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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

Inthe Matter ofthe Disciplinary Proceeding Against THOMAS R. KAMB,

an Attorney at Law. ) ) ) ) ) ) ) No. 200,926-3 EnBanc
Filed 

### fJUL 182013 GONZALEZ, J.-Afterpracticing law in Washington State for more than 20 years, Thomas Kamb misrepresented the existence ofa court orderto a tribunal and then altered a filed court order to conceal his lie. Although we recognize the gravity ofdisplacing someone ofhis or her profession, we order Kamb disbarred for his misconduct. I. FACTS AND PROCEDURAL HISTORY Kamb was admitted to the Washington State Bar Association (WSBA) in 1987. Heprimarily practices criminal law, and about 50 percent ofhis cases arise from alcohol-related driving offenses. This disciplinary action stems from Kamb's representation ofa client facing criminal charges and revocation ofher driver's license for driving under the influence. A hearing was set inthe criminal matter onNo. 200,926-3 the morning ofMay 13, 2008, before Judge David Svaren at the Skagit County District Court. According to Kamb's calendar, Kamb had approximately 20 separate courtmatters scheduled that day. Before the hearing, Deputy Prosecuting Attorney Sloan Johnson faxed Kamb a plea offer that would allow Kamb's clientto plead guilty to the lesser charge offirst degree negligent driving. Kamb proposed an order consistent withthat offer at the hearing. Johnson consented to the order, and Judge Svaren approved it. The order did not suppress Kamb's client's breathtest results, and Kamb did notrequest such an order. A suppression order may have precluded the Department ofLicensing (DOL) from suspending his client's driving privileges. See Thompson v. Dep 'tof Licensing, 138 Wn.2d 783, 982 P.2d 601 (1999). Later that afternoon, Kamb represented the same client in a DOLtelephonic hearing before Hearing Officer Lori Provoe. The following exchange tookplace: Hearing Officer [Provoe]: Uh, Counsel, will your clientbe testifying today? Counsel [Kamb]: No, yourHonor. I do, uh, have an exhibitthat I wantto sendyou, and it is a copy ofa[n] order from the District Court suppressing the breath test inthis case. Hearing Officer: Okay, what's the basis for this suppression? Counsel: The basis is a lack offoundation. Hearing Officer: Andthat's all it says?

2No. 200,926-3 Counsel: No. Itgoes onto say thatthe, (pause) thatuh (pause) the breath test lacks a foundation and that the decision to take the test was not at all a voluntary decision. Hearing Officer: Okay, urn, uh, well I'llhave you go ahead and fax it to me following the hearing, and I'lltake a look at that and considerthat. I'll go ahead and markthat as ExhibitNo.3, as I don'thave it in front ofme to readthe language on it, so I don'tCounsel (interrupting): We filed 

### itthis morning withthe Court. I forgot to take a copy so I'mgonnaprobably fax it []into you []tomorrowifthat's okay. Hearing Officer: Oh, that's fine, and does ithave a Judge's signature on it? Counsel: Itdoes. Ex. 18. Provoe adjourned the hearing, butkeptthe record opento allow Kamb to submit the court order. After the hearing, Kamb wentto the clerk's office at the Skagit County District Court and asked a court clerk for his client's file. Kamb took the file away from the front counter and then wrote "BAC suppressed not aknowing & voluntary decision to take test" onthe order that Judge Svarenhad approved that morning. Ex. 5. Kamb returned to the counter and asked the clerk for a copy ofthe order. Having seen Kamb alter the order, however, the clerk refused to make a copy and instead reported the incidentto another clerk, who contactedDeputy ProsecutingAttorney Johnson. Johnson asked Kamb to come to his office. Kamb and Johnson discussed the matter, and Kamb requested that Johnson stipulate to suppression ofthe breathtest results. As a result oftheir conversation,
3No. 200,926-3 Johnson believed that the DOLhearing had notyet occurred and did not knowthat Kamb had already altered the court order. Johnson agreed to suppress the breathtest results and sentthe clerk an e-mail authorizing her to give Kamb a copy ofthe order. When Kamb returned to the court, however, the clerkreferred himto Judge Svaren. Kamb told Judge Svarenthathe had intendedto take a copy ofthe altered order to Johnson and thento Judge Svaren for their approval. Kamb claimed that he didnot intend to do anything underhanded. Kamb later returned to Johnson's office and said thathe was pressed for time that day and wrote onthe court order as a shortcut. He also admitted to Judge Svarenthat he had made a mistake and apologized to the court administrator. Kamb did not immediately inform Provoe that his client's breathtestresults had not been suppressed. Provoe attempted to contact Kamb to ask aboutthe order, and after

some "phonetag" they communicated in June 2008. Onlythen did Kamb inform Provoe thatthe testresults had notbeen suppressed. Provoe suspended Kamb's client's license for 90 days. Judge Svaren filed a grievance withthe WSBAregarding Kamb's conduct. As a result, the WSBA filed a formal complaint against Kamb charging three counts of professional misconduct. Count 1 charges Kamb withmisrepresenting the existence of

an order suppressing his client'sbreathtestto the hearing officer in violation ofRPC 3.3(a)(1). Count 2 charges Kamb with changing Judge Svaren's order inviolation of RPC 8.4(b), 8.4(c), and 8.4(d). Count 3 charges Kamb withviolating RPC 1.3 (which 4No. 200,926-3 requires a lawyer to act diligently and promptly) by failing to discuss suppression ofthe breathtest withJohnson before the DOL hearing. Hearing OfficerDonald W. Carter found thatthe WSBAhad proved the allegations by a clear preponderance ofthe evidence and thatthe presumptive sanction for counts 1 and 2 was disbarment. The hearing officer also found numerous aggravating factors weighing in favor ofadopting thepresumptive sanction and no mitigating factors to support a lighter sanction. The disciplinary board adopted the hearing officer's decision by a nine-to-one vote. II. ANALYSIS The Washington State Supreme Court is the definitive authority for attorney discipline. In re DisciplinaryProceedingAgainstKuvara, 149 Wn.2d 237, 246, 66 P.3d 1057 (2003). Butthe court gives a hearing officer's findings offact considerable weight, particularly whenthey address credibility and veracity ofwitnesses. In re DisciplinaryProceeding againstPoole, 156 Wn.2d 196, 208-09, 125 P.3d 954 (2006). We recognize "thatthe hearing officer is in the best positionto determine factual findings regarding a lawyer's state ofmind and his decision is given 'greatweight' on review." In re DisciplinaryProceedingAgainst Cramer, 165 Wn.2d 323, 332, 198 P.3d 485 (2008) (quotingIn re DisciplinaryProceedingAgainstLongacre, 155 Wn.2d 723, 744, 122 P.3d 710 (2005)). Thus, challenged findings offact will be upheld ifsupported by substantial evidence. In re DisciplinaryProceedingAgainst Marshall, 167 Wn.2d 51, 66,217 P.3d 291 (2009). "'Substantial evidence exists if 5No. 200,926-3 

### the record contains evidence in sufficient quantum to persuade a fair-minded, rational person ofthe truth ofa declared premise.'" Poole, 

### 156 Wn.2d at 209 n.2 (internal quotation marks omitted) (quoting In re DisciplinaryProceedingAgainstBonet, 

### 144 Wn.2d 502, 511,29 P.3d 1242 (2001)). Unchallenged findings offact are treated as verities on appeal. Marshall, 

### 167 Wn.2d at 66. Disciplinary counsel must prove misconduct by a clearpreponderance ofthe evidence. ELC 10.14(b). "'Clearpreponderance' is an intermediate standard ofproof

... requiring greater certainty than 'simplepreponderance' but not to the extent required under 'beyond [a] reasonable doubt."' Poole, 

### 156 Wn.2d at 209 (alteration in original) (internal quotation marks omitted) (citing In re DisciplinaryProceeding AgainstAllotta, 

### 109 Wn.2d 787, 792, 748 P.2d 628 (1988)). A. Findings ofFact Kamb challenges several ofthe hearing officer's factual findings. "It

### is incumbent on counsel for the appellant to present argument to the court why specific findings offact 'are not supported by the evidence and to cite to the record to support that argument."' In re DisciplinaryProceedingAgainstHaskell, 

### 136 Wn.2d 300,311, 962 P.2d 813 (1998) (quotingIn re Estate of Lint, 

### 135 Wn.2d 518,532,957 P.2d 755 (1998)). Although Kamb fails to offer specific citation to the record, we nonetheless address his challenges and find them wanting. 1. DidKamb discuss or negotiate the suppression of his client's breath test resultsprior to the hearing? 

### 6No. 200,926-3 Kamb challenges the finding thathe failed to discuss or negotiate suppressing his client's breath testresults until after the district court hearing. His challenge basically reiterates his version ofthe facts: he negotiated suppression before the hearing and simply forgot to include the relevant language in the order. ButJohnson testified that he was quite certainthey did not discuss the suppression issue, and the hearing officer found that Kamb's testimony lacked credibility. The hearing officer's finding is supported by substantial evidence. 2. DidKambfalsely represent to Hearing OfficerProvoe that a valid suppression order existed? Kamb next challenges the findings that he intended to cause Provoe to believe that a valid suppression order existed at the time ofthe DOL hearing and that he lmew there was no suppression order at the time ofthe DOL hearing. Atthe DOLhearing, however, Kamb affirmatively stated thatthe district courthad suppressed the breath test results and even explained the basis ofthe nonexistent order. Kamb testified that he expressed uncertainty regarding the order during anunrecorded conversation immediately priorto the DOL hearing, butProvoe denies that this conversation occurred. Kamb's arguments conflict withProvoe's testimony, which the hearing officer found credible, and the hearing officer's findings are thus adequately supported. 3. DidKamb leadJohnson to believe thathis client'sDOL hearinghadnotyet occurred? 7No. 200,926-3 Kamb disputes the hearing officer's finding that Kamb led Johnson to believe the DOLhearing had notyet transpired when Kamb spoke to Johnson in the afternoon following the DOL hearing. This finding is amply supported. The testimony shows that Johnson knew defense attorneys seek breath test suppression orders before DOL hearings to take advantage ofcollateral estoppel. Thus, Kamb's request for a suppression order suggested the DOL hearing was impending. Furthermore, considering his substantial experience in driving under the influence cases, Kamb presumably would have known that his request would give this impression. 4. DidKamb knowingly, willfully, and intentionally alter theplea order? Kamb challenges the finding that he knowingly, willfully, and intentionally altered the order, arguing that his significant experience as an attorney, the fact that he

never previously altered a court order, and his beliefthat Judge Svaren would approve the modified order weigh against this finding. However, the fact that Kamb modified the order after Judge Svarenhad signed it, without thejudge'spermission, and after misrepresenting its contents, provides substantial evidence in support ofthis finding. 5. DidKambfail to timely disclose to Provoe thatno suppression order existed? Kamb challenges the finding that he failed to timely disclose to Provoe that there was no suppression order. Kamb did not disclose the lack ofa suppression order until June 2008 at the earliest, weeks after the DOL hearing and only after Provoe

8No. 200,926-3 initiated contact with Kamb. Substantial evidence supports the hearing officer's finding that Kamb failed to timely disclose the lack ofthe suppression order. 6. DidKamb 's actions injure his client? Kamb argues that his failure to negotiate and obtain a suppression order did not injure his clientbecause Provoe might not have applied the doctrine ofcollateral estoppel ifKamb hadpresented an order with the proposed language. Even ifthis is true, Kamb's actions entirely eliminated the possibility ofa suppression order working to his client's advantage. Provoe testified that the doctrine may have applied ifshe had beenpresented with a suppression order. The hearing officer's finding that Kamb's failure to obtain a suppression order injured his client-whose license was suspended-is supported by substantial evidence. 

### 7. DidKamb commitafelony by writing on thefiled court order? Kamb challenges the hearing officer's finding that he committed a felony under RCW 40.16.010 by willfully altering a court order. Kamb argues he "wrote" onthe order but did not willfully alter it. The hearing officer found otherwise, and his finding is supported by substantial evidence, including Kamb's own representation to the WSBA in a letter stating that he asked a clerk for a blue penbecause he wanted the color ofhis writing to match the ink already on the order. Ex. 15, at 1. 8. Are the.findings on credibility supported? Finally, Kamb argues that the hearing officer's finding that Johnson and Judge Svaren were credible witnesses is inconsistent with the hearing officer's finding ofno 9No. 200,926-3 mitigating factors because Johnson and Judge Svarenboth testified that Kamb expressedremorse. Simplybecause the hearing officer failed to find that Kamb's expressions ofremorse mitigatedhis ethical violations does not mean that Johnson and Judge Svaren lacked veracity as**wi~nesses.** In sum, all disputed findings offact are supportedby substantial evidence. B. Sanctions The American Bar Association's Standards forImposingLawyerSanctions (1991 & Supp. 1992) guide lawyer discipline in Washington. In re Disciplinary ProceedingAgainstDay, 162 Wn.2d 527, 537, 173 P.3d 915 (2007). After misconduct is found, we determine whether the board applied the correctpresumptive sanction in light ofthe ethical duty violated, the attorney's state ofmind, and the extent ofany actual orpotential injury causedbythe misconduct. Id. at 538; STANDARDS std. 3.0(a)-(c). An attorney's state ofmind maybe intentional, knowing,

or negligent. In re DisciplinaryProceedingAgainstDynan, 152 Wn.2d 601, 618, 98 P.3d 444 (2004). The Standards define "injury" as "harmto a client, the public, the legal system, or the profession which results from a lawyer's misconduct." STANDARDS Definitions at 13. Next, we decide whether any aggravating or mitigating factors alter the presumptive sanction. Day, 162 Wn.2d at 538; STANDARDS std. 3.0(d). Finally, we consider the sanction in light ofits proportionality to sanctions imposed in similar cases and the degree ofunanimity among members ofthe board. Poole, 156 Wn.2d at 220. 10No. 200,926-3
We do "not lightly depart from recommendations shaped by [the] experience and perspective" ofthe disciplinary board. In re DisciplinaryProceedingAgainst Noble, 100 Wn.2d 88, 94, 667 P.2d 608 (1983). Althoughthis court maintains ultimate responsibility for determining the nature ofattorney discipline, we will adopt the board's recommendation "unless we are able to articulate specific reasons for adopting a different sanction." 

### Id. at 95. 1. Presumptive Sanction In arriving at a presumptive sanction, we first consider the ethical duties violated and the attorney's state ofmind. On count 1, the hearing officer found that Kamb intentionally misrepresented the existence ofthe suppression order. Kamb argues that standard 6.13, applicable to negligent misrepresentations, should apply and thatreprimand is therefore the appropriate sanction. Butthe hearing officer specifically rejected Kamb's contention that his misrepresentation was negligent. The hearing officer's findings are supported by substantial evidence, as discussed above, and thus reprimand wouldnotbeproper. On count 2, the hearing officer found Kamb intentionally and willfully altered a court order and violated RCW 40.16.010, which is a class C felony. 1 Kamb argues that standard 5.13 applies to this count and that reprimand is the appropriate sanction. But standard 5.13 applies only whenthe other standards under section 5.1 do not fit

1RCW 40.16.010 provides in part that "[e]very person who shall willfully and unlawfully [] alter

... a record

... filed or deposited in apublic office, or with any public officer, by authority oflaw, is guilty ofa class C felony

...." 11No. 200,926-3 the conduct. Here, standard 5. 11(b), applicable when a lawyer engages in intentional conduct involving dishonesty, is more appropriate. On count 3, the hearing officer found that Kamb's failure to obtain a suppression order was negligent and in line with a reprimand under standard 4.53(a), which applies when a lawyer "demonstrates failure to understand relevant legal doctrines or procedures." The WSBA does not challenge the conclusionthat reprimand is proper but believes that the correct standard is 4.43, which applies "when

a lawyer is negligent and does not act withreasonable diligence inrepresenting a client, and causes injury orpotential injury to a client." We agree with the WSBA that standard 4.43 is more applicable to this case. We next considerthe extent ofany actual orpotential injury. Kamb challenges the extent ofinjury for the misconduct alleged under counts 1 and 2, arguing that the level ofinjury he caused his client and the legal system is not sufficientto incur disbarment. Butmisrepresenting the existence ofa suppression order to a hearing officer seriously adversely reflects on Kamb's fitness to practice law. Even more egregious, however, is Kamb's alteration ofa filed court order. Kamb usurped the authority ofthe courtby creating an unauthorized order thatbenefited his client. The possibility that Provoe might have relied on an altered court order causes a serious injury to the profession and to thejudicial system. See In re DisciplinaryProceeding Against Christopher, 153 Wn.2d 669, 680, 105 P.3d 976 (2005) (finding that disbarment was the presumptive sanction where a lawyer filed forged documents and 12No. 200,926-3 false declarations). "Thepresumptive sanction ofdisbarmentbothpreserves public confidence in the legal system and deters other attorneys from similar conduct." Id. The presumptive sanction for Kamb's misconductunder counts 1 and 2 is disbarment. 

### 2. Aggravating andMitigating Factors We now consider whether any aggravating or mitigating factorsjustify departure from the presumptive sanction. The hearing examiner found that multiple aggravating factors and no mitigating factors applied. Inregard to aggravating factors, the hearing examiner cited a prior disciplinary offense, dishonest or selfish motive, a pattern ofmisconduct, substantial experience inthe practice oflaw, Kamb's refusal to acknowledge the wrongful nature ofhis conduct, and the illegality ofhis conduct. Kamb challenges several ofthese factors. First, Kamb challenges the factor ofdishonest or selfish motive. The testimony supports a finding that Kamb's motive intelling Provoe he had already obtained a suppression order and in altering the signed order was dishonest and selfish, as he sought to hide the fact that he had failed to request the order ontime. The evidence does not support applying this factor to the misconduct alleged under count 3: Kamb's failure to ask for a suppression order, which appears to bethe result ofnegligence. Accordingly, the aggravating factor ofdishonest or selfish motive applies to counts 1 and 2, but not 3. Second, Kamb objects to the aggravating factor ofa pattern ofmisconduct, which is based on his prior disciplinary admonition for failing to appear for court 13No. 200,926-3 hearings. Where a series ofacts ofmisconduct are alleged in one complaint, and when an attorney is sanctioned multiple times for similar misconduct, such misconduct constitutes a pattern. See, e.g., Marshall, 167 Wn.2d at 84 (aggravator applied based onpattern ofcurrent misconduct); see also In re Disciplinary ProceedingAgainst Cohen, 150 Wn.2d 744, 761-62, 82 P.3d 224 (2004) (court considered similar misconduct from prior disciplinary proceedings to constitute a pattern). Here, Kamb's misconduct centers around one incident and his attempts to rectify it. Because this misconduct is substantially different from his prior failure to attend hearings, his misconduct is not a part ofa pattern. The disciplinary board erred in adopting this factor. Third, Kamb disagrees with the application ofthe aggravating factor ofrefusal to acknowledge the wrongful nature ofhis conduct, asking the court to instead apply the mitigating factor ofremorse. These factors are primarily based onthe attorney's credibility, so the court gives great weight to the hearing officer's finding. In re DisciplinaryProceedingAgainstBehrman, 165 Wn.2d 414,423, 197 P.3d 1177 (2008). Further, "reasoning away the misconduct does not constitute acknowledgement ofmisconduct." Dynan, 152 Wn.2d at 621. Although Kamb apologized for his actions and admitted he made a mistake, he continues to argue that his most culpable misconduct was the result ofnegligence, rather than intent. The evidence supports the hearing officer's conclusionthat Kamb has not acknowledged

14No. 200,926-3 the wrongful nature ofhis conduct and is not entitled to the mitigating factor of

remorse. Fourth, Kamb asserts thatthe aggravating factor ofillegal conduct is inapplicable because he was never charged with or convicted ofa crime in relation to altering the court order. 2 But an attorney may be sanctioned for committing a crime for which he was never charged. See, e.g., Kuvara, 149 Wn.2d at 252-53; In re DisciplinaryProceedingAgainst Cramer, 168 Wn.2d 220, 230-31, 225 P.3d 881 (2010). Kamb's violation ofRCW40.16.010, however, cannot apply as an aggravator in determining the correct sanction for count 2 because it forms part ofthe basis for that count ofmisconduct. See In re DisciplinaryProceedingAgainst Whitt, 149 Wn.2d 707, 720, 72 P.3d 173 (2003) (finding that submission offalse evidence could notbe an aggravating factor where the act was also the factual basis for the count of misconduct). Therefore, the aggravating factor ofillegal conduct applies only to counts 1 and 3. Next, we consider mitigating factors. The hearing officer did not apply any mitigating factors. As noted above, Kamb argues that the mitigating factor ofremorse applies, but we disagree. We do agree with Kamb, however, that the mitigating factor ofgood character or reputation applies. Johnson testified that he trusted Kamb and

2 Kamb also claims that this factor is not referenced in standard 9.2. Aside from the fact that the aggravating factors listed in the ABA Standards are nonexclusive, Kamb is wrong on this point. Standard 9.22(k) provides that "illegal conduct" is an aggravating circumstance. 15No. 200,926-3 that Kamb is an effective defense attorney. Judge Svaren also testified that he had a long relationship with Kamb and had expected and received candor from him. Accordingly, the following aggravating factors apply: prior disciplinary offense, dishonest or selfish motive (as to counts 1 and 2), substantial experience in the practice oflaw, refusal to acknowledge wrongful nature ofconduct, and illegal conduct (as to counts 1 and 3). The only mitigating factor is good character or reputation. Althoughthere is no mathematical formula for weighing these factors, we do not find that the single mitigating factor ofgood character orreputationjustifies a departure from the presumptive sanction ofdisbarment. 3. Proportionality The court will alter a sanction ifit determines that it is inappropriate after considering factors ofunanimity among the board members and proportionality ofthe recommended sanctionto sanctions applied in similar cases. See Kuvara, 149 Wn.2d at 257 -59. The decision ofa divided board is entitledto less deference. Whitt, 149 Wn.2d at 723. The board's vote was nine-to-one. Although the board did not unanimously agree onthe recommended sanction ofdisbarment, there is a "high degree ofunanimity," which the court hesitates to alter. See In re Disciplinary ProceedingAgainstMiller, 149 Wn.2d 262, 285, 66 P.3d 1069 (2003). Under proportionality review, the court considers whether the sanction is appropriate when comparedto similarly situated cases. Christopher, 153 Wn.2d at 686-87. "[T]he attorney facing discipline must bring forth cases demonstrating the 16No. 200,926-3 disproportionality ofthe sanction imposed." In re DisciplinaryProceedingAgainst VanDerbeek, 153 Wn.2d 64, 97, 101 P.3d 88 (2004). Kamb argues that the board's recommended sanction ofdisbarment is disproportionate to the sanctions imposed in Dynan and Christopher. InDynan, the attorney submitted declarations to the court with attached bills for legal services that hadbeen altered. 152 Wn.2d at 607. Dynan whited-out the actual hourly rate charged and replaced it with a reasonable attorney fee before submitting the bills to the court. ld. The court found that Dynan's knowing alteration ofthe bills and submission offalse declarations constituted falsification and misrepresentation ofevidence. Id. The board recommended a ninemonth suspension. ld. at 625. The court found that disbarment was the presumptive sanction. After conducting aproportionality analysis, however, we concludedthat a six-month suspension was appropriate. ld. at 624. In Christopher, the attorney failed to timely submit an offer of judgment pleading to preserve her client's right to attorney fees. 153 Wn.2d at 674. To cover her mistake, Christopher backdated an offer of judgmentpleading and forged her secretary's signature on the document. ld. Christopher also made a declaration in support ofthe offer of judgmentpleading, filed the documents, and sentthem to opposing counsel. ld. at 674-75. The court found that the presumptive sanction was disbarment butthat the balance ofmitigating and aggravating factors and the proportionality reviewjustified a departure from the recommended sanction. Id. at

17No. 200,926-3
680-88. We ordered an 18-month suspension followed by a three-year probation period, as recommended by the board. Jd. at 688. The circumstances surrounding Kamb's misconduct are sufficiently different from those inDynan and Christopher, such that disbarment is still the proper sanction. The attorneys inDynan and Christopher each submitted falsified documents to a tribunal, but Kamb actually altered an order that the court had authorized, usurping that court's authority. There do not appear to be any Washington disciplinary cases involving such conduct. 3 

### III. CONCLUSION Kamb intentionally misrepresented to a hearing officer thathehad obtained a suppression order. Kamb then altered a filed court order to conceal his misrepresentation. Aggravating factors are present, including Kamb's prior disciplinary offense and his substantial experience in the practice oflaw. Although

werecognize the severity ofdenying an experienced attorney his or her continued livelihood, Kamb's deception strongly indicates that he is not fit to practice law. We orderKamb disbarred.

3 In his reply brief, Kamb urges us to compare his case to In re Disciplinary Proceeding Against Ferguson, 170 Wn.2d 916, 246 P.3d 1236 (2011). New issues cannot be raised for the first time in a reply brief, however, so we decline to consider Ferguson in our proportionality analysis. See In re Disciplinary ProceedingAgainst Kennedy, 80 Wn.2d 222, 236, 492 P.2d 1364 (1972) ("Points not argued and discussed in the opening brief are deemed abandoned and are not open to consideration on their merits."). 18In re Discipline ofThomasR. Kamb, No. 200,935-2



### WE CONCUR:

19