In re Osborne

187 Wash.2d 188

386 P.3d 288

In the MATTER OF the DISCIPLINARY PROCEEDING AGAINST

Donald Peter OSBORNE, An Attorney at Law.

No. 201,435-6

Supreme Court of Washington, En Banc.

Argued Sept. 20, 2016

Filed Dec. 22, 2016

As Amended Jan. 19, 2017

Kurt M. Bulmer, Attorney at Law, 740 Belmont Pl. E., Apt. 3, Seattle, WA, 98102-4442, for Petitioner.

M. Craig Bray, Washington State Bar Association, 1325 4th Ave., Ste. 600, Seattle, WA, 98101-2539, for Respondent.

OWENS, J.

¶1 The Washington State Bar Association Office of Disciplinary Counsel (ODC) charged attorney Donald Peter Osborne with violating the Rules of Professional Conduct (RPC). A hearing officer found that Osborne committed five violations of the RPCs because of events surrounding a will he drafted for a sick, elderly woman that made him the residual beneficiary of her $600,000 estate. The hearing officer recommended disbarment. Osborne did not appeal to the Washington State Bar Association Disciplinary Board (Board).

¶2 Since Osborne did not appeal, the Board considered whether to order sua sponte review under the Rules for Enforcement of Lawyer Conduct (ELC). Here, the rules provide, "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). The Board declined sua sponte review. After sua sponte review was declined, Osborne filed a notice of appeal to this court. We issued an en banc order limiting the scope of review in this case to whether the Board was required to order sua sponte review under ELC 11.3(d). Osborne asks us to decide whether the hearing officer's recommendation of disbarment was unjust or clear error. He also makes several other arguments, but they are beyond the scope of review we granted.

¶3 Since the hearing officer's recommendation of disbarment was neither unjust nor clear error, we hold that the Board was not required to order sua sponte review. Additionally, after conducting our own independent review of the record, we find no reason to depart from the hearing officer's recommendation. We affirm the hearing officer's recommendation to disbar Osborne from the practice of law.

FACTS

¶4 In 1986, Osborne drafted wills for husband and wife George and Elizabeth Hancock. After George Hancock died in 2003, Osborne revised Elizabeth Hancock's will. The 2003 will named a few charities as residual beneficiaries. In 2009, Hancock fell ill and Osborne revised her will, making himself the residual beneficiary of her estate.

¶5 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. They lived across the street from each other for many years. The Spencers could view Hancock's home through a large window. They took care of her house and yardwork, cooked meals, and sometimes gave her sponge baths. They had a signaling system using a porch light and kitchen blinds that Hancock could use 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.

¶6 In August 2009, Hancock experienced a fall and was hospitalized. During her hospital stay, Hancock asked the Spencers to contact "a lawyer" to help her update her will. Hancock did not identify Osborne by name and only told them to look in her address book under "lawyer." Her address book contained the entry " ‘Donald P. Osborne, Attorney at Law’ " with an address and phone number. Hr'g Officer's Findings of Fact, Conclusions of Law & Recommendations (FF/CL) at 4 (Opening Br. of Appellant, App. A).

¶7 On September 22, while hospitalized, Hancock gave Osborne power of attorney over her financial affairs, but not over health care decisions. Hancock indicated that she wanted her daughter to have decision-making power over her health care. However, on the same day, Osborne signed a "Physician's Order for Life Sustaining Treatment" (POLST) on Hancock's behalf, despite not having power of attorney over her health care. Osborne told hospital employees that he was not authorized to sign the POLST, and even struck that part of the form indicating he signed it pursuant to having power of attorney. The hospital later voided the POLST because Osborne lacked authority. Despite admitting that he lacked authority to sign the POLST, he testified at the hearing that his power of attorney gave him authority to sign it.

¶8 During October of that year, Hancock consulted with Osborne about revising her 2003 will. No one else was present for their conversation. Osborne directed his assistant, Jean Phillips, to prepare the will based on his handwritten notes. The primary difference between the 2003 will and the 2009 will was that charities were no longer the residual beneficiaries of her estate; instead, Osborne was named as the residual beneficiary. The residue included her home, valued at $600,000. Hancock executed the will on October 14, 2009. It bore witness signatures of Phillips and Elaine Kerns—a person that Phillips admits was not actually in the room to witness Hancock's signing. Phillips has never seen or met Elaine Kerns. Hancock died 13 days after executing the revised will. Two days after, Osborne sought to probate the 2009 will and had himself appointed as personal representative of Hancock's estate.

¶9 The relationship between Osborne and Hancock was described at Osborne's later attorney discipline hearing. Osborne admitted that he was not related to Hancock either by blood or marriage. However, Osborne testified about their friendship, stating that he checked on her at her home between 2003 and 2009. He said they exchanged recipes and would socialize in her back yard. He admitted that no one else 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 of her home and doing her laundry.

¶10 Prior to the 2009 will, the Spencers had never seen Osborne at Hancock's house, Greer also testified that he had never seen Osborne at Hancock's home until after she became ill. Several witnesses testified at the hearing regarding their long friendships with Hancock, but none of them had heard of Osborne. 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, Hancock had 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 Hancock devised her estate to Osborne since Hancock never previously mentioned him. Id. at 6.

¶11 After Osborne had himself formally appointed as personal representative following Hancock's death, the Spencers saw Osborne remove personal 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 even though Osborne had shown the Spencers a prior will that devised them only $10,000. Since the amount was different, Mr. Spencer had concerns and visited Greer, since he is an attorney. When Greer saw that Osborne was both beneficiary and personal representative, he became suspicious and contacted an estate attorney, Randolph Petgrave.

¶12 Greer and Petgrave approached Osborne about the 2009 will and vocalized their concerns. Osborne admitted to Greer and Petgrave that he drafted the will and was named as a beneficiary and personal representative. He also told them that Hancock did not seek independent counsel and that he had not advised her to do so. Despite their account, Osborne later testified at his disciplinary hearing that he advised her that she had a right to seek independent counsel. Osborne produced handwritten notes he said Hancock initialed that indicated that she waived her right to consult outside counsel.

¶13 In 2010, Hancock's daughter, represented by Petgrave, petitioned for Osborne's removal as personal representative and for return of Hancock's personal property. The superior court removed Osborne and appointed attorney Barbara Coster as personal representative. In June 2010, the superior court twice ordered Osborne to deliver Hancock's personal property to Coster. Osborne filed pleadings with the superior court that he had relinquished all of Hancock's records and property to Coster. He also gave deposition testimony in 2011 that he had disposed of Hancock's identification card, credit cards, and financial documents. Following a superior court judgment against Osborne, the sheriff executed a search on Osborne's home. The sheriff found Hancock's property at Osborne's residence, including her identification, credit cards, and financial records. Eventually, in November 2011, the lawsuit settled and Osborne paid $200,000.

¶14 Based on the above conduct, the ODC charged Osborne with five violations of the Rules of Professional Conduct by formal complaint:

COUNT 1: By preparing the 2009 will, which gave him a substantial gift from Ms. (Elizabeth) Hancock's estate, Respondent violated RPC 1.8(c).

COUNT 2: By naming himself as P(ersonal) R(epresentative) of Ms. Hancock's estate while simultaneously making himself the residual beneficiary while representing Ms. Hancock, Respondent violated RPC 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 belonging to Ms. Hancock to the estate and/or successor PR when he knew had not and/or by knowingly making similar false assertions in other pleadings, 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. Hancock to the estate and/or the successor PR

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