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             IN THE SUPREME COURT OF THE STATE OF WASHINGTON


In the Matter of the Disciplinary )
Proceeding Against                )                        No. 201,073-3
                                  )
 MARIAM. STARCZEWSKI,             )                          En Bane
                                  )
              an Attorney at Law. )
                                  )
 _ _ _ _ _ _ _ _ _ _ _ _ _ _)                      Filed       ·   ~l\.11   1 8 2013


          OWENS, J. -- We are ultimately responsible for disciplining attorneys who

 bring disrepute to the legal profession. In this case, the Washington State Bar

 Association (WSBA) charged Marja Starczewski with three counts of attorney

 misconduct because she represented her client without diligence, information, or

 honesty. At the disciplinary hearing, the hearing officer concluded the WSBA had

 proved all three counts. He recommended a sanction of$15,000 in restitution, 24

 months of suspension, and 18 months of practice monitoring. The WSBA

 Disciplinary Board (Board) adopted the hearing officer's decision except for the term

 of practice monitoring, which it amended to 24 months.
In re Disciplinary Proceeding Against Starczewski
No. 201,073-3


       That decision is before us now. Because substantial evidence supports the

findings and Starczewski does not present a clear reason to depart from the Board's

decision, we affirm it.

                                         I. FACTS

       This case of attorney discipline begins with a simple tort claim. In 2005, an

employee of Walters & Wolf Curtain and Wall LLC (Walters & Wolf), Kelly Reeser,

avoided Dawn De La Fuerte's stalled car on a King County highway. In doing so she

hit Rajinder Singh's taxi. Singh hired attorney Barish Bharti who referred him to

Starczewski on a fee-sharing basis.

       Starczewski obtained a $15,000 settlement offer from Reeser's insurance

company, which Singh rejected. On the day before the statute of limitations ran in

May 2007 Starczewski filed suit against Reeser, Walters & Wolf, and De La Fuerte in

King County Superior Court. She claimed personal injury and lost wages and named

Singh and his brother, Surinder Khangura, 1 as plaintiffs.

       After Starczewski filed suit the trial court issued a scheduling order, which

provided an October 2007 deadline for filing a confirmation of joinder. Under King

County Local Superior Court Rule 4.2, the plaintiff must file the confirmation of


1
  Starczewski signed a contingent-fee agreement with Khangura, which named her as his
attorney on a lost wages claim arising from the damage to the taxi the brothers shared.
Despite knowing that the claims overlapped, Starczewski neither informed Singh of the
concurrent conflict of interest nor obtained the informed consent of either brother.
However, these particular actions are not the basis of the charges in this case.

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In re Disciplinary Proceeding Against Starczewski
No. 201,073-3


joinder and the plaintiffs attorney must sign it. After filing, the trial court reviews the

confirmation of joinder, and if it decides a hearing is necessary, it may issue a show

cause order. If the trial court issues such an order, all cited parties must appear.

       Between the issuance of the scheduling order and the deadline of the

confirmation of joinder, Starczewski suffered financially and moved to East

Wenatchee-presumably from somewhere in King County. Starczewski did not

inform Singh of her financial hardships or how they might affect her work even

though her financial hardships coincided with a series of professional shortcomings in

Singh's case: Starczewski did not respond to, or inform Singh of, a September 2007

settlement offer of $20,000 from Reeser and Walter & Wolfs attorney, Julia Kyte.

When Kyte followed up, Starczewski still did not respond. In October 2007,

Starczewski neglected to timely serve and file a confirmation of joinder for De La

Fuerte. In response, the superior court ordered a show cause hearing on why it should

not dismiss Singh's case and order $250 in sanctions. Starczewski did not inform

Singh of the hearing nor did she appear at it, which caused the superior court to order

sanctions. The court continued the hearing to January 2008, however, and indicated it

would strike the hearing if Starczewski filed a confirmation of joinder up to seven

days beforehand. Starczewski did not inform Singh of the sanctions or continuance.

Because she neglected to file the confirmation of joinder a second time and did not




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In re Disciplinary Proceeding Against Starczewski
No. 201,073-3


appear at the continued show cause hearing, the superior court dismissed Singh's case

on procedural grounds. Starczewski did not inform Singh of the dismissal.

       Although Starczewski neglected Singh's case, she did not abandon it, and in

February 2008 she moved to vacate the superior court's dismissal. Yet again she did

not inform Singh of the status of litigation. In March 2008, the superior court heard

oral argument on her motion and conditioned vacating its dismissal on Starczewski

paying $250 in sanctions, complying with the case scheduling order, and serving and

filing the confirmation of joinder by late April. Starczewski paid the sanctions but did

not inform Singh of the March 2008 order, did not timely file the confirmation of

joinder, and did not notify the superior court of any effort on her part to comply with

the scheduling order.

       Starczewski's neglect was Singh's loss for in May 2008 the superior court

issued a second and final order of dismissal. The order noted Starczewski's failure to

file a confirmation of joinder. As before, Starczewski did not inform Singh of the

dismissal or his options. The day after the court dismissed Singh's case the statute of

limitations ran.

        Since Starczewski had never updated Singh on his case, he was of course

unaware that the case had been dismissed and the statute of limitations had run.

Indeed it was a year after the dismissal that he first contacted Starczewski for an

update. Starczewski did not give Singh an honest account. In a July 2009 letter, she



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In re Disciplinary Proceeding Against Starczewski
No. 201,073-3


wrote Singh that the superior court had dismissed his case because it found opposing

counsel's arguments persuasive. She supported her assertion with excerpted portions

of opposing counsel's March 2008 "Response to the Motion to Vacate" where counsel

argued the emergency doctrine defeated Singh's claim. In other words, Starczewski

told Singh that the court dismissed his case on the merits rather than that the court had

dismissed his case on procedural grounds because of her failures. Admittedly,

Starczewski did include the actual order of dismissal with her letter. However, that

only served to confuse Singh because Starczewski did not explain the order and Singh

is not fluent in English.

       In January 2010, Singh filed a grievance letter with the WSBA that requested

an investigation into Starczewski's handling of his case.

                              II. PROCEDURAL HISTORY

       In January 2011, the WSBA charged Starczewski with three counts of

professional misconduct: (1) failure to represent Singh with reasonable diligence and

expedite his litigation in violation ofRPC 1.3 and 3.2; (2) failure to inform Singh of

the status of his case and explain matters such that he could make informed decisions

about the representation in violation ofRPC 1.4(a) and (b); and (3) failure to honestly

inform Singh ofthe reason the court dismissed his case in violation ofRPC 8.4(c).

       These charges triggered a disciplinary hearing. The hearing officer bifurcated

the hearing into a violation hearing and a sanction hearing. At the May 2011 violation



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In re Disciplinary Proceeding Against Starczewski
No. 201,073-3


hearing, the hearing officer found that the WSBA had proved all three counts by a

clear preponderance of the evidence. At the October 2011 sanction hearing, the

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

Lawyer Sanctions (1991 & Supp. 1992). He concluded that the presumptive sanction

for all three counts was suspension. The hearing officer then applied six aggravating

factors and one mitigating factor to the presumptive sanction and concluded the

suspension should be 24 months long. He also recommended 18 months of practice

monitoring following reinstatement and $15,000 in restitution to Singh.

       That decision went before the Board in May 2012 on automatic review. By a

vote of 11 to 1 with one board member recusing, the Board affirmed the hearing

officer's decision with one exception: it amended the duration of practice monitoring

from 18 to 24 months. The Board did not state the reason for the amendment.

Starczewski immediately appealed the Board's decision to this court.

                              III. STANDARD OF REVIEW

       We have plenary power over attorney discipline in Washington. ELC 2.1. On

review, we give great weight to the hearing officer's findings of fact. In re

Disciplinary Proceeding Against Marshall, 167 Wn.2d 51, 66, 217 P .3d 291 (2009).

We treat unchallenged findings of fact as true, and so long as they are supported by

substantial evidence we also treat challenged findings of fact as true. !d. at 66-67.




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In re Disciplinary Proceeding Against Starczewski
No. 201,073-3


       In contrast we review the Board's conclusions of law de novo. In re

Disciplinary Proceeding Against Van Camp, 171 Wn.2d 781, 797,257 P.3d 599

(20 11 ). If they are supported by the findings of fact they will be upheld. Id. Further,

we will uphold a unanimous Board decision absent a clear reason for departure. In re

Disciplinary Proceeding Against Behrman, 165 Wn.2d 414, 422, 197 P.3d 1177

(2008).

                                      IV. ANALYSIS

       Starczewski claims that (A) the hearing and decision violated due process and

hearing procedure, (B) the findings were not supported by substantial evidence, (C)

the hearing officer determined the incorrect presumptive sanction under the ABA

Standards, (D) the hearing officer applied the incorrect aggravating and mitigating

factors, (E) a 24-month suspension is disproportionate, (F) restitution is not proper,

and (G) the WSBA cannot order her proposed practice monitor to serve.

A. Whether the Hearing Officer or Board Violated Due Process or Proper Procedure

       We review alleged due process violations de novo and evidentiary rulings for

abuse of discretion. In re Disciplinary Proceeding Against King, 168 Wn.2d 888,

899, 232 P.3d 1095 (2010); Van Camp, 171 Wn.2d at 799.

       Starczewski alleges that (1) the hearing officer denied her the opportunity to

rebut the WSBA's proposed decision, (2) the WSBA's formal complaint did not

notify her of aggravating factors, (3) the WSBA made an improper request for



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In re Disciplinary Proceeding Against Starczewski
No. 201,073-3


documents, (4) the hearing officer prevented her from admitting rebuttal evidence, (5)

special disciplinary counsel was biased, (6) the hearing officer was biased, (7) the

hearing officer wrongly put the burden of proof on her, (8) the hearing officer

wrongly calculated the amount of restitution, and (9) the Board wrongly adopted the

hearing officer's recommendation.

       1. Whether the Hearing Officer Denied Starczewski the Opportunity To Rebut
          the WSBA's Proposed Findings and Conclusions

       After the violation hearing, the hearing officer allowed the WSBA and

Starczewski to submit proposed findings and conclusions. Starczewski claims the

hearing officer denied her the opportunity to rebut the WSBA' s proposal because he

adopted it before she submitted her rebuttal. We disagree.

       The ELCs provide that after a violation hearing and upon agreement with the

hearing officer, either party may submit a proposed decision and either party may

motion to modify, amend, or correct a decision. ELC 10.15(b)(1)(B), 10.16(b), (c).

In response, the hearing officer may deny the motion or amend, modify, or correct the

decision. ELC 10 .16(c)(2). The hearing officer's decision is final when the time for

the parties to motion lapses or the hearing officer rules on the motion. ELC

10.15(b )(1 )(B)(ii).

       This case presents a situation where the hearing officer and parties agreed upon

a time line for submitting proposals from which the hearing officer then deviated.

The hearing officer deviated from the time line by adopting the WSBA proposed


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In re Disciplinary Proceeding Against Starczewski
No. 201,073-3


decision before Starczewski submitted her proposed decision. The hearing officer,

however, did not in fact deny Starczewski the opportunity to rebut the WSBA's

proposal: Starczewski moved to object and amended her motion within the time

frame provided by the ELCs. Then the hearing officer ruled on her motions before

reaffirming his earlier decision. At that point, the hearing officer's decision became

final. Thus there was no denial and no procedural violation.

       2. Whether the WSBA Notified Starczewski of the Charges Against Her

       Starczewski claims the WSBA's formal complaint against her violated due

process because it did not notify her of the aggravating factors. Specifically she

argues the WSBA did not notify her that the hearing officer would consider evidence

of a pattern of misconduct. We find that the WSBA' s formal complaint did not

violate due process because, as we held previously, the law does not require the

WSBA to include aggravating factors in the formal complaint. In re Disciplinary

Proceeding Against Burtch, 162 Wn.2d 873, 889, 175 P.3d 1070 (2008); ELC

10.3(a)(3). Further, the WSBA's formal complaint notified Starczewski of the

charges, and 3 5 days before the sanction hearing, the WSBA properly filed and served

a disclosure of its desired sanctions. More notification was not required.

       3. Whether the WSBA Made a Proper Request for Documents

       Starczewski claims that the WSBA's request for documents 23 days before her

sanction hearing was untimely, unnecessary, and prejudicial. The WSBA's request



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In re Disciplinary Proceeding Against Starczewski
No. 201,073-3


was none of those things because the ELCs permit the WSBA to make a request up to

three days before the sanction hearing. ELC 10.13(c).

       We note that Starczewski refused to comply with the WSBA's proper request

despite the hearing officer's order that she do so. Because the hearing officer did not

enforce the request in the end, Starczewski' s claim is actually moot. But her defiance

of the hearing officer's order is grounds for discipline under ELC 10.13 (c), and we

consider it in our review of this case.

       4. Whether the Hearing Officer Wrongly Excluded Starczewski's Evidence

       Starczewski claims that even though she was cooperative, the hearing officer

ignored the scheduling order and wrongly excluded certain evidence from the sanction

hearing such as testimony from current clients, WSBA commendations, and awards

for pro bono service. In fact, the record shows the hearing officer excluded some, not

all, of Starczewski's proffered evidence because she disobeyed the scheduling order.

The hearing officer's evidentiary ruling was not an abuse of discretion because a

hearing officer may preclude a party that does not provide discovery as ordered from

introducing matters into evidence. ELC 10.1(a), (c), 10.11(g); CR 37(b)(2)(B).

       5. Whether Special Disciplinary Counsel Should Have Been Disqualified

       Starczewski claims special disciplinary counsel involvement in Saldivar v.

Momah, 145 Wn. App. 365, 186 P.3d 1117 (2008), and in her disciplinary

proceedings violates due process. We disagree. Starczewski was an attorney for the



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In re Disciplinary Proceeding Against Starczewski
No. 201,073-3


plaintiffs in Saldivar and the hearing officer considered her performance in that case

as evidence of a pattern of misconduct, an aggravating factor. Special disciplinary

counsel was not personally involved in the Saldivar case that the hearing officer

considered at the sanction hearing. Even if counsel was personally involved in

Saldivar, his involvement in that case and the proceedings would not violate due

process. While due process ensures that civil proceedings are impartial and

disinterested, Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S. Ct. 1610, 64 L. Ed.

2d 182 (1980), and disciplinary hearings are civil proceedings, ELC 10.1, a hearing's

"appearance of impropriety is not a serious consideration in attorney discipline cases

where the general public has little, if any, direct interest in the process. Unlike a

public prosecutor, [disciplinary] counsel's actions affect only attorneys who have

voluntarily subjected themselves to regulation by this court." In re Disciplinary

Proceeding Against Vetter, 104 Wn.2d 779, 782, 711 P.2d 284 (1985).

       6. Whether the Hearing Officer Should Have Been Disqualified

       Starczewski also claims the hearing officer's awareness of Saldivar (by virtue

of his specialty in medical malpractice law), coupled with his involvement in the

disciplinary proceedings, violated due process. Yet she cites no legal authority for

this proposition. Without such legal authority, we will not question the hearing

officer's impartiality merely because he was aware of a case that Starczewski

participated in and that the WSBA introduced into evidence at the sanction hearing.



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We note that the ELCs provide a nonexhaustive list of reasons for disqualifying a

hearing officer and none apply to the facts here. ELC 2.6(e)(4)(A).

       7. Whether the WSBA Proved the Charges by a Clear Preponderance

       Starczewski claims the hearing officer violated due process by allegedly

requiring her to muster evidence in her defense. Her claim is compromised since she

does not point to where the hearing officer wrongly put the burden of proof on her.

Starczewski also claims the WSBA did not investigate her current clients or her Singh

files. But, similarly, she does not cite legal authority for the proposition that the

WSBA must investigate evidence she submits to them. Without citation to the record

or precedent to undergird her argument, we conclude there was no violation of due

process. We also note the WSBA does have the burden of proof, ELC 10.14(b), and

in this case, the hearing officer found the WSBA met its burden on all three counts.

       8. Whether the Hearing Officer Properly Determined the Restitution Amount

       Starczewski claims $15,000 in restitution is improper because it does not

account for costs and expenses the WSBA billed her for or her ability to pay. Because

an order of restitution does not have to accouht for the WSBA' s costs and expenses or

the attorney's ability to pay, see ELC 13.7, 13.9(d)(1), we conclude that $15,000 is

not improper in this respect.




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In re Disciplinary Proceeding Against Starczewski
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       9. Whether the Board Properly Amended the Hearing Officer's Decision

       Starczewski claims the Board erred when it failed to state a reason for

amending the hearing officer's recommended term of practice monitoring.

Starczewski makes a valid claim. The Board must state the reason for an amendment,

modification, or reversal of the hearing officer's decision. ELC 11.12(e). But its

omission does not offend due process or affect our power to review the decision. In

re Disciplinary Proceeding Against Blanchard, 158 Wn.2d 317, 329-31, 144 P.3d 286

(2006).

       Ordinarily where the hearing officer's recommendation and the Board's

decision differ, we give greater weight to the Board's decision in light of its superior

experience and wider perspective. In re Disciplinary Proceeding Against Preszler,

169 Wn.2d 1, 19, 232 P .3d 1118 (20 10). Abiding by that rule is problematic here

since the Board does not state the reason for its amendment. Nevertheless we uphold

the Board's 24-month, practice-monitoring term because Starczewski has shown no

signs of curbing her misconduct as evinced by her defiance of the hearing officer's

discovery order.

       Finally, Starczewski claims the Board made no findings or adopted the hearing

officer's erroneous findings. This argument is meritless because the Board adopted

the hearing officer's findings as is permitted, ELC 11.12(d), and the findings are not

erroneous.



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In re Disciplinary Proceeding Against Starczewski
No. 201,073-3


B. Whether Substantial Evidence Supports the Hearing Officer's Challenged
   Findings

       Starczewski generally claims 27 of the hearing officer's 74 findings are

irrelevant, incomplete, unsupported, or all of the above. We are not persuaded. We

reject 21 of her challenges because she fails to support them with citations to the

record or legal authority. Marshall, 167 Wn.2d at 67 (providing that a challenge is

sufficient only if the attorney cites to the record in support of her argument); RAP

10.3(a)(6) (providing that arguments in a brief should contain citations to the record

and legal authority). We reject three other challenges because they are either

supported by unchallenged findings, amount to an attack on witness credibility, or

amount to an alternative explanation of the facts the hearing officer rejected.

Marshall, 167 Wn.2d at 66-67. Three challenges remain.

       Two of these challenges concern procedural failures. First, the hearing officer

found that at the March 2008 hearing on Starczewski's motion to vacate the order of

dismissal, the court ordered Starczewski to serve De La Fuerte, file a confirmation of

joinder, and comply with all pretrial deadlines set in the original case scheduling

order. Second, he found the court dismissed the case again in May 2008 because

Starczewski failed to file the confirmation of joinder. Starczewski claims these

findings are incomplete because they do not note that the judge promised a second

show cause hearing. In fact, the March 2008 show cause hearing transcript shows the

judge started to say there would be a second show cause hearing before stopping


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No. 201,073-3


midsentence to instead say he would order Starczewski to serve De La Fuerte, file a

confirmation of joinder, and to comply with all pretrial deadlines set in the original

case scheduling order, which he ultimately did. Hence these challenges fail because

substantial evidence shows the judge did not promise or actually order a second show

cause hearing.

       Finally, the hearing officer found that Starczewski's explanation for the

dismissal was false. Starczewski claims this finding assumes another finding is true

and misrepresents a sentence from her July 2009 letter? Substantial evidence shows

Singh's case was dismissed for procedural violations rather than on the merits. For

instance, the final order of dismissal refers to the plaintiffs' noncompliance but not the

merits. Thus, substantial evidence shows Starczewski's explanation for the dismissal

was false, and for that reason the challenge fails.

C. Whether the Hearing Officer Applied the Correct Presumptive Sanction

       We-as well as the hearing officer and Board-follow a two-step process to

determine the appropriate sanction against an attorney. In re Disciplinary Proceeding

Against Cramer, 165 Wn.2d 323, 339, 198 P.3d 485 (2008). At step one, we

determine the presumptive sanction under the ABA Standards. !d. We do so by

considering the ethical duty violated, the attorney's mental state, and the actual or

potential harm to the client. !d. At step two, we consider the applicable aggravating

2
 Because Starczewski does not identify which sentence the hearing officer's finding
misrepresents, we refrain from considering that particular challenge.

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No. 201,073-3


and mitigating factors' impact on the presumptive sanction. Id. In this case the

hearing officer concluded the presumptive sanction was suspension for all three

counts. Starczewski claims the hearing officer's conclusions about her mental state

and the actual or potential harm to Singh were wrong.

       As the fact finder, the hearing officer is best positioned to make the mental-

state determination. In re Disciplinary Proceeding Against Anschell, 149 Wn.2d 484,

501, 69 P.3d 844 (2003). The hearing officer concluded Starczewski's mental state

was "knowing" for all three counts. Starczewski claims the hearing officer's

conclusions are wrong or unsupported. We disagree. First, the unchallenged findings

of the hearing officer show Starczewski knew of the deadlines in the case scheduling

order and her responsibility to meet them. Thus, she knew when she was failing to

meet the deadlines she was failing to represent Singh diligently and expeditiously.

Second, the absence of documented conversations between Starczewski and Singh is

circumstantial evidence that no conversations occurred between them "[a]nd

circumstantial evidence is as good as direct evidence," Rogers Potato Serv., LLC v.

Countrywide Potato, LLC, 152 Wn.2d 387, 391, 97 P.3d 745 (2004). Thus,

Starczewski knew that when she was failing to have any conversations with Singh,

she was failing to inform him and explain matters to him. Finally, when Starczewski

wrote Singh in July 2009, she knew his case had been dismissed on procedural

grounds because she had the order of dismissal that showed the case was dismissed



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for noncompliance. Thus Starczewski knew her written explanation that the superior

court had dismissed the case on the merits was false. On this final point we

emphasize again that "circumstantial evidence is as good as direct evidence," id., and

the WSBA did not have to prove intent to prove a "knowing" mental state, see ABA,

STANDARDS FOR IMPOSING LAWYER SANCTIONS Definitions at 17 (1991) (defining

"[k]nowledge" as "the conscious awareness of the nature or attendant circumstances

of the conduct but without the conscious objective or purpose to accomplish a

particular result"); In re Disciplinary Proceeding Against Brothers, 149 Wn.2d 575,

585, 70 P.3d 940 (2003) (stating that in an attorney disciplinary matter, "outright

dishonesty is not a necessary element to a finding that an attorney acted knowingly").

Consequently the hearing officer concluded correctly that the mental state was

"knowing" for all three counts.

       Next, we address the injuries. First, the hearing officer concluded Starczewski

injured Singh in that he never received current information about his case, never had·

the opportunity to consult with the court or seek another attorney, and never had the

opportunity to accept or reject the $20,000 settlement offer. Starczewski claims the

evidence supporting the first and third of these injuries is insubstantial. However, we

believe the evidence is substantial and note the second injury alone shows potential

harm to Singh.




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       Second, the hearing officer concluded Starczewski's misrepresentation of the

dismissal injured Singh because the resulting misunderstanding prevented Singh from

pursuing potential remedies. Starczewski's strongest argument here is that the

conclusion is irrelevant because there is no indication potential remedies would have

been successful. However, she fails to cite authority for the proposition that the

hearing officer must find that a remedy would be successful. In any case, Singh's

remedies are not limited to his claim against Reeser, Walters & Wolf, and De La

Fuerte as Starczewski may believe.

       Starczewski' s misrepresentation raised new claims of attorney malpractice and

restitution (via the Lawyer's Fund for Client Protection). See 16 DAVID K. DEWOLF

&KELLER W.ALLEN, WASHINGTONPRACTICE: TORTLAW AND PRACTICE§ 15.41,

at 490 (3d ed. 2006); APR 15. Had Singh not learned the truth, he would not have

had the chance to realize these claims against Starczewski. That constitutes a

potential injury to Singh, which means Starczewski's claim fails. The hearing officer

concluded correctly that Starczewski injured Singh and that the presumptive sanction

is suspension.

D. Whether the Board Applied the Correct Aggravating and Mitigating Factors

       The second step we take to determine the appropriate sanction is to consider the

applicable aggravating and mitigating factors' impact on the presumptive sanction.

Cramer, 165 Wn.2d at 339. The ABA Standards provide a list of aggravating factors.



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STANDARDS std. 9.22. In this case the hearing officer determined the applicable

aggravating factors were dishonest motive, pattern of misconduct, multiple offenses,

refusal to acknowledge misconduct, substantial legal experience, and indifference to

making restitution. Starczewski challenges the consideration of all these factors

except for substantial legal experience. We review the challenges one by one.

       The hearing officer applied the dishonest-motive factor because Starczewski

misrepresented Singh's case dismissal to hide her own misconduct. Starczewski

claims the evidence militates against applying the factor because Singh was

responsible for the lack of communication and she sent Singh the actual order of

dismissal. Her first argument fails because it amounts to an "alternative explanation[]

or version[] of the facts rejected by the hearing officer," an insufficient argument upon

review before this court. Marshall, 167 Wn.2d at 67. Her second argument fails

because the enclosure of the order of dismissal was insufficient to overcome her

misrepresentations in the July 2009 letter. 3 Accordingly her challenge fails.

       The hearing officer applied the pattern-of-misconduct factor because of

Starczewski's history of dishonesty, frivolous claims, and disregard for judicial and



3
  Starczewski's challenge on grounds of relevancy to this factual finding-that
Starczewski's enclosure of the order of dismissal was insufficient to overcome her
misrepresentation-fails because the finding is relevant to the duties to inform, explain,
and avoid dishonesty. Also Starczewski does not cite legal authority for the proposition
that the finding is irrelevant because it does not support a finding of misconduct. See
RAP 10.3(a)(6) (providing that arguments in a brief should contain citations to legal
authority).

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In re Disciplinary Proceeding Against Starczewski
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disciplinary warnings. Starczewski claims the factor applies only to similar violations

of the RPCs and her past misconduct is dissimilar. The ABA Standards are clear that

the pattern-of-misconduct factor applies to mere misconduct not violations of the

RPCs. Compare STANDARDS std. 9.22(a) (prior disciplinary offenses), with std.

9.22(c) (a pattern of misconduct). Further, the rule as articulated by this court does

not require the misconduct to be similar: the factor applies when the attorney has

simply committed multiple acts of misconduct involving multiple clients over a period

of time. In re Disciplinary Proceeding Against Cohen, 150 Wn.2d 744, 760 n.8, 82

P.3d 224 (2004).

       Moreover, the two cases Starczewski cites in support of her argument address

the issue in dicta or not at all. See Burtch, 162 Wn.2d at 889 (noting Burtch's prior

misconduct was similar to that at issue, which shows he knew his conduct violated the

RPCs); In re Disciplinary Proceeding Against Whitney, 155 Wn.2d 451, 464, 120

P.3d 550 (2005) (rejecting Whitney's claim that collateral estoppel precludes the court

from considering evidence of past misconduct). Accordingly her challenge fails.

       Next we address Starczewski's claim that the hearing officer wrongly applied

the multiple-offenses factor because he did not list what he considered as multiple

offenses. In short, no explanation was necessary because the factor plainly applies

where an attorney faces multiple counts of violating the RPCs. See In re Disciplinary

Proceeding Against Poole, 156 Wn.2d 196, 225, 125 P.3d 954 (2006) (applying the



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multiple-offenses factor because the court upheld two counts of misconduct against

the attorney). Because Starczewski faces three counts of misconduct, the factor

applied in her case.

       The hearing officer applied the refusal-to-acknowledge-wrongful-nature-of-

conduct factor because Starczewski blamed her failure to inform Singh on his lack of

communication and argued she was only 40 percent responsible for his case because

she was entitled to only 40 percent of the contingency fee under the fee-sharing

agreement with Bharti. Starczewski claims the factor punishes her for appearing pro

se because it allows the hearing officer to consider her arguments as evidence that she

has no remorse. Her argument raises a real concern about the fairness, albeit one we

have previously addressed.

       An attorney may appear pro se in a disciplinary proceeding without

automatically incurring the refusal-to-acknowledge-wrongful-nature-of-conduct

factor. In re Disciplinary Proceeding Against Ferguson, 170 Wn.2d 916, 943, 246

P.3d 1236 (2011). Indeed the factor applies only when an attorney denies conduct

was wrongful or rationalizes misconduct as error. !d. at 943-44. Here, substantial

evidence supports applying the factor. While under examination, Starczewski acted

as witness rather than pro se counsel. And while under examination, Starczewski

testified that she was not the reason for the case dismissal, she was entitled to a

second show cause hearing, and she truthfully told Singh why his case was dismissed



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by virtue of enclosing the actual order of dismissal. Her statements amount to denial

and rationalization of misconduct, and the hearing officer was entitled to credit them

just as we are entitled to give great weight to that finding. Behrman, 165 Wn.2d at

423; Marshall, 167 Wn.2d at 67. Accordingly her challenge fails.

       Finally, Starczewski claims the indifference-to-making-restitution factor should

not apply because restitution is not warranted in her case. The hearing officer applied

the indifference-to-making-restitution factor because Starczewski made no attempt to

make restitution to Singh, did not tell Singh that he had a potential claim against her,

and did not tell Singh that he could seek redress through her professional liability

coverage. Because this case warrants restitution, as discussed below, Starczewski' s

challenge fails.

       Next we turn to mitigating factors. The ABA Standards also provide a list of

mitigating factors. STANDARDS std. 9.32. In this case, the hearing officer concluded

only the personal-problems factor warranted application. Yet he gave the factor

minimal weight because he felt Starczewski' s financial challenges did not justify her

misconduct.

       Generally, we do not consider personal financial problems to be a mitigating

factor. In re Disciplinary Proceeding Against Holcomb, 162 Wn.2d 563, 591, 173

P.3d 898 (2007). We see no reason to make an exception here because as the       he~ring


officer noted, financial problems did not justify Starczewski' s misconduct. Thus, the



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hearing officer wrongly applied the factor. However, the error does not undermine

the hearing officer's ultimate recommendation of a 24-month suspension since he

gave the factor minimal weight.

       Starczewski claims the hearing officer should have applied more mitigating

factors to her sanction. Examples include her loss of office staff, her prior WSBA

commendations, association with Bharti, 4 her cooperation with disciplinary

proceedings, and the lack of communication from Singh. In disciplinary cases, the

attorney has the burden of proving that some fact should be considered a mitigating

factor in her case. Cf In re Disciplinary Proceeding Against Carpenter, 160 Wn.2d

16, 30, 155 P.3d 937 (2007) (stating the subject attorney has the burden of proving the

mitigating factor of an absence of a selfish or dishonest motive).

       Cooperation and character are enumerated mitigating factors under ABA

Standards std. 9.32(e) and (g). But Starczewski does not meet her burden on these

factors because she presents her two WSBA commendations without argument. And

though she points to a moment during the hearings when the hearing officer thanked

her for cooperating as a witness, she does not articulate why her cooperation on that

day overshadows, for example, her failure to comply with the hearing offlcer's

discovery order. Similarly, she does not make policy arguments for accepting her

other proposed mitigating factors, which do not fall within one of the ABA Standards'

4
 It is unclear whether Starczewski is referring to her fee-sharing agreement with Bharti
or to an attorney-client relationship between Singh and Bharti.

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enumerated categories. STANDARDS std. 9.32. Because Starczewski does not meet

her burden on this issue, we refrain from applying her proposed mitigating factors. In

sum, the hearing officer's recommendation of a 24-month suspension is sound.

E. Whether a 24-Month Suspension Is Disproportionate

       On review, the subject attorney must raise demonstrative cases to show the

recommended sanction is disproportionate. Cohen, 150 Wn.2d at 763. Starczewski

claims a 24-month suspension is disproportionate in her case but fails to raise

demonstrative cases because the two cases she cites are inapposite. In re Disciplinary

Proceeding Against Johnson, 114 Wn.2d 737, 752-53, 790 P.2d 1227 (1990)

(ordering the disbarment of a disciplined attorney who converted client funds for

personal use and concealed his conversion); In re Disciplinary Proceeding Against

Haskell, 136 Wn.2d 300, 320-22,962 P.2d 813 (1998) (holding two years of

suspension, not the recommended disbarment, was the appropriate sanction where the

attorney deceptively overbilled clients). Starczewski appears to argue these cases are

demonstrative because, in her opinion, a 24-month suspension is equivalent to

disbarment. We disagree. The ELCs distinguish between disbarment and suspension,

and the ceiling for suspension is 36 months. ELC 13.3(a). Because Starczewski's 24-

month suspension does not pierce that ceiling, we are hard-pressed to agree it is

equivalent to disbarment especially without citation to contrary legal authority.




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       Finally, Starczewski claims the hearing officer wrongly started at a baseline

suspension of21 months rather than 6 months. The record shows the WSBA argued

for an 18-month baseline that equals 6 months per count. In the alternative, the

WSBA argued for a 21-month baseline suspension that is halfway between the ABA

Standards' minimum and maximum of6 and 36 months. STANDARDS std. 2.3.

Because the WSBA's arguments and the hearing officer's decision in this regard were

reasonable and because Starczewski fails to cite legal authority to the contrary, we

accept the 21-month baseline.

F. Whether Restitution Is Proper

       Starczewski claims our precedent supports ordering restitution only where the

client actually lost money and that there is no evidence in this case that Singh would

have accepted the settlement offers. We disagree for two reasons.

       First, there is substantial evidence that Singh would have accepted the

settlement offers. For instance in a letter to the WSBA, Singh stated that if he had

known his case was weak, he would have accepted the $15,000 settlement offer. 5

Also, Singh testified that he could have used the $20,000 settlement offer. The

hearing officer determined Singh's testimony was credible, a determination to which




5
  Starczewski argues that because Singh's daughter wrote the letter, it is not indicative of
Singh's intent. Her argument is not compelling. At the hearing, Singh adopted the letter
as his own statement.

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In re Disciplinary Proceeding Against Starczewski
No. 201,073-3


we give great weight. Marshall, 167 Wn.2d at 67. Thus, the hearing officer correctly

concluded that Singh would have accepted the settlement offers.

       Second, the ELCs provide an attorney may be ordered to pay restitution to

persons who are financially injured by the attorney's misconduct. ELC 13.7(a). The

hearing officer found Singh was injured because he never had the opportunity to

accept the $20,000 settlement offer. Given that Singh would have accepted the offer,

that injury-the lost opportunity to accept the offer-is financial. Starczewski fails to

present a clear and supported reason to depart from that conclusion. 6 Thus restitution

is proper in this case.

G. Whether the Court Can Order a Proposed Practice Monitor To Serve

       Lastly Starczewski states her proposed practice monitor, Anthony Urie, will

serve only if she is not suspended because he requires her assistance in his practice.

She claims the WSBA may not have the authority to force Urie to serve as a practice

monitor. The issue is not properly before us because the hearing officer did not order

Urie to serve as practice monitor. Further, Starczewski does not have to propose a

monitor until 60 days prior to her reinstatement and there is no evidence that she has

formally proposed Urie. If Starczewski and the WSBA cannot agree on a practice

monitor, then the Board may resolve the dispute.

6
  Starczewski's reference to cases in the form of PDF (portable document format)
attachments to an e-mail to the WSBA insufficiently apprises us of contrary precedent.
See RAP 10.3 (a)( 6) (providing that arguments in a brief should contain citations to legal
authority).

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In re Disciplinary Proceeding Against Starczewski
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                                    V. CONCLUSION

       We affirm the Board's unanimous decision to suspend Starczewski for 24

months and order $15,000 in restitution because substantial evidence supports it. In

addition, Starczewski fails to provide a clear reason to depart from it. Also, we affirm

the majority of the Board's decision to extend the hearing officer's recommended 18

months of practice monitoring to 24 months. While the Board did not justify its

amendment, we believe it is just in light of Starczewski' s defiance of the hearing

officer's discovery order.




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WE CONCUR:




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