In re Disciplinary Proceeding Against Jackson

• Court: Washington Supreme Court
• Decided: April 17, 2014
• Docket: 201,017-2
• Status: Published

Opinion

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In re Disciplinary Proceeding Against ) No. 201,017-2 ROBERT B. JACKSON, ) ) En Bane Attorney at Law. ) ) ) Filed APR 1 7 2014

WIGGINS, J.-After an 11-day disciplinary hearing, a hearing officer concluded

that Robert B. Jackson had committed 14 counts of misconduct The presumptive

sanction for 10 of the 14 counts is disbarment Accordingly, the hearing officer

recommended -that Jackson be disbarred and a unanimous Washington State Bar

Association Disciplinary Board (Board) agreed.

On appeal, Jackson generally assigns error to all of the hearing officer's

findings of fact but fails to support any assertion with argument, legal authority, or

references to the record. We hold that the hearing officer's credibility determinations

and findings of fact are supported by substantial evidence and her conclusions of law

are correct There is no evidence of bias or misconduct on the part of the hearing

officer or disciplinary counsel. In addition, the record supports the finding of seven

aggravating factors and three mitigating factors and we hold that disbarment is not

disproportionate. Thus, we accept the Board's unanimous recommendation and order

Jackson disbarred. No. 201,017-2

FACTS

Robert B. Jackson was admitted to practice law in the state of Washington on

November 16, 1989. This proceeding arises out of two separate matters: the

Simonson matter (counts 1-5) and the Dainard matter (counts 6-14). Each matter

involves thousands of pages of exhibits that, along with hours of testimony, evidence

a complex web of fraud, deceit, conflicts of interest, and other serious violations of the

Rules of Professional Conduct (RPC). The hearing officer made 391 detailed findings

of fact. Although Jackson purports to assign error to all findings, he never argues this

assignment of error. Accordingly, we treat the findings as verities on appeal. In re

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

(unchallenged findings of fact are verities on appeal). For context, we provide a short

summary of the facts related to each matter prior to delving into the details.

I. Simonson Matter (Counts 1-5)

In the Simonson matter, Jackson assisted his client and business partner Doug

Simonson in transferring real property that had previously been abandoned in

Simonson's bankruptcy. Jackson helped Simonson obtain a loan on the property by

falsely signing documents as an agent of the seller (Michael Levenhagen). Later,

when the bankruptcy court froze Simonson's assets in an adversary proceeding,

Jackson used his lawyer trust accounts to transfer funds for Simonson, in violation of

the court's orders.

Jackson then represented three other couples (the Levenhagens, Laings, and

Lanings) who were sued by the bankruptcy trustee for their participation in the

Simonson property transactions. Jackson did not inform these clients (1) that he was

2 No. 201,017-2

personally involved in the transactions at issue, (2) that he was concurrently providing

legal advice to Simonson, or (3) that his interests and those of Simonson were adverse

to theirs. In response to discovery requests, Jackson intentionally withheld

documents that would have assisted his clients' defense because the evidence

contradicted Simonson's defenses and revealed Jackson's own culpability.

A. The Real Estate Transaction

In early 2004, Doug and Karen Simonson owned a residence in Kirkland,

Washington. On April 27, 2004, the property was appraised for sale at $1.1 million.

Two days later, the Simonsons filed a petition for bankruptcy, listing the Kirkland

residence. Based on representations that the residence property had no equity

beyond the secured loans, the bankruptcy court entered an order abandoning the

property.

Soon thereafter, Doug Simonson, acting as an agent for Global Financial

Solutions (GFS), contacted Michael Levenhagen-a potential buyer from Minnesota.

GFS is a company that structures real estate investments by pairing investors with

good credit with investment properties. Simonson did not tell Levenhagen that the

residence property had been in bankruptcy, that he was living in it, or that he expected

to receive a commission from the sale. Levenhagen purchased the property for $1

million. As part of the purchase agreement, GFS agreed to pay a buying partnership

fee to Levenhagen for the use of his credit and to pay the mortgage.

GFS failed to perform on its promise. Levenhagen contacted Simonson and

Simonson blamed GFS for all of the issues, casting himself as a fellow victim of GFS.

When Levenhagen traveled to Washington to explore selling the residence, he

3 No. 201,017-2

learned for the first time that Simonson had owned the property and that it had been

involved in his bankruptcy. Simonson persuaded Levenhagen not to sell the property

by telling him it did not have enough value to pay off the loans. Simonson continued

to reside in the residence, while Levenhagen made the mortgage payments.

In April2005, Simonson retained Jackson, who helped him set up and carry out

a plan to transfer the residence so that it would ultimately end up back in Simonson's

control while allowing Simonson to pull out cash along the way. Jackson prepared

multiple documents to effectuate this complicated series of transfers.

The plan was implemented so that on June 7, 2005, Simonson transferred his

ownership interest in Network Builders LLC to Levenhagen; this transfer was not

recorded. Two days later, Levenhagen quitclaimed the residence to Network Builders

and sent the documents to Jackson; these documents were recorded. The reason for

this pair of transactions was that Simonson wished to obtain a hard money loan on

the Kirkland residence even though he no longer had an ownership interest in it. To

that end, Jackson drafted a real estate excise tax affidavit and signed it under penalty

of perjury as Levenhagen's agent (the affidavit was necessary for quitclaim deed to

be recorded). Jackson then recorded the affidavit and the quitclaim deed. By failing

to record the Network Builders transfer and recording the quitclaim deed, the public

record reflected that the residence belonged to Network Builders and that Network

Builders was still owned by Simonson.

On June 13, 2005, Simonson obtained a $167,775.56 loan against the

residence, signing the deed of trust as manager of Network Builders. Neither Jackson

nor Simonson told Levenhagen that the property had been further encumbered.

4 No. 201,017-2

On June 16, 2005, still unaware of the new loan against the property,

Levenhagen transferred Network Builders (and, therefore, the residence) back to

Simonson. Simonson told Levenhagen that the transfer was necessary because

Kenneth North wanted Simonson to be the seller to a new buying partner. Even

though Simonson received substantial funds from the secret loan, he told Levenhagen

that he had no funds to make mortgage payments on the residence, so Levenhagen

continued to make the payments while Simonson lived at the residence.

The residence property changed hands a few more times. Mark Laing owned

the property in late 2005. 1 And in December 2007, David Laning took control of the

property and Levenhagen was finally repaid for the mortgage payments he had made.

B. Fraud on the Bankruptcy Court

In January 2006, the bankruptcy trustee instituted an adversary proceeding

against Simonson based on activity associated with Simonson obtaining a tax refund. 2

The bankruptcy court issued multiple restraining orders restricting the movement of

Simonson's assets and eventually froze his assets altogether.

Jackson failed to comply with these orders. In numerous transactions, Jackson

violated the court's orders by accepting funds on Simonson's behalf and disbursing

funds pursuant to Simonson's specific directions-e.g., agreeing to deposit

$170,488.86 into his IOLTA Trust Account on behalf of Simonson; issuing an IOLTA

1 Mark Laing bought Network Builders, which owned the property. 2 After the bankruptcy petition was filed, Simonson amended his prepetition tax returns and obtained a tax refund of approximately two hundred thousand dollars. Simonson still had some of the money in his personal accounts. The trustee filed the first adversary proceeding seeking to recover the remainder of the tax refunds Simonson had acquired.

5 No. 201,017-2

account check to Key Bank payable to Merendon Mining, a tax shelter that was the

apparent source of Simonson's retroactive tax refund; and purchasing a certified

check also payable to Merendon Mining. Jackson then used multiple accounts to

conceal the trail of money. Accordingly, the bankruptcy court granted the trustee's

motion for sanctions against Jackson and his firm.

Jackson argued that he complied with court orders as soon as he became

aware of them. But based on the totality of Jackson's demeanor during his testimony,

the contradictions between his testimony and the exhibits, and the testimony of other,

credible witnesses, the hearing officer concluded that Jackson lied to the bankruptcy

court about his knowledge of the restraining orders to conceal his role in perpetrating

fraud on the court. Based on the overwhelming evidence, the hearing office found

that, in actively and intentionally participating in fraud on the bankruptcy court,

Jackson violated 18 U.S.C. § 152. Although the hearing officer acknowledged the

bankruptcy court's order granting a motion for sanctions against Jackson's firm, she

independently relied on abundant documents and testimony to find that Jackson had

violated discovery orders.

C. Conflicts of Interest

In April 2006, the trustee's attorney, Denise Moewes, filed a second adversary

proceeding against parties who had played some role in the Kirkland residence

transactions. The trustee sought to vacate the order of abandonment, to recover

unauthorized postpetition transfers, and to compel turnover of the property. Michael

Levenhagen, Mark Laing, David Laning, and their wives were among the named

defendants. Five months later, Moewes filed a second amended complaint, adding

6 No. 201,017-2

Simonson as a defendant. Although there were obvious conflicts of interest among

Simonson, GFS, and the Levenhagens/Lanings/Laings, Jackson's firm accepted

representation of all parties. Jackson arranged for attorney Greg Cavagnaro to

represent Simonson but actively assisted Cavagnaro in the representation. Jackson

arranged for Stephen Araki to represent the Levenhagens/Lanings/Laings but

assisted in representing these clients as well.

Jackson and his firm had serious and intractable conflicts with the

Leven hag ens. 3 Recall that Jackson falsely signed the tax affidavit as Levenhagen's

agent, and Jackson's escrow company closed Simonson's secret loan against the

residence, knowing that Levenhagen actually owned the property. Levenhagen was

unaware of this misconduct. The hearing officer also found that Jackson had conflicts

with the Laings and Lanings. 4

In addition, Simonson's interests often conflicted with the

Levenhagens/Laings/Lanings. In representing all of these parties, Jackson actively

ignored or concealed relevant facts to protect Simonson, thus compromising his ability

to defend the Levenhagens/Laings/Lanings. For example, the complaint sought an

order vacating the order of abandonment, alleging that Simonson had fraudulently

misrepresented the value of the property to the bankruptcy court. In order to protect

3 When Simonson initially arranged for Jackson to represent the Levenhagens, Laings, and Lanings and to pay their fees, Mike Levenhagen expressed concern about the potential for a conflict of interest. 4 Asof June 21, 2006, the Levenhagens, Laings, and Lanings all had valid potential claims against both Simonson and Jackson.

7 No. 201,017-2

Simonson, Jackson withheld information that the three couples had no knowledge that

the property had ever been abandoned in bankruptcy. 5

The hearing officer found that Jackson and his firm violated the RPCs when

they failed to disclose any of these conflicts to the Levenhagens, Laings, or Lanings

and failed to obtain written consent to waive conflicts before accepting

representation. 6 The hearing officer rejected Jackson's argument that he was not the

attorney for Simonson or the Levenhagens, Laings, or Lanings during the bankruptcy

proceeding. Although Jackson's partner, Stephen Araki, was the attorney of record

for the Levenhagens, Laings, and Lanings, the hearing officer found that Jackson did

most of the work associated with the representation. And although Greg Cavagnaro

was Simonson's attorney of record in the bankruptcy proceeding, Jackson was

Simonson's primary legal advisor for all issues related to the proceedings.

5 For example, Jackson had an e-mail from Mike Levenhagen explaining that Simonson was one of Levenhagen's initial contracts and that at the time of the purchase, Levenhagen had no knowledge of the history or prior ownership of the property. Rather, he learned about Simonson's bankruptcy after the purchase in late December 2004. This information was never mentioned in the Levenhagen/Laing/Laning answer. 6 Jackson did not inform the Levenhagens, Laings, or Lanings that he had actively participated in defending Simonson in the first adversary proceeding, that he was still providing legal services to Simonson in connection with the bankruptcy proceeding, or that he was personally involved in the transfers at issue in the lawsuit. The hearing officer found that Jackson's firm should have informed the parties of these previous dealings, which created a significant risk of conflict, and should have obtained written consent to waive those conflicts before accepting representation. Instead, Jackson's firm simply sent a letter dismissing any notion that a conflict existed; the hearing officer found that the letter did not comply with RPC 1.7(b) because it falsely represented that there was no potential for a conflict of interest.

8 No. 201,017-2

To conclude, the hearing officer found that there were serious conflicts of

interest but Jackson represented all of these clients to protect his and Simonson's

interests.

D. Discovery Violations

During the second adversary proceeding, which was brought to recover the

property, Moewes made numerous requests for production of documents from the

Levenhagens, Laings, and Lanings. These parties promptly sent the requested

documents to Jackson. Jackson, upon receipt of the documents, repeatedly withheld

highly relevant information and sometimes even modified documents to obscure their

relevance. 7 On October 27, 2008, the bankruptcy court issued a 47-page decision

finding that Jackson's firm had withheld relevant documents.

After a lengthy recitation of specific discovery violations, the hearing officer

found that Jackson repeatedly withheld documents during the bankruptcy proceeding,

and those he did produce, he produced late enough to prevent Moewes from being

able to prepare for court proceedings and depositions. The hearing officer found that

Jackson knowingly and intentionally withheld relevant documents to conceal his role

in the fraud and to avoid inculpating Simonson. These documents, had they been

provided, would have revealed Simonson's involvement with GFS and helped

establish that the Levenhagens, Laings, and Lanings were victims and not parties to

the bankruptcy fraud. Jackson never informed his clients that he was withholding the

documents, and they did not consent to the documents being withheld.

7 Exhibit A-284 is over 1200 pages and contains a full description of irregularities Moewes discovered.

9 No. 201,017-2

At the disciplinary hearing, Jackson was unable to explain why omitted

documents had not been produced. He claimed that he had no access to some of the

documents because another attorney had withheld documents and because he had

given between 6 to 10 boxes of documents to attorney Marc Stern, who only delivered

one or two boxes of requested copies back to Jackson. The hearing officer found

Jackson was not credible, concluding that Jackson had provided false testimony to

support his defense of this charge.

Jackson also argued that he was not aware that he needed to produce e-mails.

The hearing officer rejected this argument because the requests clearly applied toe-

mails and Jackson actually told his clients to forward e-mails to him.

II. Dainard Matter

In the Dainard matter, Jackson partnered with his clients Rob and Claire

Dainard to purchase an investment property. The property had development potential

because it was zoned multifamily and was adjoined by two properties that were also

amenable to development. Jackson lied on a mortgage application to obtain a loan

at a more favorable interest rate. Jackson then lied to the Dainards about his

involvement with another client and business partner, Kenneth North, who sought to

purchase the same three properties for development. Jackson intentionally deceived

the Dainards to induce them to offer to sell their interest in the property.

A. Misrepresentations on the Home Morlgage

Beginning in 2000 and continuing through 2007, Jackson was the attorney for

Robert and Claire Dainard. Jackson and his wife became friends with the Dainards

10 No. 201,017-2

during this period. At the time of the events associated with this grievance, Jackson

was representing Claire Dainard in a personal injury action.

In October 2005, the Dainards became interested in a property at 115 Webster

in Chelan County for its development potential. With Jackson's help, they signed a

purchase and sale agreement for 115 Webster. Soon after, Jackson convinced the

Dainards to allow him and his wife to join in the investment. In November 2005, the

Jacksons and the Dainards formed RPC 8 Enterprises LLC to purchase the property.

But first, Jackson convinced the Dainards to transfer the purchase and sale

agreement for 115 Webster to Jackson and his wife because Jackson would be able

to obtain better financing through his contacts at Bank of America.

On June 7, 2006, Mr. Dainard received a copy of correspondence between

Jackson and Ancora Financial regarding a loan. When asked, Jackson told Mr.

Dainard that Bank of America had not worked out. A week later, to get a more

favorable loan agreement, Jackson misrepresented that the property was his second

home on a mortgage application. 9 At the same time, Jackson signed a "Second Home

Rider," which likewise stated that the property was to be used as the Jacksons' second

home. The hearing officer concluded that Jackson intentionally violated 18 U.S.C. §

1344 when he signed the Second Home Rider and falsely claimed the property as his

second home.

8 "RPC" is presumably an acronym for Robert/Patricia/Claire; it is ironic in light of the number of RPC violations accompanying its formation. 9 Even though Jackson told the Dainards he would quitclaim the property immediately, he did not file the paperwork to quitclaim 115 Webster to RPC Enterprises until September 2007, and even then he incorrectly listed the grantee as "RPC LLC."

11 No. 201,017-2

At the hearing, both Jackson and his wife argued that the Dainards had

arranged the financing and that they discovered the Second Home Rider language

only at closing. The Jacksons further argued that they signed the rider because they

were concerned that if they did not, the Dainards would lose their earnest money

deposit. The hearing officer rejected this testimony as false, finding that it was directly

contradictory to other, more credible evidence-e.g., the loan officer testified that he

dealt only with Jackson, and the original loan application, signed six weeks before

closing, stated that the property would be used as a second home. The hearing officer

also found that it was not credible that Jackson had missed the references to the

property being used as a second home because the evidence demonstrated that

Jackson paid great attention to detail. Accordingly, the hearing officer concluded that

the Dainards were not informed of and did not consent to the false representations.

B. Conflicts of Interest

During the time the Dainards/RPC Enterprises owned 115 Webster, Jackson,

acting on behalf of himself and North, attempted to acquire 115 Webster, along with

the two adjoining properties. He did this without apprising the Dainards, even though

he knew the Dainards had purchased 115 Webster with an eye towards acquiring the

adjoining properties for development. 10

In March 2007, Jackson signed a purchase and sale agreement binding RPC

Enterprises to purchase the Mack property (one of the adjoining properties) without

informing the Dainards. He did so to lock up the property so that he and North could

10 Early on, Mr. Dainard specifically asked Jackson if he represented North. Jackson lied and said, "No."

12 No. 201,017-2

explore the full investment potential of the three properties. Jackson did not have the

authority to enter into the agreement, and had the Dainards been aware of the

transaction, they would not have authorized it. In the ensuing months, Jackson

continued his efforts to secure the three properties for North. In September 2007,

North made a presentation at a Chelan winery regarding a condo development on the

three properties, even though he had not acquired 115 Webster yet. When the

Dainards learned about the presentation, they informed Jackson that they were not

interested in doing business with North. The Dainards eventually decided not to

accept any purchase offers on the property.

The hearing officer found that from the inception, there was a significant risk

that Jackson's representation of RPC Enterprises and the Dainards would be

materially limited by his personal interests and his responsibilities to other concurrent

clients-specifically Kenneth North. Nevertheless, Jackson persisted in his

representation of all parties, and never informed the Dainards of his involvement with

North, who was similarly interested in developing 115 Webster and its adjoining

properties. The hearing officer found that the Dainards provided credible evidence

that they had no knowledge of Jackson's actions; none of the numerous e-mails

concerning the three properties were copied to the Dainards.

The hearing officer rejected Jackson's argument that he had no attorney-client

relationship with North. Jackson admitted to representing one or more of North's

companies. In addition, Jackson drafted numerous documents for North and his

company, provided advice to North, and maintained North's funds in his trust account.

13 No. 201 ,017-2

The hearing officer concluded that these activities created a reasonable belief on the

part of North that Jackson was his attorney. 11

PROCEDURAL HISTORY

On August 20, 2010, the Washington State Bar Association (Association) filed

a formal complaint, charging Jackson with 14 counts of misconduct. By agreement,

the matter was set for hearing on April 4, 2011. On March 8, 2011, Jackson moved to

continue the hearing until June 13, 2011, on the grounds that two potential witnesses

would be out of the area. The hearing officer denied the motion. The hearing

commenced as scheduled on April 4, 2011.

On August 17, 2011, the hearing officer issued her Findings of Fact,

Conclusions of Law, and Hearing Officer's Recommendation. The hearing officer

concluded that the Association had proved all of the violations alleged in the formal

complaint and recommended that Jackson be disbarred.

On September 2, 2011, the Board notified Jackson's counsel of the Board

briefing schedule and the date for oral argument if requested. Jackson never filed a

brief, and neither party requested oral argument.

On November 17, 2011, two business days before the Board was to consider

the case without oral argument, Jackson filed a motion to continue the Board's

consideration until January 2012. The Board denied the motion, noting that Jackson

11 At the disciplinary hearing, Jackson intentionally attempted to conceal the nature of his relationship with North by resisting the Association's demands for documents and providing false statements regarding the location of documents and his ability to retrieve documents. When Jackson finally produced the materials, the Association was able to document the presence of North's funds in Jackson's trust account, a fact that substantially undercut his contention that North was not his client.

14 No. 201,017-2

could raise whatever issues he wished to raise before this Court. On November 18,

2011, the Board adopted the hearing officer's decision and recommendation.

On December 8, 2011, the Association served and filed a timely statement of

costs and expenses under ELC 13.9(d). Jackson filed no exceptions. On January

11, 2012, the Board entered an order assessing costs and expenses against Jackson

in the amount of $25,517.49.

Jackson filed a timely notice of appeal on December 16, 2011, and submitted

his opening brief on March 4, 2013. 12 On August 20, 2013, we informed the parties

that the case had been set for oral argument on November 12, 2013. Jackson did not

acknowledge receipt of this letter. On October 18, 2013, the Association moved to

strike oral argument and have the case decided on the briefs. Jackson did not file an

answer. On October 30, 2013 we granted the Association's motion to strike oral

argument and decided to consider the case on the merits on November 12, 2013

without oral argument. RAP 11.4(j). On November 12, 2013, we received Jackson's

motion to withdraw his appeal. RAP 18.2. We denied the motion.

12 After filing his notice of appeal, Jackson made four motions to extend the deadline for filing his opening brief, which we granted. The final deadline for filing was set for October 11, 2012. In the meantime, Jackson filed a motion to exceed the brief page limitation. On October 19, 2012, we received and rejected Jackson's opening brief, which was 104 pages in length, more than twice the permitted length of 50 pages. See ELC 12.6(f); RAP 10.4(b ). Given the unique circumstances of the case, we allowed Jackson to file an opening brief not to exceed 65 pages in length and to be served and filed no later than November 9, 2012. Jackson also made a motion to supplement the record, which the commissioner denied. Jackson then moved to modify the Commissioner's ruling. On February 6, 2013, after multiple motions to extend briefing deadlines, we denied his motion to modify. On February 11, 2013, we established a new briefing schedule, with Jackson's opening brief due on February 28, 2013. We then granted Jackson's sixth motion to extend the deadline for the filing of his opening brief, setting the final deadline for March 4, 2013. Jackson met this deadline.

15 No. 201,017-2

ISSUES PRESENTED

1. Did the hearing officer err in denying Jackson's motion to continue the

hearing?

2. Did the hearing officer err in failing to recuse herself for bias?

3. Did the hearing officer improperly consider the bankruptcy court orders

as evidence of Jackson's discovery violations?

4. Did the hearing officer err in admitting e-mail exchanges between

Jackson and Simonson into evidence?

5. Are the hearing officer's findings of fact supported by substantial

evidence?

6. Did the Association prove by a clear preponderance of the evidence that

Jackson violated RPC 1.8(a) and 18 U.S.C. § 152?

7. Did the disciplinary counsel commit misconduct?

8. Did the Disciplinary Board err in recommending disbarment?

ANALYSIS

This court "bears the ultimate responsibility for lawyer discipline in Washington."

Marshall, 160 Wn.2d at 329. Nevertheless, "we give considerable weight to the

hearing officer's findings of fact." /d. at 329-30. We treat unchallenged findings as

verities on appeal. /d. at 330. We accept challenged findings of facts as long as they

are supported by substantial evidence. /d. "Substantial evidence" is "evidence

sufficient 'to persuade a fair-minded, rational person of the truth of a declared

premise."' /d. (internal quotation marks omitted (quoting In re Disciplinary Proceeding

Against Poole, 156 Wn.2d 196, 209 n.2, 125 P.3d 954 (2006)).

16 No. 201,017-2

We review challenged conclusions of law de novo. The Association must prove

misconduct by a clear preponderance of the evidence. !d.; ELC 10.14(b ). This

standard requires more proof than a simple preponderance but less than beyond a

reasonable doubt. /d.

I. Jackson's Procedural Challenges Fail

Jackson argues that the hearing officer erred in denying his motion to continue

the hearing and in failing to recuse herself due to bias. Both of these claims are wholly

unsupported by facts or law.

A. Hearing Officer Properly Exercised Discretion in Denying Jackson's Motion for Continuance

Jackson contends that the hearing officer erred in denying his motion to

continue the hearing. Under ELC 10.12(f), a hearing officer has discretion to grant

either party's motion for a continuance of the hearing date. Generally, a reviewing

court will not disturb a discretionary act absent a showing of manifest abuse of

discretion. See In re Disciplinary Proceeding Against Whitney, 155 Wn.2d 451, 465,

120 P.3d 550 (2005). "'An abuse of discretion occurs only when no reasonable person

would take the view adopted."' !d. (quoting In re Disciplinary Proceeding Against

Bonet, 144 Wn.2d 502, 510, 29 P.3d 1242 (2001 )).

Here, Jackson's motion contended that necessary witnesses, including his wife

(Patti Jackson) and Clay Terry, were not available during the hearing. The hearing

officer denied Jackson's motion. The hearing officer found that Terry was available to

testify by telephone; Patti Jackson was present and testified.

17 No. 201,017-2

On appeal, Jackson argues that denial of his motion prevented him from

presenting the testimony of a key witness who was in Iraq at the time of the hearing.

From the record, it appears this witness was Clay Terry. Jackson argues that contrary

to the hearing officer's findings, Terry was not available for a phone call because he

was in an "extremely hostile location in the front lines of Iraq." But the record shows

that Jackson was given multiple opportunities to obtain Terry's declaration but simply

decided not to. Although Jackson discussed the difficulty of obtaining Terry's

declaration due to the time difference, he never mentioned a hostile environment as

a barrier to communication. And Jackson's counsel ultimately agreed that the time

difference was not an insurmountable challenge. The record does not reveal, and

Jackson has not submitted, any evidence that Terry was unavailable for a phone call

due to a hostile environment in Iraq.

Jackson also unconvincingly argues that denying his motion was prejudicial.

Jackson vaguely contends that Terry had "considerable knowledge regarding Mr.

Dainard as he had worked with him for years and had personal knowledge of the

[115] Webster property." But Jackson fails to specify what Terry's testimony would

have revealed. Thus, Jackson has not shown that he was prejudiced by the hearing

officer's decision. The hearing officer correctly found that Jackson had failed to

establish either good cause for continuance or prejudice in the event the hearing

commenced as scheduled.

B. No Evidence of Hearing Officer's Bias

Due process of law, the appearance of fairness doctrine, and ELC 2.6(d)(4)

require a hearing officer to disqualify herself only if she is biased or if her impartiality

18 No. 201,017-2

may reasonably be questioned. See Wo/fki/1 Feed & Fertilizer Corp. v. Martin, 103

Wn. App. 836, 841, 14 P.3d 877 (2000); State v. Dominguez, 81 Wn. App. 325, 328,

914 P.2d 141 (1996); see also Hill v. Dep't of Labor & Indus., 90 Wn.2d 276, 279, 580

P.2d 636 (1978) (common law rules governing disqualification for conflict of interest

apply to administrative tribunals). A hearing officer is presumed to be impartial, and a

party who alleges bias must affirmatively establish his or her claim based on facts in

the record, not bald accusations, speculation, or innuendo. In re Disciplinary

Proceeding Against King, 168 Wn.2d 888, 904-06, 232 P.3d 1095 (201 0). Jackson

fails to rebut the presumption of impartiality.

Jackson unconvincingly argues that the hearing officer was biased. First, he

argues that the hearing officer showed bias by denying Jackson's motion for

continuance and commenting that the absent witness was available via phone.

Jackson claims this was biased because it was "an absurd request and would have

been life threatening" for the witness to speak on the phone. But, as explained, Clay

Terry was available to speak on the phone and the hearing officer gave Jackson many

opportunities to secure Terry's testimony. In any event, this is not evidence of bias.

Jackson also argues that the hearing officer was biased because she found

that Jackson was slow or deficient in providing financial records when requested but

ignored testimony and exhibits to the contrary. But the portions of the transcript

Jackson cites to do not evidence any bias on the part of the hearing officer. In fact,

the transcript indicates that Jackson was indeed slow in providing financial documents

when requested.

19 No. 201,017-2

Last, Jackson argues that the hearing officer's comments that she did not find

him or his wife to be credible confirm her bias. We give great weight to the hearing

officer's evaluation of the credibility and veracity of the witnesses she observes

firsthand. In re Disciplinary Proceeding Against Marshall, 167 Wn.2d 51, 67, 217 P.3d

291 (2009). Here, there is no evidence that would require us to overturn the hearing

officer's determination that Jackson and his wife were not credible witnesses. The

hearing officer examined hundreds of exhibits, and compared the contents and dates

from those exhibits to Jackson's and his wife's testimony. On numerous occasions,

documents directly contradicted Jackson's and his wife's sworn statements.

On appeal, in support of his and his wife's credibility, Jackson offers e-mails

and letters that allegedly corroborate his wife's testimony. But, it is unclear how the

two e-mails and two letters corroborate his wife's testimony because Jackson does

not additionally cite to the transcript. Moreover, even assuming his wife's testimony

is identical to these four documents, that, in and of itself, does not render her and her

husband credible witnesses in light of the numerous contradictions noted by the

hearing officer.

Jackson's complaints are unfounded. Jackson fails to make a persuasive

argument that any of the hearing officer's adverse rulings were the result of bias or

prejudice. Moreover, Jackson never moved to disqualify the hearing officer. We hold

that there is no cause to dismiss or remand for a new hearing.

II. Jackson's Evidentiary Challenges Fail

Jackson argues that the hearing officer erred in giving preclusive effect to the

bankruptcy court's sanctions order and in admitting e-mails that should have been

20 No. 201,017-2

protected under attorney-client privilege. Both of these claims fail because the

hearing officer independently determined that Jackson had violated discovery orders

and the e-mails were admitted without objection, subject to a protective order.

A. Hearing Officer Independently Found Jackson Had Violated Discovery Orders

Jackson argues that the bankruptcy court's order granting the trustee's motion

for sanctions against Jackson's law firm was error and should not have been admitted

in his disciplinary hearing. He contends that Bankruptcy Judge Karen Overstreet's

decision violated his due process rights because "no motion was before her and no

evidentiary hearing was held." This is false because the bankruptcy judge clearly

considered and ruled on the pending sanctions motion. Jackson, his wife, and his law

firm all submitted materials to oppose the sanctions motion. The court heard oral

argument on the motion on July 11, 2008, and asked the parties for supplemental

materials. The trustee submitted a supplemental declaration. Jackson and his

codefendants submitted 10 additional supplemental pleadings. Upon reviewing the

materials, the bankruptcy judge issued a 47-page decision, finding that Jackson's firm

had withheld relevant documents, in violation of a discovery order. The bankruptcy

judge thoroughly considered the issue. Jackson has not argued that the bankruptcy

judge ruled incorrectly on the motion. Furthermore, Jackson has not offered any

authority for why he should have received an evidentiary hearing.

Jackson also argues that "[n]o guilt or disciplinary action should have been

inferred" from the bankruptcy court's decision because Judge Overstreet was biased.

But Jackson offers no evidence of bias. Jackson points to a single "telling" comment

he believes substantiates Judge Overstreet's bias: "the defendants have submitted all

21 No. 201,017-2

this information about the bad acts of Langford and GFS and all these other cases.

It's completely irrelevant to this case." It is not clear how this statement evidences

bias on the part of Judge Overstreet. The judge was just stating that evidence of other

parties' bad acts are irrelevant-i.e., they do not excuse or justify Jackson's bad acts

in the current proceeding.

Also, the hearing officer made clear that she would not give preclusive effect to

Judge Overstreet's decision granting the motion. The hearing officer admitted Judge

Overstreet's ruling but noted that she had independently resolved the discovery

violation issue by comparing the documents that were in Jackson's possession with

those actually produced in response to the trustee's requests. The hearing officer

reviewed exhibits and independently verified each of the entries on the exhibits before

reaching her conclusions. In other words, the hearing officer found that Jackson

violated discovery orders, based on the overwhelming evidence before her, not on the

bankruptcy court's decision.

B. Hearing Officer Properly Admitted the E-mails, Subject to a Protective Order This court reviews evidentiary rulings for abuse of discretion. See Cox v.

Spangler, 141 Wn.2d 431,439,5 P.3d 1265 (2000). In disciplinary hearings, evidence

is admissible if the hearing officer determines it is "the kind of evidence on which

reasonably prudent persons are accustomed to rely" on and not irrelevant, immaterial,

or unduly repetitious. ELC 10.14(d)(1 ). In the instant case, the hearing officer did not

abuse her discretion in admitting thee-mails at issue, subject to a protective order.

22 No. 201,017-2

Jackson argues that e-mails he exchanged with Simonson should have been

protected under attorney-client privilege. 13 He acknowledges that attorney-client

privilege does not protect attorney-client communications made in furtherance of

crime or fraud. State v. Richards, 97 Wash. 587, 591, 167 P. 47 (1917) (communications involving proposed blackmail); Cede// v. Farmers Ins. Co. of Wash.,

176 Wn.2d 686, 699, 295 P.2d 239 (2013). But he argues that the crime-fraud

exception does not apply here because the Association had not proved that a crime

or fraud was committed and that communications were made in furtherance of that

crime. 14 He specifically takes issue with the admission of Ex. A-170.

However, the hearing officer admitted exhibit A-170 into evidence on April 8,

2011 without objection, and not through application of the crime-fraud exception. The

only issue was whether the exhibit should be protected. The hearing officer noted that

exhibit A-170 included e-m ails between Jackson and Simonson and asked for briefing

on whether the crime-fraud exception applied to these communications. If it did, the

hearing officer explained that she would lift the protective order on some of the

communications, including exhibit A-170.

The Association ultimately argued that the exception did apply but that exhibit

A-170 should, nevertheless, be subject to a protective order under ELC 3.2(e). See

13 Note that elsewhere in his brief, Jackson argues that he was not Simonson's attorney. 14 Although the crime-fraud exception used to apply only to criminal activity, the exception now applies to advice or assistance for the purpose of perpetrating a civil fraud as well. Escalante v. Sentry Ins. Co., 49 Wn. App. 375, 394, 743 P.2d 832 (1987). A court engages in a two-step process whenever the civil fraud exception is asserted. See Cede//, 176 Wn.2d at 700. But this procedure is not required when evidence is admitted without objection.

23 No. 201,017-2

In re Disciplinary Proceeding Against Schafer, 149 Wn.2d 148, 166-67, 66 P.3d 1036

(2003) (even if disclosure required, court can still restrict disclosures to only those

matters necessary for court proceedings). The hearing officer determined that exhibit

A-170 was subject to a protective order. Again, Jackson did not object. Jackson's

claim is a nonissue. See generally CR 37(d) (because discovery is intended to be

broad, party wishing to assert privilege cannot simply keep quiet; it must either reveal

information, disclose it has it and assert it is privileged, or seek protective order).

Ill. Substantial Evidence Supports the Hearing Officer's Findings of Fact

Jackson generally claims that all of the hearing officer's 391 findings of fact are

unsupported, noting that it is impossible to specifically assert error to each of the

findings within the page limitation set forth by our court. Acknowledging this difficulty,

we review his entire brief, and consider Jackson's specific assignments of errors as

they arise within his other arguments. But we are not required to address findings not

specifically referred to, and we reject challenges he fails to support with citations to

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

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

10.3(a)(6) (arguments in a brief should contain citations to the record and legal

authority).

24 No. 201,017-2

A. Jackson Had a Financial and an Ownership Interest in Various Companies Jackson argues that there is no evidence that he had a financial interest in New

Century Builders or Chelan Landing LLC "or any other company for that matter." 15 The

fact that he has no ownership or financial interest in New Century Builders is not

pertinent to any of the counts alleged against him. 16 And we should reject Jackson's

other challenges because he does not cite to the record or any legal authority to rebut

the hearing officer's findings on this issue. The hearing officer found that Jackson

participated ·in the formation of Chelan Landing, LLC and was the registered agent

and organizer of this company. In addition, his company, Jackson-Field Enterprises,

LLC, was a member of the Chelan Landing, LLC and entitled to participate in its

management. The hearing officer specifically rejected Jackson's claim that he had no

interest in Chelan Landing.

Also, the record directly contradicts Jackson's statement that he had no

financial interest in "any other company." Jackson and his wife co-owned RPC

Enterprises with the Dainards and co-owned Jackson-Field Enterprises with the

Fields. Thus, Jackson's claim that he had no financial interest in any of these

companies fails.

15Jackson's interest in these companies implicates Counts 11-13, which deal with Jackson's duty to avoid conflicts of interest. Of these, only Counts 11 and 12 carried with them a presumptive sanction of disbarment. 16 New Century Builders is owned by Kenneth North.

25 No. 201,017-2

B. Jackson Was Simonson's Attorney during the Bankruptcy Proceeding

Jackson argues that there is no evidence he represented Simonson in the

bankruptcy proceeding. He points out that he did not have a PACER (Public Access

to Court Electronic Records database) account with the bankruptcy court at the time,

and he never signed any of the pleadings. Also, he was not the attorney of record for

Simonson. Accordingly, he argues that it was wrong for the hearing officer to attribute

attorney misconduct during the bankruptcy proceeding to Jackson.

Jackson made similar arguments during his disciplinary hearing, and the

hearing officer rejected them. The hearing officer found that although Greg

Cavagnaro was Simonson's attorney of record in the bankruptcy proceeding, Jackson

was Simonson's primary legal advisor for all issues related to the proceedings.

Jackson's time records reflected many hours of researching, attending meetings, and

preparing for the first and second adversary proceedings. E-mails reflect that Jackson

was Simonson's primary legal advisor regarding the bankruptcy. After Jackson began

representing the Levenhagens, Laings, and Lanings, he continued to spend hours

conferencing with Simonson, often without Cavagnaro present. And when Simonson

was added to the second adversary proceeding, Jackson continued to advise him and

draft and edit his pleadings. Thus, the mere fact that he did not have PACER account

or that he did not sign pleadings is not sufficient to rebut the hearing officer's findings,

which are supported by substantial evidence.

Jackson additionally argues that he could not have violated discovery orders

because he had no records. But he offers no new evidence and instead relies on the

26 No. 201,017-2

same facts and testimony he offered at his disciplinary hearing. 17 The hearing officer

specifically rejected Jackson's contrary evidence and found that Jackson, acting as

Simonson's attorney, knowingly violated the bankruptcy court's restraining orders.

Thus, we reject this claim. Marshall, 160 Wn.2d at 331 (not sufficient for attorney to

merely re-argue his version of facts); Poole, 156 Wn.2d at 212 (we will not overturn

findings of fact based merely on alternative explanations or versions of the facts

already rejected by the hearing officer and board).

C. Jackson Was Kenneth North's Attorney As he did at his disciplinary hearing, Jackson argues generally that he was

never Kenneth North's attorney and, specifically, that he was not involved in North's

presentations at the winery regarding the condo development. These facts implicate

counts 8-14, which involve Jackson's duty to avoid conflicts of interest. Jackson does

not offer any compelling evidence in support of this contention.

Jackson first argues that he had no attorney-client relationship with North

because Jackson merely acted as a messenger, conveying information between

North and other parties to various transactions. However, he does not cite to the

record for support.

He also argues that there was no attorney-client relationship because the

record is devoid of any evidence that North believed Jackson was his lawyer. He cites

17 Jackson asserts that he and Stephen Araki turned over all pleadings and files to Marc Stern, who failed to return copies. It is true that Leanne Volz, who worked with Jackson, testified that they sent boxes of documents to Stern and received a portion of those boxes back. But the hearing officer heard this testimony and rejected it, reasoning that Araki's testimony directly contradicted Jackson's and Volz's statements concerning the files.

27 No. 201,017-2

State v. Hansen, 67 Wn. App. 511, 837 P.2d 651 (1992), for the proposition that the

existence of an attorney-client relationship turns on the client's subjective belief that it

exists. However, Hansen also held that the client's belief will control only if it is

reasonably formed based on attending circumstances, including the attorney's words

or actions. !d. (aff'd, 122 Wn.2d 712, 720, 862 P.2d 117 (1993) (no attorney-client

relationship where total contact consisted of only one phone call where attorney said

he would not take the case)); see also Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d

71 (1992). Here, Jackson provided legal advice to multiple legal entities owned by

North and helped North form companies, including Cedar Hollow Development, New

Century Builders and Chelan Landing, LLC. E-mails between North and Jackson

show that Jackson acted at North's direction when he made offers on various

properties, negotiated contracts, and held funds. And, Jackson kept North's funds in

his trust accounts and made payments at North's direction. Thus, we find that

substantial evidence supports the hearing officer's finding that Jackson had an

attorney-client relationship with Kenneth North.

D. The Dainards Had No Knowledge of Jackson's Involvement with North

Jackson reasserts his argument that Mr. Dainard knew of Jacksons'

involvement with North the entire time. But, Jackson has not offered any evidence to

rebut the hearing officer's findings that Jackson intentionally concealed his

involvement with North in order to benefit himself and North. Jackson points to e-

mails wherein Dainard does not mention North. This is not evidence that Mr. Dainard

knew of Jackson's involvement with North.

28 No. 201,017-2

To conclude, we hold that Jackson's general assignment of error to all of the

hearing officer's findings of fact and law are insufficient. In re Disciplinary Proceeding

Against Kronenberg, 155 Wn.2d 184, 191, 117 P.3d 1134 (2005) (to challenge findings

of fact, respondent attorney must argue why specific findings are unsupported and

cite to the record to support the argument). Jacksons' specific assignments of error

to certain findings of fact also fail. He offers little to no evidence to support his claims.

And ultimately, many of the hearing officer's findings of fact were the result of

credibility determinations based on abundant testimony and exhibits. Considering we

give great weight to the hearing officer's evaluation of the credibility and veracity of

the witnesses he observes firsthand, there is not enough evidence to overturn the

hearing officer's findings. See Marshall, 167 Wn.2d at 71.

IV. The Hearing Officer's Conclusions of Law Are Supported by the Facts

Jackson explicitly challenges the hearing officer's conclusions that he violated

RPC 1.8(a), charged in counts 8 and 9, and 18 U.S.C. § 152, charged in count 2. In

addition, Jackson appears to challenge the hearing officer's conclusion that he

violated RPC 8.4(b) and (c), charged in count 6.

We review each of Jackson's challenges to the hearing officer's conclusions of

law de novo. Marshall, 160 Wn.2d at 330. "The Association must prove misconduct

by a clear preponderance of the evidence." /d.; see also ELC 10.14(b). We will uphold

the hearing officer's ultimate conclusion relating to any misconduct "if it is supported

by substantial evidence in the record that the lower court could reasonably have found

would meet the clear preponderance standard." Marshall, 160 Wn.2d at 330.

29 No. 201,017-2

The hearing officer issued conclusions of law regarding each charged count of

misconduct. In each of the counts discussed below, the hearing officer found that

Jackson acted knowingly, causing injury or potential injury. 18 We find that the

Association has met its burden of proving misconduct by a clear preponderance of the

evidence.

A. Count 2: Jackson's Conduct Violated 18 U.S. C.§ 152

Count 2 involves Jackson's participation in the fraud on the bankruptcy court.

We hold there was substantial evidence that Jackson committed fraud, in violation of

18 U.S.C. § 152, which prohibits the concealment of the debtor's assets.

As he did at his disciplinary hearing, Jackson argues that there was no

evidence that he made payments and transferred funds in knowing violation of any

court order. The hearing officer found Jackson's testimony was not credible.

Specifically, the documents, the timing of the events, and the substance of his

communications with Simonson all rebutted Jackson's claim that he acted without

knowledge. The hearing officer concluded that by transferring funds into and out of

his trust account in February and March 2006, in contravention of a restraining order,

Jackson knowingly violated 18 U.S.C. § 152 and RPC 8.4(b). Thus, we reject

Jackson's claim that the "record is devoid" of any proof of this violation.

18Under the American Bar Association's Standards for Imposing Lawyer Sanctions (1991 ed. & Supp.1992) (ABA Standards), a lawyer acts with "knowledge" "'when the lawyer acts with conscious awareness of the nature or attendant circumstances of his or her conduct but without the conscious objective or purpose to accomplish a particular result."' In re Disciplinary Proceeding Against Stansfield, 164 Wn.2d 108, 123, 187 P.3d 254 (2008) (quoting ABA STANDARDS at 6).

30 No. 201,017-2

B. Count 6: Jackson's Conduct Violated RPC 8.4(b) and/or RPC 8.4(c)

Count 6 alleges that Jackson made a false statement on a mortgage application

and on a Second Home Rider involving 115 Webster. The hearing officer found that

this conduct violated RPC 8.4(b) (by violating 18 U.S.C. § 1344) and RPC 8.4(c). 19

As he did at the hearing, Jackson denies that he had the mental state for fraud and

denies his conduct violated the law. We find that substantial evidence supports the

hearing officer's findings.

Jackson's argument that it was the Dainards who obtained the financing for 115

Webster is as unconvincing now as it was at his hearing. He offers no credible

evidence as support. Because substantial evidence supports the hearing officer's

finding that Jackson violated the law, causing harm to the Dainards, we reject

Jackson's challenge.

C. Counts 8 and 9: Jackson's Conduct Violated RPC 1.8(a)2°

Counts 8 and 9 allege that Jackson violated the rules pertaining to business

transactions with or adverse to a client. Because the presumptive sanction for both

of these counts was admonition and not disbarment, we need not review Jackson's

19 The RPC's were amended effective September 1, 2006. The formal complaint charged Jackson with violating RPC's in effect as of the date of the alleged conduct. Where amendments did not change the RPC provisions at issue, we cite to the current RPC's. Current RPC 8.4(b) states that it is professional misconduct to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer." Current RPC 8.4(c) states that it is professional misconduct to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." 2 ° Current RPC 1.8(a) states, "A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client" unless the terms are fair and reasonable, the client is advised in writing, and the client gives informed consent.

31 No. 201,017-2

challenges. 21 In re Disciplinary Proceeding Against Petersen, 120 Wn.2d 833, 854,

846 P.2d 1330 (1993) (if facts sufficient to disbar on certain counts, court need not

review other charged counts).

To conclude, we reject Jackson's challenges to the hearing officer's conclusions

of law. Nowhere does Jackson actually argue that the hearing officer's conclusions

are not supported by findings of fact or that the findings are not supported by

substantial evidence. He merely renews arguments that were raised and rejected at

his hearing.

V. There Is No Evidence of Misconduct on the Part of Disciplinary Counsel

Jackson argues that various improper acts by Association's counsel violated

his due process rights. All of these claims fail because there was no misconduct on

the part of disciplinary counsel.

First, Jackson takes issue with Mr. Dainard's presence in the hearing room, and

with the fact that disciplinary counsel conferred with Mr. Dainard during the disciplinary

hearing. But, Jackson specifically stated during the hearing that he had no objection

to Mr. Dainard's presence. See ELC 5.1 (c)(5) (grievant has right to attend disciplinary

hearing, subject to these rules and any protective orders). And, Jackson does not cite

to any legal authority for the proposition that disciplinary counsel is forbidden from

speaking with grievants. Thus, this claim fails.

21 Briefly, however, Jackson does not raise any new arguments with regard to Counts 8 or 9. The hearing officer concluded that both violations were proved. The conclusions of law are supported by substantial evidence and by the unchallenged findings of fact. Jackson's bald assertion on appeal that there was no violation of RPC 1.8(a) fails.

32 No. 201,017-2

Next, Jackson argues that Association's counsel intentionally presented the

Dainards' perjured testimony. He argues that Mr. Dainard lied when he said he

thought Bank of America was doing the loan for 115 Webster. Jackson claims that Mr.

Dainard knew Ancora Financial was doing the loan because Mr. Dainard was copied

on e-mails between Jackson and Jarred Teague (owner of An cora Financial) and

because Mr. Dainard was the one who corrected the original loan documents, which

bore Ancora Financial's name. However, Mr. Dainard was not copied on the e-mails

to which Jackson cites, and there is no evidence that Mr. Dainard corrected the original

loan documents.

Jackson also claims that Mrs. Dainard falsely testified that she relied on

Jackson to review the quitclaim deed when, in fact, David Hilyer prepared the deed.

But Jackson's citations to the record indicate that it was Jackson who signed the

quitclaim deed incorrectly transferring 115 Webster to "RPC, LLC," prepared and

signed the excise tax affidavit, and who later corrected the original document to list

the grantee as "RPC Enterprises, LLC."

Third, Jackson argues that disciplinary counsel intentionally delayed sending

out Mr. Dainard's second grievance against Greg Cavagnaro, submitted on March 5,

2011, to the Association. He contends that the grievance would have "clearly revealed

Mr. Dainard's lack of credibility." However, he does not specify how the grievance

would have revealed a lack of credibility. He does not cite to any facts, evidence, or

law to support this claim. Thus, Jackson has not alleged facts or law requiring us to

overturn the hearing officer's evaluation of the credibility and truthfulness of the

witnesses.

33 No. 201,017-2

Jackson next argues that disciplinary counsel improperly submitted evidence

relating to the bankruptcy proceedings even though those proceedings were

erroneously conducted. He argues that it was improper to submit evidence of the

bankruptcy proceedings without explaining that some of the missing documents (that

were the subject of discovery violations) had been found. But, Jackson does not

specify what documents had been found. Jackson stated that he recalled Ms.

Moewes' stating that she had found some of the missing documents, but he cited

generally to two incredibly lengthy documents that mostly contain information adverse

to him. Jackson's equivocal statement is not sufficient to undermine the hearing

officer's findings related to the discovery violations.

Last, Jackson argues that Association's counsel improperly subpoenaed

Jackson's adult children's bank records even though Jackson's name is not on those

accounts. Jackson contends that this violated privacy statutes. Under 12 U.S.C. §

3405, a government authority may obtain financial records protected by the Right to

Financial Privacy Act of 1978 pursuant to an administrative subpoena only if (1) there

is reason to believe that the records sought are relevant to a legitimate law

enforcement inquiry and (2) a copy of the subpoena or summons has been served

upon the customer or mailed to his last known address on or before the date on which

the subpoena or summons was served on the financial institution together with a

notice stating with reasonable specificity the nature of the law enforcement inquiry.

Jackson does not allege any facts or evidence that the subpoenas violated this

statute. Simply stating that the Association subpoenaed his adult children is not

sufficient to allege a violation of§ 3405.

34 No. 201,017-2

VI. Disbarment Is the Appropriate Sanction

The American Bar Association's Standards for Imposing Lawyer Sanctions

(1991 & Supp. 1992) (ABA Standards) "govern lawyer sanctions in Washington."

Marshall, 160 Wn.2d at 342. Based upon the ABA Standards, we use a three. . step

process to analyze a recommended sanction. In re Disciplinary Proceeding Against

Preszler, 169 Wn.2d 1, 18, 232 P.3d 1118 (201 0). First, we determine the presumptive

sanction by analyzing "'the ethical duties violated, ... the lawyer's mental state, and

... the actual or potential injury caused by the lawyer's conduct."' /d. (quoting

Marshall, 160 Wn.2d at 342). Second, "we determine whether any aggravating or

mitigating circumstances call for a departure from the presumptive sanction." /d.

Third, if raised by the attorney being disciplined, "we evaluate the Board's

recommended sanction based on '(1) [the] proportionality of the sanction to the

misconduct and (2) the extent of agreement among the members of the Disciplinary

Board."' /d. (quoting In re Disciplinary Proceeding Against Schwimmer, 153 Wn.2d

752, 764, 108 P.3d 761 (2005)).

Although we are not bound by the Board's recommendation, "[w]e should not

lightly depart from recommendations shaped by [the Board's] experience and

perspective." In re Disciplinary Proceeding Against Noble, 100 Wn.2d 88, 94, 667

P.2d 608 (1983). "Accordingly, we will adopt the sanction recommended by the

Disciplinary Board unless we are able to articulate specific reasons for adopting a

different sanction." /d. at 95.

Here, the hearing officer concluded that the presumptive sanction was

disbarment for 10 of the 14 counts. A unanimous board agreed. Jackson makes no

35 No. 201,017-2

compelling argument that would warrant our reversal of the sanction. We hold that

the hearing officer correctly concluded that the presumptive sanction should be

disbarment.

A. The Presumptive Sanction Is Disbarment for 10 of the 14 Counts

The hearing officer concluded, and the Board agreed, that disbarment was the

presumptive sanction for 10 of the 14 counts, pursuant to standards 4.31, 6.61, 5.11,

6.11, 6.21, and 7.1. Although Jackson has assigned error to this conclusion, he does

not set forth any argument to support the contention. 22 Jackson never argues that the

hearing officer incorrectly applied the ABA Standards to determine the presumptive

sanctions. Thus, we adopt the Board's decision in this regard.

B. The Balance of Aggravating and Mitigating Factors Does Not Demand a Departure from the Presumptive Sanction of Disbarment

Aggravating or mitigating factors can alter the presumptive sanction, but only if

they are sufficiently compelling to justify a deviation. In re Disciplinary Proceeding

Against Cohen, 149 Wn.2d 323, 339, 67 P.3d 1086 (2003). In this case the hearing

officer determined the applicable aggravating factors were dishonest or selfish motive,

pattern of misconduct, multiple offenses, bad faith obstruction of a disciplinary

proceeding, submission of false evidence during a disciplinary proceeding, refusal to

22 Jackson argues that he was not Simonson's attorney during the bankruptcy proceeding and that Mr. Dainard did not suffer harm because he always controlled 115 Webster and the property was never actually sold to Kenneth North. Jackson's attack on these factual findings fails. The first finding is dealt with earlier in this opinion: there was sufficient evidence to support a finding that Jackson was Simonson's attorney. Also, Jackson fails to allege facts or law to support his argument that the Dainards did not suffer any harm. Thus, we accept the hearing officer's finding that Jackson's misrepresentations injured the Dainards.

36 No. 201,017-2

acknowledge misconduct, and substantial legal experience. She found three

mitigating factors: absence of prior discipline record, character or reputation, and

imposition of other penalties with regard to count 4.

Jackson challenges only standard 9.22(g): his refusal to acknowledge the

wrongful nature of his conduct. 23 This aggravating factor is appropriate where a

lawyer admits that he engaged in the alleged conduct but denies that it was wrongful,

or where he rationalizes the improper conduct as error. In re Disciplinary Proceeding

Against Ferguson, 170 Wn.2d 916, 943-44, 246 P.3d 1236 (2011) (citing In re

Disciplinary Proceeding Against Holcomb, 162 Wn.2d 563, 588, 173 P.3d 898 (2007)).

It is also appropriate where the lawyer is unrepentant and continues to justify his

actions despite abundant contrary evidence and his own conflicting testimony or

where the lawyer excuses the violation as merely '"technical"' or "'unfortunate

labeling."' /d. at 945. These were all present in the current case. As the hearing

officer noted, throughout the proceedings, Jackson denied wrongdoing or attempted

to justify his conduct. He refused to acknowledge the conflicts of interest that arose

from his representation of Simonson, the Levenhagens, the Lanings, and the Laings.

He sought to blame others, including the bankruptcy judge and other lawyers, for

much of what occurred. Thus, we reject Jackson's contention that this aggravating

factor does not apply.

23 Jackson also contends·that the "vulnerable victim" factor is questionable. But this was not one of the aggravating factors the hearing officer listed or relied on.

37 No. 201,017-2

We accept the hearing officer's finding that numerous and substantial

aggravating factors outweighed mitigating factors. A balance of the enumerated

factors does not justify a departure from the presumptive sanction of disbarment.

C. Disbarment Is a Proportionate Sanction and the Board's Unanimous Sanction Recommendation Deserves Considerable Deference

While we do not generally depart from a Board's recommendation, we will do

so if we are persuaded that the sanction is inappropriate in light of the (1)

disproportionality of the sanction to the misconduct or (2) the extent of disagreement

among the members of the Board. In re Disciplinary Proceeding Against Kuvara, 149

Wn.2d 237, 259, 66 P.3d 1057 (2003).

Here, Jackson cites three dissimilar cases in an attempt to illustrate that

disbarment is a disproportionate sanction for his misconduct: Holcomb, 162 Wn.2d

563; In re Disciplinary Proceeding Against Greenlee, 158 Wn.2d 259, 143 P.3d 807

(2006); In re Disciplinary Proceeding Against McKean, 148 Wn.2d 849, 64 P.3d 1226

(2003). We hold that these cases are not "similarly situated" to Jackson's. In re

Disciplinary Proceeding Against Christopher, 153 Wn.2d 669, 686-87, 105 P.3d 976

(2005) (when evaluating proportionality, "we analyze whether the recommended

sanction is proper when compared to similarly situated cases"). In Holcomb, we

approved the Board's recommendation of a six-month suspension for two counts of

misconduct where the presumptive sanction was suspension. In Greenlee, we

approved the Board's recommendation of a six-month suspension for one violation of

RPC 1.8(h) where the presumptive sanction was suspension. And in McKean, we

approved the Board's six-month suspension recommendation for misconduct

38 No. 201,017-2

involving a business transaction with a client and loans of client funds, and where the

presumptive sanction for two of the three counts was suspension.

None of these cases is remotely similar to Jackson's. Here, we have fourteen

counts of misconduct, 10 of which carry a presumptive sanction of disbarment.

Notably, none of the above cases concerns fraud, deceit, and abuse of the legal

process demonstrating a lawyer's unfitness to practice law. Given the pervasive

misconduct in this case, we find that disbarment is a proportionate sanction.

Moreover, the Board's unanimous sanction recommendation is entitled to great

deference. In re Disciplinary Proceeding Against Day, 162 Wn.2d 527, 538, 542, 173

P.3d 915 (2007). Jackson has provided no reason for us to reject the sanction. Poole,

156 Wn.2d at 209-10 (we generally affirm the Board's recommended sanction unless

there is specific reason to reject it).

CONCLUSION

In conclusion, Jackson committed the acts of misconduct alleged in counts 1

through 14. The misconduct was serious and pervasive. In light of the presumption

that such misconduct should generally result in disbarment, we adopt the Disciplinary

Board's recommendation and order that attorney Robert B. Jackson be disbarred from

the practice of law.

39 No. 201,017-2

WE CONCUR