as lacking in merit. RESTATEMENT (THIRD) OF THE LAW GOVERNING

LA WYERS     § 110 cmt. d (2000). As such, an argument will be frivolous, or not made

in good faith, if a competent lawyer would recognize that such an argument was

devoid of merit.

       Jones' motions were not good faith attempts to change the law. Based on the

evidence presented at the hearing, the hearing officer found that Jones' motions were

relentless attempts to relitigate his removal as PR and the values of the house and

piano with the intent to delay proceedings and harass his brothers by running up their

legal fees. Since motivation is difficult to prove, the hearing officer will generally

rely on circumstantial evidence. Cohen, 149 Wn.2d at 332. In making a conclusion

regarding motivation, the hearing officer can find that circumstantial evidence is just

as good as direct evidence. See In re Disciplinary Proceeding Against Starczewski,

177 Wn.2d 771, 789, 306 P.3d 905 (2013). Mental state findings are given great




                                              24
In re Disciplinary Proceeding Against Jones, No. 201,256-6


weight on review. In re Disciplinary Proceeding Against Longacre, 155 Wn.2d 723,

744, 122 P.3d 710 (2005).

       There is ample circumstantial evidence to demonstrate Jones' motivation.

This evidence includes the amount of motions, each motion's denial as frivolous,

and the fact that the imposition of sanctions and threat to be declared a vexatious

litigant did not deter Jones from filing additional motions.

              a)     Sufficient factual findings support the hearing officer's
                     conclusion that Jones' motions for disqualification of Judge
                     Baker and his motions for a neutral decision-maker were
                     frivolous

       We give great weight to the hearing officer's finding regarding the veracity of

witnesses. Sanai, 177 Wn.2d at 760. The hearing officer found that Jones' assertions

regarding Judge Baker's bias were not credible.

       Jones did not raise the issue of bias until February 2005, four years after he

claimed he heard the allegedly biased comment made by Judge Baker and well after

the initial trial concluded. Jones did not bring any posttrial motions that could have

addressed the issue of Judge Baker's alleged bias. A litigant who proceeds to trial

knowing of potential bias by the trial court waives this objection on appeal. In re

Welfare of Carpenter, 21 Wn. App. 814, 820, 587 P.2d 588 (1978). The WSBA

argues that Jones waived the issue of Judge Baker's bias when he did not raise the

issue at trial and that his subsequent motions for disqualification were frivolous

attempts to delay the proceedings.
                                              25
In re Disciplinary Proceeding Against Jones, No.   201,256~6



       In response, Jones asserted that disqualification of a judge for personal or

actual bias cannot ever be waived by the parties. CJC 2.11(C) permits waiver of

disqualification if all parties are informed and agree, but such waiver is not allowed

for cases of personal or actual bias. Jones misreads CJC 2.11(C). This rule allows

for waiver of certain instances of bias, where such bias is disclosed to the parties,

and all agree to waive the issue. This type of waiver cannot occur if the judge's

potential bias is personal. However, this provision of CJC 2.11(C) does not mean

that if a litigant proceeds through trial without ever raising the issue of the judge's

bias, the issue remains open for challenge after a case is fully litigated. Because

Jones never asserted bias during litigation and Judge Baker denied each of Jones'

disqualification motions, it was reasonable for the hearing officer to conclude that

Jones' series of motions for disqualification were frivolous.

               b)     Sufficient factual findings support the hearing officer's
                      conclusion that Jones' appeals and motions for relief from
                      judgment, appraisal, and final accounting were frivolous

       Jones asserts that his motions for relief from judgment, appraisal, and final

accounting were made in good faith and not frivolous on the basis that case law and

RCW 11.44.035 allowed him to assert that the values ofthe estate property could be

modified.

       Jones relies on In re Estate of Million, 18 Wn.2d 824, 140 P.2d 560 (1943),

to argue that he could continue to seek revaluation of the house and piano at any

                                              26
In re Disciplinary Proceeding Against Jones, No. 201,256-6


time up to the final closure of the estate. According to Jones, the court's holding in

Million allowed him to make a nonfrivolous argument for the review of the house's

and piano's values. In Million, this court found that interim reports and orders may

be modified on final accounting. Id. at 833.

        However, Jones' argument disregards our holding and reasoning in Jones. In

Jones, we held that Jones could not challenge the interim value of the piano. Jones,

152 Wn.2d at 15-16. In our reasoning we relied on In re Estate of Peterson, 12

Wn.2d 686, 716, 123 P.2d 733 (1942), which found that interested parties without

notice of interim orders have a right to pose objections and demand reexamination

of interim values upon final accounting of an estate because interim orders are

informal in nature. We held that modification of interim orders discussed in both

Peterson and Million is allowed to ensure fairness to those parties without notice of

interim orders. Jones, 152 Wn.2d at 16. Since Jones was not a party without notice

of the interim value of the estate assets and his reevaluation of the piano was

questionable and demonstrated unfaithfulness to the estate, this court found that

Jones could not seek modification of the piano's value. Id.

       Jones argues that the issues of valuation were not before us in 2004 and

therefore not fully litigated. However, Jones' arguments are without merit because

he had a full and fair opportunity to present appraisals and litigate these issues in

2001. Jones, 2007 WL 2452725, at *4. At trial in 2001, Jones did not present any

                                              27
In re Disciplinary Proceeding Against Jones, No. 201,256-6


evidence regarding the appraisals of estate property. We expressly affirmed the

superior court's 2001 valuation of the estate assets, as well as its decision to remove

Jones as PR. Jones, 152 Wn.2d at 13.

       As additional support for his motions, Jones argues that RCW 11.44.035

provided a basis for him to seek revaluation until the final estate accounting.

However, RCW 11.44.035 creates an action for interested parties against aPR. This

was the action brought by Peter and Jeffrey when they sued to have Jones removed

as PR. Jones, 2007 WL 2452725, at *4. This case was litigated and affirmed by this

court, and as such the doctrine of res judicata precluded further review. Based on the

above, there was sufficient evidence in the record for the hearing officer to conclude

that Jones' continued motions for reappraisal, relief from judgment, and final

accounting were frivolous.

       The hearing officer also found that Jones' appeals of Judge Baker's orders to

the Court of Appeals and this court were without factual and legal justification and

therefore frivolous. Jones argues that the hearing officer erred in concluding the

appeals were frivolous because Jones' actual pleadings and arguments were not

admitted into evidence at the hearing. H According to Jones, there must be an



        14
         In addition, Jones argues that exhibit A-195, his petition for review to the Supreme Court,
cannot be relied on by the hearing officer because it was not identified by the WSBA before the
hearing. However, Jones had sufficient notice that exhibit A-195 was at issue, and the exhibit was
admitted into evidence without objection. Therefore, the hearing officer was correct in admitting
the pleading for consideration.
                                                28
In re Disciplinary Proceeding Against Jones, No. 201,256-6


independent basis for the conclusion that his appeals were frivolous and that such

conclusion cannot be based on previous judicial decisions. As mentioned above, in

Sanai we held that the hearing officer can look to the decisions entered by the courts

so long as this is not the only basis for the conclusions. 177 Wn.2d at 769. In reaching

the conclusion that the motions were frivolous, the hearing officer considered

testimony during the hearing as well as exhibits such as Jones' actual pleadings and

affidavits.

       In his appeals and motions for reconsideration Jones made similar arguments

to those made in the previous motions. As discussed above, there is substantial

evidence to support the finding that those motions were frivolous. The WSBA argues

that the appeal of a frivolous motion is frivolous. This statement is overly broad

because one should have an opportunity to appeal the initial finding that a motion is

frivolous.

       Here, there were sufficient findings to support the hearing officer's conclusion

that Jones engaged in a series of frivolous appeals. After Division Three upheld

Judge Baker's orders by finding that Jones' motions were devoid oflegal and factual

justification, Jones' subsequent petition for review to this court and appeal to

Division Three in 2011 were frivolous because Jones had sufficient notice that the

arguments in his motions were devoid of merit. The hearing officer found that such

appeals were motivated by Jones' desire to delay the probate proceedings.

                                              29
In re Disciplinary Proceeding Against Jones, No. 201,256-6


       3.     Count four: misrepresenting the value of the house and piano

       The hearing officer found that Jones made knowing misrepresentations to his

brothers and to the court as to the value ofthe house and the value of the piano in an

intentionally dishonest and deceitful scheme to defraud his cobeneficiaries. This

conclusion was adequately supported by the findings of fact. RPC 8.4( c) and (d)

state, "It is professional misconduct for a lawyer to: . . . (c) engage in conduct

involving dishonesty, fraud, deceit or misrepresentation; [or] (d) engage in conduct

that is prejudicial to the administration of justice." The intent of RPC 8.4( c) is to

protect the public from lawyers who manifest dishonesty, fraud, deceit, or

misrepresentation. In re Disciplinary Proceeding Against Cramer, 168 Wn.2d 220,

232, 225 P.3d 881 (2010).

       Jones sent Judge Clarke, the mediator of the estate accounting dispute, a

distribution of the estate assets. Mediation was the first time that Peter and Jeffrey

became aware that the house, valued at $125,866.27, was distributed to Jones and

that the piano was worth $14,950.00. The document was an attempt by Jones to show

that the distributions he made as PR of the estate were equal, when actually his

valuations benefited him disproportionately as an heir.

       Jones' intentional misrepresentation of the value of the estate assets was

further evidenced by his refusal to produce the appraisals previously requested by

Jeffrey and Peter's attorney. By refusing to produce the appraisals, the hearing

                                              30
In re Disciplinary Proceeding Against Jones, No. 201,256-6


officer found that Jones was attempting to conceal estate information from his

brothers. Jones' assertion that he showed the appraisal to Jeffrey and Peter's attorney

lacked credibility according to the findings of the hearing officer.

       Jones generally asserts the changes he made were not deceitful. Changing the

value of the piano and the house, according to Jones, was a change of opinion rather

than an attempt to be secretive or vindictive when administering the estate.

Additionally, Jones seems to assert that he could change the values at any time

because they were not an accounting to a court as PR. However, nothing in RPC

8.4(c) or (d) states or indicates that the misrepresentation must be to a court. RPC

8.4(c) prohibits a lawyer from engaging in any conduct that involves dishonesty or

misrepresentation.

       Jones specifically contests the hearing officer's finding that he retroactively

increased the value of the piano to get back at Jeffrey for joining Peter's lawsuit

challenging Jones' administration of the estate. The hearing officer is in the best

position to determine the lawyer's state of mind, and as such the court will provide

his or her findings great weight. In re Disciplinary Proceeding Against Conteh, 17 5

Wn.2d 134, 148, 284 P.3d 724 (2012). A hearing officer is permitted to draw

reasonable inferences from the evidence. Cohen, 149 Wn.2d at 333.

       The hearing officer's finding that Jones' purpose in retroactively changing the

value of the piano was to get back at Jeffrey for joining Peter's lawsuit was supported

                                              31
In re Disciplinary Proceeding Against Jones, No. 201,256-6


by substantial evidence in the record. This evidence includes exhibits that

demonstrate Jones originally valued the piano at $5,000, and it was not until after

Jones was contacted by Jeffrey and Peter's attorney that he found it necessary to

reappraise the piano. No one saw and reappraised the piano. Jones changed its value

in documents submitted in mediation. Such evidence creates a reasonable inference

that Jones changed the value in retaliation for Jeffrey's participation in the lawsuit.

The conclusion that Jones violated RPC 8.4(c) and (d) is sufficiently supported by

the findings of fact.

B.     The hearing officer and the Board correctly concluded that disbarment is the
       presumptive sanction for Jones' conduct

       The hearing officer recommended and a unanimous Board concluded that

Jones should be disbarred and that future reinstatement should be contingent on full

payment of unsatisfied judgments entered against him. Although this court is not

bound by the Board's recommended sanction, it recognizes the Board's "'unique

experience and perspective in the administration of sanctions"' and gives its

recommendation considerable weight. Conteh, 175 Wn.2d at 143 (internal quotation

marks omitted) (quoting In re Disciplinary Proceeding Against Dann, 136 Wn.2d

67, 84, 960 P.2d 416 (1998)). The court reviews sanctions de novo but will uphold

a unanimous recommendation by the Board unless there is a clear reason for

departure. Sanai, 177 Wn.2d at 760.



                                              32
In re Disciplinary Proceeding Against Jones, No. 201,256-6


       The court applies the ABA Standards in all lawyer discipline cases. In re

Disciplinary Proceeding Against Halverson, 140 Wn.2d 475, 492, 998 P.2d 833

(2000). Arriving at the correct sanction using the ABA Standards requires a two-

step process. Dann, 136 Wn.2d at 77. First, the presumptive sanction is determined

by considering (1) the ethical duty violated, (2) the lawyer's mental state, and (3) the

extent of the actual or potential harm caused by the misconduct.Jd. The next step is

to consider the application of any mitigating or aggravating factors that could alter

the presumptive sanction.Jd.

       The presumptive sanction for Jones' misconduct is disbarment. The hearing

officer found that Jones acted knowingly and intentionally to violate a court order or

rule. Jones made knowingly false responses to requests for discovery. The record

demonstrates that Jones knowingly concealed information and records from Peter

and Jeffrey. The hearing officer found that Jones' conduct caused injury to Peter and

Jeffrey and interfered with legal proceedings. Peter and Jeffrey, as well as the estate,

were harmed by Jones' frivolous appeals because they incurred additional attorney

fees and it delayed Jones' ejectment from the house, resulting in lost opportunity to

sell the home at a higher price. The hearing officer correctly applied ABA Standards




                                              33
In re Disciplinary Proceeding Against Jones, No. 201,256-6


std. 6.21 15 to Jones' conduct charged in counts one through three and ABA

Standards std. 5.1l(b) 16 to the conduct charged in count four.

       Jones generally contests the hearing officer's findings regarding the relevant

ABA standard to apply. His contest is not specific to the ABA Standards, but rather

is a general assertion that he did not commit misconduct. As discussed above, there

was substantial evidence in the record to support the hearing officer's finding that

Jones committed misconduct. As there is no clear reason for departure, we adopt the

hearing officer's conclusion that the presumptive sanction for all counts is

disbarment.

       1.     The hearing officer properly applied the relevant aggravating and
              mitigating factors

       Seven aggravating factors and one mitigating factor apply. The aggravating

factors include dishonest or selfish motive, pattern of misconduct, multiple offenses,

bad faith obstruction of the disciplinary process by intentionally failing to comply

with rules or orders of the disciplinary agency, refusal to acknowledge the wrongful

nature of conduct, substantial experience in the practice of law, and indifference to

making restitution. ABA STANDARDS std. 9.2. The mitigating factor is absence of


        15
          "Disbarment is generally appropriate when a lawyer knowing violates a court order or
rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or
potentially serious injury to a party, or causes serious or potentially serious interference with a
legal proceeding." ABA STANDARDS std. 6.21.
        16
           "Disbarment is generally appropriate when: ... (b) a lawyer engages in any other
intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously
adversely reflects on the lawyer's fitness to practice." ABA STANDARDS std. 5.11(b).
                                                34
In re Disciplinary Proceeding Against Jones, No. 201,256-6


prior disciplinary record.     ABA    STANDARDS      std. 9.3. Jones did not contest the

mitigating factor or the aggravating factor of substantial experience in the practice

of law.

               a)    Dishonest or selfish motive

       Jones asserts that the record does not support that he acted from dishonest or

selfish motive. However, as discussed above, there was substantial evidence to

support the hearing officer's finding that Jones acted with dishonesty to retaliate

against his brothers. The hearing officer is in the best position to determine the

lawyer's state of mind, and as such the court will provide his or her findings great

weight. Conteh, 175 Wn.2d at 148. Jones argues that he had the right to seek his

lawsuit and to appeal and thus his motions were not frivolous. As explained above,

Jones had the opportunity to fully litigate and appeal the issues discussed in his

motions. There is substantial evidence to support the finding that any attempt to

litigate the issues further was selfishly motivated. Therefore, the hearing officer

correctly determined that Jones' actions justify the application of the dishonest and

selfish motive aggravating factor.

                b)    Pattern of misconduct

          We uphold the hearing officer's finding that Jones engaged in a pattern of

misconduct. "Where a series of acts of misconduct are alleged in one complaint, and

when an attorney is sanctioned multiple times for similar misconduct, such

                                              35
In re Disciplinary Proceeding Against Jones, No. 201,256-6


misconduct constitutes a pattern." In re Disciplinary Proceeding Against Kamb, 177

Wn.2d 851, 867, 305 P.3d 1091 (2013).

       Jones asserts that it was error to apply the aggravating factor of pattern of

misconduct because he did not engage in misconduct. However, Jones violated

various RPCs. In addition to the misconduct charged in the WSBA' s formal

complaint, Jones was sanctioned by courts for filing several frivolous pleadings. The

pattern of misconduct aggravating factor was correctly applied.

              c)      Multiple offenses

       The multiple offenses aggravating factor applies where a lawyer faces

multiple counts of violating the RPC. Starczewski, 177 Wn.2d at 792. Jones asserts

that he did not commit a violation and thus the aggravating factor of multiple

offenses cannot apply in his case. However, Jones was charged and sanctioned for

violating multiple RPCs. Therefore, the hearing officer was correct to apply the

multiple offenses aggravating factor.

               d)     Bad faith obstruction of the disciplinary process by intentionally
                      failing to comply with rules or orders of the disciplinary agency

       The hearing officer found that Jones served a frivolous lawsuit on Peter, who

was named the WSBA's witness, three weeks before the hearing in an attempt to

intimidate Peter or chill his testimony. The hearing officer is permitted to draw

reasonable inferences from the evidence presented. Cohen, 149 Wn.2d at 332-33.



                                              36
In re Disciplinary Proceeding Against Jones, No. 201,256-6


The hearing officer can find that circumstantial evidence is just as good as direct

evidence. Starczewski, 177 Wn.2d at 789.

        In May 2012 the WSBA filed a witness list naming Peter and Jeffrey as

witnesses. Then in August 2012 Jones served a new lawsuit on Peter that named both

Peter and Jeffrey as defendants. The lawsuit filed by Jones asked once again for

relief from the 2001 judgment and reasserted arguments that Jones had been

sanctioned for many times. The hearing officer found that the sole purpose of the

lawsuit was to intimidate Peter as he prepared to testify and such conduct was

completed in bad faith to obstruct the disciplinary process.

        Jones argues that the record does not support such a finding. Jones does not

cite to specific parts of the record to provide evidence that conflicts with the hearing

officer's findings. Rather, he asserts that he filed the motions in good faith because

he believed that he had not obtained a final ruling on whether the case remained

open.

        Nonetheless, the evidence in the record provides a reasonable basis for the

hearing officer to infer that Jones' purpose in serving Peter with a new lawsuit

rehashing the issues decided in the 2001 trial was to intimidate Peter. As noted

above, Division Three held that the issues in Jones' motions were res judicata based

on this court's 2004 decision. Jones, 2007 WL 2452725, at *4.




                                              37
In re Disciplinary Proceeding Against Jones, No. 201,256-6


       The hearing officer concluded that this aggravating factor should also apply

to Jones' refusal to answer questions about his attempts to avoid payment of

judgments and sanctions. The hearing officer found that such refusal was in bad faith

and made to obstruct the disciplinary process. In addition, Jones refused to answer

questions about the extent of his assets even after the hearing officer ordered him to

do so. The hearing officer correctly applied the aggravating factor of bad faith

obstruction of the disciplinary process.

              e)     Refusal to acknowledge the wrongful nature of conduct

       Refusal to acknowledge the wrongful nature of conduct aggravating factor is

appropriately applied 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 Jackson, 180 Wn.2d 201,237,322 P.3d

795 (2014). It is also appropriate where the lawyer is unrepentant and continues to

justify his actions despite abundant contrary evidence or where the lawyer excuses

the violation as merely technical. !d.

       Jones argues that the record does not support refusal to acknowledge because

he is not required to agree with the charges made or to confess. However, the

aggravating factor of refusal to acknowledge the wrongful nature of conduct was

correctly applied. Jones continued to file motions, lawsuits, and appeals even after

being sanctioned numerous times for the frivolous nature of such filings. By

                                              38
In re Disciplinary Proceeding Against Jones, No. 201,256-6


receiving sanctions, Jones was aware of his RPC violations but persisted with his

conduct. Jones' testimony indicates that he planned to continue this pattern of filings.

During the hearing, Jones stated that he would continue to litigate the issues until a

judge "honestly consider[ s] the merits, and not listen to the same stuff about res

judicata and law of the case." 8 Tr. of Hr'g at 1472. The hearing officer found

sanctions had no deterrent effect on Jones.

              f)     Indifference to making restitution

       Jones asserts that the record does not support the application of indifference

to restitution as an aggravating factor. According to Jones there is no law that states

that sanctions are the same as restitution.

       "Restitution" is defined, among other things, as "[ c]ompensation for loss."

BLACK'S LAW DICTIONARY 1507 (lOth ed. 2014). By the time of Jones' disciplinary

hearing, he had accumulated sanctions in the amount of$138,881.68. Some ofthis

was paid out of the estate, but by the time of the hearing, Jones still owed Peter and

Jeffrey $123,901.93. The findings of fact indicate that Jones avoided paying

sanctions and avoided answering questions about the lack of payment. The WSBA

asserts that the sanctions were imposed to compensate Jeffrey and Peter for the

financial costs imposed on them by Jones' frivolous litigation from 2004-2012. As

such, it would be reasonable to consider the sanctions as restitution. There was

substantial evidence to show that Jones avoided the payment of sanctions, hid his

                                              39
In re Disciplinary Proceeding Against Jones, No. 201,256-6


assets, and violated court orders. Thus, the indifference to restitution aggravating

factor applies to Jones.

                                  V.     CONCLUSION

       We find that the challenged findings of fact are supported by substantial

evidence and the challenged conclusions of law are adequately supported by the

factual findings. Jones knowingly and with a dishonest intent violated RPC 3.1,

3.4(c) and (d), and 8.4(c) and (d). His conduct caused actual injury to his brothers,

Woodward, and the administration of justice. The Board, by a unanimous vote,

upheld the hearing officer's conclusion that the presumptive sanction for such

conduct under the ABA Standards is disbarment. We adopt the Board's

recommendation and order Russell Kenneth Jones disbarred from the practice of

law.




                                              40
In re Disciplinary Proceeding Against Jones, No. 201,256-6




WE CONCUR:




                       /

~~~                                                -+---+--' ~-·
                                                               -




                                              41
