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              IN THE SUPREME COURT OF THE STATE OF WASHINGTON

     In the Matter of the Disciplinary             )
     Proceeding Against                            )          No. 201,435-6
                                                   )
     DONALD PETER OSBORNE,                         )          EnBanc
                                                   )                            --.   .-·   ...   {"   .-·
                   An Attorney at Law.             )         Filed __________________
                                                   )
          ______________________)

           OWENS, J. -      A hearing officer for the Washington State Bar Association

     Office of Disciplinary Counsel (ODC) found that attorney Donald Peter Osborne

     committed five violations of the Rules of Professional Conduct (RPC) because of

     events surrounding a will he drafted for a sick, elderly woman that made him the

     residual beneficiary of her $600,000 estate. Following a disciplinary hearing, the

     hearing officer recommended disbannent. Osborne did not appeal to the Washington

     State Bar Association Disciplinary Board (Board).

            Since Osborne did not appeal, the Board considered whether to order sua

     sponte review under the Rules for Enforcement of Lawyer Conduct (ELC). Here, the

     rules provide, "The Board should order sua sponte review only in extraordinary



II
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


circumstances to prevent substantial injustice or to correct a clear error." ELC

11.3(d). The Board declined sua sponte review. After sua sponte review was

declined, Osborne filed a notice of appeal to this court. We issued an en bane order

limiting the scope of review in this case to whether the Board was required to order

sua sponte review under ELC 11.3(d). Osborne asks us to decide whether the hearing

officer's recommendation of disbarment was unjust or clear error. He also makes

several other arguments, but they are beyond the scope of review we granted.

          Since the hearing officer's recommendation of disbarment was neither unjust

nor clear error, we hold that the Board was not required to order sua sponte review.

Additionally, after conducting our own independent review of the record, we find no

reason to depart from the hearing officer's recommendation. We affirm the hearing

officer's recommendation to disbar Osborne from the practice oflaw.

                                          FACTS

          In 1986, Osborne drafted wills for husband and wife George and Elizabeth

Hancock. After George Hancock died in 2003, Osborne revised Elizabeth Hancock's

will. The 2003 will named a few charities as residual beneficiaries. In 2009, Hancock

fell ill and Osborne revised her will, making himself the residual beneficiary of her

estate.

          Starting after Hancock's husband died in 2003, her neighbors and friends,

William and Susan Spencer, spent time with her and helped her around the house.



                                                2
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


They lived across the street from each other for many years. The Spencers could view

Hancock's home through a large window. They took care of her house and yardwork,

cooked meals, and sometimes gave her sponge baths. They had a signaling system

using a porch light and kitchen blinds that Hancock could use to alert the Spencers

that she needed help. J. Scott Greer, an attorney, was also familiar with the

happenings at the Hancock home as he likewise lived across the street from Hancock

and next to the Spencers.

       In August 2009, Hancock experienced a fall and was hospitalized. During her

hospital stay, Hancock asked the Spencers to contact "a lawyer" to help her update her

will. Hancock did not identify Osborne by name and only told them to look in her

address book under "lawyer." Her address book contained the entry "'Donald P.

Osborne, Attorney at Law'" with an address and phone number. Hr'g Officer's

Findings of Fact, Conclusions of Law & Recommendations (FF/CL) at 4 (Opening Br.

of Appellant, App. A).

       On September 22, while hospitalized, Hancock gave Osborne power of attorney

over her financial affairs, but not over health care decisions. Hancock indicated that

she wanted her daughter to have decision-making power over her health care.

However, on the same day, Osborne signed a "Physician's Order for Life Sustaining

Treatment" (POLST) on Hancock's behalf, despite not having power of attorney over

her health care. Osborne told hospital employees that he was not authorized to sign



                                                3
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


the POLST, and even struck that part of the form indicating he signed it pursuant to

having power of attorney. The hospital later voided the POLST because Osborne

lacked authority. Despite admitting that he lacked authority to sign the POLST, he

testified at the hearing that his power of attorney gave him authority to sign it.

       During October of that year, Hancock consulted with Osborne about revising

her 2003 will. No one else was present for their conversation. Osborne directed his

assistant, Jean Phillips, to prepare the will based on his handwritten notes. The

primary difference between the 2003 will and the 2009 will was that charities were no

longer the residual beneficiaries of her estate; instead, Osborne was named as the

residual beneficiary. The residue included her home, valued at $600,000. Hancock

executed the will on October 14, 2009. It bore witness signatures of Phillips and

Elaine Kerns-a person that Phillips admits was not actually in the room to witness

Hancock's signing. Phillips has never seen or met Elaine Kerns. Hancock died 13

days after executing the revised will. Two days after, Osborne sought to probate the

2009 will and had himself appointed as personal representative of Hancock's estate.

       The relationship between Osborne and Hancock was described at Osborne's

later attorney discipline hearing. Osborne admitted that he was not related to Hancock

either by blood or marriage. However, Osborne testified about their friendship,

stating that he checked on her at her home between 2003 and 2009. He said they

exchanged recipes and would socialize in her back yard. He admitted that no one else



                                                4
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


was present for these visits. He did not corroborate his testimony regarding their

friendship with any evidence or witnesses. After she became ill, Osborne began

taking care of her home and doing her laundry.

       Prior to the 2009 will, the Spencers had never seen Osborne at Hancock's

house. Greer also testified that he had never seen Osborne at Hancock's home until

after she became ill. Several witnesses testified at the hearing regarding their long

friendships with Hancock, but none of them had heard of Osborne. For instance, Toni

Grandaw, who had known Hancock for over 50 years, testified that she socialized

with Hancock regularly. The two discussed Hancock's friends like the Spencers, her

daughter and family, and financial and legal matters. However, Hancock had never

mentioned knowing Osborne to Grandaw until she was hospitalized. Hancock told

Grandaw that she wished to change her will, but Grandaw was "flabbergasted" that

Hancock devised her estate to Osborne since Hancock never previously mentioned

him. !d. at 6.

       After Osborne had himself formally appointed as personal representative

following Hancock's death, the Spencers saw Osborne remove personal property from

Hancock's home. They saw Osborne remove "boxes, plants and clothing" including

"fur coats." Id. at 15. Osborne gave the Spencers a check from Hancock's estate for

$15,000 even though Osborne had shown the Spencers a prior will that devised them

only $10,000. Since the amount was different, Mr. Spencer had concerns and visited



                                                5
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


Greer, since he is an attorney. When Greer saw that Osborne was both beneficiary

and personal representative, he became suspicious and contacted an estate attorney,

Randolph Petgrave.

       Greer and Petgrave approached Osborne about the 2009 will and vocalized

their concerns. Osborne admitted to Greer and Petgrave that he drafted the will and

was named as a beneficiary and personal representative. He also told them that

Hancock did not seek independent counsel and that he had not advised her to do so.

Despite their account, Osborne later testified at his disciplinary hearing that he

advised her that she had a right to seek independent counsel. Osborne produced

handwritten notes he said Hancock initialed that indicated that she waived her right to

consult outside counsel.

       In 2010, Hancock's daughter, represented by Petgrave, petitioned for Osborne's

removal as personal representative and for return ofHancock's personal property.

The superior court removed Osborne and appointed attorney Barbara Coster as

personal representative. In June 2010, the superior court twice ordered Osborne to

deliver Hancock's personal property to Coster. Osborne filed pleadings with the

superior court that he had relinquished all of Hancock's records and property to

Coster. He also gave deposition testimony in 2011 that he had disposed of Hancock's

identification card, credit cards, and financial documents. Following a superior court

judgment against Osborne, the sheriff executed a search on Osborne's home. The



                                                6
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


sheriff found Hancock's property at Osborne's residence, including her identification,

credit cards, and financial records. Eventually, in November 2011, the lawsuit settled

and Osborne paid $200,000.

       Based on the above conduct, the ODC charged Osborne with five violations of

the Rules of Professional Conduct by formal complaint:

              COUNT 1: By preparing the 2009 will, which gave him a
       substantial gift from Ms. (Elizabeth) Hancock's estate, Respondent
       violated RPC 1.8(c).
              COUNT 2: By naming himself asP( ersonal) R( epresentative) of
       Ms. Hancock's estate while simultaneously making himself the residual
       beneficiary while representing Ms. Hancock, Respondent violated RPC
       1.7(a)(2).
             COUNT 3: By filing a declaration with the court on February 24,
       2011, asserting that he had returned all property formerly belonging to
       Ms. Hancock to the estate and/or successor PR when he knew had not
       and/or by knowingly making similar false assertions in other pleadings,
       Respondent violated RPC 3.3(a), RPC 4.1(a), and/or RPC 8.4(c).
              COUNT 4: By failing to return property formerly belonging to
       Ms. Hancock to the estate and/or the successor PR despite being ordered
       to do so by the court, Respondent violated RPC 3.4(a), RPC 3.4(c),
       and/or RPC 8.40).
              COUNT 5: By purporting to have authority to execute the
       September 2009 POLST and/or by entering Ms. Hancock's safety
       deposit box on October 27, 2009, under purported authority of the power
       of attorney granted him by Ms. Hancock, which had expired,
       Respondent violated RPC 8.4(c).Pl




1ODC dismissed the portion of count 5 pertaining to entering Ms. Hancock's safety
deposit box; thus, the hearing officer's finding that Osborne violated RPC 8.4(c)
pertained only to Osborne's execution of the POLST without authority. FF/CL at 2.


                                                7
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


Id. at 1-2. On May 6, 2015, following a six-day disciplinary hearing, the hearing

officer issued her findings of fact and conclusions oflaw. She determined that

Osborne violated the RPC in each of the five counts and recommended disbarment.

Osborne did not appeal the decision, and the Board declined sua sponte review.

Osborne appealed to this court.

       As explained in more detail below, this court ruled following its en bane

meeting on January 7, 2016, that an attorney can appeal the Board's decision

declining sua sponte review. This court limited the scope of this appeal, however, to

"whether the Disciplinary Board erred by not finding that sua sponte review was

required to 'prevent substantial injustice or to correct a clear error,"' under ELC

11.3(d). Order, In re Disciplinary Proceeding Against Osborne, No. 201,435-6, at 1

(Wash. Jan. 22, 2016).

       Osborne raises a number of issues. Some are within the scope of this court's

review, and others are not. First, we discuss his four issues and whether sua sponte

review was necessary under ELC 11.3(d). Second, we discuss why Osborne's other

arguments do not merit finding that the Board erred.




                                                8
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


                                          ISSUES

          1.    Did the Board err by declining sua sponte review under ELC 11.3(d)?

          2.    Do Osborne's other issues merit finding that the Board erred?

                                        ANALYSIS

          1. The Board Did Not Err by Declining Sua Sponte Review

          Osborne identifies four specific issues that he argues required the Board's

review: (1) whether the exception of a "close, familial relationship" in RPC 1.8(c)

included Osborne, (2) whether disbarment was the proper sanction for Osborne's

conf1ict of interest as personal representative and residual beneficiary, (3) whether

Osborne's representations to the court that he had returned Hancock's property when

he had not were material false statements of fact, and (4) whether signing the POLST

form without authority violated the RPC. Opening Br. of Appellant at 14-15. We

conclude that the Board did not err by declining sua sponte review of any of these

ISSUeS.


          As discussed below, if neither party appeals a hearing officer's decision, ELC

11.3 provides for ordering sua sponte review only in narrow circumstances. The rule

states, "The Board should order sua sponte review only in extraordinary

circumstances to prevent substantial injustice or to correct a clear error." ELC

11.3(d). Here, it was not a close call whether Osborne's conduct violated the RPC

since it clearly did. Notably, he does not challenge the hearing officer's findings of




                                                9
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


fact. None of Osborne's issues presented an extraordinary circumstance such that the

Board should have ordered sua sponte review to prevent substantial injustice or clear

error. Thus, sua sponte review was not required. Each of Osborne's issues are

discussed below.

               a. Sua Sponte Review Was Not Required for the Hearing Officer's
                  Interpretation of "Close, Familial Relationship" in RPC 1.8(c)

       Review was not required of Osborne's first issue because the hearing officer's

interpretation of"familial relationship" was neither unjust nor clear error under ELC

11.3(d). Count I charged Osborne with preparing Hancock's will giving him a

substantial gift under RPC 1.8(c). FF/CL at 1. Osborne contends that the Board's

review was required concerning the meaning ofRPC 1.8(c)'s "close, familial

relationship." As explained below, the hearing officer correctly found that Osborne

did not share a familial relationship with Hancock. Thus, this issue presents neither

injustice nor clear error.

       Lawyers are prohibited from preparing a will giving the lawyer a "substantial

gift from a client ... unless the lawyer ... is related to the client." RPC 1.8(c).

Relatives include a "spouse, child, grandchild, parent, grandparent or other relative or

individual with whom the lawyer ... maintains a close, familial relationship." I d.

Formerly, the only exception was "where the client [was] related to the donee."

Former RPC 1.8(c) (1995) (emphasis added). In 2006, the rule was amended to

expand the relative exception. According to the committee on amendments to the


                                                10
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


mles, the intention was to allow for flexibility of who qualified as a relative.

Reporter's Explanatory Memorandum to the Ethics 2003 Committee's Proposed

Rules ofProfessional Conduct, in WASH. STATEBARASS'N, REPORT AND

RECOMMENDATION OF THE SPECIAL COMMITTEE FOR EVALUATION OF THE RULES OF

PROFESSIONAL CONDUCT (ETHICS 2003) TO THE BOARD OF GOVERNORS !55 (Mar.

2004), http://wsba.org/Resources-and-Services/Ethics/Ethics-2003/Final-Report

[http://perma.cc./ZA4P-LTDH]. However, the amendment is not so flexible it

includes casual acquaintances. If it did, the exception would swallow the rule

entirely. The amendment merely expands the term "relatives" but still requires a

"familial" relationship. Furthermore, the comments to the RPC state that if a gift is

given by will, "the client should have the detached advice that another lawyer can

provide. The sole exception to this Rule is where the client is a relative of the donee."

RPC 1.8 cmt. 7.

       Osborne contends that the meaning of"close, familial relationship" should be

reviewed here; however, he makes no meaningful argument that he actually

maintained a close relationship with Hancock. At the hearing, Osborne admitted that

he was not a relative by blood or marriage to Hancock. Even if true, his testimony

that he checked on her over the years does not amount to a family-like relationship.

Hancock's close friends testified that they had never even heard of Osborne prior to

her hospitalization. Thus, the hearing officer correctly found that Osborne had only a




                                                11
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


"casual friendship" with Hancock. FF/CL at 8. And according to Greer and Petgrave,

Osborne admitted that he sought no independent counsel, which could have absolved

this violation. Since Osborne does not meet the relative exception, he plainly violated

RPC 1.8(c). Thus, as to count 1, it was neither unjust nor clear error that the hearing

officer found that Osborne violated RPC 1.8(c). As such, sua sponte review was not

required.

               b. Sua Sponte Review Was Not Required for the Hearing Officer's
                  Finding That Osborne's Conflict ofInterest Was Improper

       The Board was not required to review Osborne's second claim because

disbarment is appropriate for his conflict of interest. Count 2 charged Osborne with

violating RPC 1.7(a)(2) when he was simultaneously named personal representative

and residual beneficiary of Hancock's estate. Osborne apparently argues that the

Board should have reviewed whether disbarment was appropriate where "there was no

finding that Ms. Hancock lacked testamentary capacity." Opening Br. of Appellant at

14. However, disbarment is the appropriate sanction for a concurrent conflict of

interest in Osborne's circumstances.

       Lawyers are prohibited from representing a client if a concurrent conflict exists.

RPC 1. 7(a). A concurrent conflict exists if "there is a significant risk that the

representation ... will be materially limited by ... a personal interest of the lawyer."

RPC 1.7(a)(2). Here, the hearing officer found that Osborne had a concurrent conflict

because he was both personal representative and residual beneficiary of Hancock's


                                                12
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


estate. The personal representative of an estate has a fiduciary duty to beneficiaries to

act in the estate's best interest; when he or she fails to meet that duty, the beneficiaries

can sue the representative. Traskv. Butler, 123 Wn.2d 835, 843,872 P.2d 1080

(1994). This principle is plainly at odds with Osborne's simultaneous representation

of the estate while being the residual beneficiary of the estate. Osborne's interests to

the estate and to himself as beneficiary would be divided. As such, there is significant

risk that his representation of the estate would be materially limited by his own

interests.

       Disbarment is the appropriate sanction. To review a recommended sanction,

this court follows a two-step process based on the American Bar Association's

Standards for Imposing Lawyer Sanctions (1991). In re Disciplinary Proceeding

Against Carpenter, 160 Wn.2d 16, 23 n.2, 155 P.3d 937 (2007). First, the court

considers the presumptive sanction and looks to the ethical duty violated, the lawyer's

mental state, and the harm caused. Id. Next, the court considers aggravating or

mitigating factors. Id.

       The presumptive sanction is disbarment where an attorney lmowingly

represents a client with intent to benefit the lawyer, without informed consent, and is

potentially injurious to the client. See STANDARDS std. 4.31(a). Here, Osborne

knowingly engaged in an apparent conflict of interest that was seriously injurious to

Hancock's estate and benefited only Osborne. He did not obtain informed consent or



                                                13
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


advise independent counsel. Thus, Osborne's conduct meets standard 4.3 1(a) and the

presumptive sanction is disbarment. The hearing officer cited several aggravating

factors, including selfish motive and vulnerable victim (Hancock was sick and

elderly), while the only mitigating factor was an absence of prior disciplinary record.

See FF/CL at 32-34. The mitigating factor does not outweigh Osborne's knowing and

purely self-interested conflict of interest. That Hancock was not specifically shown to

lack testamentary capacity is of no consequence. Disbarment was appropriate for

Osborne's violation ofRPC 1.7(a). Thus, sua sponte review was not required for this

ISSUe.


                c. Sua Sponte Review Was Not Required To Evaluate Whether
                   Osborne's Actions Were "Material" to Counts 3 and 4
         Next, the Board was not required to review the hearing officer's finding that

Osborne made false statements of material fact and failed to follow a court order.

Osborne removed Hancock's property from her home and did not return it despite

telling the court he had and being ordered to do so. Osborne argues that the Board

should have reviewed whether he violated the RPCs "when there was no factual

finding that anything he failed to turn over was material." Opening Br. of Appellant

at 14-15.

         Count 3 charged Osborne with declaring he had returned Hancock's property

when he had not. Lawyers are prohibited from knowingly making "a false statement

of fact or law to a tribunal" or to another person. RPC 3.3(a)(l); RPC 4.l(a). RPC



                                                14
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


8.4(c) prohibits dishonest conduct. Here, Osborne filed pleadings with the court

stating that he had returned Hancock's personal property. FF/CL at 16. However, a

sheriff found her property at Osborne's home. I d. at 17. Thus, when Osborne filed

declarations that he had returned the property that was still inside his own home, it

was apparent that he made a false statement of material fact or law to a tribunal in

plain violation ofRPC 3.3(a)(l), 4.l(a), and 8.4(c).

       Count 4 charged Osborne with failure to comply with a court order. Under the

ethics code, a lawyer may not "conceal a document or other material." RPC 3.4(a).

Additionally, RPC 3.4(c) states that a lawyer cannot "knowingly disobey an

obligation under the rules of a tribunal except for an open refusal based on an

assertion that no valid obligation exists." The hearing officer found that in June 2010,

the superior court twice ordered Osborne to deliver Hancock's personal property to

Coster. FF/CL at 15-16. Although Osborne gave deposition testimony that he

disposed of Hancock's identification card, credit cards, and financial documents, the

sheriff found those items in Osborne's house. /d. at 16-17. Thus, when Osborne

concealed Hancock's property after being ordered to return it, he violated RPC 3.4(a)

and 3.4(c).

       Consequently, the facts plainly indicate that Osborne lied and failed to comply

with a court order. Since the court ordered Osborne to return all of Hancock's

property (including her financial documents) to the new personal representative, it can



                                                15
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


be inferred that the property was "material" because it was likely helpful to probate

the estate. His false statement about this property was also "material." Thus,

Osborne's argument fails. Since he plainly violated the RPC provisions based on this

conduct, the Board was not required to order sua sponte review of this issue.

               d. Sua Sponte Review Was Not Required To Evaluate Osborne's
                  Violation When He Signed the POLST Form
       The Board was also not required to review whether Osborne violated the RPCs

by signing the POLST form without authority. Osborne argues that admitting to

hospital staff he lacked authority should absolve any violation. RPC 8.4( c) states that

it is professional misconduct for an attorney to "engage in conduct involving

dishonesty, fraud, deceit or misrepresentation." This court questions "whether the

attorney lied. No ethical duty could be plainer." In re Disciplinary Proceedings

Against Dann, 136 Wn.2d 67, 77, 960 P.2d 416 (1998). Here, Hancock gave Osborne

power of attorney over her financial affairs, but not over her health care decisions.

FF/CL at 9-10. When he signed the form without authority, he engaged in an act of

dishonesty, misrepresented his authority in writing, and thus violated RPC 8.4(c).

Admitting his lack of authority and signing it anyway is no absolution because signing

the document was the error. To prevent this violation, Osborne simply could have

withheld his signature to comply with the RPC. Thus, the Board's sua sponte review

was not required as he plainly violated RPC 8.4( c).




                                                16
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


       In sum, none of Osborne's claims that the Board was required to order sua

sponte review under ELC 11.3(d) have merit. Osborne also argues other issues that

are beyond the scope of review that we made clear by order on January 22,2016. We

discuss these issues in the next section.

       2. Osborne's Other Issues Do Not Merit Finding That the Board Erred

       Osborne asks us to consider additional issues, apparently to bolster his

argument that the Board erred by declining sua sponte review. He asks this court to

determine the following: (1) the standard of review for evaluating a Board order

declining sua sponte review and (2) whether review of only the hearing officer's

decision (instead of the full hearing record) is inadequate, denying him due process

and rendering ELC 11.3 unconstitutional. Importantly, Osborne's arguments ignore

the court's order limiting the scope of review in this case. As explained below, these

arguments are meritless.

       For context, some additional facts are necessary. After the hearing officer

issued her recommendation on May 6, 2015, the parties had 30 days to appeal to the

Board. Neither party appealed. The members of the Board received the "Hearing

Officer's Findings of Fact, Conclusions of Law, and Recommendation" for their

consideration when deciding whether to order sua sponte review. On June 23, 2015,

by a 14-0 decision, the Board issued an order declining sua sponte review and




                                                17
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


adopting the hearing officer's recommendation. On July 1, 2015, Osborne filed a

notice of appeal to this court.

       We have previously considered a procedural piece of Osborne's case-whether

the ELC rules allow him to appeal at all. The ODC filed a motion to strike Osborne's

notice of appeal, arguing that he could not appeal the Board's order declining sua

sponte review. The Supreme Court clerk denied it, finding that Osborne could appeal

under ELC 12.3(a). ODC filed a motion to modify the clerk's ruling and an

accompanying motion for an extension of time since the motion to modify was a few

days late. The matter was presented to the November and December 2015 meetings

of a department of this court, and eventually to the en bane meeting on January 7,

2016. The court issued a unanimous order that the Board's order declining sua sponte

review is appealable under ELC.l2.3(a). Order, supra, at 1. It limited this court's

review as follows:

             Mr. Osborne's appeal of the Order Denying Sua Sponte Review
       and Adopting the Hearing Officer's Decision is limited to ONLY the
       record and scope of the Disciplinary Board's review as required by ELC
       11.3(a);

             The record of this review is therefore limited to the Hearing
       Officer's Findings of Fact, Conclusions of Law, and Recommendation;

              The scope of the issue on appeal is limited to whether the
       Disciplinary Board erred by not fmding that sua sponte review was
       required to "prevent substantial injustice or to correct a clear error," see
       ELC 11.3(d).




                                                18
In re Disciplinary Proceeding Against Osborne
No. 201,435-6              ·


Id. As these facts illustrate, Osborne's additional arguments fail because they are

beyond this scope of review.

       First, as a preliminary matter, Osborne asks this court to define a standard of

review for the consideration of a denial of sua sponte review by the Board. We have

well established the standard for reviewing appeals of hearing officers'

recommendations. The standard of review for consideration of an order by the Board

simply adopting the hearing officer's recommendation should be no different. This

court gives "considerable weight to the hearing officer's findings of fact" and treats

unchallenged findings as verities on appeal. In re Disciplinary Proceeding Against

Marshall, 160 Wn.2d 317, 329-30, 157 P.3d 859 (2007). We review conclusions of

law de novo. In re Disciplinary Proceeding Against Jackson, 180 Wn.2d 201, 220,

322 P.3d 795 (2014). Since Osborne tethered his appeal to his due process arguments,

he argues de novo review of the full record should apply. Our order limiting its

review to the hearing officer's findings implies that the traditional standard of review

will apply. No heightened standard is necessary.

       Second, Osborne's principal argument is that the record on appeal is limited

and therefore inadequate for review and that such a limit violates his due process

rights, rendering ELC 11.3 unconstitutional. This argument fails for two reasons.

First, Osborne did not appeal to the Board. The rules provide that the Board will

review a hearing officer's decision if a party appeals within 30 days or if the Board



                                                19
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


orders sua sponte review. ELC 11.2(b). Osborne could have sought additional review

to take advantage of the process provided by the rules. Instead, he apparently relied

on sua sponte review. He failed to realize that sua sponte review is ordered only in

"extraordinary circumstances," with the goal of remedying injustice or clear error.

ELC 11.3(d). As described above, sua sponte review was not warranted here.

       To be sure, there are due process concerns at issue in an attorney discipline

proceeding because financial penalties and the deprivation of a professional license

are at stake. See LK Operating, LLC v. Collection Grp., LLC, 181 Wn.2d 48, 68, 331

P.3d 1147 (2014). However, for that reason, the rules ensure adequate process by

allowing for an appeals process. Osborne failed to take advantage of that process.

Even still, the rules require board "consideration" of sua sponte review if parties do

not appeal. ELC 11.3(a). Osborne argues that no evidence exists showing that the

Board "considered" his matter. This is incorrect. The Board's ruling plainly states,

"This matter came before the Disciplinary Board for consideration of sua sponte

review pursuant to ELC 11.3(a). On June 11, 2015, the Clerk distributed the attached

decision to the Board." See Disciplinary Bd. Order Declining Sua Sponte Review and

Adopting the Hearing Officer's Decision, In re Osborne, No. 13#00082 (June 23,

2015) (Opening Br. of Appellant, App. B). About 12 days elapsed between receiving

the documents and issuing its order declining sua sponte review, which indicates that

the Board had time for consideration. The appeals process illustrates that ample



                                                20
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


process is available. That sua sponte review was not warranted in his case does not

render the process unconstitutional.

       The second reason Osborne's argument fails is that we specifically limited the

scope of review "to only the record and scope of the Disciplinary Board's review as

required by ELC 11.3(a)," Order, supra, at 1 (emphasis omitted), which is the hearing

officer's decision. We sought to consider only "whether the Disciplinary Board erred

by not finding that sua sponte review was required to 'prevent substantial injustice or

to correct a clear error,' see ELC 11.3(d)." !d. Osborne's due process argument is

beyond that scope. By asking the court to find that due process concerns require it to

review the entire record before the hearing officer, Osborne asks us to overturn the

Board's unanimous order. Indeed, the order itself indicates that the full record is not

required.

       Finally, Osborne contends that remedies are necessary to cure the alleged

defects in this process. Since we find that there are no defects rendering this process

unconstitutional, no remedies are necessary. Consequently, we find that Osborne's

extraneous arguments are beyond the scope of this court's order limiting review and

do not otherwise merit finding that the Board erred by declining sua sponte review.

                                       CONCLUSION

       We find that the Board did not err by declining sua sponte review because

review was not required to prevent injustice or correct clear error under ELC 11.3(d).



                                                21
In re Disciplinary Proceeding Against Osborne
No. 201,435-6


Since the hearing officer's findings of fact plainly evidence Osborne's five violations

of the RPC, the hearing officer's recommendation is neither unjust nor clear error.

We conclude the Board did not err by declining sua sponte review.

       We also find no reason to depart from the hearing officer's recommendation of

disbarment. The hearing officer's findings of fact establish that Osborne knowingly

and with dishonest intent violated multiple RPCs and caused serious injury to

Hancock's estate. Based on those findings and our own independent review of the

record, we order Donald Peter Osborne disbarred from the practice of law.




                                                22
In re Disciplinary Proceeding Against Osborne
No. 201,435-6




WE CONCUR:




                                                23
In re Disciplinary Proceeding Against Osborne (Donald Peter)




                                     No. 201,435-6



         WIGGINS, J. (concurring)-! concur in the court's unanimous decision to disbar

Donald Peter Osborne from the practice of law. I write separately to express my

opinion that the court should never have granted review of Osborne's case. If Osborne

did not even care enough to appeal to the Washington State Bar Association

Disciplinary Board (Board), we should not have granted him the right to appeal to this

court.

         The beginning point of analysis is the Rules for Enforcement of Lawyer

Conduct's (ELC) description of the right of a respondent attorney to appeal. Under

ELC 12.2 ("Methods of Seeking [Supreme Court] Review"), there are two ways for a

party to appeal a written opinion or order entered by the Board under ELC 11.12(e):

(1) review as a matter of right and (2) discretionary review. ELC 12.2(a). For appeals

"as a matter of right," the ELCs state, "The respondent lawyer or disciplinary counsel

has the right to appeal a Board decision recommending suspen$ion or disbarment.

There is no other right of appeal." ELC 12.3(a).

         Since the on!y appeal permitted by ELC 12.3(a) is "a Board decision

recommending suspension or disbarment," we look to determine when such a board

decision is made. ELC 11.12, titled "Decision of Board," describes the process of

reaching a board decision. To begin with, "[b]oard review is based on the hearing

officer's Decision, the parties' briefs filed under rule 11.9, and the record on review."
In re Disciplinary Proceeding Against Osborne (Donald Peter)
(Wiggins, J., concurring)


ELC 11.12(a). After consideration, the Board must enter a written order or opinion.

ELC 11.12(e ). Clearly, ifthere is an appeal and the Board follows these procedures,

there is a board decision that can be appealed to our court.

      But Osborne did not appeal the hearing officer's decision to the Board. When

neither party appeals, the Board's only role is to decide whether to grant sua sponte

review. ELC 11.3(a). For the Board's consideration, the only record before it for review

is the hearing officer's decision. ELC 11.3(a). The Board does not receive or consider

hearing transcripts, exhibits, or briefing from the parties. ELC 11.3(a). The Board,

considering only the hearing officer's decision, "should order sua sponte review only

in extraordinary circumstances to prevent substantial injustice or to correct a clear

error." ELC 11.3(d). If the Board declines sua sponte review, "the hearing officer's

recommendation becomes the final decision upon entry of the Board's order declining

review." ELC 10.16(d). By declining sua sponte review, the Board did not make a

"decision recommending suspension or disbarment." Thus, there was no right to

appeal its declination.

        Significantly, the Board includes not just lawyers, but four nonlawyer members

as well. ELC 2.3(b). By skipping board review, Osborne has evaded public

participation in the consideration of his case.

      The court's opinion grants Osborne yet another favor when the court employs

the same standard of review afforded to a lawyer appellant who has properly appealed

to the Board and then to this court. Majority at 18-19. This is inappropriate because

the issue is not whether the hearing officer's decision was right or wrong, but whether

                                            2
In re Disciplinary Proceeding Against Osborne (Donald Peter)
(Wiggins, J., concurring)


the Board should have found that sua sponte review was required to "prevent

substantial injustice or to correct a clear error." ELC 11.3(d). This is a more stringent

standard than the standard we employ when a lawyer appeals to the Board and then

to this court. As a result, there is little difference between the majority's full analysis of

Osborne's appeal and the analysis we afford a proper appeal through the Board to

this court.

       Finally, denying Osborne's appeal of the Board's denial of sua sponte review

does not deprive Osborne of one last opportunity for review by this court. ELC 12.2(b)

reserves to the court the ability to grant our own sua sponte review: "This rule does

not affect the Court's power to review any Board decision recommending suspension

or disbarment and to exercise its inherent and exclusive jurisdiction over the lawyer

discipline and disability system." This court reviews every decision recommending

suspension or disbarment and decides whether to grant sua sponte review of any

decision recommending suspension or disbarment. Accordingly, instead of reviewing

whether the Board appropriately denied sua sponte review, we should be exercising

our own discretion to deny sua sponte review by this court.




                                              3
In re Disciplinary Proceeding Against Osborne (Donald Peter)
(Wiggins, J., concurring)


      For all these reasons, I would have denied review. But despite my

disagreement with the decision to grant review, I respectfully concur in the result.




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