In re the Disciplinary Proceeding Against Osborne
187 Wash. 2d 188
| Wash. | 2016Background
- In 2009 attorney Donald P. Osborne revised the will of elderly client Elizabeth Hancock while she was hospitalized, naming himself the residual beneficiary of her ~$600,000 estate and later appointing himself personal representative. Hancock died 13 days after executing the will.
- Osborne had been given financial power of attorney but not health-care authority; he signed a POLST despite lacking authority and the hospital later voided it.
- Witnesses (longtime friends/neighbors) testified they had not known Osborne before Hancock’s illness; one will witness was admitted not to have actually been present.
- After Hancock’s death Osborne removed property from her home, represented to the court he had returned the property, but a sheriff later found Hancock’s identification, cards, and records at Osborne’s residence; a superior court removed him as personal representative and ordered return of property; Osborne later paid $200,000 to settle related litigation.
- The Office of Disciplinary Counsel charged Osborne with five RPC violations (conflict in preparing a will naming lawyer as beneficiary, concurrent conflict as PR/beneficiary, false statements to tribunal, failure to comply with court orders/concealment, and executing POLST without authority). A hearing officer found violations and recommended disbarment; Osborne did not appeal to the Disciplinary Board and the Board declined sua sponte review.
- The Washington Supreme Court limited review to whether the Board erred in declining sua sponte review under ELC 11.3(d); the Court independently reviewed the hearing officer’s findings and affirmed disbarment.
Issues
| Issue | Plaintiff's Argument (Osborne) | Defendant's Argument (Board/ODC) | Held |
|---|---|---|---|
| Whether the Board erred by declining sua sponte review under ELC 11.3(d) | Board should have sua sponte reviewed to prevent substantial injustice or correct clear error | Sua sponte review is for extraordinary circumstances only; no such circumstances here | No — Board did not err in declining sua sponte review |
| Whether Osborne fell within RPC 1.8(c) exception for a “close, familial relationship” (preparing a will gifting lawyer) | Osborne contends his relationship with Hancock qualified as "close, familial" | Hearing officer/Board: relationship was merely a casual friendship not a familial-relative exception | No — Osborne was not within the familial exception; RPC 1.8(c) violated |
| Whether disbarment was an appropriate sanction for representing the estate while being residual beneficiary (RPC 1.7) | Osborne argues disbarment was excessive and notes no finding Hancock lacked testamentary capacity | ODC/Board: concurrent conflict knowingly engaged, harmed vulnerable client, presumptive sanction is disbarment under ABA standards | Disbarment affirmed — conduct met standard for disbarment given knowing conflict, selfish motive, vulnerable victim |
| Whether Osborne’s false statements and concealment (Counts 3–4) and signing POLST without authority (Count 5) were material violations of RPCs | Osborne contends lack of materiality or that admitting lack of authority absolves him | Hearing officer/Board: filings falsely stated property returned; sheriff found property at Osborne’s home; signing POLST without authority was dishonest misrepresentation | Held — Osborne made material false statements, disobeyed court orders/ concealed property, and violated RPCs by signing POLST without authority |
Key Cases Cited
- Trask v. Butler, 123 Wn.2d 835 (concerning fiduciary duties of personal representatives)
- In re Disciplinary Proceeding Against Carpenter, 160 Wn.2d 16 (standards for imposing lawyer sanctions and two-step review)
- In re Disciplinary Proceeding Against Marshall, 160 Wn.2d 317 (giving weight to hearing officer’s factual findings)
- In re Disciplinary Proceeding Against Jackson, 180 Wn.2d 201 (de novo review of conclusions of law)
- In re Disciplinary Proceeding Against Dann, 136 Wn.2d 67 (dishonesty and ethical duty analysis)
- LK Operating, LLC v. Collection Grp., LLC, 181 Wn.2d 48 (due process considerations when serious deprivations are at stake)