In re Disciplinary Proceeding Against Monro

• Court: Washington Supreme Court
• Decided: March 5, 2026
• Docket: 202,258-8
• Status: Published

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON MARCH 5, 2026 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON MARCH 5, 2026 SARAH R. PENDLETON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Disciplinary ) Proceeding Against ) No. 202,258-8 ) STEPHEN KENNETH MONRO, ) En Banc ) Attorney at Law, WSBA No. 26075. ) Filed: March 5, 2026 ____________________________________)

YU, J. * — Disciplinary authorities recommended that attorney Stephen

Kenneth Monro be disbarred for multiple instances of serious misconduct,

including converting client funds, collecting unreasonable fees, and making false

statements to his clients and the Office of Disciplinary Counsel (ODC). Monro

argues that he is entitled to a new disciplinary hearing or, in the alternative, a lesser

sanction of suspension. We impose the recommended sanction of disbarment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The factual background is derived primarily from the findings of fact (or

FOF) entered by the hearing officer and adopted by the Disciplinary Board (Board)

* Justice Mary Yu is serving as a justice pro tempore of the Supreme Court pursuant to Washington Constitution article IV, section 2(a). In re Disciplinary Proceeding Against Monro, No. 202,258-8

of the Washington State Bar Association (WSBA). Unchallenged findings are

“verities on appeal.” In re Disciplinary Proceeding Against Kelley, 3 Wn.3d 541,

551, 553 P.3d 1101 (2024). Challenged findings “will be accepted as long as they

are supported by substantial evidence,” as discussed in the analysis below. Id.

A. Background on Monro’s law practice and the grievances against him

Monro was admitted to practice in Washington in 1996. He came to ODC’s

attention in late December 2016, when ODC received an overdraft notice regarding

one of his “Interest on Lawyer’s Trust Accounts” (trust account).

Monro maintained five bank accounts associated with his law practice. He

had two accounts at KeyBank: a general account and a separate trust account for

funds belonging to clients and third parties, which was the subject of the December

2016 overdraft notice. See RPC 1.15A(c). Monro also had three accounts at Opus

Bank: a general account, a trust account he seldom used prior to ODC’s

involvement in January 2017, and an additional trust account opened in February

2017 for a specific client matter (estate of JK (Estate), discussed below). Monro

was the only authorized signer on the trust accounts; he personally signed all

checks, made all withdrawals, and determined the appropriateness of all deposits

and disbursals.

Monro used a manual check register for his KeyBank trust account.

However, from January 2016 to January 2017 (the year preceding the overdraft

2 In re Disciplinary Proceeding Against Monro, No. 202,258-8

notice), “the check register did not include all account transactions, a client matter

for every transaction, and a balance after every transaction.” Decision Papers (DP)

at 62; see RPC 1.15B(a)(1). Monro asserts that his electronic client ledger

contained the missing information. See RPC 1.15B(a)(2). However, his electronic

records from this period were lost in a ransomware attack on December 5, 2016.

There is no indication that the ransomware attack removed any funds from

Monro’s accounts. Rather, his law firm’s electronic records were encrypted and

held for ransom, which he did not pay on the advice of the Federal Bureau of

Investigation. Monro hired an expert who was able to recover many of the law

firm’s files, but the electronic records containing “current data” from “about a one

year period” preceding the December 2016 ransomware attack were permanently

lost. 6 Tr. of Proc. (Dec. 16, 2021) at 1033, 1036.

The hearing officer found the ransomware attack “was disruptive to the law

firm, but there was no competent evidence that it caused or precipitated” Monro’s

misconduct, which he disputes. DP at 62. Nevertheless, it is undisputed that he

continued using his KeyBank trust account after the ransomware attack without

maintaining complete and contemporaneous records of his transactions. It is also

undisputed that around the time of the attack, Monro “owed a substantial sum on

behalf of clients whose funds he removed from trust,” but he did not have enough

3 In re Disciplinary Proceeding Against Monro, No. 202,258-8

funds in his general accounts to pay the sums owed. Id. at 77. The hearing officer

found that Monro knew he did not have sufficient funds, which he disputes.

As noted, Monro came to ODC’s attention in late December 2016, about

three weeks after the ransomware attack. On December 29, KeyBank sent ODC an

overdraft notice regarding two checks that were presented against insufficient

funds in Monro’s trust account, although he argues the account balance “never

went negative.” Appellant’s Opening Br. at 67.

On January 4, 2017, ODC opened a grievance and sent Monro a letter asking

for his records and an explanation for the overdraft. Monro did not respond within

30 days, as ODC had requested. However, he took other actions within that time

frame, including hiring a former WSBA auditor to reconstruct his records,

depositing personal funds into his trust account, and paying a lien he had owed to

the Department of Labor and Industries (L&I) since 2014 in connection with a

client matter (TC’s case, discussed below). The former WSBA auditor ultimately

reconstructed Monro’s KeyBank trust account records from January 1, 2016 to

June 30, 2017 (the Hammond reconstruction).

After waiting more than 30 days and receiving no response from Monro,

ODC sent a follow-up letter requesting a response and threatening discipline if he

failed to comply. Attorney Leland Ripley subsequently appeared as Monro’s

counsel and stated that the overdraft occurred because Monro withdrew funds

4 In re Disciplinary Proceeding Against Monro, No. 202,258-8

“before the corresponding deposit(s) were ‘made available by the bank.’” DP at

61. It is undisputed this statement was false; the overdraft was actually caused by

“a shortage of client funds” in Monro’s trust account. Id. However, Monro argues

this false statement should not be attributed to him for disciplinary purposes.

Monro continued practicing law while ODC conducted its investigation.

During this period, one of Monro’s clients filed an additional grievance against

him (JD, discussed below). The review committee consolidated the grievances and

ordered a public hearing, which was held in December 2021. The hearing officer

determined that Monro committed 14 counts of misconduct relating to his financial

practices, recordkeeping, and candor. Monro challenges many of the hearing

officer’s findings, particularly as to his mental state. The findings are summarized

here and addressed in more detail below.

B. Summary of misconduct findings

The hearing officer found that Monro committed misconduct implicating six

specific client matters—TC, SW, Estate of JK, JD, SA, and KF. The precise

nature and degree of misconduct varies between clients, and Monro challenges

findings pertaining to each one, as discussed below. Nevertheless, the findings

indicate a consistent pattern, in which Monro removed funds from his trust

account, failed to pay sums owed to his clients and third parties for extended

periods, and, instead, used the funds for other purposes without entitlement. It is

5 In re Disciplinary Proceeding Against Monro, No. 202,258-8

undisputed that Monro repaid the funds before his disciplinary hearing. However,

the hearing officer found that in most cases, Monro intended to deprive the rightful

owners of the funds for some period of time, and that he occasionally attempted to

conceal his actions through dishonesty to clients, third parties, and ODC. Monro

challenges these findings.

The hearing officer also found that Monro made several improper

transactions in the year preceding the ransomware attack, including depositing his

wife’s personal funds in his trust account in an effort to avoid paying taxes, and

disbursing client funds to his mother and his law firm without entitlement. It is

undisputed that Monro did not fully restore the clients’ funds until after ODC

opened its investigation, over a year later. However, he challenges the finding that

he intended to deprive others of the funds for some time.

Finally, it is undisputed that in late December 2016, Monro “owed a

substantial sum on behalf of [his] clients whose funds he removed from trust.” Id.

at 77. Moreover, between January 1, 2015 and January 31, 2017, “there were no

days on which [he] had enough money in his general accounts to make payments

on behalf of clients whose funds he had removed from trust.” Id. (emphasis

added). Yet, Monro asserts that “he was unaware of any insufficiency,” and he

challenges the hearing officer’s findings that he used client funds without

entitlement and intended to deprive the rightful owners of the funds. Appellant’s

6 In re Disciplinary Proceeding Against Monro, No. 202,258-8

Opening Br. at 74. Monro also challenges findings that he disbursed over $53,000

to his law firm and his son (an attorney working for the firm) with no record of

associated client matters, both before and after the ransomware attack.

C. Procedural history following the disciplinary hearing

The hearing officer entered an amended decision in May 2022, which

determined that Monro committed 14 counts of misconduct “by a clear

preponderance of the evidence”:

Count 1: “[U]sing and converting client funds of SW, TC, KF, SA and the Estate of JK” in violation of RPC 1.15A(b); RPC 8.4(b), (c), and (i); and RCW 9A.56.020, .030, and .040. Count 2: “[F]ailing to deposit and maintain client funds in a trust account on multiple cases” in violation of RPC 1.15A(c). Count 3: “[F]ailing to promptly deliver funds to third persons, such as L&I liens in TC and SA’s cases, which they were entitled to receive” in violation of RPC 1.15A(f) and 1.3. Count 4: “[U]sing client funds on behalf of another” and “disbursing funds in excess of the amounts clients had on deposit in multiple cases as demonstrated in [the Hammond] reconstruction” in violation of RPC 1.15A(h)(8). Count 5: “[F]ailing to provide KF and SA with a billing statement or written notice of his intent to withdraw earned fees” in violation of RPC 1.15A(h)(3) and 1.4. Count 6: “[F]ailing in contingent fee matters, including SA’s matter, to provide clients with a written statement and/or an accurate written statement showing the outcome of the matter, including remittance to the client and the method of its determination” in violation of RPC 1.5(c), 1.4, and 8.4(c). Count 7: “[F]ailing to provide a written accounting after disbursing funds from trust in cases with SW, TC, KF and SA” in violation of RPC 1.15A(e).

7 In re Disciplinary Proceeding Against Monro, No. 202,258-8

Count 8: “[C]harging and collecting an unreasonable fee in the Estate of JK and SA’s matters” in violation of RPC 1.5(a). Count 9: “[C]omingling his mother’s and wife’s funds and his own funds with client funds in a trust account” in violation of RPC 1.15A(c) and (h). Count 10: “[F]ailing to maintain complete and current trust account records in multiple cases” in violation of RPC 1.15A(h)(2) and 1.15B. Count 11: “[M]aking misrepresentations to ODC during a grievance investigation, testifying falsely at his deposition, and fabricating a document in SA’s case” in violation of RPC 8.4(b) and (c), RPC 8.1(a), and RCW 9A.72.040. Count 12: “[M]aking false statements to SA” and her spouse in violation of RPC 8.4(c) and 1.4. Count 13: “[M]aking false statements to a representative of L&I” in violation of RPC 4.1(a) and 8.4(c). Count 14: “[U]sing client funds owed to third persons such as in JD’s case” in violation of RPC 1.15A(b) and (c)(1).

DP at 56, 87-89. The hearing officer further determined presumptive sanctions,

considered aggravating and mitigating factors, and recommended disbarment.

The Board initially remanded to the hearing officer “to clarify the findings

of fact and conclusions of law, and to consider the proportionality of the

recommended sanction.” Id. at 96. However, this court unanimously reversed on

interlocutory review “because the hearing officer’s findings and conclusions were

adequate for appellate review” and “[w]e have never indicated that the hearing

officer should consider proportionality.” In re Disciplinary Proceeding Against

Monro, 3 Wn.3d 733, 735, 741, 555 P.3d 845 (2024). On remand, the Board

adopted the hearing officer’s decision and disbarment recommendation by a 9-3

8 In re Disciplinary Proceeding Against Monro, No. 202,258-8

vote. The dissenting Board members voted to propose a three-year suspension

with two years’ probation.

ODC subsequently filed a petition for interim suspension as required by

ELC 7.2(a)(2).1 This court “unanimously determined that the petition should be

granted.” Ord. on Pet. for Interim Suspension, In re Disciplinary Proceeding

Against Monro, No. 202,250-2 (Wash. May 30, 2025). The case is now before us

for a decision on the merits.

ISSUES

A. Does the “clear preponderance of the evidence” standard of proof in

ELC 10.14(b) satisfy procedural due process?

B. Is the hearing officer’s decision adopted by the Board sufficient for

meaningful appellate review?

C. Are the challenged findings of fact supported by substantial evidence,

and do the findings of fact support the conclusions of law?

D. Is disbarment an excessive or disproportionate sanction?

1 “When the Board enters a decision recommending disbarment, disciplinary counsel must file a petition for the respondent’s suspension during the remainder of the proceedings.” ELC 7.2(a)(2). Monro suggests that disbarment is unwarranted because ODC did not seek interim suspension before the Board made its recommendation. See Appellant’s Opening Br. at 88 n.9. As we recently reaffirmed, this argument is “‘without merit.’” In re Disciplinary Proceeding Against Wallstrom, 4 Wn.3d 528, 559, 566 P.3d 104 (2025) (quoting In re Disciplinary Proceeding Against Kronenberg, 155 Wn.2d 184, 197 n.9, 117 P.3d 1134 (2005)).

9 In re Disciplinary Proceeding Against Monro, No. 202,258-8

ANALYSIS

A. ELC 10.14(b)’s “clear preponderance of the evidence” standard properly imposes the intermediate burden of proof for attorney discipline cases

Monro’s primary argument before this court pertains to the burden of proof

for attorney discipline cases. The applicable standard is set forth in ELC 10.14(b),

which provides, “Disciplinary counsel has the burden of establishing an act of

misconduct by a clear preponderance of the evidence.” (Emphasis added.) Monro

argues this standard is inadequate to satisfy procedural due process. See U.S.

CONST. amend. XIV; WASH. CONST. art. I, § 3. However, his argument rests on a

misinterpretation of the “clear preponderance” standard. In accordance with our

precedent and well-established principles of court rule interpretation, we reaffirm

that ELC 10.14(b) properly imposes the intermediate burden of proof for attorney

discipline cases. As a result, we reject Monro’s due process challenge to the rule.

1. This court has long recognized that allegations of attorney misconduct are subject to the intermediate standard of proof

Monro argues that attorney discipline cases require the intermediate standard

of proof, which is less demanding than proof beyond a reasonable doubt but

requires a greater quantity and quality of evidence than a mere preponderance. We

agree; this court has consistently applied the intermediate standard of proof in

attorney discipline cases for over 100 years.

10 In re Disciplinary Proceeding Against Monro, No. 202,258-8

The burden of proof is an important procedural safeguard reflecting “‘the

degree of confidence’” the fact finder must have “‘in the correctness of factual

conclusions for a particular type of adjudication.’” Nguyen v. Med. Quality

Assurance Comm’n, 144 Wn.2d 516, 524, 29 P.3d 689 (2001) (internal quotation

marks omitted) (quoting Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 60

L. Ed. 2d 323 (1979)). The necessary standard of proof depends on “the nature

and importance of the interest subject to the potentially erroneous deprivation” and

any relevant “important interests of the state.” Id. at 524-25.

The lowest standard of proof, a “mere preponderance of the evidence,”

applies in civil cases for monetary damages between private parties, in which

“society has a minimal concern.” Addington, 441 U.S. at 423. By contrast, the

highest standard of proof, “beyond a reasonable doubt,” applies in criminal cases

because “the interests of the defendant are of such magnitude” that the burden of

proof must “exclude as nearly as possible the likelihood of an erroneous

judgment.” Id. at 424, 423.

Falling between these lowest and highest standards is “[t]he intermediate

standard, which usually employs some combination of the words ‘clear,’ ‘cogent,’

‘unequivocal,’ and ‘convincing.’” Id. at 424. This standard often applies in

noncriminal cases involving “particularly important individual interests” or

“allegations of fraud or some other quasi-criminal wrongdoing by the defendant.”

11 In re Disciplinary Proceeding Against Monro, No. 202,258-8

Id. For example, this court has applied the intermediate standard to medical

discipline and civil fraud cases, among others. Nguyen, 144 Wn.2d at 518; Stiley v.

Block, 130 Wn.2d 486, 505, 925 P.2d 194 (1996).

This court has also long applied the intermediate standard of proof in

attorney discipline cases. As early as 1921, we expressly “[r]ecogniz[ed] the

serious consequences of the proceedings to the accused,” and, as a result, we

applied “the rule of law that the accusations should be proven by a clear

preponderance of the evidence.” In re Disbarment of Sherrill, 116 Wash. 143,

147, 198 P. 725 (1921) (emphasis added). We further expanded on the applicable

standard in In re Discipline of Little, a 1952 attorney disciplinary case where the

evidence was “in sharp conflict.” 40 Wn.2d 421, 427, 244 P.2d 255 (1952).

In Little, this court recognized that “[a] matter such as this is always a

serious one, and presents problems which are without complete analogy in the

consideration of other legal proceedings.” Id. at 430. Given the serious but unique

nature of attorney discipline, we held that “[t]he privilege—and it is a privilege,

not a right—to practice [law] cannot be lost to the practitioner upon slight

evidence.” Id. Instead, there must be proof by “a clear preponderance of the

evidence that the acts charged have been done.” Id. This standard affords a

presumption that a licensed attorney will fulfill their “duty as an officer of the

12 In re Disciplinary Proceeding Against Monro, No. 202,258-8

court in accordance with [their] oath” but still recognizes that attorney discipline

cases do not require proof beyond a reasonable doubt. 2 Id.

Following Little, we have found “no reason to change the burden” of proof

for attorney discipline cases, “linguistically or otherwise.” In re Disciplinary

Proceeding Against Burtch, 162 Wn.2d 873, 895, 175 P.3d 1070 (2008). We have

consistently reaffirmed that the intermediate standard properly balances “[t]he

punitive nature of the proceedings . . . with the rights that must be extended to the

attorney involved.” In re Disciplinary Proceeding Against Greenlee, 82 Wn.2d

390, 393, 510 P.2d 1120 (1973). We have emphasized that the intermediate

standard implicates both the quantity and the persuasive quality of the evidence,

“requiring greater certainty than ‘simple preponderance’ but not to the extent

required under ‘beyond reasonable doubt’.” In re Disciplinary Proceeding Against

Allotta, 109 Wn.2d 787, 792, 748 P.2d 628 (1988) (emphasis added). We have

also cited the intermediate standard for attorney discipline as persuasive authority

in holding that the intermediate standard applies to medical discipline cases. See

Nguyen, 144 Wn.2d at 529 (citing Allotta, 109 Wn.2d at 792).

2 Little included a statement that “[e]very doubt should be resolved in [the respondent attorney’s] favor.” 40 Wn.2d at 430. We subsequently clarified this statement has “no vitality” to the extent that it suggests an extremely high “‘beyond-any-doubt standard.’” In re Disciplinary Proceeding Against Guarnero, 152 Wn.2d 51, 62, 93 P.3d 166 (2004).

13 In re Disciplinary Proceeding Against Monro, No. 202,258-8

Thus, in accordance with long-standing precedent, we reaffirm that the

intermediate burden of proof applies to allegations of attorney misconduct.

2. The “clear preponderance” standard in ELC 10.14(b) properly imposes the intermediate burden of proof

Despite the case law discussed above, Monro argues that the “clear

preponderance” standard imposed by ELC 10.14(b) is not, in fact, an intermediate

standard. In accordance with our precedent and well-established principles of

court rule interpretation, we reaffirm that the “clear preponderance” standard in

ELC 10.14(b) properly imposes the intermediate burden of proof.

Court rules are interpreted in the same manner as statutes. In re Disciplinary

Proceeding Against King, 168 Wn.2d 888, 899, 232 P.3d 1095 (2010). We must

give effect to ELC 10.14(b)’s plain language as an expression of the court’s intent,

without rendering “‘any portion of it meaningless or superfluous.’” In re

Disciplinary Proceeding Against Wallstrom, 4 Wn.3d 528, 559, 566 P.3d 104

(2025) (quoting Kellogg v. Nat’l R.R. Passenger Corp., 199 Wn.2d 205, 221, 504

P.3d 796 (2022)). The language must be interpreted in the context of existing law

because the court is “presumed to know the law in the area.” Wynn v. Earin, 163

Wn.2d 361, 371, 181 P.3d 806 (2008). In addition, we must interpret court rules to

“avoid constitutional doubt” where possible. Utter ex rel. State v. Bldg. Indus.

Ass’n of Wash., 182 Wn.2d 398, 434, 341 P.3d 953 (2015). Court rule

interpretation is a question of law reviewed de novo. Id. at 406.

14 In re Disciplinary Proceeding Against Monro, No. 202,258-8

As discussed, our precedent has long recognized that the intermediate

standard of proof applies to attorney discipline cases and, for over 100 years, we

have consistently described this standard as a “clear preponderance of the

evidence.” E.g., Sherrill, 116 Wash. at 147 (1921); Little, 40 Wn.2d at 430 (1952);

Greenlee, 82 Wn.2d at 393 (1973); Wallstrom, 4 Wn.3d at 542 (2025). We

subsequently adopted this language in our court’s procedural rules for attorney

discipline. Former RLD 4.11(b) (1983). The same language now appears in our

current procedural rules at ELC 10.14(b). Thus, for over a century, Washington

precedent and court rules have consistently used the “clear preponderance”

terminology to describe the intermediate burden of proof for attorney discipline

cases. This terminology reflects the widespread practice of “employ[ing] some

combination of the words ‘clear,’ ‘cogent,’ ‘unequivocal,’ and ‘convincing’” to

describe the intermediate burden of proof. Addington, 441 U.S. at 424.

Nevertheless, Monro argues that ELC 10.14(b) is insufficient because it does

not include “[t]he word convincing.” Appellant’s Opening Br. at 18. In his

interpretation, the “clear preponderance” standard “describes a quantity of

evidence,” but it “does not implicate the quality of that evidence.” Id. at 17-18.

To support this interpretation, Monro contends that the word “clear” does not “add

meaningful weight to the longstanding and universal connotation of

‘preponderance.’” Id. at 19. As a result, he reads the “clear preponderance”

15 In re Disciplinary Proceeding Against Monro, No. 202,258-8

standard as equivalent to a “‘fair preponderance’ standard . . . [which] fails the

constitutional test.” Id. (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388,

71 L. Ed. 2d 599 (1982) (plurality opinion)). However, Monro’s reading of ELC

10.14(b) conflicts with our precedent and well-established principles of court rule

interpretation.

First, Monro disregards the legal context in which ELC 10.14(b) was

adopted. He insists that the “clear preponderance” standard is not commonly

understood to impose the intermediate burden of proof and “lacks any such

pedigree in the law.” Id. at 20. To the contrary, over a century of Washington law

has consistently used the “clear preponderance” language to describe the

intermediate standard of proof in attorney discipline cases, as discussed above. We

have repeatedly emphasized the important interests at stake for both the respondent

attorney and the public, and we have expressly defined the “clear preponderance”

standard in terms of “certainty,” implicating both the quantity and the persuasive

quality of the evidence. Allotta, 109 Wn.2d at 792. We must assume the court was

aware of this precedent when it adopted the “clear preponderance” standard by

court rule. See Wynn, 163 Wn.2d at 371.

Second, we interpret court rules to “avoid constitutional doubt,” not to

manufacture it. Utter, 182 Wn.2d at 434. Monro urges the court to adopt his

interpretation for the express purpose of rendering ELC 10.14(b) unconstitutional.

16 In re Disciplinary Proceeding Against Monro, No. 202,258-8

We decline to do so. This court has always interpreted the “clear preponderance”

standard to impose the intermediate burden of proof in attorney discipline cases,

and there is no indication that the hearing officer or the Board misunderstood the

well-established meaning of the standard in Monro’s case.

Third, Monro’s interpretation of the “clear preponderance” standard

improperly reads the word “clear” out of the rule, rendering it “‘meaningless or

superfluous.’” Wallstrom, 4 Wn.3d at 559 (quoting Kellogg, 199 Wn.2d at 221).

Indeed, he explicitly argues the word “clear” does not “add meaningful weight.”

Appellant’s Opening Br. at 19. Monro supports his interpretation by citation to

Santosky, a United States Supreme Court case that struck down a New York statute

governing the burden of proof in actions to terminate parental rights. However, his

reliance on Santosky is misplaced.

The statute in Santosky required proof by “a ‘fair preponderance of the

evidence.’” 455 U.S. at 747 (quoting N.Y. FAM. CT. ACT § 622 (McKinney 1975

& Supp. 1981-1982)). The New York Supreme Court, Appellate Division, held

this standard was equivalent to “the preponderance of evidence standard” and was

“proper and constitutional.” In re John AA., 75 A.D.2d 910, 910, 427 N.Y.S.2d

319 (1980). The United States Supreme Court reversed and held that “an

intermediate standard of proof” was required due to the “‘particularly important’”

17 In re Disciplinary Proceeding Against Monro, No. 202,258-8

private interests at stake. Santosky, 455 U.S. at 756 (quoting Addington, 441 U.S.

at 424).

In doing so, Santosky contrasted New York’s “‘fair preponderance’”

standard with the “higher standard[s] of proof” required by other jurisdictions,

including South Dakota’s “‘clear preponderance’ of the evidence” standard. Id. at

749-50 & n.3 (emphasis added) (citing In re B.E., 287 N.W.2d 91, 96 (S.D. 1979)).

Monro argues that Santosky misinterpreted South Dakota’s standard, but that is

irrelevant. Santosky’s analysis plainly shows that the “clear preponderance”

standard can reasonably be interpreted to impose the intermediate standard of

proof, as our court has consistently done in attorney discipline cases for over 100

years. Thus, we decline Monro’s invitation to disregard the plain language of ELC

10.14(b) based on Santosky.

Finally, this court’s opinion in Burtch unanimously rejected the respondent

attorney’s argument “that the burden of proof be changed to clear, cogent, and

convincing evidence,” as Monro argues here. 162 Wn.2d at 895. Monro contends

that Burtch actually supports his argument by implying that the “clear

preponderance” standard is “different” from the “clear, cogent, and convincing

evidence” standard. Appellant’s Reply Br. at 9 (emphasis omitted). To the

contrary, Burtch did not acknowledge any substantive difference; our opinion

18 In re Disciplinary Proceeding Against Monro, No. 202,258-8

stated that there was “no reason to change the burden at this time, linguistically or

otherwise.” 162 Wn.2d at 895 (emphasis added).

Monro further argues that Burtch “says nothing about the constitutional due

process issue presented here.” Appellant’s Reply Br. at 9. Yet, the attorney in

Burtch expressly asserted a constitutional due process claim, arguing that because

“the right to practice law is as important as a medical license,” the same “clear,

cogent, and convincing” standard should apply in both contexts. Br. of Appellant,

In re Disciplinary Proceeding Against Burtch, No. 200,469-5, at 1 (Wash. 2007)

(citing Nguyen, 144 Wn.2d 516; Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893,

47 L. Ed. 2d 18 (1976)). By declining to rewrite the standard of proof, Burtch

necessarily rejected the attorney’s constitutional due process claim. Monro does

not show that we should depart from Burtch at this time.

Thus, in accordance with our precedent and well-established principles of

court rule interpretation, we reaffirm that ELC 10.14(b)’s “clear preponderance of

the evidence” standard properly imposes the intermediate burden of proof in

attorney disciplinary cases. As a result, Monro’s due process challenge cannot

succeed because it is based on a misinterpretation of the rule.

B. We reaffirm that the hearing officer’s decision is sufficient for meaningful appellate review

Next, Monro argues that the hearing officer’s conclusions of law “are

constitutionally inadequate for meaningful appellate review because they fail to

19 In re Disciplinary Proceeding Against Monro, No. 202,258-8

address each element” of the relevant RPCs and RCWs. Appellant’s Opening Br.

at 31. This court unanimously rejected a nearly identical argument in Monro. We

adhere to our prior decision.

As noted above, Monro was before us on interlocutory review of the Board’s

order remanding for the hearing officer “to clarify unspecified findings and

conclusions.” 3 Wn.3d at 735. Monro argued the order was justified because the

hearing officer’s conclusions of law “cite several RPCs and statutes without

reciting the text of the rules or statutes or their specific elements, they do not state

which clients’ cases involved what criminal conduct, and they do not identify the

evidence in the record that supports each conclusion.” Id. at 739-40. We rejected

this argument because “nothing in the rules or our precedent requires a hearing

officer’s conclusions to contain any of that information.” Id. at 740; see ELC

10.16(a); In re Disciplinary Proceeding Against Johnson, 114 Wn.2d 737, 745,

790 P.2d 1227 (1990).

Monro now reiterates many of the same points from Monro to argue that a

hearing officer’s conclusions of law in an attorney discipline case “should require

the same level of specificity” as a trial court’s conclusions in a criminal case.

Appellant’s Opening Br. at 35. We would not hesitate to revisit our prior decision

if “justice would best be served” by doing so. RAP 2.5(c)(2). However, Monro

correctly applied the standards set forth in Johnson, which Monro does not ask this

20 In re Disciplinary Proceeding Against Monro, No. 202,258-8

court to disavow. Monro also correctly recognized that attorney discipline cases

are not subject to the same standards as criminal cases, nor are they “‘in the nature

of an appellate review as that term is generally understood.’” 3 Wn.2d at 739

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

McGlothlen, 99 Wn.2d 515, 521, 663 P.2d 1330 (1983)). Instead, attorney

discipline cases “‘are sui generis hearings to determine if a lawyer’s conduct

should have an impact on the lawyer’s license to practice law.’” Id. (quoting ELC

10.14(a)). Monro does not show any basis to revisit these holdings.

Monro further argues this court should adopt “a more robust standard . . .

when allegations of criminal law violations are presented,” such as the criminal

theft allegations in this case. Appellant’s Opening Br. at 51 (emphasis omitted).

He contends that “neither the parties nor this Court have any idea whether the

[hearing officer] who recommended disbarring Monro was aware of the elements

of the crime of theft or the available defenses.” Id. at 52. However, a hearing

officer’s conclusions of law are reviewed de novo. Kelley, 3 Wn.3d at 551. Thus,

if a hearing officer is not “aware” of the applicable legal standards, this court will

reject their erroneous conclusions. We decline to impose new requirements for a

hearing officer’s decision, and we reaffirm that the decision in this case is

sufficient for meaningful review.

21 In re Disciplinary Proceeding Against Monro, No. 202,258-8

C. The challenged findings of fact are overwhelmingly supported by substantial evidence, and the findings support the conclusions of law

Monro challenges numerous findings and conclusions in the hearing

officer’s decision adopted by the Board.3 As noted, unchallenged findings are

treated as verities, challenged findings are reviewed for substantial evidence, and

conclusions of law are reviewed de novo. Id. at 550-51. We hold the challenged

findings are supported by substantial evidence except for harmless errors. The

findings, in turn, support the conclusions of law.

1. We affirm the findings and conclusions pertaining to client TC (FOF 61, 89, 104, 105, 106, 107; counts 1, 2, 3, 7)

TC was injured on the job and received benefits from L&I. Monro obtained

two settlements on TC’s behalf and agreed to reimburse L&I within 30 days of

receiving each settlement check.

Monro deposited TC’s first settlement check in 2011, but he did not pay L&I

for over a year. He deposited TC’s second settlement check in 2014, but L&I was

3 Monro also broadly criticizes the hearing officer’s decision as “a cut-and-paste job” and a “wholesale adoption of the one-sided allegations” in the complaint. Appellant’s Opening Br. at 54-55. It is not clear whether he intends to raise these criticisms as a separate issue for our review, but they are not well taken. To the extent Monro intends to argue that the hearing officer’s decision is insufficient for meaningful review, we adhere to Monro, as discussed. If he intends to argue that this court should disregard the findings or reweigh the evidence because the hearing officer copied language from ODC’s filings, we decline. Monro cites no authority requiring a hearing officer to draft original language for their findings of fact, and ELC 10.16(b) expressly contemplates that the findings may be drafted by “one or both parties.” Finally, if Monro intends to argue that the hearing officer’s decision is simply too erroneous to be reliable, he is incorrect, as discussed in this opinion.

22 In re Disciplinary Proceeding Against Monro, No. 202,258-8

not fully paid until January 2017, after ODC opened its investigation. These

undisputed findings support the conclusion that Monro “fail[ed] to promptly

deliver funds to third persons.” DP at 88 (count 3). There is also substantial

evidence that he “fail[ed] to provide a written accounting [to TC] after disbursing

funds from trust” because TC eventually reached out to L&I for an itemized

statement of the reimbursement payments. Id. (count 7); see Ex. A496.

After Monro deposited TC’s second settlement check, his trust account

should have held enough funds to pay L&I’s reimbursement, but the balance

quickly fell below that amount. In addition, Monro used funds from TC’s

settlement to make payments for unrelated client matters because he was no longer

holding those clients’ funds in trust.4 These findings support the conclusion that

Monro “fail[ed] to deposit and maintain client funds in a trust account on multiple

cases.” DP at 87 (count 2).

Approximately two years after Monro deposited TC’s second settlement

check, he began making installment payments toward L&I’s reimbursement. ODC

opened its grievance investigation a few months later, at which point the

outstanding balance due to L&I was over $61,000. While ODC was waiting for

4 Monro asserts these payments were made from the funds he was entitled to as attorney fees, “not from funds to which TC was entitled.” Appellant’s Opening Br. at 69 (challenging FOF 61, 89). This does not conflict with the findings, which are supported by substantial evidence including Monro’s testimony that he “use[d] some of TC’s money to fund the payment to Aetna” for an unrelated client (SW, discussed below). 5 Tr. of Proc. (Dec. 15, 2021) at 927.

23 In re Disciplinary Proceeding Against Monro, No. 202,258-8

Monro’s response to its initial grievance letter, he wrote a check to L&I for the

remaining balance. Monro did not have sufficient funds in his trust account to

cover this check because he had already used TC’s funds to benefit himself or

others without entitlement. 5 However, he deposited sufficient personal funds to

cover the check before it was processed.

The hearing officer found that Monro knew he did not have sufficient funds

when he wrote the check to L&I, which he disputes. Appellant’s Opening Br. at

69-70 (challenging FOF 105). However, this finding is supported by substantial

evidence, such as Monro’s testimony that he “became aware” TC’s funds had been

removed from trust “when [he] received the overdraft notice,” which was at least a

week before he wrote the check. 5 Tr. of Proc. (Dec. 15, 2021) at 927. Monro also

disputes that he intended to deprive L&I of the funds for some period of time.

Appellant’s Opening Br. at 69-70 (challenging FOF 107). We accept the hearing

officer’s finding of intent because it is amply supported by reasonable inferences

from the circumstances. See In re Disciplinary Proceeding Against Placide, 190

Wn.2d 402, 426, 414 P.3d 1124 (2018). These findings support the hearing

5 Monro argues his “trust account balance” was sufficient and he never “inappropriately disbursed funds.” Appellant’s Opening Br. at 69-70 (challenging FOF 104, 106). However, regardless of Monro’s overall trust account balance, the Hammond reconstruction shows that the balance for TC was negative $6,254.17 when he wrote the check to L&I. Protected Ex. A252, at 16. This is substantial evidence that Monro did not have sufficient funds, and it is reasonable to infer that he lacked the funds because he had used them for other purposes without entitlement.

24 In re Disciplinary Proceeding Against Monro, No. 202,258-8

officer’s conclusion that Monro “us[ed] and convert[ed] client funds” belonging to

TC. DP at 87 (count 1).

Monro further argues the hearing officer’s findings of “intent to deprive” (in

TC’s and other cases) are insufficient as a matter of law to support the criminal

theft allegations in count 1. According to Monro, the hearing officer was required

to recite a specific phrase finding that he “had ‘the objective or purpose to

accomplish a result that constitutes a crime.’” Appellant’s Reply Br. at 30 (quoting

Placide, 190 Wn.2d at 425); see RCW 9A.08.010(1)(a). To the contrary, Placide

holds that a hearing officer must “explicitly” find the necessary mental state, but it

does not require the use of a specific phrase to do so. 190 Wn.2d at 426. Here, the

hearing officer explicitly found that Monro used funds he was not entitled to, and

that he did so with the intent to deprive the rightful owners of the funds for some

period of time. That is an explicit finding that Monro had the objective or purpose

to accomplish a result that constitutes a crime. See RCW 9A.56.020(1) (defining

theft). Therefore, we hold the findings of intent are sufficient as a matter of law to

support count 1.

2. We affirm the findings and conclusions pertaining to client SW (FOF 40, 45, 47, 49, 53, 58, 59, 60; counts 1, 2, 7)

SW was injured in a motor vehicle accident and received insurance benefits

administered by Aetna, subject to future reimbursement in accordance with

ERISA, the Employee Retirement Income Security Act of 1974, Pub. L. No. 93-

25 In re Disciplinary Proceeding Against Monro, No. 202,258-8

406, 88 Stat. 829. SW hired Monro, who obtained two settlements in 2011 and

2012. Aetna asserted that it was entitled “to full reimbursement without a

reduction for attorney fees or costs,” despite Monro’s repeated requests to

“discount” the reimbursement for his attorney fees. DP at 63-64.

Monro purports to challenge these findings, but he acknowledges that he

disagreed with Aetna about its reimbursement. Appellant’s Opening Br. at 65-66

(challenging FOF 40, 45, 47, 49). Instead, he argues the hearing officer “got the

facts wrong” because Monro allegedly had a “good-faith belief” that he was not

required to pay the reimbursement “unless Aetna provided the actual ERISA

Master Plan.” Id. at 65 (boldface omitted). Nevertheless, it is undisputed that

instead of holding the funds until the dispute with Aetna was resolved, Monro

removed “most if not all of SW’s money” from trust. DP at 65.

After two years of demands, Aetna informed Monro that it was reversing

payment for some of SW’s benefits and, if he did not pay the reimbursement soon,

it would sue SW and file a grievance against him. Four days later, Monro sent

Aetna a reimbursement check.6 In addition, he sent a letter “purporting to also be

signed by SW” without her permission to conceal his failure to pay. 7 Id. These

6 As discussed above, the hearing officer found that Monro funded this check using TC’s settlement, which he disputes, but the finding is supported by substantial evidence. 7 Monro challenges these findings, but they are supported by substantial evidence including SW’s testimony at the disciplinary hearing. Appellant’s Opening Br. at 65-66 (challenging FOF 53, 60); 2 Tr. of Proc. (Dec. 10, 2021) at 325-30.

26 In re Disciplinary Proceeding Against Monro, No. 202,258-8

findings support the conclusion that Monro “fail[ed] to provide a written

accounting after disbursing funds from trust” in SW’s case. Id. at 88 (count 7).

By the time Aetna was paid in 2014, Monro had already removed most or all

of SW’s funds from trust. Nevertheless, he challenges the findings that he used

SW’s funds for other purposes without entitlement and with intent to deprive third

persons of the funds for some time, citing his alleged good-faith belief that Aetna

was not entitled to full reimbursement. Appellant’s Opening Br. at 65-66

(challenging FOF 58, 59). However, these findings are supported by substantial

evidence and reasonable inferences from the circumstances.

SW testified that she never authorized Monro to “delay paying Aetna” or “to

use the money that had been designated for Aetna for some other person or some

other purpose.” 2 Tr. of Proc. (Dec. 10, 2021) at 330. Thus, regardless of Monro’s

good-faith belief about Aetna’s entitlement to the funds, there is no indication that

anyone other than SW was entitled to the funds. Yet, instead of holding the funds

or disbursing them to SW, he removed the funds from trust. As a result, the record

does not support Monro’s alleged “claim of title made in good faith.” RCW

9A.56.020(2)(a). Substantial evidence supports the hearing officer’s findings,

which support the conclusions that Monro “us[ed] and convert[ed] client funds”

from SW and “fail[ed] to deposit and maintain client funds in a trust account on

multiple cases.” DP at 87 (counts 1, 2).

27 In re Disciplinary Proceeding Against Monro, No. 202,258-8

3. We affirm the findings and conclusions pertaining to Estate of JK (FOF 196, 208, 213, 214, 215, 217, 218, 221; counts 1, 8, 10)

JK was killed in a motor vehicle accident and died intestate. JK’s sole heir

was a minor child with special needs. 8 Prior to hiring an attorney, JK’s siblings

contacted the at-fault driver’s insurer (Allstate) and received a settlement offer for

the policy limit of $100,000. However, Allstate wished to delay the settlement

until a personal representative could be appointed for the Estate of JK. JK’s

brother subsequently hired Monro, and they entered a written agreement for both

contingent and hourly fees. To “investigate, negotiate, and/or litigate the Estate of

[JK]’s claims against Allstate, Dep[’]t of Highways, . . . and all other entities,”

Monro would receive a 1/3 contingent fee, increasing to 40 percent if the claim

was “filed in court.” Ex. A731, at 1. In addition, Monro would receive an hourly

fee of $375 “for all Probate Estate Work.” Id.

JK’s brother was appointed to administer the Estate, and Allstate issued a

check for $10,000 in personal injury benefits. Monro issued a settlement statement

that did not allocate any funds to the client, but allocated $4,000 (40 percent) to his

law firm for attorney fees. It is undisputed that the contingent fee should have

been only 1/3 because “[a]t that time, no lawsuit had been filed.” DP at 81. This

8 The hearing officer found that after JK’s death, the child was “placed into dependent care.” DP at 79 (FOF 196). Monro purports to challenge this finding but fails to substantively address it. In any event, this finding is supported by substantial evidence, including a letter Monro wrote to the attorney who represented JK’s child in the dependency matter.

28 In re Disciplinary Proceeding Against Monro, No. 202,258-8

finding supports the hearing officer’s conclusion that Monro “charg[ed] and

collect[ed] an unreasonable fee” from the Estate of JK. Id. at 88 (count 8).

Monro filed a lawsuit against the at-fault driver in late January 2016, which

settled in less than two months for the policy limit of $100,000, as Allstate had

previously offered. Monro disputes that this lawsuit was filed unnecessarily to

increase his contingent fee to 40 percent, but this finding is a reasonable inference

based on the circumstances. Appellant’s Opening Br. at 75 (challenging FOF 208).

This finding further supports the conclusion that Monro collected an unreasonable

fee from the Estate of JK (count 8).

Monro’s initial statement for the distribution of the $100,000 settlement

allocated $40,000 for attorney fees and $3,420 for costs, leaving a remaining

balance of $56,580. However, between January and August 2016, he paid only

$2,420 in costs and disbursed the remaining $107,580 to his law firm and his son,

which “depleted the Estate, leaving no money for the minor child.” DP at 82.

Monro testified that he “paid the $56,580 to [himself] initially as an hourly

fee” to investigate additional claims, though he later determined no other claims

were “viable.”9 5 Tr. of Proc. (Dec. 15, 2021) at 880. Yet, the hearing officer

9 Monro challenges the hearing officer’s finding that “he kept no hourly fee records” for this investigation, arguing he kept electronic records that were lost in the ransomware attack. DP at 82 (FOF 213). However, the investigation of additional claims occurred in late 2015, and the expert Monro hired after the ransomware attack recovered some electronic records from that

29 In re Disciplinary Proceeding Against Monro, No. 202,258-8

found that Monro was entitled to “at most $54,000 in attorney fees” because his

investigation into additional claims was “already covered in the contingent fee

agreement.” DP at 82 (FOF 214, 215). Monro argues that JK’s brother agreed to

“an hourly fee for legal services unrelated to the insurance payout.” Appellant’s

Opening Br. at 60. However, the plain language of the written fee agreement states

the contingent fee was to “investigate, negotiate, and/or litigate the Estate of [JK]’s

claims against Allstate . . . and all other entities.” Ex. A731, at 1 (emphasis

added). The hourly fee was explicitly limited to “Probate Estate Work.” Id.

Monro asserts that JK’s brother understood he would be billed an hourly fee

“for investigating other potential deep-pocket defendants,” notwithstanding the

written fee agreement to the contrary. Appellant’s Opening Br. at 62. He relies on

the report of an interview with JK’s brother, which “[n]either the [hearing officer]

nor the Board ever saw.” Id. at 59. This report is not properly before us, as ELC

12.5(b) limits the record on review to the record before the Board and the hearing

officer.10 Moreover, the report does not require us to disregard the written fee

period. 5 Tr. of Proc. (Dec. 15, 2021) at 880; 6 Tr. of Proc. (Dec. 16, 2021) at 1031-36. Yet, Monro had no “time or billing records” and “no records of the work that [he] did.” 5 Tr. of Proc. (Dec. 15, 2021) at 881 (emphasis added). This is substantial evidence supporting the hearing officer’s finding, which supports the conclusion that Monro “fail[ed] to maintain complete and current trust account records in multiple cases.” DP at 89 (count 10). 10 Monro argues that because he filed the investigator’s report in his interim suspension case, it should automatically be part of the record here, and he urges the court to disregard the different case numbers as “an inconsequential administrative choice by the Clerk of the Court.” Appellant’s Reply Br. at 42. We reject this view. The record presented for this court’s review is determined in accordance with ELC 12.5(b), not the case number assigned by the clerk.

30 In re Disciplinary Proceeding Against Monro, No. 202,258-8

agreement, nor does the “failure of [an] injured client to complain” mitigate or

erase attorney misconduct. ABA, ANNOTATED STANDARDS FOR IMPOSING LAWYER

SANCTIONS std. 9.4(f) (2d ed. 2019) (boldface omitted); see also In re Disciplinary

Proceeding Against Schwimmer, 153 Wn.2d 752, 763, 108 P.3d 761 (2005).

Substantial evidence supports the hearing officer’s findings, which support the

conclusion that Monro collected an unreasonable fee from the Estate of JK. DP at

88 (count 8).

By the end of August 2016, Monro had disbursed all the settlement funds for

the Estate of JK. The hearing officer found that he used the funds to benefit

himself and others without entitlement, with the intent of depriving the Estate of

the funds. Nevertheless, the hearing officer found that Monro “belatedly

acknowledged” he had charged an “unfair” amount, which prompted him to open a

trust account for the Estate of JK in early 2017. Id. at 83. Monro disputes these

findings, relying heavily on the report of the interview with JK’s brother, which is

not properly before us as discussed above. He asserts he never collected

unreasonable fees and his sole motivation in opening a trust account for the Estate

of JK was “to provide additional financial assistance to [the child].” Appellant’s

Opening Br. at 75 (challenging FOF 217, 218, 221).

The hearing officer’s findings are supported by substantial evidence. As

discussed, Monro took fees from the Estate of JK in violation of the written fee

31 In re Disciplinary Proceeding Against Monro, No. 202,258-8

agreement. He ultimately repaid the Estate using a separate trust account, but he

did not open this account until ODC opened its grievance investigation, months

after he depleted the Estate’s settlement funds. The subsequent declaration of

completion for JK’s probate case increased the child’s share from $0 to $72,550.

These circumstances support the hearing officer’s findings, which support the

conclusions that Monro “us[ed] and convert[ed] client funds” and collected an

unreasonable fee from the Estate of JK. DP at 87-88 (counts 1, 8).

4. We affirm the findings and conclusions pertaining to client JD (FOF 258; counts 2, 14)

JD was injured in a motor vehicle accident and hired Monro to represent her.

Monro filed suit against the at-fault driver in October 2016. In February 2018,

while ODC’s grievance investigation was ongoing, Monro settled JD’s case and

deposited the settlement in his trust account. JD and Monro exchanged e-mails

regarding the distribution of the settlement funds, and she filed a grievance against

him. This was later consolidated with ODC’s grievance, as noted above.

On February 22, 2018, the day after depositing JD’s settlement funds,

Monro disbursed $1,692.16 to his law firm for alleged advanced costs. It is

undisputed that he did not, in fact, fully pay the costs until July 2018, and that he

was not entitled to the excess funds. Monro challenges the finding that he used the

funds to benefit himself or others, asserting that he “did not intentionally use any

of the funds during this period for his own or any third person’s benefit.”

32 In re Disciplinary Proceeding Against Monro, No. 202,258-8

Appellant’s Opening Br. at 77 (challenging FOF 258). However, the challenged

finding does not say he acted intentionally, and it is reasonable to infer that Monro

used the funds to benefit himself or others. These findings support the conclusions

that Monro failed to “maintain client funds in a trust account” and “us[ed] client

funds owed to third persons.” DP at 87, 89 (counts 2, 14).

5. We affirm the findings and conclusions pertaining to client KF (FOF 115, 116, 117; counts 1, 5, 7)

In May 2016, Monro deposited a $50,000 settlement for KF into his

KeyBank trust account. By August 2016, Monro had disbursed all of KF’s funds,

including $38,400.86 for his law firm and his son. Later, from June 2017 to June

2018, Monro disbursed about $13,000 related to KF’s case while ODC’s grievance

investigation was ongoing. He disbursed these funds from a general account

because he was no longer holding any funds in trust for KF. The hearing officer

found that Monro had disbursed at least $13,000 in excess funds to his law firm

and his son without entitlement, and that he used the funds to benefit himself or

others with the intent to deprive KF or others of the funds for some time.

Monro challenges these findings and argues that the disbursements were

properly made “to pay third parties for costs.” Appellant’s Opening Br. at 70

(challenging FOF 115, 116, 117). However, he withdrew the funds long before

paying the costs. KF testified she did not authorize him to withdraw the funds in

advance or delay payment to the third parties and she was not aware that he had

33 In re Disciplinary Proceeding Against Monro, No. 202,258-8

done so. 4 Tr. of Proc. (Dec. 14, 2021) at 598-604. This is substantial evidence

supporting the findings, which support the conclusions that Monro “us[ed] and

convert[ed] client funds,” failed to provide “a billing statement or written notice of

his intent to withdraw earned fees,” and “fail[ed] to provide a written accounting

after disbursing funds from trust” in KF’s case. DP at 87-88 (counts 1, 5, 7).

6. We affirm the findings and conclusions pertaining to client SA except for harmless errors (FOF 132, 134, 138, 140, 149, 150, 160, 164, 165, 168, 171, 235, 240, 241, 242, 243, 244, 247; counts 1, 2, 3, 5, 6, 7, 8, 11, 12, 13)

SA’s case is the most complicated and involves the highest number of

ethical violations. SA was injured on the job in 2014 and received L&I benefits

for two years. When L&I determined SA was able to return to work, she hired

Monro. On December 2, 2016, Monro and SA entered a written fee agreement to

pursue a personal injury claim for a 1/3 contingency fee, increasing to 40 percent if

the case was filed in court. As discussed, Monro’s electronic records were hit with

a ransomware attack a few days later, on December 5, and ODC opened its

grievance investigation the following January.

Monro filed a personal injury complaint on behalf of SA in May 2017.

Shortly thereafter, he settled with the at-fault driver’s insurer for $100,000 and

with SA’s insurer for an additional $185,000. Both settlements were deposited in

34 In re Disciplinary Proceeding Against Monro, No. 202,258-8

Monro’s trust account by July 3, 2017. 11 Per the written fee agreement, Monro

was entitled to only $114,000 in attorney fees, but he disbursed $164,882.30 to his

law firm in July 2017. It is undisputed that he did not provide prior written notice

of the disbursal to SA and that he used SA’s settlement to benefit himself or others

without entitlement. These unchallenged findings support the conclusion that

Monro failed to provide “a billing statement or written notice of his intent to

withdraw earned fees.” DP at 88 (count 5).

Nevertheless, Monro challenges the findings that he intended to deprive

others of the funds and that he did not promptly deliver the excess funds to SA. Id.

at 73, 77 (FOF 138, 168). He argues that he merely intended to hold the excess

funds in his general account “to fund future disbursements to L&I and a possible

forensic examination.” Appellant’s Opening Br. at 70. However, the hearing

officer’s findings are supported by reasonable inferences from the circumstances.

Indeed, as ODC points out, there are no records indicating Monro “was keeping

track of SA’s funds in the general account.” Answering Br. of ODC at 25. The

findings support the conclusions that Monro “us[ed] and convert[ed] client funds”

and failed “to maintain client funds in a trust account.” DP at 87 (counts 1, 2).

11 Monro argues, and ODC concedes, that the hearing officer incorrectly transposed the dates on which the settlements were deposited. See DP at 73 (FOF 132, 134). However, the error is harmless, as the deposits were separated by only a few days with no intervening events.

35 In re Disciplinary Proceeding Against Monro, No. 202,258-8

Monro also challenges the finding that he failed to provide SA with a written

accounting after disbursing the funds to his law firm in July 2017, pointing to a

settlement statement SA signed in August 2017. Appellant’s Opening Br. at 71

(challenging FOF 140). This finding is supported by substantial evidence because

the information in the August 2017 settlement statement was false.

Monro provided the August 2017 statement to SA one day after L&I issued

an order and notice for reimbursement of $26,000. Among other items, the August

2017 statement listed Monro’s attorney fees as $114,000 (about $50,000 less than

the amount already disbursed) and L&I’s reimbursement as $39,825 ($13,825

more than L&I’s order and notice stated). The balance to SA was listed as

$120,000. SA signed the August 2017 statement and accepted a $120,000 check

from Monro, which left only $117.70 of her settlement in his trust account. He

issued a check to SA for the final $117.70 in March 2018.

Before signing the August 2017 statement, SA asked about the discrepancy

in the reimbursement due to L&I, as well as a $10,000 forensic fee that had not

been incurred yet. The hearing officer found that Monro told SA he was planning

to “hold back” these excess fees for distribution at a later date, which was false. 12

DP at 75 (FOF 149, 150). These findings support the conclusions that Monro

12 Monro challenges these findings, but they are supported by substantial evidence including SA’s testimony at the hearing. 3 Tr. of Proc. (Dec. 13, 2021) at 446-47, 489.

36 In re Disciplinary Proceeding Against Monro, No. 202,258-8

failed to provide “an accurate written statement,” “fail[ed] to provide a written

accounting after disbursing funds from trust,” “collect[ed] an unreasonable fee,”

and made “false statements to SA.” Id. at 88-89 (counts 6, 7, 8, 12).

L&I’s order and notice for reimbursement became final in October 2017.

However, Monro did not start making installment payments until January 2018,

following multiple calls from L&I. These undisputed findings support the

conclusion that Monro “fail[ed] to promptly deliver funds to third persons.” Id. at

88 (count 3); see also Monro, 3 Wn.3d at 740. When L&I asked why Monro was

making installment payments instead of paying a lump sum, he stated that SA was

out of the country and he was waiting for her to authorize disbursal. This

statement was false because SA had already authorized payment to L&I, which

supports the conclusion that Monro made “false statements to a representative of

L&I.”13 DP at 89 (count 13).

As L&I had previously asked, ODC investigators asked Monro “why he was

making installment payments towards L&I’s lien, instead of paying a lump sum.”

Id. at 76. The hearing officer found that Monro falsely stated it was “to ‘safeguard

the client,’” but his true intent was to deprive others of the funds. Id. at 76-77.

13 Monro argues this finding is “clearly incorrect” because he received an e-mail from SA shortly before she left the country, which “does not mention L&I.” Appellant’s Opening Br. at 72 (emphasis omitted) (challenging FOF 160). This is immaterial. SA had already signed the August 2017 settlement statement, which allocated (excessive) funds for L&I’s reimbursement and stated, “I authorize my attorney to disburse the funds as set forth above.” Ex. A669.

37 In re Disciplinary Proceeding Against Monro, No. 202,258-8

Monro disputes these findings, arguing he “hoped that L&I would compromise the

total amount due” if he delayed payment. Appellant’s Opening Br. at 73

(challenging FOF 164, 165, 171). However, L&I’s order and notice was final for

months before Monro started making payments, causing the lien to accrue interest

without SA’s knowledge. Monro subsequently paid the balance due to L&I only

three days after ODC asked him about it. These circumstances support the

findings, which support the conclusions that Monro “us[ed] and convert[ed] client

funds,” “fail[ed] to promptly deliver funds to third persons,” and made

“misrepresentations to ODC during a grievance investigation.” DP at 87-89

(counts 1, 3, 11).

On July 13, 2018, ODC requested Monro’s client file for SA. Three days

later, Monro had SA sign the second page of a document acknowledging she had

received checks for $120,000 and $117.70, as noted above.14 It is undisputed that

Monro did not disclose “the first page of the document” to SA, which was a

settlement statement that “differed in several ways from the settlement statement

signed by SA one year earlier,” in August 2017. Id. at 75 (emphasis added), 85.

As compared to the August 2017 statement, the July 2018 statement included

14 Monro challenges the finding that the second page “appeared to contain SA’s signature.” DP at 86 (FOF 240). ODC concedes that he is “correct to the extent that SA signed the second page.” Answering Br. of ODC at 48. However, this was harmless because the next finding expressly recognizes that “SA signed the second page.” DP at 86 (FOF 241).

38 In re Disciplinary Proceeding Against Monro, No. 202,258-8

excess attorney fees for L&I benefits that SA had received before hiring Monro.

Monro provided ODC with the July 2018 statement, but not the August 2017

statement. Conversely, Monro provided SA with the August 2017 statement, but

she did not see the first page of the July 2018 statement at the time of signing, and

Monro did not provide it her.

The hearing officer found that Monro was attempting to “cover up the fact”

that the July 2018 statement included fees he was not entitled to. Id. at 86 (FOF

247). Monro “knew that SA did not sign or know about the 2018 settlement

statement when he provided it to ODC,” and he falsely testified in deposition that

he had “provided the 2018 settlement statement to SA.” Id. (FOF 242, 243, 244).

Monro disputes these findings, but he does not dispute that he convinced his client,

SA, to sign the second page of a document without showing her the first page. 15

He then provided ODC with the July 2018 statement SA unwittingly signed and

failed to provide the August 2017 statement she knowingly signed. These

circumstances amply support the hearing officer’s findings, which support the

conclusions that Monro made “misrepresentations to ODC during a grievance

15 Monro challenges the finding that SA did not see the first page of the July 2018 statement “until preparing for this hearing.” DP at 86 (FOF 241). He argues that she did not see the first page of the document until she was testifying “on the stand.” Appellant’s Opening Br. at 76. This distinction is irrelevant.

39 In re Disciplinary Proceeding Against Monro, No. 202,258-8

investigation, testif[ied] falsely at his deposition, and fabricat[ed] a document in

SA’s case,” and made “false statements to SA.” Id. at 89 (counts 11, 12).

Monro also sent ODC two fee agreements for SA’s case: the true agreement

she signed in December 2016 and a false agreement “purport[ing] to contain SA’s

initials on the first page.”16 Id. at 84. It is undisputed that the false agreement was

a forgery; Monro or “someone in his office wrote SA’s initials on that first page

without her permission,” attached “the falsely initialed first page” to the second

page of the true fee agreement, and sent it to L&I. Id. at 84-85. These findings

support the conclusions that Monro “fabricat[ed] a document in SA’s case” and

made “false statements to a representative of L&I.” Id. at 89 (counts 11, 13).

In sum, the findings of fact pertaining to specific client matters are supported

by substantial evidence except for harmless errors, and the findings support the

conclusions of law. However, Monro also challenges numerous findings and

conclusions that are not client-specific.

16 Monro argues, and ODC concedes, that the exhibit cited by the hearing officer for the false fee agreement (Ex. A652) was not admitted at the hearing. Appellant’s Opening Br. at 76 (challenging FOF 235); Answering Br. of ODC at 47. This error is harmless because the same false fee agreement appears in admitted exhibit A665, at 4-5.

40 In re Disciplinary Proceeding Against Monro, No. 202,258-8

7. We affirm the findings and conclusions that are not client-specific (FOF 12, 14, 21, 22, 24, 25, 27, 30, 34, 169, 170, 171, 174, 188; counts 2, 4, 9, 10)

a. FOF 12, 14, 21, 22

As noted, Monro came to ODC’s attention when his bank sent an overdraft

notice regarding his trust account. Monro challenges these findings, arguing “the

account balance never went negative.” Appellant’s Opening Br. at 67 (challenging

FOF 12, 14). However, the overdraft notice in the record states the available

balance was negative, which is substantial evidence supporting the findings.

When ODC asked Monro for information about the overdraft notice, his

counsel (attorney Ripley) falsely responded that the overdraft occurred because the

funds were withdrawn “before the corresponding deposit(s) were ‘made available

by the bank.’” DP at 61. Monro argues the hearing officer wrongfully “attributed”

this false statement to him. Appellant’s Opening Br. at 67 (challenging FOF 21,

22). To the contrary, the hearing officer expressly found the statement was made

“through counsel,” not by Monro personally. DP at 61.

Monro also argues that the hearing officer erred as a matter of law by relying

on attorney Ripley’s false statement to conclude “that Monro had lied to ODC

during its investigation, warranting the disbarment sanction.” Appellant’s Opening

Br. at 57. However, as ODC points out, “there are other findings of more serious

misrepresentations directly attributable” to Monro, specifically in SA’s case,

41 In re Disciplinary Proceeding Against Monro, No. 202,258-8

discussed above. Answering Br. of ODC at 45. Moreover, the hearing officer

cited SA’s case, not attorney Ripley’s false statement, to conclude that Monro’s

false statements to ODC warranted a presumptive sanction of disbarment. DP at

92-93. We therefore reject Monro’s argument on this point.

b. FOF 24, 25, 27; count 10

As discussed, Monro used a manual check register for his KeyBank trust

account. It is undisputed that from January 2016 to January 2017, “the check

register did not include all account transactions, a client matter for every

transaction, and a balance after every transaction.” Id. at 62. Nevertheless, Monro

argues these findings “are misleading by omission” because they do not mention

his electronic client ledger, which allegedly contained the missing information but

was “lost to the cyberattack.” Appellant’s Opening Br. at 68, 67. He also disputes

the finding that “there was no competent evidence” the ransomware attack “caused

or precipitated” any of his misconduct. DP at 62.

There is nothing misleading about the hearing officer’s findings because, as

ODC points out, “a client ledger is a separate record from a check register, and

there are separate rules governing each.” Answering Br. of ODC at 55 (citing RPC

1.15B(a)(1), (2)). Regardless of Monro’s client ledger, his undisputed failure to

maintain his check register supports the conclusion that he “fail[ed] to maintain

complete and current trust account records in multiple cases.” DP at 89 (count 10).

42 In re Disciplinary Proceeding Against Monro, No. 202,258-8

Moreover, although Monro asserts the ransomware attack caused him significant

“anguish” and made it “a monumental struggle” to reconstruct his trust account

records, he does not show that it caused or precipitated his misconduct.

Appellant’s Opening Br. at 68. To the extent Monro argues the ransomware attack

should be treated as a mitigating circumstance, that issue is addressed below.

c. FOF 30 and 34; counts 2, 10

The hearing officer found that after the ransomware attack, Monro disbursed

over $19,000 from his trust account to his law firm and his son without recording

associated client matters. Monro argues that “[w]ithout a specific timeframe . . .

the relevant transactions cannot be identified.” Id. (challenging FOF 30).

However, the Hammond reconstruction includes a ledger of “unknown” disbursals

with no associated client matters. Eight “unknown” disbursals totaling $19,265.04

were made to Monro’s law firm and his son after the ransomware attack, between

December 15, 2016, and January 4, 2017.17 This is substantial evidence supporting

the finding, which supports the conclusions that Monro failed to “maintain client

funds in a trust account” and “fail[ed] to maintain complete and current trust

account records.” DP at 87, 89 (counts 2, 10).

17 Monro purports to challenge the finding that he “was unable to identify client matters” associated with disbursals of $34,000 to his law firm and his son prior to the ransomware attack, but he does not include any argument. DP at 63 (FOF 34); see Appellant’s Opening Br. at 68. Regardless, this finding is also supported by the Hammond reconstruction’s “unknown” ledger.

43 In re Disciplinary Proceeding Against Monro, No. 202,258-8

d. FOF 169, 170, 171, 174; count 4

Next, Monro disputes that on “multiple occasions,” he disbursed funds from

his trust account, failed to pay “outstanding costs and/or subrogated interest” owed

on behalf of his clients, and, instead, used the funds to benefit himself and others

without entitlement. Id. at 77. Monro argues these findings should be rejected as

“non-specific” because they do not include “identifying information regarding

clients, dates, and amounts.” Appellant’s Opening Br. at 74.

The hearing officer’s findings are supported by the Hammond reconstruction

and the findings pertaining to several specific client matters, such as KF’s and JD’s

cases, discussed above. Moreover, ODC’s analysis shows that when the overdraft

notice was issued, Monro owed more than $236,000 on behalf of clients whose

funds he had removed from trust, yet his general accounts contained less than

$6,000. This analysis is consistent with the undisputed finding that between

January 1, 2015, and January 31, 2017, “there were no days on which [Monro] had

enough money in his general accounts to make payments on behalf of clients

whose funds he had removed from trust.” DP at 77.

Thus, substantial evidence supports the hearing officer’s findings, which

support the conclusion that Monro “us[ed] client funds on behalf of another” and

44 In re Disciplinary Proceeding Against Monro, No. 202,258-8

“disburs[ed] funds in excess of the amounts clients had on deposit in multiple

cases.”18 Id. at 88 (count 4).

e. FOF 188; count 9

Finally, as discussed, Monro deposited his wife’s personal funds into his

trust account in an effort to avoid paying taxes. He subsequently disbursed

$50,000 more than he had deposited, using client funds to benefit himself and his

family. Yet, Monro challenges the finding that he intended to deprive others of the

funds for some time, arguing he “was unaware that this account was underfunded.”

Appellant’s Opening Br. at 74 (challenging FOF 188).

The excess disbursals occurred in March and April 2016, long before Monro

lost any records in the ransomware attack. Moreover, these disbursals occurred

around the same time as several tax levies were served on Monro’s bank. His

intent can reasonably be inferred from these circumstances, and the findings amply

support the conclusion that Monro commingled “his mother’s and wife’s funds and

his own funds with client funds in a trust account.” DP at 88 (count 9).

In sum, we hold that the hearing officer’s findings adopted by the Board are

supported by substantial evidence, with the exception of harmless errors. The

18 Monro argues that “he was unaware of any insufficiency of funds.” Appellant’s Opening Br. at 74 (challenging FOF 174). His knowledge is a reasonable inference based on the circumstances, including the extreme shortage of funds in his general accounts and the fact that he incurred thousands of dollars in overdraft fees during the relevant time period.

45 In re Disciplinary Proceeding Against Monro, No. 202,258-8

findings support the conclusions that Monro committed 14 counts of misconduct

affecting his clients, third parties, and ODC’s investigation.

D. We adopt the Board’s disbarment recommendation

Finally, Monro argues that disbarment is a disproportionate and excessive

sanction. We follow a three-stage analysis to review the Board’s recommended

sanction in accordance with the ABA Standards: “(1) ‘evaluate whether the Board

properly determined the presumptive sanction,’ (2) ‘determine whether any

aggravating or mitigating circumstances call for a departure from the presumptive

sanction,’ and (3) consider ‘proportionality of the sanction’ and ‘the extent of

agreement among the members of the Disciplinary Board.’” Wallstrom, 4 Wn.3d

at 543 (internal quotation marks omitted) (quoting In re Disciplinary Proceeding

Against Preszler, 169 Wn.2d 1, 18, 232 P.3d 1118 (2010)). We adopt the Board’s

recommended sanction of disbarment.

1. It is undisputed that the presumptive sanction is disbarment

To determine the appropriate sanction “[w]hen multiple ethical violations

are found, the ‘ultimate sanction imposed should at least be consistent with the

sanction for the most serious instance.’” Kelley, 3 Wn.3d at 552 (internal

quotation marks omitted) (quoting In re Disciplinary Proceeding Against Petersen,

120 Wn.2d 833, 854, 846 P.2d 1330 (1993)). Aside from the challenges to the

findings and conclusions discussed above, it is undisputed that disbarment is the

46 In re Disciplinary Proceeding Against Monro, No. 202,258-8

presumptive sanction for Monro’s most serious ethical violations, including

knowingly and intentionally using and converting client funds, collecting fees in

excess of his written agreements, dishonesty to client SA, and dishonesty to ODC

during its grievance investigation. See ABA STANDARDS stds. 4.11, 4.61, 5.11, 7.1.

2. Monro does not show extraordinary mitigation

The second step is to consider aggravating and mitigating factors. Monro

does not challenge the five aggravators found by the hearing officer: dishonest or

selfish motive, pattern of misconduct, multiple offenses, refusal to acknowledge

wrongful nature of his conduct, and substantial experience in the practice of law.

DP at 93. However, he argues that the hearing officer and the Board should have

given more weight to his asserted mitigating factors. We cannot agree.

Where an attorney converts client funds, “‘only extraordinary mitigation’

will justify a lesser sanction” than disbarment. Wallstrom, 4 Wn.3d at 543

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

Fossedal, 189 Wn.2d 222, 234, 399 P.3d 1169 (2017)). Monro suggests this

standard should not apply because, in his view, “no client of Monro lost money at

any time; nor did Monro intend to permanently deprive any client or third parties

of their money.” Appellant’s Opening Br. at 81. To the contrary, theft by

embezzlement “does not require an intent to permanently deprive.” Schwimmer,

153 Wn.2d at 760 (emphasis added). Moreover, as this court recently reaffirmed,

47 In re Disciplinary Proceeding Against Monro, No. 202,258-8

“[t]he funds in an attorney’s trust account do not belong to the attorney. For that

reason, it is both unethical and potentially criminal for an attorney to use their trust

account as a ‘piggy bank’ to cover business or personal expenses.” Wallstrom, 4

Wn.3d at 531.

Thus, when an attorney converts client funds without entitlement, the client

has “lost” money at that time, regardless of whether the attorney intends to

“permanently” retain the funds. Contra Appellant’s Opening Br. at 81. Indeed,

“[e]ven if an attorney reimburses the client for misappropriated funds, the

repayment does not eviscerate [their] ethical violation.” Schwimmer, 153 Wn.2d at

761. Because Monro’s misconduct includes knowing and intentional conversion of

client funds, “the presumptive sanction of disbarment must be imposed ‘absent

extraordinary mitigating circumstances.’” Wallstrom, 4 Wn.3d at 553 (quoting In

re Rentel, 107 Wn.2d 276, 286, 729 P.2d 615 (1986)).

Monro argues his sanction should be mitigated due to (1) lack of a prior

disciplinary record, (2) “‘personal and emotional’” problems caused by the

ransomware attack, and (3) his “successful efforts at rehabilitating his practices

and procedures.” Appellant’s Opening Br. at 84, 86. The hearing officer found

that the absence of a prior disciplinary record was mitigating, but did not warrant a

lesser sanction, and rejected Monro’s reliance on personal and emotional problems

48 In re Disciplinary Proceeding Against Monro, No. 202,258-8

as a mitigator. We agree with the hearing officer’s assessment, and we decline to

consider Monro’s alleged rehabilitation following the disciplinary hearing.

Monro’s lack of a prior disciplinary record is not extraordinary mitigation

because “an attorney cannot shield [themselves] from the consequences of

committing a serious ethical violation simply because it is [their] first offense.”

Schwimmer, 153 Wn.2d at 763. In addition, although the ransomware attack was

certainly a challenging circumstance, much of Monro’s misconduct occurred

before the attack, as detailed above. He does not show a “connection” between his

serious misconduct predating the ransomware attack and the personal and

emotional problems that were later caused by the ransomware attack. ln re

Disciplinary Proceeding Against Poole, 164 Wn.2d 710, 733, 193 P.3d 1064

(2008). Without such a “demonstrated connection,” Monro’s asserted personal and

emotional problems cannot establish extraordinary mitigation. In re Disciplinary

Proceeding Against Christopher, 153 Wn.2d 669, 684, 105 P.3d 976 (2005).

Finally, Monro argues that he should not be disbarred because he made

“successful efforts at rehabilitating his practices and procedures following the

ransomware attack.”19 Appellant’s Opening Br. at 86. There was no need for

19 Monro suggests that his alleged rehabilitation shows “remorse,” but he continues to deny his most serious ethical violations and acknowledges only that his “trust accounting was deficient” in the past. Appellant’s Opening Br. at 88, 87. Monro’s intentional conversion of funds, dishonesty to his clients, and misrepresentations to ODC were not caused by deficient trust accounting practices. As a result, remorse is not an applicable mitigator in this case.

49 In re Disciplinary Proceeding Against Monro, No. 202,258-8

Monro to wait for a catastrophic event like the ransomware attack before

rehabilitating his practices and procedures, and the fact that he did so is not

extraordinary mitigation. Moreover, “interim rehabilitation” has not been

recognized as an “independent factor” in mitigation since 1992. In re Disciplinary

Proceeding Against Perez-Pena, 161 Wn.2d 820, 835, 168 P.3d 408 (2007). Thus,

we decline to mitigate Monro’s sanction based on his claimed rehabilitation after

the ransomware attack.

Monro also urges the court to consider his alleged rehabilitation following

his disciplinary hearing, citing evidence from his interim suspension case. We

decline; as noted above, the record before this court is limited to the record that

was presented to the hearing officer and the Board. ELC 12.5(b). Moreover, as

this court has long recognized, “[e]nding misconduct does not erase . . . that

misconduct which has already occurred. Even where an attorney has been

rehabilitated prior to the imposition of discipline, ‘the legal system itself has not

been redeemed.’” In re Disciplinary Proceedings Against Dann, 136 Wn.2d 67,

83-84, 960 P.2d 416 (1998) (quoting In re Disciplinary Proceeding Against

Kennedy, 97 Wn.2d 719, 723, 649 P.2d 110 (1982)).

Thus, Monro’s alleged rehabilitation following his disciplinary hearing is

not relevant to our inquiry at this stage of the proceedings. Instead, “reformation

subsequent to disbarment” may be addressed in a future petition for reinstatement,

50 In re Disciplinary Proceeding Against Monro, No. 202,258-8

in which “[t]he major consideration” will be Monro’s “burden of demonstrating

that he has overcome the weaknesses producing his earlier misconduct.” APR

25.5(b)(5); In re Disciplinary Proceeding Against Walgren, 104 Wn.2d 557, 561,

708 P.2d 380 (1985); In re Disciplinary Proceeding Against Hart, 118 Wn.2d 280,

286, 822 P.2d 264 (1992).

3. Monro fails to show disproportionality

The final step of our analysis is to consider unanimity and proportionality. 20

Although the Board’s decision was not unanimous, “a lack of unanimity does not

conclusively vitiate the deference we give to the Board’s recommendation.”

Kelley, 3 Wn.3d at 565-66. Instead, we must examine the proportionality of the

majority’s recommended sanction of disbarment. “When determining if a sanction

is proportionate, we look at whether it is ‘roughly proportionate to sanctions

imposed in similar situations or for analogous levels of culpability.’” Id. at 566

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

Dynan, 152 Wn.2d 601, 623, 98 P.3d 444 (2004)). Monro has the burden to show

that disbarment is disproportionate. Id. He does not meet this burden.

20 Monro complains that the hearing officer “undertook no proportionality analysis” and the Board did not explicitly address proportionality. Appellant’s Opening Br. at 78. However, as we recently explained, it is not the hearing officer’s role to perform a proportionality analysis, and the Board need not state its reasoning unless “it amends, modifies, or reverses any finding or conclusion or recommendation of the hearing officer.” Monro, 3 Wn.3d at 741; Kelley, 3 Wn.3d at 565 n.14 (citing ELC 11.12(e)).

51 In re Disciplinary Proceeding Against Monro, No. 202,258-8

Monro relies primarily on In re Disciplinary Proceeding Against Tasker,

which is readily distinguishable. 141 Wn.2d 557, 9 P.3d 822 (2000). The attorney

in Tasker “commingle[d] funds in his client trust account and pa[id] business and

personal expenses out of the commingled account, but without intent to

permanently deprive any clients of money.” Id. at 560. This court declined to

impose the presumptive sanction of disbarment, finding extraordinary mitigation

due to an unwarranted “delay in the prosecution,” during which time “Tasker made

the most of the delay by demonstrating his willingness and ability to clean up his

act.” Id. at 567-68. The court concluded that “so substantial was the delay in

prosecution, and so compelling [was] Tasker’s turnaround . . . disbarment is an

inappropriate sanction.” Id. at 570.

Monro contends that his case is similar because he did not intend to

permanently deprive anyone of the funds he wrongfully converted, and he restored

the funds prior to his disciplinary hearing. He argues that “[i]f anything, Tasker’s

RPC violations were worse than those found against Monro” because, according to

Monro, his violations were caused by mere “confusion and inattention.”

Appellant’s Opening Br. at 83. To the contrary, as discussed above, we accept the

hearing officer’s findings that Monro acted knowingly and intentionally in most

instances. Moreover, in contrast to Tasker, Monro’s misconduct occurred over a

period of several years and included other serious violations, including dishonesty

52 In re Disciplinary Proceeding Against Monro, No. 202,258-8

to his clients and ODC. See Tasker, 141 Wn.2d at 569-70. In addition, the

primary mitigating factor in Tasker (unwarranted delay in the prosecution) is

absent in this case. See id. at 567-69. Thus, Tasker does not show disbarment is a

disproportionate sanction for Monro’s serious misconduct.

Monro also attempts to contrast this matter with other cases in which the

respondent attorney was disbarred for committing additional misconduct to conceal

their initial wrongdoing. See Appellant’s Opening Br. at 82 (citing Petersen, 120

Wn.2d 833; Johnson, 114 Wn.2d 737). However, the hearing officer found Monro

did precisely that, for example, by providing false information to ODC during its

investigation. Monro cites additional cases in which the respondent attorney was

not disbarred, but many of these cases involved a presumptive sanction of

suspension for the most serious misconduct, not disbarment. 21 In other cases, the

presumptive disbarment sanction was mitigated by circumstances that are not

present here.22 We conclude that Monro has not met his burden of showing that

disbarment is a disproportionate sanction.

21 In re Disciplinary Proceeding Against Hall, 180 Wn.2d 821, 834, 329 P.3d 870 (2014); In re Disciplinary Proceeding Against Holcomb, 162 Wn.2d 563, 586, 173 P.3d 898 (2007); In re Disciplinary Proceeding Against McKean, 148 Wn.2d 849, 870-71, 64 P.3d 1226 (2003); Poole, 164 Wn.2d at 732; In re Disciplinary Proceeding Against Heard, 136 Wn.2d 405, 424, 963 P.2d 818 (1998); Dann, 136 Wn.2d at 80; In re Disciplinary Proceeding Against Johnson, 118 Wn.2d 693, 703, 826 P.2d 186 (1992). 22 Christopher, 153 Wn.2d at 685 (“remorse was a significant mitigating factor”); Dynan, 152 Wn.2d at 621 (dishonest attorney “did not intend to deceive the court, did not intend to benefit himself, and did not receive a direct or indirect benefit from his actions”); In re

53 In re Disciplinary Proceeding Against Monro, No. 202,258-8

CONCLUSION

We reaffirm that the “clear preponderance” standard in ELC 10.14(b)

properly imposes the intermediate burden of proof in attorney discipline cases and

that the hearing officer’s decision was adequate for review. The findings are

supported by substantial evidence apart from harmless errors, and the findings of

fact support the conclusions of law and the presumptive sanction of disbarment.

Because Monro fails to show extraordinary mitigation or disproportionality, we

adopt the disbarment recommendation.

Disciplinary Proceeding Against Haskell, 136 Wn.2d 300, 321, 962 P.2d 813 (1998) (attorney’s unusual misconduct had been considered in only one, recent case); In re Disciplinary Proceeding Against McLendon, 120 Wn.2d 761, 773, 845 P.2d 1006 (1993) (extraordinary mitigation due to “the existence of bipolar disorder during all relevant times . . . and . . . the abatement of symptoms and misconduct following proper diagnosis and treatment”); In re Disciplinary Proceeding Against Malone, 107 Wn.2d 263, 265, 728 P.2d 1029 (1986) (attorney “himself had brought the trust account discrepancies to the attention of the bar association and had ‘volunteered in a cooperative manner throughout the audit’”); In re Disciplinary Proceeding Against Salvesen, 94 Wn.2d 73, 77-78, 614 P.2d 1264 (1980) (attorney “fully and completely cooperated with the bar in its investigation” and “expressed remorse”).

54 In re Disciplinary Proceeding Against Monro, No. 202,258-8

Yu, J.P.T.

WE CONCUR:

55 In re Disciplinary Proceeding Against Monro

No. 202258-8

GORDON McCLOUD, J. (concurring)—I understand the majority to

hold that the “clear preponderance of the evidence” burden of proof

applicable in attorney disciplinary cases is substantively identical to the

“clear, cogent and convincing” burden of proof applicable in other

professional disciplinary contexts. The phrases reflect alternate ways of

expressing the constitutionally required intermediate burden of proof, which

is more than a mere preponderance and less than beyond a reasonable doubt.

Majority at 14-15. As the majority explains, this court has applied that

intermediate standard of proof to protect attorneys’ due process rights for

over 100 years. Majority at 11-12 (quoting In re Disbarment of Sherrill, 116

Wash. 143, 147, 198 P. 725 (1921)). Because the majority holds that “clear

preponderance of the evidence” is identical to “clear, cogent, and

convincing” evidence, and because the majority holds that we will adhere to

that constitutionally required standard, I respectfully concur.