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                                                     SUSAN L. CARLSON
                                                   SUPREME COURT CLERK




  IN THE SUPREME COURT OF THE STATE OF WASHINGTON



  In the Matter ofthe Disciplinary              No. 201,706-1
  Proceeding Against
                                                EN BANC
  RUSSELL JAMES JENSEN, JR.,
                                                Filed            29
                 an Attorney at Law.


          FAIRHURST, C.J.—This attorney disciplinary action arises out of Russell

  James Jensen Jr.'s conduct during his own divorce proceedings. Jensen repeatedly

  violated court orders, engaged in frivolous litigation, made misrepresentations to the

  court, and made threatening and harassing contacts with parties that he knew to be

 represented by counsel. He also refuses to accept responsibility for his misconduct.

 He acknowledges that the protracted litigation has harmed his wife but seems unable

 to recognize that his own actions were the source of her injuries. Nor did he see fit

 to show up to his own disciplinary hearing.

         Following testimony from his wife, her brother, and her attorney, the

  Washington State Bar Association (WSBA) hearing officer found that Jensen

  violated the Rules of Professional Conduct(RPC) and recommended disbarment.
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



The WSBA Disciplinary Board (Board) unanimously adopted the hearing officer's

recommendation. We adopt the Board's recommendation and disbar Jensen from the

practice oflaw.

                      I. FACTS AND PROCEDURAL HISTORY

A. Factual background

       Jensen was admitted to practice law in Washington on October 27, 2008. On

August 15, 2013, Jensen's wife, Therese Jensen,' filed for dissolution of marriage in

Snohomish County Superior Court. Therese and Jensen owned their family home in

Mukilteo. Therese has severe multiple sclerosis and was dependent on Jensen for

care. After filing for dissolution, Therese moved to Nebraska.

    1. The Mukilteo house

       On December 24, 2013, the superior court entered an order granting Therese

control and authority to list the Mukilteo house for sale. Therese contacted listing

agent Leanne Finlay to help sell the Mukilteo house. In January 2014, Jensen placed

a "for sale by owner" sign on the front lawn. He reflised Finlay's request to remove

his sign. When workers later came to install Finlay's "for sale" sign, Jensen became

irate and tore the post out of the ground. Jensen also placed a Post-it Note on the

front door of the Mukilteo house, stating, "Buyer Beware Title is unlikely to be




      'We use Therese Jensen's first name in this opinion for clarity and intend no disrespect.
                                               2
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



cleared for A sale - call [Jensen's phone number]." Ex. A-208; Findings of Fact,

Conclusions of Law and Hr'g Officer's Recommendation (FFCL) 22. On January

22,2014, Jensen sent an e-mail to Finlay and to Therese's attorney telling them that

they could not sell the home.

       On February 10, 2014,the superior court found that Jensen had "obstruct[ed]

the listing and sale of the Mukilteo residence," and it ordered Jensen to "fully

cooperate with the sale ofthe Mukilteo residence up to [the] point ofsigning closing

document." Ex. A-220; FFCL 27. At the hearing, Jensen agreed to cooperate. On

February 11, 2014, Jensen filed a motion for revision in which he falsely stated that

he had "made no efforts of any kind" to obstruct Therese's efforts to list and show

the home. Ex. A-222; FFCL 28-29. On February 12, 2014, Finlay declared to the

superior court that Jensen's "for sale by owner" sign was still on the lawn.

       Therese received a written offer to buy the Mukilteo house. On February 14,

2014, Jensen phoned the buyer's agent. Jensen told the agent that he intended to

block the sale by refusing to sign the sale documents. Jensen then offered to sign the

documents ifthe buyer agreed to pay Jensen an extra $50,000 outside ofthe sale and

escrow process. Jensen instructed the agent not to tell anyone about his offer. The

agent declined his offer.

       On February 20,2014,the superior court denied Jensen's motion for revision.

On March 7, 2014, the superior court entered an order (1) approving the pending
                                              3
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



sale of the house,(2) ordering Jensen to "execute any and all necessary documents

to effectuate the closing of the sale," (3) authorizing Therese to sell the home

unilaterally if Jensen refused to sign documents, and(4)ordering Jensen to "remove

himself and his personal belongings" from the house. Ex. A-235; FFCL 38. Jensen

filed another motion for revision. The superior court denied it and ordered Jensen to

vacate the premises. Jensen vacated the house.

       Jensen filed an emergency request with the Court of Appeals to stay the

superior court's order. Jensen and Therese filed multiple briefs; in addition to oral

argument, there were two emergency hearings. On April 17, 2014, the Court of

Appeals terminated review, finding that Jensen had consented to the sale and there

was no basis for discretionary review, and awarded Therese attorney fees. Jensen

still refused to sign the documents, and the buyer backed out of the sale. The stress

of these events exacerbated Therese's multiple sclerosis symptoms.

       A second buyer made an offer on the house. On May 14, 2014, Jensen signed

an agreement under CR 2A awarding the Mukilteo house to Therese and agreeing to

transfer real property to her without further litigation, delay, appeal, or clouding of

title. Jensen then conveyed the house to Therese by quitclaim deed but listed his

name incorrectly on the deed. Jensen refused the title company's request to correct

the deed and threatened to sue the title company. On June 30, 2014, the superior

court ordered Jensen to execute the closing documents by close ofthe business day.
                                              4
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



Jensen did not comply. On July 9, 2014, the superior court sanctioned Jensen for

failing to cooperate in the closing and for creating further litigation and delay.

       Therese eventually convinced a second title company to close the sale with

the existing quitclaim deed, but only after agreeing to indemnify it. Jensen then wrote

letters to the buyers and their mortgage company, claiming that the sale was void

and that he might still own the house.

       On September 23, 2014, the superior court entered a decree of dissolution.

Jensen then filed an appeal, asking the Court of Appeals to overturn all superior

court orders that led to the sale ofthe house,including the final decree. On December

1, 2014, the superior court entered a judgment in the amount of $19,290.55 against

Jensen for attorney fees and debts owed to Therese. As of the disciplinary hearing,

Jensen had not paid the judgment.

       On July 10, 2015, following a motion by Therese, the superior court entered

an order finding that Jensen had engaged in vexatious litigation against Therese and

requiring that Jensen post a $10,000 bond before filing further pleadings. Even at

oral argument, Jensen continued to argue that the superior court lacked authority to

compel the sale.

   2. The Savage property

       Prior to their marriage dissolution, the Jensens also jointly owned stock in

Apollo Land Company, whose sole asset was a parcel of real property in Savage,
                                              5
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



Minnesota. After vacating the Mukilteo house in spring 2014, Jensen moved to

Arden Hills, Minnesota. Jensen changed the mailing addresses filed with the state of

Minnesota regarding the Savage property so that real property tax notices for the

Savage property—including delinquency notices—^were sent to his Arden Hills

home.


       On May 9, 2014, the Savage property was sold to the state of Minnesota to

pay delinquent real property taxes. On May 14, 2014, the Jensens signed an

agreement under CR 2A,see supra at section I.A.I, that awarded the Apollo stock

to Jensen.


       On August 20,2014, Jensen registered the newly formed M.J. Scott Company

with the Minnesota secretary of state, listing himself as its registered agent. On

September 8, 2014, Jensen, through the M.J. Scott Company, repurchased the

Savage property for $500 or less.

       On September 19, 2014, Jensen filed a signed declaration with the superior

court, stating(1)that Therese had lost the Savage property by failing to pay property

taxes,(2)that this had rendered the Apollo stock awarded to him under the CR 2A

agreement worthless, and(3)that he was entitled to $150,000 compensation for that

loss. Jensen did not disclose that the delinquency notices were sent to his home

address (not Therese's) or that he had repurchased the Savage property for under

$500. Nor did Jensen disclose these facts at a September 23, 2014 hearing on the
                                              6
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



motion to which his declaration related. Instead, it was Therese's attorney who

informed the superior court ofthese facts after having discovered them herself. The

superior court denied Jensen compensation for the alleged loss of the Savage

property.

   3. Communication with represented parties (Therese and James Brown)

       The Jensens also owned other real property in Minnesota, some of it jointly

with Therese's brother, James Brown. Jensen, Therese, and Brown engaged in

litigation in Minnesota related to these properties. Therese and Brown were

represented in Minnesota by attorneys Stanford Hill and Daniel Olson; Therese was

represented in Washington by attorney Sabrina Layman.

       Jensen, while acting pro se, repeatedly wrote letters and e-mails to Therese

and Brown. These communications included threats—for example, that Brown

would go to jail and that if Jensen were disbarred, Therese's alimony would be

lowered. Jensen knew that Therese and Brown were represented because he copied

their attorneys on these communications. Jensen also harassed the attorneys, calling

Olson a "shill" and Layman "dirtball scum." Ex. A-508; FFCL 92. Layman, Hill,

and Olson all asked Jensen to stop communicating with their clients, and Brown

asked Jensen to stop communicating directly with him.
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



   4. Further litigation

       Jensen continued to litigate in Minnesota. On April 28, 2015, Minnesota's

Anoka County District Court granted Therese and Brown's motion for sanctions

against Jensen. The court found that Jensen had made misrepresentations of fact in

his pleadings and acted in a "vexatious and oppressive manner." Ex. A-601; FFCL

98. On June 2, 2015, it imposed $20,747.50 in sanctions against Jensen.

       On June 16, 2015,the district court ordered Jensen to stop contacting Therese

and Brown. On June 21, 2015, the district court found that Jensen had repeatedly

brought motions and pleadings in which he misrepresented facts and which had little

or no basis in law.


   5. Prior discipline

       Jensen has been previously disciplined in Minnesota, where he was admitted

to practice law in 1985, for misconduct similar to that at issue in this case. In 1991,

the Minnesota Supreme Court reprimanded Jensen for mishandling money held in

trust, disobeying a court order to return funds, violating procedural rules of appeal,

disobeying Court of Appeals orders, making ex parte communications with Court of

Appeals judges, and incompetently representing a client.

       In 1995, the Minnesota Supreme Court admonished Jensen for abusive

behavior toward someone who had filed an ethics complaint against him. In 1996,

the Minnesota Supreme Court suspended Jensen's law license indefinitely for
                                              8
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



asserting frivolous claims, making false statements to a tribunal, and disobeying

obligations under that tribunal's rules, and for conduct involving misrepresentations

and conduct prejudicial to the administration of justice. In 1999, Jensen was

reinstated to practice law in Minnesota.

B. Procedural history

       Based on the above conduct, the WSBA charged Jensen with six counts of

violating the RPCs. Jensen filed an answer, and the parties engaged in informal

discovery under ELC 10.11. Acting under EEC 10.11(d), the hearing officer denied

Jensen's request for additional formal discovery, including, inter alia, requests to

serve interrogatories on nonparties and requests to produce privileged information.

Jensen then informed the WSBA,"I will not attend the hearing," and, "I will save

my arguing for the appeal to the Supreme Court." Clerk's Papers(CP)at 034(e-mail

from Jensen to Erica Temple, WSBA Disciplinary Counsel(June 22,2016,2:45 PM

PDT)).

       Jensen did not attend his hearing. The hearing officer found that the WSBA

proved all six counts by a preponderance of the evidence. Applying the American

Bar Association's Standardsfor Imposing Lawyer Sanctions (1991 & Supp. 1992)

(ABA Standards), the hearing officer noted that the presumptive sanction was

disbarment. He found that no mitigating factors applied and that eight aggravating

factors applied:(1)prior disciplinary offenses,(2) dishonest or selfish motive,(3)a
                                              9
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



pattern of misconduct, (4) multiple offenses, (5) bad faith obstruction of the

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

the disciplinary agency,(6)refusal to acknowledge wrongful nature of conduct,(7)

vulnerability of victim, and (8) substantial experience in the practice of law. The

hearing officer recommended disbarment and further recommended that "[a]s a

condition of reinstatement from any suspension or disbarment, [Jensen] shall pay

any and all judgements owed by him to Therese Jensen, James Brown, and/or the

Therese Brown Jensen Trust." FFCL 138. The Board unanimously adopted the

recommendation.


                                      II. ANALYSIS


A. Jensen's conduct, as established in the unchallenged findings offact, supports the
   hearing officer's conclusion that Jensen violated the RPCs

    1. Standard ofreview

       '"Unchallenged findings of fact made by the hearing officer and affirmed by

the Disciplinary Board will be accepted as verities on appeal.'" In re Disciplinary

Proceeding Against Whitney, 155 Wn.2d 451,461, 120 P.3d 550(2005)(quoting/i?

re Disciplinary Proceeding Against Carmick, 146 Wn.2d 582, 594, 48 P.3d 311

(2002)).

       We uphold a "hearing officer's ultimate conclusion that misconduct occurred

... if it is supported by substantial evidence in the record that the lower court could


                                              10
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



reasonably have found would meet the clear preponderance standard." In re

Disciplinary Proceeding Against Marshall, 160 Wn.2d 317, 330, 157 P.3d 859

(2007). Evidence is substantial if it is "sufficient 'to persuade a fair-minded,rational

person of the truth of a declared premise.'" Id. (internal quotation marks omitted)

{quoting In re Disciplinary Proceeding Against Poole, 156 Wn.2d 196, 209n.2, 125

P.3d 954 (2006)). The clear preponderance standard "requires more proof than a

simple preponderance but less than beyond a reasonable doubt." In re Disciplinary

Proceeding Against Ahele, 184 Wn.2d 1, 13, 358 P.3d 371 (2015). We review

challenged conclusions oflaw de novo.Id.

   2. Count 1


       The hearing officer concluded that "[b]y failing to comply with court orders

regarding the sale of the Mukilteo home and obstructing the sale, [Jensen] violated

RPC 8.4(d) and RPC 8.4G)." FFCL 119. Under RPC 8.4(d), it is professional

misconduct for a lawyer to "engage in conduct that is prejudicial to the

administration of justice." Under RPC 8.4G), it is professional misconduct for a

lawyer to "willfully disobey or violate a court order directing him ... to do or cease

doing an act which he . . . ought in good faith to do or forbear."

       There is substantial evidence in the record for the hearing officer to reasonably

have found by a clear preponderance ofthe evidence that Jensen violated RPC 8.4(d)

and G)- First, the record supports a finding that Jensen violated the December 24,
                                              11
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



2013 order granting Therese, as part oftheir dissolution proceedings, sole authority

to list the Mukilteo house for sale. Jensen placed his own "for sale by owner" sign

on the property, refused to remove his sign, tore the "for sale" sign of Therese's

listing agent out of the ground, placed a note on the front door warning potential

buyers that the property was unlikely to have clear title, and e-mailed Therese's

attorney and her listing agent, telling them that they could not sell the house.

       Second, the record supports a finding that Jensen violated the February 10,

2014 court order directing Jensen to "fully cooperate" with the sale "up to [the] point

of signing closing document." Ex. A-220; FFCL 27. He continued to leave his "for

sale by owner" sign on the lawn. He also told the first prospective buyer's agent that

he intended to block the sale by refusing to sign the sale documents, unless the buyer

agreed to secretly pay Jensen $50,000 outside ofthe sale and escrow process.

       Third,the record supports a finding that Jensen violated the February 20,2014

court order directing Jensen to "execute any and all necessary documents to

effectuate the closing of the sale." FFCL 38; Ex. A-235. He continued to refuse to

sign sale documents, causing the first buyer to back out ofthe sale.

       Fourth, the record supports a finding that Jensen violated the June 30, 2014

order directing Jensen to sign the sale documents by the close of the business day.

Jensen never signed the sale documents. After Therese convinced a second title



                                              12
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



company to close without Jensen's signature, he wrote letters to the buyers and their

mortgage company claiming that the sale was void.

       Jensen argues that because these were interlocutory and not final orders, he

was not legally obligated to comply with them. Jensen cites no authority and offers

no argument to support this claim. We have held that when a party cites no authority,

we '"may assume that counsel, after diligent search, has found none.'" State v.

Young, 89 Wn.2d 613, 625, 574 P.2d 1171 (1978)(quoting DeHeer v. Seattle Post-

Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)). We have also held that

"[t]he Supreme Court will not consider an assignment of error where there is no

argument in the brief to support it, "unless it is apparent without further research

that the assignments of error presented are well taken." DeHeer, 60 Wn.2d at 126;

see also In re Disciplinary Proceeding Against Cottingham, 191 Wn.2d 450, 465

n.l, 423 P.3d 818 (2018)(applying Young and DeHeer in the attorney discipline

context). As the WSBA suggests, the notion that interlocutory court orders have no

legal effect is a "remarkable proposition." Answering Br. of Office of Disciplinary

Counsel of WSBA at 28. Because it is not immediately apparent that the argument

is well taken, we disregard it. For the same reason, we also disregard Jensen's

argument that RPC 8.4(d)(prohibiting conduct "prejudicial to the administration of

justice") is overbroad and "does not bear any review." Opening Br. of Appellant at

33 n.62.

                                             13
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



   3. Count 2


       The hearing officer concluded that "[b]y repeatedly filing frivolous and/or

vexatious motions and appeals relating to the sale of the Mukilteo home,[Jensen]

violated RFC 3.1 and RPC 8.4(d)." FFCL 120. RFC 3.1 prohibits attorneys from

asserting claims or issues in litigation "unless there is a basis in law and fact... that

is not frivolous, which includes a good faith argument for an extension, modification

or reversal of existing law." RFC 8.4(d) prohibits conduct "prejudicial to the

administration ofjustice."

       There is substantial evidence in the record for the hearing officer to reasonably

have found by a clear preponderance ofthe evidence that Jensen's litigation strategy

violated RFC 3.1 and 8.4(d). At several points, Jensen agreed to the sale of the

Mukilteo house. He failed to object to Therese's initial December 2013 motion

seeking '"control and authority'" to list their real property assets for sale. Ex. A-253

at 6. He wrote to Therese and her attorney in January 2014 that she could "go ahead

and sell the properties" and that he would not "get in the way." Ex. A-207. He also

represented to the superior court that he would "fully cooperate with the sale." Ex.

A-220. In this same period, he filed multiple motions with the superior court and an

appeal in the Court of Appeals, opposing the Mukilteo house sale. He has followed

a similar strategy with the Anoka County District Court. Both courts eventually

sanctioned Jensen for vexatious litigation.
                                              14
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



       Jensen argues that his actions were justified by a good faith argument that

under RCW 26.16.030 and RCW 6.13.060, courts lack the authority to give one

spouse the right to unilaterally sell the community-owned family home. His

continuing failure to acknowledge directly on-point contrary authorities, even after

courts have brought them to his attention, undercuts this argument. Regardless, the

hearing officer could reasonably have found that Jensen's repeated agreements to

sell the properties rendered his simultaneous challenges to their sale frivolous.

   4. Counts


       The hearing officer concluded that "[b]y requesting the $50,000 pay-offfrom

the first purchasers,[Jensen] violated RFC 8.4(c) and RFC 8.4(d)." FFCL 121. RFC

8.4(c) prohibits lawyers from "engag[ing] in conduct involving dishonesty, fraud,

deceit or misrepresentation." RFC 8.4(d) prohibits conduct "prejudicial to the

administration ofjustice." Based on the testimonial and documentary evidence that

Jensen demanded an illegal secret payoff, the hearing officer could reasonably

conclude that Jensen engaged in dishonesty, fraud, deceit or misrepresentation and

that his actions were prejudicial to the administration ofjustice. Jensen's argument

that he has "unlimited right to sell [his] property at public or private sale for any

price [he] want[s], without any restrictions," is without merit. Opening Br. of

Appellant at 41.



                                              15
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



   5. Counts 4 and 5

       The hearing officer concluded that by making false statements to the court

"about not obstructing the sale ofthe Mukilteo home"(count 4)and "about the sale

ofthe Savage property"(count 5), Jensen "violated RFC 3.3(a)(1) and RFC 8.4(c)."

FFCL 122-123. RFC 3.3(a)(1) prohibits lawyers from knowingly making or failing

to correct false statements of material fact or law to a tribunal. RFC 8.4(c) prohibits

lawyers from "engag[ing] in conduct involving dishonesty, fraud, deceit or

misrepresentation."

       There is substantial evidence in the record for the hearing officer to reasonably

have found by a clear preponderance of the evidence that Jensen made false

statements to both the superior court and the district court. The superior court entered

an order stating that Jensen "agreed with [the] court's request" that he not obstruct

the Mukilteo house sale, Ex. A-220, and Jensen stated in a subsequent motion that

he had "made no efforts of any kind" to obstruct the sale, Ex. A-222. Jensen argues

that these were statements of opinion, not fact, and thus do not fall under RFC

3.3(a)(1) and 8.4(c). But there is substantial evidence in the record to support the

hearing officer's finding that Jensen made false allegations of material fact to the

superior court. Frior to these statements, Jensen had placed his own "for sale by

owner" sign on the lawn, torn the listing agent's sign out of the ground, and placed

a "Buyer Beware" Fost-it Note on the door. After making these statements, Jensen
                                              16
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



left his sign on the lawn; called the first buyer's agent, threatening to block the sale;

and consistently refused to sign closing documents.

       With respect to the Anoka County District Court, the record indicates that

Jensen had already repurchased the Savage property for under $500 when he

declared to the court that he was entitled to its $150,000 value. Jensen also declared

to the court that Therese lost the Savage property by failing to pay its taxes. But the

evidence that the Savage property tax delinquency notices were sent to Jensen—

rather than Therese—supports the hearing officer's finding that Jensen's statement

was knowingly false.

   6. Count 6


       The hearing officer concluded that "[b]y contacting [Therese] and [Brown]

directly about the subject of litigation, even though he knew they were represented

by counsel,[Jensen] violated RFC 4.2." FFCL 124. Under RPC 4.2,"a lawyer shall

not communicate about the subject of the representation with a person the lawyer

knows to be represented by another lawyer in the matter," unless either the other

lawyer has consented or the lawyer is authorized to do so by law or a court order.

Although parties may ordinarily communicate directly with each other,RPC 4.2 cmt.

4, we have held that RPC 4.2 applies to lawyers acting pro se. In re Disciplinary

Proceeding Against Haley, 156 Wn.2d 324, 338, 126 P.3d 1262(2006).



                                              17
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



       Jensen admits violating RFC 4.2 but argues that his doing so was justified by

"extenuating circumstances." Opening Br. of Appellant at 46. As extenuating

circumstances, he recites a series of factual allegations not contained in the record,

blaming Brown for driving up litigation costs in the dissolution proceedings. Jensen

here challenges both a finding of fact (by arguing that the facts are other than the

WSBA asserts them to be) and a conclusion of law (by arguing that it is not

professional misconduct to violate RPC 4.2 if there are extenuating circumstances).

       We pay no heed to Jensen's factual allegations. "An attorney challenging

factual findings on appeal must do more than 'argu[e] his version of the facts while

ignoring testimony by other witnesses that supports each finding.'" In re

Disciplinary Proceeding Against Kronenberg, 155 Wn.2d 184, 191, 117 P.3d 1134

(2005) (alteration in original) (quoting In re Disciplinary Proceeding Against

Kagele, 149 Wn.2d 793, 814, 72 P.3d 1067 (2003)). He or she must "'present

argument to the court why specific findings offact are not supported by the evidence

and . . . cite to the record to support that argument.'" Id. (alteration in original)

(internal quotation marks omitted)(quoting In re Disciplinary Proceeding Against

Haskell, 136 Wn.2d 300, 311,962 P.2d 813 (1998)). Jensen does not challenge any

specific findings offact, and he does not cite to the record to support his own factual

claims. If Jensen wished to argue his version ofthe facts, the appropriate time to do

so was at his disciplinary hearing.
                                             18
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



         Moreover, Jensen's legal argument regarding RPC 4.2 is incorrect. To avoid

"reasonably certain injury," a lawyer may "seek a court order in exceptional

circumstances to authorize a communication that would otherwise be prohibited by

[RPC 4.2]." RPC 4.2 cmt. 6. If Jensen believed it was necessary to contact Therese

and Brown directly to avoid further depleting the Jensens' marital property, the

proper course of action under the RPCs was to seek a court order authorizing him to

do so.


         There is substantial evidence in the record for the hearing officer to reasonably

have found by a clear preponderance of the evidence that Jensen, acting pro se,

communicated with Therese and Brown about the Minnesota property litigation.

And the fact that he copied their attorneys on these communications shows that he

knew they were represented by counsel. The record does not show that the other

lawyers consented to the communications or that court orders authorized the

communications. To the contrary, Therese's and Brown's attorneys, and Brown

himself, asked Jensen to stop.

B. Jensen's violations of the RPCs, together with his prior disciplinary record,
   support the Board's recommendation of disbarment

         We use a three pronged analysis to review whether the Board, using the ABA

Standards, properly determined lawyer sanctions. Marshall, 160 Wn.2d at 342. First,

we determine whether the Board properly determined the presumptive sanction. Id.

                                              19
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



(citing    re Disciplinary Proceeding Against Cohen, 150 Wn.2d 744, 758, 82 P.3d

224 (2004)). Second, we consider aggravating and mitigating circumstances. Id.

Third, we determine whether the degree of unanimity among Board members and

the proportionality of the sanction justify departure from the Board's

recommendation. Id. (citing In re Disciplinary Proceeding Against Kuvara, 149

Wn.2d 237, 259, 66 P.3d 1057 (2003)). "This court will uphold a sanction

recommended by a unanimous Board 'in the absence of a clear reason for

departure.'" In re Disciplinary Proceeding Against Behrman, 165 Wn.2d 414, 422,

197 P.3d 1177 (2008)(quoting In re Disciplinary Proceeding Against Whitt, 149

Wn.2d 707, 717, 72 P.3d 173 (2003)).

       In this case the Board adopted the hearing officer's analysis, and the hearing

officer, applying ABA Standards stds. 8.1 and 6.1-6.3, properly determined the

presumptive sanctions. Under ABA Standards std. 8.1, "[djisbarment is generally

appropriate when a lawyer: . . . has been suspended for the same or similar

misconduct, and intentionally or knowingly engages in further acts of misconduct

that cause injury or potential injury to a client, the public, the legal system, or the

profession." Jensen has been suspended before in Minnesota for asserting frivolous

claims, making false statements to a tribunal, and disobeying obligations under that

tribunal's rules, and for conduct involving misrepresentations and conduct

prejudicial to the administration ofjustice. Jensen engaged in similar conduct in this
                                              20
In re Disciplinary Proceeding Against Jensen (Russell)
No. 201,706-1



case. Jensen's frivolous litigation caused Therese and Brown to incur hundreds of

thousands of dollars in legal fees and also wasted court resources, and his

misrepresentations to the public caused the first Mukilteo house buyer to back out

of the sale. Although Jensen's previous suspension occurred two decades ago,

"[t]his court. . . routinely considers similar misconduct dating back many years to

determine whether prior disciplinary offenses serve as an aggravating factor." In re

Disciplinary Proceeding Against VanDerbeek, 153 Wn.2d 64, 92, 101 P.3d 88

(2004).

       Under ABA Standards std. 6.11,"[d]isbarment is generally appropriate when

a lawyer, with the intent to deceive the court, makes a false statement . . . or

improperly withholds material information, and causes serious or potentially serious

injury to a party, or causes a significant or potentially significant adverse effect on

the legal proceeding." Jensen's repeated misrepresentations regarding the Mukilteo

house adversely affected the marriage dissolution proceedings. And his

misrepresentations and improper omissions to the superior court with respect to the

Savage property could have caused that tribunal to erroneously award him $150,000

for a piece of land that he allowed to go into tax delinquency and then repurchased

for under $500. Cf. In re Disciplinary Proceeding Against Christopher, 153 Wn.2d

669,680,105 P.3d 976(2005)("Christopher fully intended to perpetrate a fraudulent

scheme [against the court]. Had she succeeded, the court might have relied on [her
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No. 201,706-1



misrepresentations] in awarding the prevailing party attorney fees....[Tjhis caused

serious injury to the profession and to the judicial system. We hold that standard

6.11 applies.").

       Under ABA Standards std. 6.21,"[djisbarment is generally appropriate when

a lawyer knowingly violates a court order . . . with the intent to obtain a benefit for

the lawyer . . . and causes serious injury or potentially serious injury to a party, or

causes serious or potentially serious interference with a legal proceeding." Jensen

repeatedly violated superior court orders by interfering with the Mukilteo house sale.

He did so to obtain a financial benefit for himself, even going so far as to demand a

secret payoff. His efforts caused the first buyer to back out of the sale, thereby

causing potentially serious injury to Therese.

       While the hearing officer found that the presumptive sanction for

communicating with represented parties (count 6) was suspension, see ABA

Standards std. 6.32, he correctly noted our holding that when multiple ethical

violations are found,'"the ultimate sanction imposed should at least be consistent

with the sanction for the most serious instance of misconduct.'" In re Disciplinary

Proceeding Against Petersen, 120 Wn.2d 833, 854, 846 P.2d 1330(1993)(quoting

ABA Standards at 6). Thus, the hearing officer and the Board properly determined

that Jensen's presumptive sanction is disbarment.



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       Under MarshaWs second prong, we consider aggravating and mitigating

circumstances. The hearing officer properly found that eight aggravating factors

apply in Jensen's case: (1) prior disciplinary offenses, (2) dishonest or selfish

motive,(3) a pattern of misconduct,(4) multiple offenses,(5) bad faith obstruction

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

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

conduct,(7)vulnerability of victim, and (8)substantial experience in the practice of

law. Jensen was disciplined multiple times in Minnesota for similar conduct. His

repeated misrepresentations to the superior and district courts suggest a dishonest

motive. Because lawyers "given notice of [their] hearing must attend the hearing"

and failure to attend without good cause may itself be grounds for discipline, ELC

10.13(b), Jensen's willful failure to attend his hearing constitutes an intentional

failure to comply with the disciplinary agency's rules and orders. Therese, whose

already severe multiple sclerosis is (according to the uncontested factual record)

aggravated by the stress of Jensen's misconduct, is an especially vulnerable victim.

And Jensen, who was admitted to the Minnesota bar in 1985, has substantial

experience in the practice of law. Despite this experience, Jensen maintains that he

did nothing wrong and refuses to acknowledge his role in his wife's physical and

financial suffering.



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       Jensen's briefs do not address either of the first two prongs. Instead, his

argument appears to be that under the third prong, the presumptive sanctions are

disproportionate enough when applied to his conduct to justify departure from the

Board's recommendation. Under Behrman, Jensen must provide a clear reason for

departure from the Board's unanimous recommendation. 165 Wn.2d at 422. He

supports his disproportionality argument by briefly restating the reasons that he does

not believe his actions constitute violations of the RPCs. Because we hold that

Jensen did violate the RPCs, it follows that we reject his proposed reasons for

departing from the Board's unanimous recommendation. Moreover,"[t]he attorney

facing discipline bears the burden of bringing to the court's attention cases that

demonstrate the disproportionality of the sanction imposed." Cottingham, 191

Wn,2d at 470. Because Jensen offers no analogous cases and provides no clear

reason for departing from the Board's unanimous recommendation, he has failed to

meet his burden of proving that the sanction is disproportionate. We therefore adopt

the Board's proposed sanction of disbarment.

C. The disciplinary hearing did not violate Jensen's due process rights

       Jensen argues for the first time on appeal that the disciplinary hearing violated

his procedural due process rights. First, he alleges that the WSBA denied him access

to the original copy of his bar file. Second, he argues that the hearing officer

improperly denied discovery. Third, he argues that the hearing officer is so
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No. 201,706-1



underqualified that he was denied due process. Fourth,he argues that the disciplinary

procedure violates due process because the Board "retain[s] the power to overrule

the hearing officer." Opening Br. of Appellant at 7.

       We need not address Jensen's due process claims because he cites no authority

and offers no legal arguments to support them.See Young,89 Wn.2d at 625;DeHeer,

60 Wn.2d at 126; Cottingham, 191 Wn.2d at 465 n.l. We will nevertheless briefly

explain why each claim is without merit.

       Jensen's first claim—^that the WSBA denied him access to his bar file—is a

factual allegation with no basis in the record.^ The Board would not be permitted to

consider his allegation. ELC 11.12(b)("Evidence not presented to the hearing officer

cannot be considered by the Board."); see also ELC 11.5(d). Because our factual

record is limited to the record before the Board and the hearing officer, see ELC

12.5(b), Jensen cannot raise this claim for the first time here. The proper time for

Jensen to raise this factual issue was at the hearing, which he willfully failed to

attend.


       Jensen's second due process claim is that the hearing officer improperly

denied discovery. Discovery in disciplinary proceedings is mostly informal. See


       ^ Instead the record contains a declaration from the WSBA counsel, stating that the WSBA
provided Jensen with nonprivileged documents obtained during the course of its investigation and
that the WSBA public records officer confirmed with the WSBA counsel that as of April 8, 2016,
she had not received any requests from Jensen for information.
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ELC 10.11(a). Other than requests for admissions, the parties must file motions to

request formal discovery. ELC 10.11(b)-(c). ELC 10.11(d)grants the hearing officer

"broad discretion" to limit discovery. In re Disciplinary Proceeding Against

Scanned, 169 Wn.2d 723, 741-42, 239 P.3d 332 (2010) (holding that a hearing

officer who "largely denied" an attorney's discovery requests did not violate due

process).

       The bar file shows that Jensen wrote to the hearing officer requesting to serve

interrogatories and requests for production of documents on Therese's attorney

Layman and to serve interrogatories and requests for production of documents on

the WSBA. Layman is a nonparty. See ELC 10.1(b)(2). CR 33-34 allow

interrogatories and requests for production to be served only on parties. CR 33(a),

34(a). Even if the hearing officer were to use his discretionary authority under ELC

10.11(c)-(d) to grant Jensen the right to serve interrogatories and requests for

production under CR 33-34, Jensen could not serve them on Layman. In contrast,

the WSBA is a party. But Jensen requested privileged information from the WSBA,^

without any showing that he had substantial need and was unable without undue




       ^ For example, Jensen requested production of notes from disciplinary counsel's internal
communications, information related to any "consulting experts," confidential disciplinary
information about any lawyers who might be called as witnesses, and "any notes of any attorney-
client privileged or other confidential client information in [the WSBA's] possession relative to
this case." CP at 016 (Interrogs. and Req. for Produe. of Docs. Directed to WSBA).
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hardship to obtain their equivalent by other means. See CR 26(b)(4) (requiring

litigants to make such a showing when requesting discovery of privileged

information) and ELC 10.1(a)(stating that the superior court civil rules "serve as

guidance" in disciplinary hearings). Thus,the hearing officer properly exercised his

discretion in denying Jensen's requests for formal discovery.

       Jensen's third due process claim, which attacks the hearing officer's

qualifications and volunteer status, is also meritless. Jensen argues that hearing

officers "do not even have to practice law." Opening Br. of Appellant at 28. This

ignores the rigorous qualifications that ELC 2.5(b)requires of hearing officers, who

must(1)be active members ofthe WSBA,(2)have been active or judicial members

for at least seven years, (3) have no record of public discipline, and (4) have

experience as adjudicators or advocates in contested adjudicative hearings. And

while Jensen accurately points out that hearing officers are volunteers, he provides

no argument as to why paid hearing officers would better ensure due process.

       Jensen's fourth due process claim—^that the disciplinary procedure violates

due process because the Board "retain[s] the power to overrule the hearing officer,"

id. at 7—is nonsensical. Jensen argues, in effect, that his due process rights would

be better protected if he had no right of appeal to the Board. This goes against the

conventional wisdom in American jurisprudence that rights of appeal increase,

rather than decrease, procedural fairness. See, e.g.. In re Disciplinary Proceeding
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Against Osborne, 187 Wn.2d 188, 205, 386 P.3d 288 (2016)(stating that the ELC

rules "ensure adequate [due] process by allowing for an appeals process"). It is also

at odds with his own purported strategy in this case, which was to skip the hearing

on the grounds that it was a "worse than useless . . . travesty," Opening Br. of

Appellant at 28, and save his arguments for the Board and this court. This claim, like

Jensen's other due process claims, is meritless.

                                    III. CONCLUSION

       Jensen did not attend his disciplinary hearing and entered no factual evidence

into the record. The hearing officer found that Jensen violated the RPCs and

recommended disbarment, and the Board unanimously affirmed. There is substantial

evidence in the record for the hearing officer to have reasonably found that Jensen

violated the RPCs, and Jensen presents no clear reason to depart from the Board's

unanimous recommendation of disbarment. For these reasons, we adopt the

recommendation of the hearing officer and the Board and disbar Jensen from the

practice oflaw. As a condition ofreinstatement, Jensen must pay alljudgments owed

by him to Therese Jensen, James Brown, and the Therese Brown Jensen Trust.




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No. 201,706-1




WE CONCUR:




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