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OWENS, J. - A hearing officer for the Washington State BarAssociation Office ofDisciplinary Counsel (ODC) found that attorney Donald Peter Osborne committed five violations ofthe Rules ofProfessional Conduct (RPC) because of events surrounding a will he drafted for a sick, elderly womanthatmade him the residual beneficiary ofher $600,000 estate. Following a disciplinary hearing, the hearing officer recommended disbannent. Osborne did not appealto the Washington State BarAssociation Disciplinary Board (Board). Since Osborne did not appeal, the Board consideredwhetherto order sua spontereviewunder the Rules for Enforcement ofLawyer Conduct (ELC). Here, the rules provide, "TheBoard should order sua sponte review only in extraordinaryIn re DisciplinaryProceedingAgainst Osborne No. 201,435-6 circumstances to prevent substantial injustice or to correct a clear error." ELC 11.3(d). The Board declined sua sponte review. After sua sponte review was declined, Osborne filed a notice ofappeal to this court. We issued an enbane order limiting the scope ofreview in this case to whether the Boardwas required to order
sua sponte review under ELC 11.3(d). Osborne asks us to decide whetherthe hearing officer's recommendation ofdisbarment was unjust or clear error. He also makes several other arguments, but they are beyond the scope ofreview we granted. Since the hearing officer's recommendation ofdisbarment was neitherunjust
nor clear error, we holdthatthe Boardwas not required to order sua sponte review. Additionally, after conducting our own independentreview ofthe record, we find no
reason to depart from the hearing officer's recommendation. We affirm the hearing officer's recommendationto disbar Osborne from the practice oflaw. FACTS In 1986, Osborne drafted wills for husband and wife George and Elizabeth Hancock. After George Hancock died in 2003, Osbornerevised ElizabethHancock's will. The 2003 will named a few charities as residual beneficiaries. In 2009, Hancock fell ill and Osborne revised her will, making himselfthe residual beneficiary ofher estate. Starting after Hancock's husband died in 2003, her neighbors and friends, William and Susan Spencer, spent time with her and helped her around the house.

2In re DisciplinaryProceedingAgainst Osborne No. 201,435-6 They lived across the street from each other for many years. The Spencers could view Hancock's homethrough a large window. They took care ofherhouse and yardwork, cooked meals, and sometimes gave her sponge baths. Theyhad a signaling system using a porch light and kitchen blinds that Hancock coulduse to alert the Spencers that she needed help. J. Scott Greer, an attorney, was also familiar with the happenings at the Hancock home as he likewise lived across the street from Hancock and next to the Spencers. InAugust 2009, Hancock experienced a fall and was hospitalized. During her hospital stay, Hancock asked the Spencers to contact "alawyer" to help her update her will. Hancock did not identify Osborne byname and onlytold them to look inher address book under "lawyer." Her address book contained the entry "'DonaldP. Osborne, Attorney at Law'" with an address and phone number. Hr'g Officer's Findings ofFact, Conclusions ofLaw & Recommendations (FF/CL) at 4 (Opening Br. ofAppellant, App. A). On September22, while hospitalized, Hancock gave Osbornepower ofattorney
over her financial affairs, but not over health care decisions. Hancock indicatedthat she wanted her daughter to have decision-making power over herhealth care. However, on the same day, Osborne signed a "Physician's Order for Life Sustaining Treatment" (POLST) onHancock's behalf, despite nothavingpower ofattorney over her health care. Osborne told hospital employees thathe was not authorized to sign

3In re DisciplinaryProceedingAgainst Osborne No. 201,435-6 the POLST, and even struckthatpart ofthe form indicating he signed it pursuantto having power ofattorney. The hospital later voided the POLST because Osborne lacked authority. Despite admitting that he lacked authority to signthe POLST, he testified at the hearingthat his power ofattorney gavehim authority to sign it. During October ofthat year, Hancock consulted with Osborne about revising her 2003 will. No one else was present for their conversation. Osborne directed his assistant, JeanPhillips, to prepare the will based on his handwritten notes. The primary difference betweenthe 2003 will and the 2009 will was that charities were no longer the residual beneficiaries ofher estate; instead, Osborne was named as the residual beneficiary. The residue included herhome, valued at $600,000. Hancock executed the will on October 14, 2009. Itbore witness signatures ofPhillips and Elaine Kerns-aperson that Phillips admits was not actually in the roomto witness Hancock's signing. Phillips has never seen ormetElaine Kerns. Hancock died 13 days after executing the revised will. Two days after, Osborne sought to probate the 2009 will and had himselfappointed as personal representative ofHancock's estate. The relationship between Osborne and Hancock was described at Osborne's later attorney discipline hearing. Osborne admitted that he was notrelated to Hancock either by blood or marriage. However, Osborne testified about their friendship, stating that he checked on her at herhome between 2003 and 2009. He said they exchanged recipes and would socialize in herbackyard. He admitted that no one else

4In re DisciplinaryProceedingAgainst Osborne No. 201,435-6

was present for these visits. He did not corroborate his testimony regarding their friendship with any evidence or witnesses. After she became ill, Osborne began taking care ofher home and doing her laundry. Prior to the 2009 will, the Spencers had never seen Osborne at Hancock's house. Greer also testifiedthat he had never seen Osborne at Hancock's home until after she became ill. Several witnesses testified at the hearing regarding their long friendships withHancock, butnone ofthem had heard ofOsborne. For instance, Toni Grandaw, who had known Hancock for over 50 years, testified that she socialized with Hancock regularly. The two discussed Hancock's friends like the Spencers, her daughter and family, and financial and legal matters. However, Hancockhad never mentioned knowing Osborne to Grandaw until she was hospitalized. Hancock told Grandaw that she wished to change her will, but Grandaw was "flabbergasted" that Hancockdevised her estateto Osborne since Hancockneverpreviously mentioned him. 

### !d. at 6. After Osborne had himselfformally appointed as personal representative following Hancock's death, the Spencers saw Osborne removepersonal property from Hancock's home. They saw Osborne remove "boxes, plants and clothing" including "fur coats." 

### Id. at 15. Osborne gave the Spencers a check from Hancock's estate for $15,000 eventhough Osborne had shownthe Spencers a priorwill that devised them only $10,000. Since the amount was different, Mr. Spencerhad concerns and visited

5In re DisciplinaryProceedingAgainst Osborne No. 201,435-6 Greer, since he is an attorney. When Greer sawthat Osborne was both beneficiary and personal representative, he became suspicious and contacted an estate attorney, Randolph Petgrave. Greer and Petgrave approached Osborne about the 2009 will and vocalized their concerns. Osborne admitted to Greer and Petgrave thathe drafted the will and
was named as a beneficiary and personal representative. He also told them that Hancock did not seek independent counsel and thathe had not advised her to do so. Despite their account, Osborne later testified at his disciplinaryhearing that he advised her that she had a right to seek independent counsel. Osborneproduced handwritten notes he said Hancock initialed that indicatedthat she waivedher right to consult outside counsel. In 2010, Hancock's daughter, represented by Petgrave, petitioned for Osborne's removal as personal representative and for return ofHancock'spersonal property. The superior court removed Osborne and appointed attorney Barbara Coster as personal representative. InJune 2010, the superior court twice ordered Osborne to deliver Hancock's personalproperty to Coster. Osborne filed pleadings with the superior court thathe had relinquished all ofHancock's records andproperty to Coster. He also gave deposition testimony in 2011 that he had disposed ofHancock's identification card, credit cards, and financial documents. Following a superior court judgment against Osborne, the sheriffexecuted a search on Osborne's home. The

6In re DisciplinaryProceedingAgainst Osborne No. 201,435-6 sherifffound Hancock'sproperty at Osborne's residence, including her identification, credit cards, and financial records. Eventually, in November 2011, the lawsuit settled and Osborne paid $200,000. Based on the above conduct, the ODC charged Osborne with five violations of the Rules ofProfessional Conduct by formal complaint: COUNT 1: Bypreparingthe 2009 will, which gave him a substantial gift from Ms. (Elizabeth) Hancock's estate, Respondent violated RPC 1.8(c). COUNT 2: Bynaming himselfasP(ersonal) R(epresentative) of Ms. Hancock's estate while simultaneously making himselfthe residual beneficiary while representing Ms. Hancock, Respondent violatedRPC 1.7(a)(2). COUNT 3: By filing a declaration with the court on February 24, 2011, asserting that he had returned all property formerly belongingto Ms. Hancockto the estate and/or successorPRwhen he knewhad not and/or by knowingly making similarfalse assertions in otherpleadings, Respondent violated RPC 3.3(a), RPC 4.1(a), and/or RPC 8.4(c). COUNT 4: By failing to return property formerly belonging to Ms. Hancockto the estate and/orthe successorPRdespite being ordered to do so by the court, Respondent violated RPC 3.4(a), RPC 3.4(c), and/or RPC 8.40). COUNT 5: Bypurporting to have authority to execute the September 2009 POLST and/or by entering Ms. Hancock's safety deposit box on October27, 2009, underpurported authority ofthe power ofattorney grantedhim by Ms. Hancock, whichhad expired, Respondent violated RPC 8.4(c).Pl

1 ODC dismissed the portion ofcount 5pertaining to entering Ms. Hancock's safety deposit box; thus, the hearing officer's finding that Osborne violated RPC 8.4(c) pertained only to Osborne's execution ofthe POLST without authority. FF/CL at 2.
7In re DisciplinaryProceedingAgainst Osborne No. 201,435-6 Id. at 1-2. OnMay 6, 2015, following a six-day disciplinary hearing, the hearing officer issued her findings offact and conclusions oflaw. She determined that Osborne violated the RPC in each ofthe five counts and recommended disbarment. Osborne did not appeal the decision, and the Board declined sua sponte review. Osborne appealed to this court. As explained in more detail below, this courtruled following its en bane meeting on January 7, 2016, that an attorney can appeal the Board's decision declining sua sponte review. This court limited the scope ofthis appeal, however, to "whetherthe Disciplinary Board erred by not finding that sua sponte review was requiredto 'prevent substantial injustice or to correct a clear error,"' under ELC 11.3(d). Order, In re DisciplinaryProceedingAgainst Osborne, No. 201,435-6, at 1 (Wash. Jan. 22, 2016). Osborne raises a number ofissues. Some are within the scope ofthis court's review, and others are not. First, we discuss his four issues and whether sua sponte review was necessary under ELC 11.3(d). Second, we discuss why Osborne's other arguments do not merit finding thatthe Board erred.

8In re Disciplinary ProceedingAgainst Osborne No. 201,435-6 ISSUES 1. Did the Board err by declining sua sponte review underELC 11.3(d)? 2. Do Osborne's other issues merit finding thatthe Board erred? ANALYSIS 1. The BoardDidNotErr byDecliningSuaSponteReview Osborne identifies four specific issues that he argues required the Board's review: (1) whetherthe exception ofa "close, familial relationship" in RPC 1.8(c) included Osborne, (2) whether disbarment was the proper sanction for Osborne's conf1ict ofinterest as personal representative andresidual beneficiary, (3) whether Osborne's representations to the courtthat he had returned Hancock's property when he had not were material false statements offact, and (4) whether signing the POLST form without authority violated the RPC. Opening Br. ofAppellant at 14-15. We conclude that the Board did not err by declining sua sponte review ofany ofthese
ISSUeS.As discussed below, ifneither party appeals a hearing officer's decision, ELC 11.3 provides for ordering sua sponte review only 

### in narrow circumstances. The rule states, "The Board should order sua sponte review only 

### in extraordinary circumstances to prevent substantial injustice or to correct a clear error." ELC 11.3(d). Here, it was not a close call whether Osborne's conductviolatedthe RPC since it clearly did. Notably, he does not challenge the hearing officer's findings of

9In re DisciplinaryProceedingAgainst Osborne No. 201,435-6 fact. None ofOsborne's issues presented an extraordinary circumstance such thatthe Board should have ordered sua sponte review to prevent substantial injustice or clear
error. Thus, sua sponte review was notrequired. Each ofOsborne's issues are discussed below.
a. Sua Sponte Review Was NotRequired for the Hearing Officer's Interpretation of"Close, FamilialRelationship" in RPC1.8(c) Review was notrequired ofOsborne's first issue because the hearing officer's interpretation of"familialrelationship" was neither unjust nor clear errorunder ELC 11.3(d). Count I charged Osborne withpreparing Hancock's will giving him a substantial gift under RPC 1.8(c). FF/CL at 1. Osborne contends that the Board's review was required concerning the meaning ofRPC 1.8(c)'s "close, familial relationship." As explained below, the hearing officer correctly found that Osborne did not share a familial relationship withHancock. Thus, this issue presents neither injustice nor clear error. Lawyers are prohibited from preparing a will giving the lawyer a "substantial gift from a client
...unless the lawyer
...is related to the client." RPC 1.8(c). Relatives include a "spouse, child, grandchild, parent, grandparent or other relative or individual with whomthe lawyer
... maintains a close, familial relationship." Id. Formerly, the only exceptionwas "where the client [was] relatedto the donee." Former RPC 1.8(c) (1995) (emphasis added). In2006, the rule was amended to expand the relative exception. Accordingto the committee on amendments to the
10In re DisciplinaryProceedingAgainst Osborne No. 201,435-6 mles, the intentionwas to allow for flexibility ofwho qualified as a relative. Reporter'sExplanatoryMemorandum to the Ethics 2003 Committee'sProposed Rules of Professional Conduct, in WASH. STATEBARASS'N, REPORT AND RECOMMENDATION OF THE SPECIAL COMMITTEEFOREVALUATION OFTHE RULES OF PROFESSIONAL CONDUCT (ETHICS 2003)TO THE BOARD OF GOVERNORS !55 (Mar. 2004), http://wsba.org/Resources-and-Services/Ethics/Ethics-2003/Final-Report [http://perma.cc./ZA4P-LTDH]. However, the amendment is not so flexible it includes casual acquaintances. Ifit did, the exception would swallow the rule entirely. The amendmentmerely expands the term "relatives"but still requires a "familial"relationship. Furthermore, the comments to the RPC state that ifa gift is givenbywill, "the client shouldhave the detached advicethat another lawyer can provide. The sole exception to this Rule is where the client is a relative ofthe donee." RPC 1.8 cmt. 7. Osborne contends thatthe meaning of"close, familial relationship" shouldbe reviewedhere; however, he makes no meaningful argumentthathe actually maintained a closerelationship with Hancock. Atthe hearing, Osborne admittedthat he was not a relativebyblood or marriageto Hancock. Even iftrue, his testimony thathe checked onher over the years does not amountto a family-like relationship. Hancock's close friends testifiedthattheyhad never evenheard ofOsbornepriorto herhospitalization. Thus, thehearing officer correctly found that Osborne had only a

11In re DisciplinaryProceedingAgainst Osborne No. 201,435-6 "casual friendship" with Hancock. FF/CL at 8. And according to Greer and Petgrave, Osborne admitted thathe sought no independent counsel, which could have absolved this violation. Since Osborne does not meet the relative exception, heplainly violated RPC 1.8(c). Thus, as to count 1, it was neither unjust nor clear error that the hearing officer found that Osborne violated RPC 1.8(c). As such, sua sponte review was not required. b. Sua Sponte Review Was NotRequired for the Hearing Officer's Finding That Osborne's Conflict of Interest Was Improper The Board was not required to review Osborne's second claim because disbarment is appropriate for his conflict ofinterest. Count2 charged Osborne with violating RPC 1.7(a)(2) when he was simultaneously namedpersonal representative and residual beneficiary ofHancock's estate. Osborne apparently argues thatthe Board should have reviewed whether disbarment was appropriate where "there was no finding that Ms. Hancock lacked testamentary capacity." OpeningBr. ofAppellant at 14. However, disbarment is the appropriate sanction for a concurrent conflict of interest in Osborne's circumstances. Lawyers are prohibited from representing a client ifa concurrent conflict exists. RPC 1.7(a). A concurrent conflict exists if"there is a significantrisk that the representation
... will be materially limited by
... a personal interest ofthe lawyer." RPC 1.7(a)(2). Here, the hearing officer found that Osborne had a concurrent conflict becausehe was both personal representative and residual beneficiary ofHancock's

12In re DisciplinaryProceedingAgainst Osborne No. 201,435-6
estate. The personal representative ofan estate has a fiduciary duty to beneficiaries to act in the estate's best interest; when he or she fails to meet that duty, the beneficiaries
can sue the representative. Traskv. Butler, 123 Wn.2d 835, 843,872P.2d 1080 (1994). This principle is plainly at odds with Osborne's simultaneous representation ofthe estate while being the residual beneficiary ofthe estate. Osborne's interests to the estate and to himselfas beneficiary would be divided. As such, there is significant risk that his representation ofthe estate would be materially limited by his own interests. Disbarment is the appropriate sanction. To review a recommended sanction, this court follows atwo-step process based onthe AmericanBar Association's StandardsforImposingLawyerSanctions (1991). In re DisciplinaryProceeding Against Carpenter, 160 Wn.2d 16, 23 n.2, 155 P.3d 937 (2007). First, the court considers the presumptive sanction and looks to the ethical duty violated, the lawyer's mental state, and the harm caused. 

### Id. Next, the court considers aggravating or mitigating factors. 

### I d. Thepresumptive sanction is disbarment where an attorney lmowingly represents a client with intentto benefit the lawyer, without informed consent, and is potentially injurious to the client. See STANDARDS std. 4.31(a). Here, Osborne knowingly engaged in an apparent conflict ofinterest that was seriously injurious to Hancock's estate and benefited only Osborne. He did not obtain informed consent or

13In re DisciplinaryProceedingAgainst Osborne No. 201,435-6 advise independent counsel. Thus, Osborne's conduct meets standard 4.3 1(a) and the presumptive sanction is disbarment. The hearing officer cited several aggravating factors, including selfish motive and vulnerable victim (Hancock was sick and elderly), while the only mitigating factor was an absence ofprior disciplinary record. 

### See FF/CL at 32-34. The mitigating factor does not outweigh Osborne's knowing and purely self-interested conflict ofinterest. That Hancock was not specifically shown to lacktestamentary capacity is ofno consequence. Disbarment was appropriate for Osborne's violation ofRPC 1.7(a). Thus, sua spontereview was notrequired for this
ISSUe.


### c. Sua Sponte Review Was Not Required To Evaluate Whether Osborne'sActions Were "Material" to Counts 3 and4 Next, the Board was not required to review the hearing officer's finding that Osborne made false statements ofmaterial fact and failed to follow a court order. Osborne removed Hancock's property from her home and did notreturn it despite telling the courthe had and being orderedto do so. Osborne argues that the Board should have reviewed whether he violated the RPCs "whenthere was no factual finding that anything he failed to turn over was material." OpeningBr. ofAppellant at 14-15. Count 3 charged Osborne with declaring he had returned Hancock'sproperty whenhe had not. Lawyers are prohibited from knowingly making "afalse statement offact or law to a tribunal" orto anotherperson. RPC 3.3(a)(l); RPC 4.l(a). RPC

14In re DisciplinaryProceedingAgainst Osborne No. 201,435-6 8.4(c) prohibits dishonest conduct. Here, Osborne filed pleadings with the court stating that he had returned Hancock's personal property. FF/CL at 16. However, a sherifffound herproperty at Osborne's home. I

### d. at 1 7. Thus, when Osborne filed declarations that he had returned the propertythatwas still inside his own home, it
was apparent that he made a false statement ofmaterial fact orlawto a tribunal in plain violation ofRPC 3.3(a)(l), 4.l(a), and 8.4(c). Count4 charged Osborne with failure to comply with a court order. Under the ethics code, a lawyer may not "conceal a document or other material." RPC 3.4(a). Additionally, RPC 3.4(c) states that a lawyer cannot "knowingly disobey an obligation under the rules ofa tribunal except for an openrefusal based on an assertion that no valid obligation exists." The hearing officer found that in June 2010, the superior court twice ordered Osborne to deliver Hancock'spersonal property to Coster. FF/CL at 15-16. Although Osborne gave deposition testimony that he disposed ofHancock's identification card, credit cards, and financial documents, the sherifffound those items in Osborne's house. 

### /d. at 16-17. Thus, when Osborne concealed Hancock'sproperty after being ordered to return it, he violated RPC 3.4(a) and 3.4(c). Consequently, the facts plainly indicate that Osborne lied and failed to comply with a court order. Since the courtorderedOsborne to return all ofHancock's property (including her financial documents) to the newpersonal representative, it can

15In re DisciplinaryProceedingAgainst Osborne No. 201,435-6 be inferred thatthe property was "material"because it was likely helpful to probate the estate. His false statement about this property was also "material." Thus, Osborne's argument fails. Since he plainly violated the RPC provisions based onthis conduct, the Board was not required to order sua sponte review ofthis issue. d. Sua SponteReview Was NotRequiredTo Evaluate Osborne's Violation When He Signedthe POLSTForm The Board was also not required to review whether Osborne violated the RPCs by signing the POLST form without authority. Osborne argues that admitting to hospital staffhe lacked authority should absolve any violation. RPC 8.4(c) states that it is professional misconduct for an attorney to "engage in conduct involving dishonesty, fraud, deceit ormisrepresentation." This court questions "whetherthe attorney lied. No ethical duty could be plainer." In re DisciplinaryProceedings AgainstDann, 136 Wn.2d 67, 77, 960 P.2d416 (1998). Here, Hancock gave Osborne power ofattorney overher financial affairs, butnot over herhealth care decisions. FF/CL at 9-10. When he signed the form without authority, he engaged in an act of dishonesty, misrepresented his authority in writing, and thus violated RPC 8.4(c). Admitting his lack ofauthority and signing it anyway is no absolution because signing the document was the error. To preventthis violation, Osborne simply could have withheld his signature to comply with the RPC. Thus, the Board's sua spontereview
was notrequired as he plainly violated RPC 8.4(c).

16In re DisciplinaryProceedingAgainst Osborne No. 201,435-6
In sum, none ofOsborne's claims that the Boardwas required to order sua sponte review under ELC 11.3(d) have merit. Osborne also argues other issues that
are beyond the scope ofreview that we made clear by order on January 22,2016. We discuss these issues in the next section. 

### 2. Osborne's Other Issues DoNotMerit Finding That the BoardErred Osborne asks us to consider additional issues, apparently to bolster his argument that the Board erred by declining sua sponte review. He asks this courtto determine the following: (1) the standard ofreview for evaluating aBoard order declining sua sponte review and (2) whetherreview ofonly the hearing officer's decision (instead ofthe full hearing record) is inadequate, denying him due process andrendering ELC 11.3 unconstitutional. Importantly, Osborne's arguments ignore the court's order limiting the scope ofreview in this case. As explainedbelow, these arguments are meritless. For context, some additional facts are necessary. After thehearing officer issued her recommendation on May 6, 2015, the parties had 30 days to appeal to the Board. Neitherparty appealed. The members ofthe Boardreceived the "Hearing Officer's Findings ofFact, Conclusions ofLaw, and Recommendation" for their consideration when deciding whetherto order sua sponte review. OnJune 23, 2015, by a 14-0 decision, the Board issued an order declining sua sponte review and

17In re Disciplinary ProceedingAgainst Osborne No. 201,435-6 adopting the hearing officer's recommendation. On July 1, 2015, Osborne filed a notice ofappeal to this court. We have previously considered aprocedural piece ofOsborne's case-whether the ELC rules allowhim to appeal at all. The ODC filed a motionto strike Osborne's notice ofappeal, arguing that he could not appeal the Board's order declining sua sponte review. The Supreme Court clerk denied it, finding that Osborne could appeal underELC 12.3(a). ODC filed a motion to modifythe clerk's ruling and an accompanying motion for an extension oftime since the motion to modify was a few days late. The matter was presented to the November and December2015 meetings ofa department ofthis court, and eventually to the en bane meeting on January 7, 2016. The court issued a unanimous orderthat the Board's order declining sua sponte review is appealable under ELC.l2.3(a). Order, 

### supra, at 1. Itlimited this court's review as follows: Mr. Osborne's appeal ofthe OrderDenying Sua Sponte Review and Adopting the Hearing Officer's Decision is limited to ONLYthe record and scope oftheDisciplinaryBoard'sreview as required byELC 11.3(a); The record ofthis review is therefore limited to the Hearing Officer's Findings ofFact, Conclusions ofLaw, and Recommendation; The scope ofthe issue on appeal is limited to whetherthe Disciplinary Board erred by not fmding that sua sponte review was required to "prevent substantial injustice or to correct a clear error," see ELC 11.3(d).

18In re DisciplinaryProceedingAgainst Osborne No. 201,435-6 · Id. As these facts illustrate, Osborne's additional arguments fail because they are beyond this scope ofreview. First, as apreliminarymatter, Osborne asks this court to define a standard of review for the consideration ofa denial ofsua sponte reviewby the Board. We have well established the standard for reviewing appeals ofhearing officers' recommendations. The standard ofreview for consideration ofan order by the Board simply adopting the hearing officer's recommendation shouldbe no different. This court gives "considerable weight to the hearing officer's findings offact" and treats unchallenged findings as verities on appeal. In re DisciplinaryProceedingAgainst Marshall, 160 Wn.2d 317, 329-30, 157 P.3d 859 (2007). We review conclusions of law de novo. In re DisciplinaryProceedingAgainstJackson, 180 Wn.2d 201, 220, 322 P.3d 795 (2014). Since Osborne tethered his appeal to his due process arguments, he argues de novo review ofthe full record should apply. Our order limiting its review to the hearing officer's findings implies thatthe traditional standard ofreview will apply. No heightened standard is necessary. Second, Osborne'sprincipal argument is that the record on appeal is limited and therefore inadequate for review and that such a limit violates his due process rights, rendering ELC 11.3 unconstitutional. This argument fails for two reasons. First, Osborne did not appeal to the Board. The rules provide that the Board will review a hearing officer's decision ifaparty appeals within 30 days or ifthe Board

19In re DisciplinaryProceedingAgainst Osborne No. 201,435-6 orders sua sponte review. ELC 11.2(b). Osborne could have sought additional review to take advantage ofthe process provided by the rules. Instead, he apparently relied
on sua sponte review. He failed to realize that sua sponte review is ordered only in "extraordinary circumstances," withthe goal ofremedying injustice or clear error. ELC 11.3(d). As described above, sua sponte review was not warrantedhere. To be sure, there are due process concerns at issue in an attorney discipline proceeding because financial penalties and the deprivation ofa professional license
are at stake. See LKOperating, LLCv. Collection Grp., LLC, 181 Wn.2d 48, 68, 331 P.3d 1147 (2014). However, for thatreason, the rules ensure adequate process by allowing for an appeals process. Osborne failed to take advantage ofthatprocess. Even still, the rules require board "consideration" ofsua sponte review ifparties do not appeal. ELC 11.3(a). Osborne argues that no evidence exists showingthatthe Board "considered" his matter. This is incorrect. The Board's ruling plainly states, "This matter came before the Disciplinary Board for consideration ofsua sponte reviewpursuantto ELC 11.3(a). OnJune 11, 2015, the Clerk distributed the attached decision to the Board." See Disciplinary Bd. OrderDeclining Sua Sponte Review and Adopting the Hearing Officer's Decision, In re Osborne, No. 13#00082 (June 23, 2015) (Opening Br. ofAppellant, App. B). About 12 days elapsedbetween receiving the documents and issuing its order declining sua sponte review, which indicates that the Board had time for consideration. The appeals process illustrates that ample

20In re DisciplinaryProceedingAgainst Osborne No. 201,435-6
process is available. That sua sponte review was not warranted in his case does not render the process unconstitutional. The second reason Osborne's argument fails is that we specifically limited the scope ofreview "to only the record and scope ofthe Disciplinary Board's review as required by ELC 11.3(a)," Order, supra, at 1 (emphasis omitted), which is the hearing officer's decision. We soughtto consider only "whetherthe Disciplinary Board erred by not finding that sua sponte review was required to 'prevent substantial injustice or to correct a clear error,' see ELC 11.3(d)." 

### !d. Osborne's due process argument is beyond that scope. By asking the courtto find that due process concerns require it to review the entire record before the hearing officer, Osborne asks us to overturnthe Board's unanimous order. Indeed, the order itselfindicates thatthe full record is not required. Finally, Osborne contends that remedies are necessary to cure the alleged defects in this process. Since we find thatthere are no defects rendering this process unconstitutional, no remedies are necessary. Consequently, we find that Osborne's extraneous arguments are beyondthe scope ofthis court's order limiting review and do not otherwise merit finding that the Board erred by declining sua sponte review. CONCLUSION We find thatthe Board did not err by declining sua sponte reviewbecause review was notrequired toprevent injustice or correct clear error underELC 11.3(d).

21In re DisciplinaryProceedingAgainst Osborne No. 201,435-6 Since the hearing officer's findings offact plainly evidence Osborne's five violations ofthe RPC, the hearing officer's recommendation is neitherunjust nor clear error. We conclude the Board did not err by declining sua sponte review. We also find no reason to depart from the hearing officer's recommendation of disbarment. The hearing officer's findings offact establishthat Osborne knowingly and with dishonest intent violated multiple RPCs and caused serious injury to Hancock's estate. Based onthose findings and our own independent review ofthe record, we order Donald Peter Osborne disbarred from the practice oflaw.

22In re DisciplinaryProceedingAgainst Osborne No. 201,435-6



### WE CONCUR:

23In re DisciplinaryProceeding Against Osborne (Donald Peter)

No. 201,435-6
WIGGINS, 

### J. (concurring)-! concur in the court's unanimous decision to disbar Donald Peter Osborne from the practice of law. I write separately to express my opinion that the court should never have granted review of Osborne's case. IfOsborne did not even care enough to appeal to the Washington State Bar Association Disciplinary Board (Board), we should not have granted him the right to appeal to this court. The beginning point of analysis is the Rules for Enforcement of Lawyer Conduct's (ELC) description of the right of a respondent attorney to appeal. Under ELC 12.2 ("Methods of Seeking [Supreme Court] Review"), there are two ways for a party to appeal a written opinion or order entered by the Board under ELC 11.12(e): (1) review as a matter of right and (2) discretionary review. ELC 12.2(a). For appeals "as a matter of right," the ELCs state, "The respondent lawyer or disciplinary counsel has the right to appeal a Board decision recommending suspen$ion or disbarment. There is no other right of appeal." ELC 12.3(a). Since the on!y appeal permitted by ELC 12.3(a) is "a Board decision recommending suspension or disbarment," we look to determine when such a board decision is made. ELC 11.12, titled "Decision of Board," describes the process of reaching a board decision. To begin with, "[b]oard review is based on the hearing officer's Decision, the parties' briefs filed under rule 11.9, and the record on review."In re Disciplinary Proceeding Against Osborne (Donald Peter) (Wiggins, J., concurring) ELC 11.12(a). After consideration, the Board must enter a written order or opinion. ELC 11.12(e). Clearly, ifthere is an appeal and the Board follows these procedures, there is a board decision that can be appealed to our court. But Osborne did not appeal the hearing officer's decision to the Board. When neither party appeals, the Board's only role is to decide whether to grant sua sponte review. ELC 11.3(a). Forthe Board's consideration, the only record before it for review is the hearing officer's decision. ELC 11.3(a). The Board does not receive or consider hearing transcripts, exhibits, or briefing from the parties. ELC 11.3(a). The Board, considering only the hearing officer's decision, "should order sua sponte review only in extraordinary circumstances to prevent substantial injustice or to correct a clear error." ELC 11.3(d). If the Board declines sua sponte review, "the hearing officer's recommendation becomes the final decision upon entry ofthe Board's order declining review." ELC 10.16(d). By declining sua sponte review, the Board did not make a "decision recommending suspension or disbarment." Thus, there was no right to appeal its declination. Significantly, the Board includes notjust lawyers, butfour nonlawyer members as well. ELC 2.3(b). By skipping board review, Osborne has evaded public participation in the consideration of his case. The court's opinion grants Osborne yet another favor when the court employs the same standard ofreview afforded to a lawyer appellantwho has properly appealed to the Board and then to this court. Majority at 18-19. This is inappropriate because the issue is not whether the hearing officer's decision was right orwrong, but whether 2In re DisciplinaryProceeding Against Osborne (Donald Peter) (Wiggins, J., concurring)
the Board should have found that sua sponte review was required to "prevent substantial injustice or to correct a clear error." ELC 11.3(d). This is a more stringent standard than the standard we employ when a lawyer appeals to the Board and then to this court. As a result, there is little difference between the majority's full analysis of Osborne's appeal and the analysis we afford a proper appeal through the Board to this court. Finally, denying Osborne's appeal of the Board's denial of sua sponte review does not deprive Osborne ofone last opportunity for review by this court. ELC 12.2(b) reserves to the court the ability to grant our own sua sponte review: "This rule does not affect the Court's power to review any Board decision recommending suspension or disbarment and to exercise its inherent and exclusive jurisdiction over the lawyer discipline and disability system." This court reviews every decision recommending suspension or disbarment and decides whether to grant sua sponte review of any decision recommending suspension or disbarment. Accordingly, instead of reviewing whether the Board appropriately denied sua sponte review, we should be exercising our own discretion to deny sua sponte review by this court.

3In re DisciplinaryProceeding Against Osborne (Donald Peter) (Wiggins, J., concurring) For all these reasons, I would have denied review. But despite my disagreement with the decision to grant review, I respectfully concur in the result.

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