FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON DECEMBER 23, 2021 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON DECEMBER 23, 2021 ERIN L. LENNON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
NO. 201,993-5 In re:
GEOFFREY COLBURN CROSS, Lawyer EN BANC (Bar No. 3089), Filed: December 23, 2021 Appellant.
GORDON McCLOUD, J.—Attorney Geoffrey Colburn Cross
revealed information relating to his representation of former client, Drew Vickers,
in a criminal matter. He revealed that information to the attorney representing a
party adverse to Vickers in a separate, related, civil matter. The Disciplinary Board
of the Washington State Bar Association (Board) found that Cross’s conduct
violated two Rules of Professional Conduct (RPC) barring such disclosures absent
informed consent. 1
These two rules bar such disclosures absent informed consent, or other 1
circumstances not present here: RPC 1.9(c)(2) states, “A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter . . . reveal information relating to the representation except as these Rules would permit or require with respect to a client.” RPC 1.6(a) states, “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).” In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
The main question for the court on this appeal is whether Cross’s purposeful
disclosure of this information to the adverse party should be considered
“negligent,” rather than “knowing,” because Cross did not realize that the RPCs
barred such disclosure. The Office of Disciplinary Counsel’s hearing officer
determined that the conduct was “negligent,” and the hearing officer therefore
imposed a reprimand. The Board disagreed: the Board unanimously ruled that
Cross’s disclosure was “knowing,” and it therefore unanimously imposed a nine
month suspension.
We uphold the Board’s decision in full. We adhere to our prior decisions
holding that a lawyer’s conscious choice to disclose client information that the
RPCs protect from disclosure constitutes “knowing,” rather than “negligent,”
conduct—even if the lawyer does not know that the RPCs protect that information.
FACTUAL AND PROCEDURAL HISTORY
I. Cross represented Vickers in 2014
On April 12, 2013, Vickers was driving passenger Mary Valenzuela on a
Yamaha all-terrain vehicle (ATV). The ATV overturned, and both Vickers and
Valenzuela were injured. Ass’n’s Designated Exs. (Exs.) at 135; Decision Papers
(DP) at 2. There was some evidence that Vickers had been drinking before he took
the wheel. Exs. at 135, 196-97. But in the course of the criminal case that followed,
2 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
Valenzuela provided a declaration stating that the accident was “in no way
[Vickers]’s fault,” and that “something happened to the quad that caused the
accident.” Id. at 137-38. There was some support for her assertion: Yamaha had
recalled the ATV and there is evidence that the cause of the accident may have
been a mechanical failure. Id. at 141, 197, 199.
After the accident, Vickers consulted attorney Michael Carroll about two
matters: filing a civil lawsuit against Yamaha concerning the cause of the accident
and defending him against anticipated criminal charges due to the accident. DP at
2. Carroll referred Vickers to Cross. Id.; Verbatim Report of Proceedings (VRP) at
17. Cross had known Carroll for about 40 years, and they worked closely together
for many years. VRP at 12. Carroll worked as a contractor for Cross and would
earn “commissions” for the cases that he settled on Cross’s behalf. Id. at 13. Cross
and Carroll shared an office space at the time that Carroll referred Vickers to
Cross. VRP at 12-13; DP at 2.
On January 6, 2014, the State charged Vickers with vehicular assault and
criminal trespass in the second degree in Pierce County Superior Court as a result
of the ATV accident. DP at 2; Exs. at 133. Cross represented Vickers throughout
those criminal proceedings. DP at 2. Vickers pleaded guilty about two months later
to the reduced charges of reckless driving and criminal trespass in the second
3 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
degree. Id. at 3. The State reduced the vehicular assault charge to reckless driving
in part because it was “highly likely that the collision resulted from catastrophic
failure of a steering component” of the ATV. Exs. at 141 (Prosecutor’s Statement
Regarding Am. Information).
The last contact between Cross and Vickers occurred after the restitution
hearing, in May 2014. DP at 3; VRP at 20-21. At that time, Cross and Vickers
discussed a potential products liability case against Yamaha. VRP at 19-20. Cross
advised Vickers that Vickers did not have a strong case and that Vickers should not
pursue this claim with Cross as counsel. Id. Vickers and Cross were the only
parties present during this discussion—Carroll was not there. Id. at 19.
II. Valenzuela v. Vickers and Cross’s disclosures
About two years later, on July 8, 2016, Valenzuela (who had previously
authored the declaration asserting that Vickers was not at fault) sued Vickers for
her injuries from the ATV accident. DP at 3; Valenzuela v. Vickers, No. 16-2-
09320-1 (Pierce County Super. Ct., Wash.); Exs. at 154-55. The complaint was
filed by Carroll (who had previously referred Vickers to Cross). That complaint
alleged that Vickers caused the accident by “driving too fast” and “failing to safely
control his vehicle.” Exs. at 154-55.
4 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
After Vickers’s answer was filed, Vickers changed counsel to Kathleen
Thompson. Id. at 159. Thompson promptly filed a motion to amend the answer to
assert the affirmative defense that the accident was the result of the third party fault
of Yamaha. DP at 3; Exs. at 160-74.
Cross learned of Valenzuela from discussions with both Thompson and
Carroll. VRP at 21; DP at 3. Based on these discussions, Cross has admitted to
knowing that (1) Carroll represented Valenzuela, the party adverse to Vickers in
Valenzuela v. Vickers, (2) Thompson represented Vickers in Valenzuela v. Vickers,
(3) Thompson wanted to amend Vickers’s answer to assert a defense related to the
manufacturing defect in the ATV, and (4) Carroll was trying to prevent Thompson
from amending Vickers’s answer to assert an affirmative defense. DP at 3-4; VRP
at 21-24. Cross also believed that Thompson was trying to disqualify Carroll from
representing Valenzuela. DP at 4; VRP at 23. (Thompson never filed such a
motion. DP at 4.)
At the time that Cross knew this information, including the information
about who represented whom, Carroll asked Cross to give Carroll some
information about Cross’s former client, Vickers. Despite the fact that Cross knew
that Carroll represented Vickers’s adversary (Valenzuela), Cross agreed. Cross
then told Carroll that during Cross’s representation of Vickers, Cross had discussed
5 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
with Vickers the possibility of filing a lawsuit against Yamaha and that Vickers
had decided against it. DP at 5; Exs. at 177, 245. Carroll took this information and
in turn disclosed it publicly in Carroll’s declaration in opposition to Vickers’s
motion to amend his answer. Clerk’s Papers at 25; Exs. at 177.
The trial court nevertheless granted Vickers’s motion to amend his answer
on June 5, 2017. DP at 5. The amended answer asserted the affirmative defense
that the accident was caused by mechanical failure of the ATV. Id.; Exs. at 203.
Ten days later, Carroll filed a motion to strike that affirmative defense and
included a declaration from Cross to support this motion. Exs. at 206, 209; VRP at
24-25.
According to Cross, Carroll “just wanted to clarify who was representing
who. And the fact we had decided not to file a products liability suit.” Exs. at 244;
VRP at 25 (emphasis added). Cross claimed that Carroll “needed to clarify what
happened, and I clarified it at his request.” VRP at 27 (emphasis added). Cross
admitted that he never discussed with Vickers or Thompson whether he could
disclose this information to Vickers’s adversary. Id. at 35.
Cross’s declaration stated in full:
Geoffrey Cross, under penalty of perjury, deposes and states that I represented Mr. Vickers. That Mike Carroll provided recall documents. That Mr. Vickers did not wish to pursue a lawsuit against Yamaha over the recalled vehicle. This was discussed about the time
6 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
of his restitution hearing with the owner of the vehicle. The costs of a products liability suit and the legal complications made it something that we did not pursue.
Exs. at 209. Carroll’s motion to strike the amended answer ultimately failed. VRP
at 77.
Cross now acknowledges that providing the declaration was a mistake. Id. at
39. But he claims that nothing was disclosed that was not already in the public
record. Id. Cross also claims that his understanding was complicated by the fact
that the statute of limitations had expired on any claim that Vickers had had against
Yamaha. DP at 7-8. Further, Cross now denies that he was helping Carroll and
asserts that he did not believe he was hurting his former client in any way. VRP at
39. Notably, however, Cross admitted at other points during the disciplinary
proceeding that the purpose of his declaration was to “help” Carroll. Exs. at 253.
III. The hearing officer ruled the violations were “negligent” and recommended a sanction of reprimand
The Office of Disciplinary Counsel (ODC) opened a grievance file on Cross
on October 26, 2018. Id. at 212. After a hearing, the hearing officer determined
that the ODC had carried its burden to prove that Cross violated RPC 1.9(c)(2) and
RPC 1.6(a) by a “clear preponderance of the evidence.” DP at 6. The hearing
officer also concluded that Cross acted negligently in revealing client confidences
and, hence, that the presumptive sanction was reprimand. ABA, STANDARDS FOR
7 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
IMPOSING LAWYER SANCTIONS std. 4.2, at 28-29 (1991 ed. & Supp. 1992); DP at 7,
11.
The hearing officer then found two substantial aggravating factors: Cross’s
two prior disciplinary offenses in the past 10 years and Cross’s nearly 50 years of
experience in the practice of law. DP at 9. The hearing officer also found three
mitigating factors: (a) absence of a dishonest or selfish motive, (b) full and free
disclosure to the disciplinary board or cooperative attitude toward proceedings, and
(c) remoteness of one prior offense. DP at 10; ABA STANDARDS std. 9.32, at 50.
After weighing mitigating and aggravating factors, the hearing officer
recommended that Cross be reprimanded. DP at 11.
IV. The Board ruled that the violations were “knowing” and imposed the sanction of a nine month suspension
The ODC appealed the hearing officer’s decision to the Board. ELC
11.2(b)(1); Answering Br. of ODC at 2. The Board unanimously adopted in part,
reversed in part, and modified in part the hearing officer’s decision. DP at 13.
The Board adopted the hearing officer’s findings of fact. Id. at 14. But the
Board reversed the hearing officer’s determination that Cross acted “negligently.”
Instead, relying on the same facts that the hearing officer found, the Board
concluded that Cross’s actions constituted “knowing” conduct. Id. Next, the Board
adopted both of the aggravating factors and two of the mitigating factors found by
8 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
the hearing officer. Id. But the Board struck the third mitigating factor: absence of
a dishonest or selfish motive. Id. Based on these decisions, the Board modified the
hearing officer’s sanction from a reprimand to a nine month suspension. Id.
Cross brings this appeal under ELC 12.3(a), which provides a disciplined
lawyer with the right to appeal a Board decision recommending suspension. Cross
assigns error to the Board’s determination that Cross acted knowingly, to its
modification of the presumptive sanction from reprimand to suspension, to its
decision to strike one of the mitigating factors, and to its modification of the final
sanction from a reprimand to a nine month suspension. Br. of Appellant at 2.
ANALYSIS
I. Standard of review
The Washington State Supreme Court bears the ultimate responsibility for
lawyer discipline. In re Disciplinary Proceeding Against Anschell, 141 Wn.2d 593,
607, 9 P.3d 193 (2000). We will uphold a hearing officer’s findings of fact if they
are supported by a clear preponderance of the evidence. Id. at 606. Unchallenged
findings of fact become verities on appeal. Id.; In re Disciplinary Proceeding
Against Johnson, 118 Wn.2d 693, 701, 826 P.2d 186 (1992). Conclusions of law,
however, are reviewed de novo. In re Disciplinary Proceeding Against Eugster,
166 Wn.2d 293, 312, 209 P.3d 435 (2009).
9 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
We give more weight to the Board’s recommended sanctions than to those
of the hearing officer. Anschell, 141 Wn.2d at 606. This weight is warranted
because the Board is “the only body to hear the full range of disciplinary matters”
and has a “unique experience and perspective in the administration of sanctions.”
In re Disciplinary Proceeding Against Noble, 100 Wn.2d 88, 94, 667 P.2d 608
(1983); Anschell, 141 Wn.2d at 607. In addition, when the Board is unanimous, we
generally uphold its decision absent a “‘clear reason[]’” for departure. Johnson,
118 Wn.2d at 703 (quoting In re Disciplinary Proceeding Against Hankin, 116
Wn.2d 293, 296, 804 P.2d 30 (1991)).
Sanction determinations are guided, but not conclusively determined, by the
ABA STANDARDS. Anschell, 141 Wn.2d at 607-08. The ABA Standards provides a
two-step process: (1) determine the presumptive sanction by considering (a) the
ethical duty violated, (b) the lawyer’s mental state, and (c) the extent of the actual
or potential harm caused by the misconduct, and (2) weigh any aggravating or
mitigating factors that may alter the presumptive sanction. Id. at 608. Then, if an
attorney raises the issue, the appropriateness of the sanction is weighed against the
Noble factors. Noble, 100 Wn.2d at 95-96; In re Disciplinary Proceeding Against
Schwimmer, 153 Wn.2d 752, 758, 108 P.3d 761 (2005). Of the Noble factors,
10 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
Cross asserts only that the sanction is disproportionate to the misconduct. Br. of
Appellant at 22.
II. The Board correctly determined that Cross acted with “knowledge” when he revealed information relating to the representation of former client Vickers to Vickers’s adversary; the presumptive sanction is therefore suspension
Standard 4.2 of the ABA STANDARDS governs the presumptive sanctions for
failure to preserve client confidences. The presumptive sanction differs depending
on whether the lawyer acted intentionally, knowingly, negligently with potential
injury, or negligently with little potential injury. ABA STANDARDS std. 4.2 at 28-
29. The crucial question in this case is whether Cross acted knowingly, thus
warranting a presumption of suspension (whether or not his violation caused
potential injury), or whether Cross acted negligently with potential injury, thus
warranting a presumption of reprimand.
A. The Board correctly ruled that Cross violated the RPCs
The hearing officer and the Board found that Cross violated two rules of
professional conduct, RPC 1.9(c)(2) and RPC 1.6(a). DP at 6, 14.
RPC 1.9(c)(2) states,
A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter . . . reveal information relating to the representation except as these Rules would permit or require with respect to a client.
11 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
RPC 1.6(a) states,
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
Cross does not dispute that he disclosed information relating to the representation
of former client Vickers (though he does belatedly assert that his disclosure fell
under an exception to the bar; we reject that defense as discussed in the note
below). 2 Br. of Appellant at 2. Instead, his appeal focuses on the Board’s
application of the rules affecting sanctions to the facts of this case. Id.
B. The Board correctly determined that Cross’s actions were “knowing” Cross claims that the Board erred in changing the characterization of his
mental state from “negligence” to “knowing.” Id. We disagree.
2 Cross included a belated defense that his disclosure fell under an exception to RPC 1.6. Br. of Appellant at 12. Subsection (b)(5) of this rule provides that a lawyer “may reveal information relating to the representation of a client” for the attorney “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” RPC 1.6. Cross claims that he was responding to Carroll’s “allegation[]” that Cross did represent Vickers in a claim against Yamaha while Vickers claimed that Cross did not represent him in a claim against Yamaha. Br. of Appellant at 12. Cross concludes that he was responding to Carroll’s “allegation” about who represented whom by clarifying that he (Cross) represented Vickers only in “the criminal matter,” not the civil matter. Id. This confusion of facts does not constitute an “allegation” under the RPC 1.6(b)(5) exception. Cross’s new argument about responding to Carroll’s allegation also contradicts Cross’s earlier assertions: Cross told the hearing officer that the purpose of his declaration and disclosure was to dispute a supposed attempt (never filed) by Thompson to disqualify Carroll from the case. Exs. at 244-45; VRP at 22-23, 27.
12 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
The ABA defines the relevant mental states as:
“Knowledge” is the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result.
“Negligence” is the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation.
ABA STANDARDS at 17 (emphasis added).
As discussed above, we uphold a hearing officer’s findings of fact if they are
supported by a clear preponderance of the evidence. Anschell, 141 Wn.2d at 606.
And neither Cross nor the Board have challenged the hearing officer’s findings
about what Cross disclosed, when or to whom he disclosed it, or whether he had
permission from his former client to disclose it.
Instead, Cross challenges the Board’s determination about the legal
significance of those now undisputed facts. And we review legal conclusions—like
the legal significance of undisputed facts—de novo. Eugster, 166 Wn.2d at 312.
Cross argues that he was not aware that the content of the declaration was a
“client confidence” and therefore he did not have the requisite “knowledge” that he
was violating an RPC. Br. of Appellant at 12. We assume that Cross’s factual
assertion is correct—the hearing officer’s conclusion certainly seems to have been
13 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
based on his factual finding that Cross did not understand that he had violated the
Rules.
We nevertheless reject Cross’s argument for a variety of other legal reasons.
First, Cross misunderstands the scope of RPC 1.6(a)’s protection. RPC
1.6(a) does not prevent lawyers from disclosing only client “confidences”; it
actually prevents lawyers from disclosing “information relating to the
representation of a client.” RPC 1.6 (emphasis added). This rule covers more than
typical privileges or confidences. Id. cmts. 3, 21 (“‘information relating to the
representation’ should be interpreted broadly”). “The confidentiality rule, for
example, applies not only to matters communicated in confidence by the client but
also to all information relating to the representation, whatever its source.” Id. cmt.
3.
Second, a discussion with a client about the pros and cons of filing a civil
lawsuit is privileged and confidential. See, e.g., RCW 5.60.060 (2)(a) (“An
attorney or counselor shall not, without the consent of his or her client, be
examined as to any communication made by the client to him or her, or his or her
advice given thereon in the course of professional employment.” (emphasis
added)); Hoff v. Safeco Ins. Co. of Ill., 10 Wn. App. 2d 1, 15-16, 449 P.3d 667
(2019) (information and documents related to litigation strategy are not
14 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
discoverable under attorney-client privilege and attorney work product doctrine),
review denied, 195 Wn.2d 1007 (2020).
Third, and critically, we have explicitly held that a lawyer need not know
that his intentional actions violated the RPCs for those actions to be considered
“knowing.” “[T]he definition of knowledge contains no such requirement and this
court has found knowledge where an attorney knew or should have known that a
conflict existed.” In re Disciplinary Proceeding Against Egger, 152 Wn.2d 393,
416, 98 P.3d 477 (2004) (“consciousness that particular conduct violates the RPCs
is not a prerequisite for a finding of knowledge”); In re Disciplinary Proceeding
Against Preszler, 169 Wn.2d 1, 22, 232 P.3d 1118 (2010) (to find “knowledge”
attorney “simply needed to be consciously aware of the circumstances that made
his fee unreasonable,” not consciously aware that his fee was in fact unreasonable
under the RPCs); In re Disciplinary Proceeding Against Stansfield, 164 Wn.2d
108, 123, 187 P.3d 254 (2008) (“We do not require proof of state of mind relating
to the consequences; it is sufficient if the facts support a conclusion that the lawyer
either knew or should have known that adverse consequences would occur.”); In re
Disciplinary Proceeding Against Holcomb, 162 Wn.2d 563, 585, 173 P.3d 898
(2007) (attorney found to have acted with “knowledge” because he “should have
known that a conflict existed when he requested the loans from his client without
15 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
knowing of the trust and he should have inquired into the terms of the trust when
he learned of it”).
Cross knew that he was providing a declaration with “information relating to
the representation” of his client to his client’s adversary—a serious act that would
cause any reasonable lawyer to at least pause and look up the rules on former client
disclosures. Cross revealed his and his former client’s assessment of the case. He
revealed that assessment to help bolster Carroll’s (and hence Valenzuela’s)
arguments in opposition to amendment of Vickers’s answer; thus, the information
that Cross now characterizes as merely “clarifying” was something that the parties
to the civil suit hoped—or feared—could change the outcome. VRP at 27 (Cross
claimed that Carroll “needed to clarify what happened, and I clarified it at his
request.”).
In sum, Cross knowingly provided a declaration to his former client’s
adversary discussing the course of his relationship with that former client. Thus,
we uphold the Board’s conclusion that Cross had “knowledge” of his actions.
C. Cross caused potential harm
The mental state of knowledge triggers the presumptive sanction of
suspension in this case. After we determine the mental state, we ask whether there
was actual or potential harm to determine if that presumptive sanction should be
16 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
adjusted. In re Disciplinary Proceeding Against Poole, 156 Wn.2d 196, 223, 125
P.3d 954 (2006) (if knowledge is found, but there was no potential for injury, the
presumptive sanction can be lowered from suspension). A “potential injury” is
harm “that is reasonably foreseeable at the time of the lawyer’s misconduct, and
which, but for some intervening factor or event, would probably have resulted
from the lawyer’s misconduct.” ABA STANDARDS at 17. The extent of the injury
caused by the attorney’s misconduct is given “particularly great weight.” In re
Disciplinary Proceeding Against Curran, 115 Wn.2d 747, 772, 801 P.2d 962
(1990).
Cross caused potential injury. Thompson claimed that third party fault “was
everything” in the defense’s case because there were “bad injuries,” Vickers had
already pleaded guilty to reckless driving, there was a question about alcohol use,
and there was an insurance policy limit. VRP at 77-78. Thompson was concerned
that a judgment in excess of the policy limits could affect Vickers’s personal
assets, including his business. Id. Cross’s disclosure to Carroll of information
about Cross’s representation of Vickers, for the purpose of helping Carroll in the
lawsuit in which Carroll’s client was adverse to Vickers, therefore posed
reasonably foreseeable harm to Vickers.
17 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
D. The presumptive sanction is suspension
Because Cross knowingly disclosed information relating to the
representation of a former client not otherwise lawfully permitted to be disclosed,
and because this disclosure caused a potential injury to a client, the presumptive
sanction is suspension. ABA STANDARDS std. 4.22, at 28-29. The length of a
suspension is determined by weighing the aggravating and mitigating factors in the
case.
III. Aggravating factors outweigh mitigating factors
The presumptive sanction should be upheld unless “the aggravating and
mitigating factors are sufficiently compelling to justify a departure.” In re
Disciplinary Proceeding Against Cohen, 149 Wn.2d 323, 339, 67 P.3d 1086
(2003). Cross does not challenge the two aggravating factors that the Board
adopted: (1) prior disciplinary offenses and (2) substantial experience in the
practice of law. Br. of Appellant at 2. We adopt these aggravating factors and turn
to the mitigating factors.
Cross does challenge the Board’s decision to strike one of the mitigating
factors. The hearing officer found three mitigating factors: (a) absence of a
dishonest or selfish motive, (b) full and free disclosure to disciplinary board or
cooperative attitude toward proceedings, and (c) remoteness of one prior offense.
18 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
DP at 10; ABA STANDARDS std. 9.32, at 50. The Board upheld the hearing
officer’s findings of cooperation and remoteness of one prior offense. But it struck
the finding of the absence of a dishonest or selfish motive.
We give great weight to the Board’s unanimous decision to uphold the
mitigating factors of cooperation and remoteness of one prior offense, especially
where (as here) we have not been presented with a clear reason to depart from that
decision. Anschell, 141 Wn.2d at 606 (we give more weight to the Board’s
sanctions than to those of the hearing officer); Johnson, 118 Wn.2d at 703 (when
the Board is unanimous, we generally uphold its decision absent a “‘clear
reason[]’” for departure (quoting Hankin, 116 Wn.2d at 296)). We therefore
uphold these two mitigating factors.
We also uphold the Board’s decision to strike the third mitigating factor,
absence of a dishonest or selfish motive. A dishonest or selfish motive is typically
found when “the lawyer intends to benefit financially or deceive the court.”
Holcomb, 162 Wn.2d at 587. Cross bears the burden to prove the absence of a
dishonest or selfish motive as a mitigating factor, while the ODC has the burden to
prove the existence of such a motive as an aggravating factor. In re Disciplinary
Proceeding Against Carpenter, 160 Wn.2d 16, 30, 155 P.3d 937 (2007). There is
no evidence that Cross intended to deceive the court or receive a direct or indirect
19 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
benefit from his actions. However, Cross admitted that the purpose of his
declaration was to “aid” and “help” Carroll. Exs. 27 at 252-53. Thus, Cross’s
motivation in giving the declaration and providing information about his
representation of Vickers was neither entirely selfish nor entirely free of personal
motivation—Cross was seemingly helping out a friend. We therefore defer to the
Board’s decision to strike the mitigating factor of a lack of a dishonest or selfish
motive. As a result, motive weighs neither for nor against Cross.
IV. Cross’s sanction is proportionate to his misconduct
When considering whether a sanction is proportionate to the misconduct, we
typically defer to the Board’s decision—particularly where, as here, the Board’s
decision is unanimous. In re Disciplinary Proceeding Against Abele, 184 Wn.2d 1,
28, 358 P.3d 371 (2015).
Proportionality is determined by comparing the recommended sanction to
sanctions in cases with similarly situated attorneys and analogous levels of
culpability. In re Disciplinary Proceeding Against Christopher, 153 Wn.2d 669,
686-87, 105 P.3d 976 (2005). The sanction needs to be “roughly proportionate.” In
re Disciplinary Proceeding Against Gillingham, 126 Wn.2d 454, 469, 896 P.2d
656 (1995). Additionally, the purpose of disciplinary proceedings is “‘“not
punitive but to inquire into the fitness of the lawyer to continue in that capacity for
20 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
the protection of the public, the courts, and the legal profession.”’” Eugster, 166
Wn.2d at 315 (quoting ABA STANDARDS at 3 (quoting Ballard v. State Bar of Cal.,
35 Cal. 3d 274, 291, 673 P.2d 226, 197 Cal. Rptr. 556 (1983))). Cross bears the
burden of bringing to the court’s attention decisions that demonstrate the
disproportionality of the sanctions imposed. In re Disciplinary Proceeding Against
Kagele, 149 Wn.2d 793, 821, 72 P.3d 1067 (2003).
Cross brings five cases to this court’s attention. Br. of Appellant at 22-25.
The first is the stipulation of Michael Carroll (the same Carroll who was involved
in this case). Stipulations, however, are not usually considered when determining
the proportionality of attorney discipline. In re Disciplinary Proceeding Against
Boelter, 139 Wn.2d 81, 103, 985 P.2d 328 (1999). We decline to use Carroll’s
stipulation for proportionality purposes because we do not have the stipulation, nor
do we have the facts leading to such an agreed resolution, in the record.
Cross then points to Schafer and Botimer, cases in which the attorneys’
disclosures of client confidences were more frequent and more extensive than
Cross’s disclosures. Br. of Appellant at 13-17, 24; In re Disciplinary Proceeding
Against Schafer, 149 Wn.2d 148, 158, 169-73, 66 P.3d 1036 (2003); In re
Disciplinary Proceeding Against Botimer, 166 Wn.2d 759, 765, 214 P.3d 133
(2009). But Botimer and Schafer had no prior disciplinary offenses, while Cross
21 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
does: this will be Cross’s third time through the disciplinary process. Therefore,
Cross’s sanction is not necessarily disproportionate when compared to these cases.
Cross finally cites Behrman and Dynan. Br. of Appellant at 24-25; In re
Disciplinary Proceeding Against Behrman, 165 Wn.2d 414, 418, 197 P.3d 1177
(2008); In re Disciplinary Proceeding Against Dynan, 152 Wn.2d 601, 621, 98
P.3d 444 (2004). The attorneys’ conduct in those cases is certainly reprehensible,
and seemingly worse than Cross’s conduct. But the surrounding circumstances
differ. Behrman and Dynan lacked the extensive prior discipline record that Cross
has amassed.
We therefore uphold the Board’s unanimous nine month suspension as
“roughly proportionate” when compared to our prior suspension decisions.
Gillingham, 126 Wn.2d at 469.
CONCLUSION
Cross acted knowingly when he disclosed information related to his
representation of a former client without that client’s informed consent, even if
Cross did not know that the RPCs prohibited those disclosures. Based on our
weighing of the aggravating and mitigating factors and a proportionality analysis,
we uphold the unanimous Board’s decision to impose a nine month suspension.
22 In re Cross (Geoffrey Colburn) (Bar No. 3089) No. 201,993-5
WE CONCUR: