In the Matter of the Disciplinary Proceeding Against Lowell K. Halverson, an Attorney at Law, 140 Wash. 2d 475

Ireland, J. In this Washington State Bar Association (WSBA) disciplinary case, this Court must determine (1) whether the WSBA Disciplinary Board (the Board) properly found that Lowell Halverson’s sexual relationship with a dissolution client resulted in his violation of Rules of Professional Conduct (RPC) 1.7(b), 1.4(

b) and 2.1, but did not result in a violation of RPC 1.8(

b) and 1.13(a), and Rules for Lawyer Discipline (RLD) 1.1; and (2) whether the Board properly sanctioned Halverson with a six-month suspension and two-year probation. We affirm the Board’s determination as to whether or not there was a violation of each of the charges, but increase the suspension to one year, finding the lesser sanction inadequate to serve the purposes of attorney discipline. FACTS Lowell K. Halverson has been a member of the WSBA in private practice since 1968, concentrating on family law for the last 20 years. He has lectured and published extensively in this area.

From 1990-91, Halverson served as president of the WSBA. Although Halverson has been married to his wife, Diane, since 1964, he admits that since the early 1970s he has had consensual sexual relationships with six different female clients. Five of these clients retained Halverson as their attorney before the sexual relationship began. The most recent of these relationships was with Liisa Wickersham, the grievant in this action. Halverson first met Wicker-sham in 1989 when Wickersham accompanied a friend to Halverson’s office. At this point, Wickersham was married to an attorney, Neil Sarles.

During this office visit, Halverson gave Wickersham and her friend a personality questionnaire that he regularly used with clients; he also asked Wickersham if she might like to work in his office on a special project involving artwork. Following this meeting, Wickersham worked at Halverson’s office for a few months until early in 1990. Wickersham retained Halverson as her attorney in May 1991, at which time Halverson administered another personality questionnaire. Wickersham’s testimony conflicts as to whether her intention at this point was a trial separation from her husband or dissolution.

In any event, Halverson filed a dissolution petition on her behalf in June 1991, and Wickersham moved out of her husband’s house in early July. Later in July while at Halverson’s office, Wickersham confided to him that she was “attracted to [her] attorney.” Report of Proceedings (RP) at 509. Shortly thereafter, following a successful court appearance, Halverson took Wickersham on a tour of photographs displayed at the Rainier Club in Seattle. According to Halverson, while on the tour, Wickersham suggested that they get a room, but Wicker-sham denies this occurred.

Both agree, however, that after the tour they went to a restaurant on the waterfront where they expressed a mutual attraction and discussed Halverson’s “ground rules” for a potential relationship: Halverson’s wife could not find out about the affair and there could be no bonding between Halverson and Wickersham’s young daughter. According to Halverson, he explained to Wickersham that a potential relationship between them would not be of any significance to the pending divorce action if these “ground rules” were followed.

Wickersham herself recognized the need for them to be discreet because of Halverson’s high profile as president of the WSBA. Halverson, however, did not advise Wickersham of the possible ramifications if the relationship were to become known. For example he did not tell her that, if Sarles were to discover the relationship, he would most likely become less willing to compromise in the divorce proceeding and that this would increase the complexity and cost of the dissolution and could impact the custody determination.

Neither did Halverson advise Wickersham that either his wife’s or Sarle’s discovery of the affair could lead to his withdrawal as her attorney. Halverson and Wickersham agreed to see each other within the next few weeks when Halverson’s wife left on a trip to Australia. After Halverson’s wife left the country, Wickersham called Halverson at his office and they made plans to get together. At Halverson’s home that evening, Halverson and Wickersham had sexual intercourse while Wickersham’s young daughter slept in the next room.

For the next six months, Wickersham and Halverson maintained a sexual relationship seeing each other whenever they could. On January 1, 1992, Halverson’s wife discovered the affair. Within a few days, Halverson withdrew as Wicker-sham’s attorney because he felt that he had lost his objectivity and could no longer keep his roles separate, particularly in view of his wife’s position as his office manager. Halverson temporarily moved out of his home and continued his personal relationship with Wickersham for several weeks. In mid-February, however, Halverson told Wickersham that he was returning to his wife.

Meanwhile, Halverson provided Wickersham with the names of several other attorneys who could take over her case. Although Wickersham wanted Halverson to continue as her attorney, he refused, and Wickersham, thus, hired another attorney, Eric Watness, to complete her dissolution. Halverson transferred the balance of Wickersham’s account to Watness and wrote off her outstanding bill to him. There is no evidence that Halverson at any time revealed any client confidences or otherwise used information obtained from Wickersham.

Wickersham did not tell Watness about her relationship with Halverson until almost three months after she retained him. Watness believed Wickersham was “at times anxious, particularly fixated on the relationship between herself and Mr. Halverson, at times unable to focus off of that and onto resolution of issues, development of facts, that sort of thing.” RP at 576. Nonetheless, Watness also testified that Wickersham assisted him on her case “in an intelligent and competent way.” RP at 573. Watness represented Wickersham until September 1992, when her case settled and a decree of dissolution was entered.

Overall, Watness felt Wickersham received a “fair outcome” in her case. RP at 559. A year later in October 1993, Wickersham complained to the WSBA about Halverson’s conduct and, in 1994, filed a civil lawsuit. Wickersham’s civil suit against Halverson settled in 1995 by sealed agreement for a substantial sum and with no admission of liability. Wickersham’s former husband subsequently sued Wickersham and received one-half of the settlement. The WSBA filed a formal complaint against Halverson in February 1997.

Following proceedings in December 1997 and February 1998, the hearing officer issued findings of fact and conclusions of law and recommended a sanction consisting of six months’ suspension and two years’ probation with the conditions that Halverson disclose to female clients the purpose of his discipline and continue treatment with his mental health physician. Halverson appealed the hearing officer’s decision to the Board. The 14-member Board unanimously upheld the hearing officer’s findings of fact and conclusion that Halverson violated RPC 1.7(b).

By split decision, the Board rejected the hearing officer’s conclusions that Halverson violated RPC 1.8(

b) and 1.13(

a) but did not violate RPC 1.4(b), and approved the hearing officer’s conclusions that Halverson violated RPC 2.1 but did not violate RLD 1.1 and 2.8. Also by split decision, the Board approved the hearing officer’s recommended sanction. Halverson appealed the Board’s decision to this Court challenging four of the hearing officer’s factual findings and the Board’s adverse conclusions of law. He also claims that the sanction was too harsh. The WSBA in turn assigned error to the Board’s conclusions that no violations of RPC 1.8(

b) and 1.13 and RLD 1.1 occurred, and to the Board’s failure to impose a harsher sanction. Based on these facts, we will address Halverson’s challenges to the factual findings and the parties’ respective challenges to the Board’s legal conclusions and recommended sanction in turn. ANALYSIS I. FACTUAL FINDINGS Halverson challenges several of the Board’s factual findings. He claims that both Finding of Fact 28 and Finding of Fact 33 are not supported by substantial evidence.

As to Finding of Fact 33, Halverson relies on testimony from three witnesses establishing that Wickersham received a “ Very good’ ” outcome in her case. Opening Br. of Resp’t at 18 (quoting RP at 439). Halverson claims that Finding of Fact 29 is not actually a factual finding but rather a “generality, observation, or policy statement.” Opening Br. of Resp’t at 24. Finally, Halverson challenges Finding of Fact 32 arguing that Wickersham should have known what harm might result from the relationship because she was a willing participant.

He further relies upon expert testimony that an attorney-client sexual relationship should not be relevant under the current no-fault divorce statutes. Generally, in bar discipline cases, this Court does not review unchallenged factual findings made by the hearing officer and unanimously affirmed by the Board; they are accepted as verities. See In re Discipline of Johnson, 118 Wn.2d 693, 701, 826 P.2d 186 (1992) (citing In re Discipline of Curran, 115 Wn.2d 747, 759, 801 P.2d 962, 1 A.L.R.5th 1183 (1990)).

Even when unanimously approved findings are challenged as they are here, we will not disturb them if supported by the clear preponderance of the evidence. See In re Discipline of McMullen, 127 Wn.2d 150, 161-62, 896 P.2d 1281 (1995) (citing, inter alia, Curran, 115 Wn.2d at 759). Although the hearing examiner’s findings are not conclusive, they are entitled to considerable weight, particularly when the credibility and veracity of witnesses are at issue. McMullen, 127 Wn.2d at 162 (citing In re Discipline of Allotta, 109 Wn.2d 787, 793-94, 748 P.2d 628 (1988)).

This Court will not substitute its evaluation of the credibility of the witnesses over that of the hearing examiner. McMullen, 127 Wn.2d at 162 (citing Allotta, 109 Wn.2d at 794). Here, each of the challenged findings is supported by a clear preponderance of the evidence. Regarding Finding of Fact 28, Halverson offers no authority or citation to the record to undermine this finding. Further, the record is clear that Wickersham depended upon Halverson regarding temporary living arrangements, custody of her daughter, and a favorable property division in her dissolution action.

As to the power imbalance, an experienced family law practitioner testified to the inherent power imbalance in a dissolution attorney-client relationship. In addition, Dr. Laura Brown, a psychologist who studies sexual relationships between clients and professionals, testified that Halverson’s administration of personality tests to Wickersham “added a more psychological aura to what he was doing” and, therefore, increased “the risk of harm because the power differential was greater.” RP at 157. According to Dr. Brown, Halverson’s status as Wickersham’s former employer further contributed to a power differential.

As to Finding of Fact 33, the testimony that Wickersham received a “fair outcome” in her dissolution proceeding does not undermine the substantial testimony from mental health professionals that as a result of Halverson’s conduct, Wickersham suffered personal harm in the form of depression and anxiety. RP at 342. In addition, Wickersham’s relationship with Halverson had an adverse impact upon her relationship with her former husband. In the years following the divorce, Wickersham described the relationship as “brutally adversarial; abusive and emotionally and financially difficult.” RP at 339.

Further, after her relationship with Halverson, Wickersham was unable to trust her new attorney. Regarding Finding of Fact 29, the statement about the quasi-therapeutic nature of the attorney-client relationship in a dissolution action is based on the testimony of at least two experts and on Halverson’s own book on divorce law, which was admitted as an exhibit. Thus, even if the first part of the finding is a generalization, it is one supported by the clear preponderance of the evidence. See Para-Medical Leasing, Inc. v. Hangen, 48 Wn.

App. 389, 397, 739 P.2d 717 (1987) (a factual finding is a “determination from the evidence of the case” (citation omitted)). Halverson’s argument, therefore, must fail. As to Finding of Fact 32, Halverson’s admission to sexual relationships with five prior clients clearly supports the finding that he knew or should have known the risks of such relationships, particularly because one of these relationships resulted in a fee dispute where the client threatened to disclose the details of the relationship to Halverson’s wife unless Halverson wrote off his bill.

Further, Halverson’s book, Divorce in Washington: A Humane Approach, discouraged those involved in a dissolution from getting involved in a new sexual relationship. A

section in the Washington Family Law Deskbook of which Halverson was editor-in-chief, and the written materials for a Continuing Legal Education course at which Halverson spoke, both discussed the potential adverse ramifications of an attorney-client sexual relationship, as did three prominent family law attorneys who testified. Where the evidence conflicted as to the potential effect of the Wickersham/Halverson affair upon Wickersham’s dissolution proceeding, the hearing officer was entitled to credit the testimony of those experts who testified that the affair increased the legal risks to Wickersham.

See In re Discipline of Felice, 112 Wn.2d 520, 525, 772 P.2d 505 (1989) (court will not disturb hearing examiner’s findings of fact made upon conflicting evidence). Finally, Halverson’s argument that Wickersham should have known the harm that might result from the relationship is irrelevant as to the issue of his knowledge of the risks that his conduct imposed upon his client. II. LEGAL CONCLUSIONS In a bar disciplinary case, challenges to conclusions of law will fail if the conclusions are supported by the factual findings.

Curran, 115 Wn.2d at 759. “Pursuant to RLD 4.11(b), counsel for the WSBA has the burden of establishing

an act of misconduct by a clear preponderance of the evidence.” In re Discipline of Haskell, 136 Wn.2d 300, 309-10, 962 P.2d 813 (1998). A clear preponderance is an intermediate standard between the simple preponderance required in a civil suit and the reasonable doubt standard in a criminal action. Haskell, 136 Wn.2d at 310. Unlike in a civil malpractice suit for damages, a disciplinary proceeding does not require a showing of actual harm. “[A] lawyer may be disciplined even if the misconduct does not cause any damage.

The rationale is the need for protection of the public and the integrity of the profession.” Hizey v. Carpenter, 119 Wn.2d 251, 262, 830 P.2d 646 (1992) (quoting 1 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 1.9, at 33 (3d ed. 1989)). With these principles in mind, we address the parties’ respective challenges to the Board’s conclusions of law. A. Violation of RFC 1.7(b) — Duty to Avoid Conflicts of Interest “RPC 1.7(

b) generally prevents a lawyer from representing a client if that representation will be materially limited by the lawyer’s own interests unless the lawyer reasonably believes the representation will not be affected and the client consents in writing.” McMullen, 127 Wn.2d at 164 (emphasis added). Halverson concedes no written consent was obtained, but argues that this was merely a technical violation of the rule. We disagree.

It was not objectively reasonable for Halverson to believe that the representation would not be adversely affected by the sexual relationship, nor did Halverson disclose to Wickershaxn the risks involved or the material implications of the sexual relationship upon the dissolution proceeding. Consequently, Halverson’s failure to obtain written consent was more than a mere technical violation of the rule. Halverson should have known that discovery of the affair could worsen the relationship between Wickersham and Sarles and, thus, unnecessarily complicate the dissolution proceeding.

Further, Halverson should have known that the affair could impact the custody determination of Wickersham’s daughter. Finally, Halverson should have known that discovery of the affair by his wife might lead to his withdrawal as Wickersham’s attorney. Thus, Halverson’s subjective belief that the relationship would not adversely affect the representation was not objectively reasonable. In any event, Halverson did not disclose any of these risks to Wickersham before commencing the relationship.

Rather, the “ground rules” discussed at the start of the relationship focused primarily on Halverson’s own interests: keeping the relationship secret from his wife and avoiding any emotional bonding with Wickersham’s daughter. Under these circumstances, the Board properly affirmed the hearing officer’s conclusion that Halverson violated RPC 1.7(b). B.

Violation of RPC 1.4(b) — Duty to Communicate Pursuant to RPC 1.4(b), “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” We agree with the Board that the same failures to disclose supporting the conclusion that Halverson violated RPC 1.7(

b) also support the conclusion that he violated RPC 1.4(b). C. Violation of RPC 2.1 — Duty to Exercise Independent Professional Judgment “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” RPC 2.1.

As recently noted by the Court of Appeals in a criminal case where the defendant claimed ineffective assistance of counsel, a lawyer who “commences a sexual relationship with the client during the course of the representation . . . creates significant but needless risks that emotions arising from the relationship will impair ... his or her ability to ‘exercise independent professional judgment’ . . . .” State v. Stough, 96 Wn. App. 480, 486 & n.21, 980 P.2d 298, review denied, 139 Wn.2d 1011 (1999) (quoting RPC 2.1).

Although we do not adopt a per se rule that a lawyer who commences a sexual relationship with a client always fads to exercise independent professional judgment, we find that under the circumstances here Halverson violated RPC 2.1 Halverson did not exercise independent professional judgment when he failed to (1) advise Wickersham of the potential ramifications the affair might have on the dissolution or his ability to represent her; (2) advise Wicker-sham of his published professional opinion that persons involved in a dissolution should be discouraged from getting involved in a new sexual relationship; and (3) take precautions to avoid pregnancy or discuss with Wicker-sham the consequences of such event.

Thus, we affirm the Board’s conclusion that Halverson violated RPC 2.1. D. No Violation of RPC 1.8(b) — Duty to Avoid Using Information Related to Representation of a Client to Client’s Disadvantage Pursuant to RPC 1.8(b), “A lawyer who is representing a client in a matter: . . . (

b) Shall not use information relating to representation of a client to the disadvantage of the client unless the client consents in writing after consultation.” Here, there is no evidence that Halverson used any information against Wickersham that was obtained in the course of representing her. Further, an unchallenged factual finding states: “There is no evidence that [Halverson] at any time divulged any client confidences of [Wickersham].” CP at 674. Consequently, the Board properly concluded that Halverson did not violate RPC 1.8(b).

See Johnson, 118 Wn.2d at 701 (unchallenged factual findings are accepted as verities on appeal); Curran, 115 Wn.2d at 759 (challenges to a hearing examiner’s conclusion of law will fail if conclusions are supported by factual findings). E. No Violation of RPC 1.13(a) — Duty to Maintain Normal Client-Lawyer Relationship with Client Under an Impairment/Disability RPC 1.13(

a) provides: When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. Here, there was no evidence that Wickersham suffered from a mental disability either during her sexual relationship with Halverson or subsequently.

Although there was evidence that Wickersham had difficulty focusing on the dissolution after Halverson withdrew as her attorney, there was no evidence that during the course of Halverson’s representation Wickersham had an impaired ability to make adequately considered decisions. In fact, her new attorney testified that she assisted him on her case “in an intelligent and competent way.” RP at 573. Thus, the Board properly concluded that although emotionally vulnerable, Wickersham did not suffer from the type of impairment or disability covered by RPC 1.13(a). F.

No Violation of RLD 1.1 — Commission of Act of Moral Turpitude RLD 1.1 provides in pertinent part: A lawyer may be subjected to the disciplinary sanctions or actions set forth in these rules for any of the following: (

a) The commission of any act involving moral turpitude, dishonesty, or corruption, or any unjustified act of assault or other act which reflects disregard for the rule of law, whether the same be committed in the course of his or her conduct as a lawyer, or otherwise, and whether the same constitutes a felony or misdemeanor or not .... The WSBA argues that Halverson’s acts constituted moral turpitude citing In re Discipline of Heard, 136 Wn.2d 405, 963 P.2d 818 (1998); Heinmiller v. Department of Health, 127 Wn.2d 595, 903 P.2d 433, 909 P.2d 1294 (1995); and Haley v.

Medical Disciplinary Bd., 117 Wn.2d 720, 818 P.2d 1062 (1991). Halverson claims that these cases are distinguishable. We agree. Heard states that: “Despite the absence of an express rule banning attorney-client sexual relations, an attorney’s sexual relations with a client can constitute ‘moral turpitude,’ justifying the imposition of disciplinary sanctions.” 136 Wn.2d at 419. Heard’s client was a 23-year-old woman who suffered from a mental disability as a result of injuries from a motorcycle accident, and who also had drug and alcohol problems. All of this was known to Heard.

Nonetheless, during the course of settlement negotiations, Heard went to the client’s home, took her to two cocktail lounges where they both consumed alcohol, had her drive his vehicle while intoxicated, and then took her to his apartment where they had consensual sexual relations. Heard, 136 Wn.2d at 409-12. This Court concluded that “Heard’s use of his professional position to exploit a vulnerable young woman constituted moral turpitude within the meaning of RLD 1.1.” Heard, 136 Wn.2d at 422-23 (footnote omitted).

However, this Court also made clear that not all attorney-client sexual conduct violates RLD 1.1: By our opinion, however, we do not announce a general rule regarding attorney-client sexual conduct. This issue may be addressed in the normal course of the judicial rule-making or decision-making process. However, where an attorney so blatantly misuses his professional status to exploit a client’s vulnerability, the Board is entirely justified in finding the conduct to be

an act of moral turpitude under RLD 1.1. Heard, 136 Wn.2d at 423 n.9. Heard was based on Haley, a case involving a physician-patient sexual relationship. There, Haley, a 66-year-old surgeon, operated on a 16-year-old patient and, thereafter, over the next two years provided the girl with alcohol and engaged in a sexual relationship with her. Haley, 117 Wn.2d at 722-25. Haley was given a 10-year stayed suspension on grounds his acts constituted moral turpitude. Haley, 117 Wn.2d at 726.

This Court also followed the Haley holding in Heinmiller, where we found a social worker’s sexual relationship with a former patient that began one day after the conclusion of counseling constituted moral turpitude. 127 Wn.2d at 604-06. The finding of moral turpitude in Heinmiller rested on expert testimony establishing bright-line rules in the social work profession prohibiting counselor-patient sexual relations for a period of time even after the discontinuance of therapy. See Heinmiller, 127 Wn.2d at 605. Here, the aggravating factors present in Heard and Haley do not exist. Wickersham was not a juvenile.

She did not suffer from a mental disability or a drug and alcohol addiction. Halverson did not supply her with intoxicants. Thus, Halverson did not “blatantly misuse[ ] his professional status to exploit [his] client’s vulnerability . . . .” Heard, 136 Wn.2d at 423 n.9. Further, unlike in Haley and Heinmiller, a bright-line rule prohibiting attorney-client sexual relations does not exist. Finally, Halverson’s conduct was not an unsolicited advance because Wickersham was arguably the initiator of the relationship. See Heard, 136 Wn.2d at 420 (quoting People v.

Good, 893 P.2d 101, 103 (Colo. 1995)) (“ ‘Because the lawyer stands in a fiduciary relationship with the client, an unsolicited sexual advance by the lawyer debases the essence of the lawyer-client relationship.’ ” (emphasis added)). Consequently, the Board properly found that under the circumstances Halverson’s affair with Wickersham did not constitute moral turpitude. III. SANCTION We will first discuss the standards that the Board must apply when recommending a disciplinary sanction and then discuss the standards this Court applies when reviewing the Board’s recommended sanction. A.

Sanction Standards The American Bar Association’s Standards for Imposing Lawyer Sanctions (1991 ed. & Supp. Feb. 1992) (hereafter ABA Standards) govern bar discipline cases in Washington. In re Discipline of Boelter, 139 Wn.2d 81, 99, 985 P.2d 328 (1999); Johnson, 118 Wn.2d at 701; In re Discipline of Lynch, 114 Wn.2d 598, 610, 789 P.2d 752 (1990). After a finding of lawyer misconduct, the Board engages in a two-step process to determine the proper sanction.

First, the Board must determine a presumptive sanction by considering (1) the ethical duty violated; (2) the lawyer’s mental state; and (3) the extent of the actual or potential harm caused by the misconduct. Johnson, 118 Wn.2d at 701; ABA Standards Std. 3.0. As to mental state, the Board must determine whether the lawyer acted intentionally, knowingly, or negligently. McMullen, 127 Wn.2d at 169 (citing ABA Standards Std. 3.0 and commentary).

In deciding the extent of the actual or potential harm, the Board should consider the “harm to a client, the public, the legal system or the profession that is reasonably foreseeable at the time of the lawyer’s misconduct . . . ABA Standards,

Definitions at 7. The potential for injury caused by the lawyer’s misconduct need not be actually realized. ABA Standards Std. 3.0 commentary. Second, the Board considers whether there are aggravating or mitigating factors that should lead to an alteration of the presumptive sanction or affect the length of a suspension. Johnson, 118 Wn.2d at 701 (citing, inter alia, Curran, 115 Wn.2d at 771); see also ABA Standards Std. 2.3 commentary (“The specific period of time for the suspension should be determined after examining any aggravating or mitigating factors . . . .”).

Here, as discussed above, the Board properly determined that Halverson violated his duties to avoid conflicts of interest, RPC 1.7(b); to communicate material information, RPC 1.4(b); and to exercise independent professional judgment, RPC 2.1, but did not commit ethical violations with respect to the remaining charges. Thus, when the Board determined its recommended sanction it considered the relevant ethical violations. As to mental state, the Board also properly determined that Halverson acted knowingly.

The ABA Standards define “knowledge” as the “conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result.” ABA Standards,

Definitions at 7. Although there is no evidence that Halverson intended to harm Wickersham or the legal profession, the evidence clearly establishes that Halverson was aware that his entry into a sexual relationship with Wickersham during her dissolution proceedings exposed her to serious psychological and legal risks. Further, Halverson must have known that the inconsistency of his personal conduct and his published professional advice, in conjunction with his status in the legal community, would result in harm to the integrity of the profession.

As to the Board’s consideration of the actual or potential harm, it is not clear from the record whether the Board considered the actual or potential injury to the legal profession from Halverson’s conduct. The record, however, demonstrates that the Board properly considered the substantial personal harm actually suffered by Wickersham as well as the potential for her legal injury. In light of the above factors, particularly the determination that Halverson acted knowingly, the Board properly concluded that suspension should be the presumed sanction, as opposed to disbarment or a mere reprimand.

The ABA Standards state: “Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client.” ABA Standards Std. 4.32; see also ABA Standards Std. 7.2 (suspension is presumed sanction for knowing violation of duty to the legal profession). Washington’s Rules for Lawyer Discipline provide that suspensions from the practice of law should he “for an appropriate fixed period of time not exceeding 2 years.” RLD 5.1(b).

Additionally, this Court has previously recognized that suspensions “generally should last for a period of time not less than six months and not greater than three years.” Boelter, 139 Wn.2d at 101; McMullen, 127 Wn.2d at 170. This six month to three year range of suspensions is based upon the commentary to Standard 2.3 of the ABA Standards, which states in pertinent part: While the Model Rules for Lawyer Disciplinary Enforcement (see MRLDE 25) currently provide for suspensions of less than six months, short-term suspensions with automatic reinstatement are not an effective means of protecting the public.

If a lawyer’s misconduct is serious enough to warrant a suspension from practice, the lawyer should not be reinstated until rehabilitation can be established. . . . In reality, a short-term suspension functions as a fine on the lawyer, and fines are not one of the recommended Sanctions in the MRLDE. The amount of time for which a lawyer should be suspended, then, should generally be for a minimum of six months. . . . The specific period of time for the suspension should be determined after examining any aggravating or mitigating factors in the case. ABA Standards Std. 2.3 (1991 ed. & Supp.

Feb. 1992) (emphasis added). Although six months is the generally accepted minimum term of suspension, this Court has occasionally imposed a shorter term of suspension when a less severe suspension is warranted by specific mitigating circumstances or when aggravating circumstances justify a more severe sanction than a letter of censure.

See, e.g., Johnson, 118 Wn.2d at 697, 705 (60-day suspension appropriate where attorney voluntarily reaffirmed contractual obligations to client in bankruptcy proceedings; court declined to impose six-month suspension because it would have “drastic effect” upon Johnson’s ability to continuing repaying his clients); In re Discipline of Felice, 112 Wn.2d 520, 772 P.2d 505 (1989) (30-day suspension rather than mere censure appropriate for neglect of guardianship duties where attorney had substantial experience, refused to acknowledge wrongdoing and where client was 86 years old and incompetent).

We next consider whether the Board properly examined the mitigating and aggravating factors to decide whether such factors warranted an alteration of the presumed sanction, Johnson, 118 Wn.2d at 701, and, if not, what affect such factors should have on the length of suspension. See ABA Standards Std. 2.3, at 8 (rules), 20-21 (commentary). Here, the Board concluded that the aggravating and mitigating factors effectively cancelled each other out.

As aggravating factors, the Board found that Halverson had (1) substantial experience in the practice of law, yet he had (2) engaged in a pattern of misconduct; (3) committed multiple offenses (4) against a vulnerable victim; and (5) refused to acknowledge wrongdoing. As mitigating factors, the Board found that Halverson (1) had no prior disciplinary record; (2) suffered from depression during the affair with Wickersham; (3) has an excellent professional reputation; (4) has taken rehabilitative steps; and (5) has been otherwise sanctioned through negative publicity.

While we find that the Board properly considered all of these aggravating and mitigating factors, except Halverson’s excellent professional reputation as a mitigating factor, we do not agree that an approximately equal number of aggravating and mitigating factors necessarily warrants a minimal suspension. Rather, a minimal suspension seems more appropriate in a case where there are either no aggravating factors and at least some mitigating factors, or where the mitigating factors clearly outweigh any aggravating factors.

Consequently, the Board’s recommended sanction of six months’ suspension appears inadequate where there were at least five aggravating factors. B. Standards for Washington State Supreme Court’s Review This Court has the exclusive responsibility to determine what discipline should be imposed for a lawyer’s acts of misconduct. In re Discipline of Heard, 136 Wn.2d 405, 423, 963 P.2d 818 (1998) (citing, inter alia, In re Discipline of Felice, 112 Wn.2d 520, 526, 772 P.2d 505 (1989)); RLD 2.1. Thus, we are not bound by the Board’s sanction recommendation. Heard, 136 Wn.2d at 423.

Where such recommendation is insufficient to protect the public and the administration of justice or to preserve the integrity of the legal profession, we will modify it. In re Discipline of McGough, 115 Wn.2d 1, 9, 793 P.2d 430 (1990).

However, we will adopt the Board’s sanction recommendation unless we can articulate specific grounds based on one or more of the following factors to support departing from the Board’s recommendation: (1) the purposes of attorney discipline; (2) the proportionality of the sanction as compared to sanctions imposed in similar cases; (3) the effect of the sanction on the attorney; (4) the record developed by the hearing panel; and (5) the extent of agreement among the Board members. Heard, 136 Wn.2d at 423-24 (citing cases).

Regarding the first factor, the purposes of sanctions for lawyer misconduct are to: (1) protect the public and the administration of justice; (2) preserve the integrity of the legal profession and to maintain public confidence therein; (3) deter the offending lawyer from further unethical conduct, and where appropriate to rehabilitate the lawyer; and (4) deter all members of the profession from unethical conduct. ABA Standards Std. 1.1 and commentary; McMullen, 127 Wn.2d at 163; Allotta, 109 Wn.2d at 792.

Under the circumstances here, we are persuaded that a six-month suspension is inadequate to maintain public confidence in the integrity of the legal profession and deter others from such conduct. As a frequent lecturer and extensive publisher in the family law area, and as the past president of the WSBA, other attorneys as well as the public looked to Halverson for advice. His book demonstrates not only that he knew of the serious psychological and legal risks entering into a new sexual relationship presented to a dissolution client but that he specifically advised others against it.

Yet, Halverson knowingly carried on his affair with Wickersham while he was president of the WSBA. His practice of using personality questionnaires increased his clients’ perceptions of him as a personal counselor or quasi-therapist and engendered their trust. Yet, Halverson violated the trust Wickersham placed in him by taking advantage of her status as his dissolution client for his own sexual gratification. What seems most lacking in the Board’s sanction determination is the fact that Halverson engaged in a pattern of misconduct. By his own admission, he has engaged in a sexual relationship with six clients.

We find the contradiction between Halverson’s published professional advice and status in the legal community, and his personal conduct particularly damaging to the integrity of the legal profession. Furthermore, a minimal six-month suspension in this high profile case would fail to inform the public and warn other attorneys that this Court takes such misconduct seriously.

See In re Discipline of Kennedy, 97 Wn.2d 719, 723, 649 P.2d 110 (1982) (“as a function of preserving public confidence, punishment of an attorney is sometimes necessary to deter others and to indicate our legal system’s intolerance of [mis]conduct”). Thus, we find that the first factor — the purposes of attorney discipline — warrants increasing the suspension to one year.

As to the proportionality factor, this Court has stated: “The principle of consistency alone . . . cannot determine the length of the suspension” and “Consistency within a jurisdiction is more important than consistency between jurisdictions.” Curran, 115 Wn.2d at 773. Here, a one-year suspension is not inconsistent with the two-year suspension imposed in the only other bar disciplinary case in Washington involving sexual misconduct. See Heard, 136 Wn.2d 405. The conduct in Heard was much more egregious than here; in fact, we recognized that there were arguable grounds for Heard’s disbarment.

Heard, 136 Wn.2d at 425. Heard not only had sexual relations with a much more vulnerable client than Wickersham but also violated several rules of professional conduct “by negotiating a settlement agreement with worthless interests included, advising his client to sign it, and then keeping all the cash proceeds of the settlement without the client’s consent or without rendering the client a final accounting.” Heard, 136 Wn.2d at 409. Thus, although a two-year suspension or disbarment would not be proper for Halverson, a one-year suspension does not constitute a disproportionate sanction.

As to the effect of the sanction on Halverson, we acknowledge that it is substantial. However, when we weigh the hardship imposed on Halverson against the serious nature of his misconduct, the sanction is not excessive. The considerations that this Court relies upon to support its one-year suspension are amply supported by the record. Finally, although we recognize that none of the Board members recommended a suspension longer than six months, we emphasize that this Court, and not the Board, is ultimately responsible for determining the nature of lawyer discipline. Heard, 136 Wn.2d at 423.

CONCLUSION In conclusion, we uphold all the Board’s factual findings, its conclusions of law, and the conditions of the two-year probationary period. We increase the recommended term of suspension from six months to one year to adequately serve the purposes of attorney discipline. Smith, Madsen, Alexander, and Talmadge, JJ., and Coleman and Grosse, JJ. Pro Tem., concur. Finding of Fact 28 states: Ms. Wickersham depended on Respondent while he was her attorney to help her obtain temporary living arrangements, custody of her child with sufficient child support and maintenance.

She also depended upon Respondent for a favorable property settlement which was important for her economic well being. This dependence created a large power imbalance between Ms. Wicker-sham and Respondent. Clerks Papers (CP) at 673. Finding of Fact 33 states: In the instant case, Ms. Wickersham has suffered personal harm from Respondent’s conduct. In addition, Ms. Wickersham was harmed by having to change attorneys during the dissolution proceeding. The change of attorneys required additional time on the part of Ms. Wickersham. It required her to establish a new relationship with another attorney. Further, Ms.

Wickersham suffered a temporal [sic] inability to focus on her dissolution after the relationship with Respondent ended which made the dissolution more difficult for Ms. Wickersham and her new attorney. CP at 674. Finding of Fact 29 states: Unlike many legal areas, dissolution practice requires some degree of intimacy between lawyer and client. Attorneys practicing dissolution law are not only attorneys but to some extent are personal counselors or quasi therapists.

Respondent enhanced this feeling on the part of dissolution clients, both through his administration of a personality sorter and through the personal advice in his book. CP at 673. Finding of Fact 32 states: Respondent knew or should have known from his sexual relationships with other clients in the past that by engaging in sexual relationships with clients, those clients were being exposed to greater risks of emotional harm. Further, Respondent should have known that his sexual relationships with clients created greater legal risks for his clients in their pending dissolution proceeding[s], CP at 674. Lowell K.

Halverson & John W Kydd, Divorce in Washington: A Humane Approach (1985). Washington State Bar Ass’n, Family Law Deskbook § 3.9 (1989). RPC 1.7(

b) provides: A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:

(1) The lawyer reasonably believes the representation will not be adversely affected; and

(2) The client consents in writing after consultation and a full disclosure of the material facts (following authorization from the other client to make such a disclosure). When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved. Justice Sanders’ concurrence/dissent argues that we incorrectly affirm the Board’s ruling regarding RPC 1.4(

b) because, among other reasons, the Board improperly “ignore[d] the examiner’s findings and replace[d] those with new ones based on previously considered evidence.” Dissent at 511 (citing In re Discipline of Lynch, 114 Wn.2d 598, 608, 789 P.2d 752 (1990)). This is a misreading of Lynch. See 114 Wn.2d at 607-08 (RLD 6.7(d) “specifically grants the Board authority to adopt, modify or reverse findings, conclusions, or recommendations of the hearing officer.”); accord In re Discipline of Heard, 136 Wn.2d 405, 413-14, 963 P.2d 818 (1998) (Board’s modified findings of fact upheld because they were “amply supported by the record” (citing, inter alia, RLD 6.7(

e) and In re Lynch, was based upon reasonable inferences drawn from the examiner’s findings of fact 114 Wn.2d at 607-08)). Here, the Board’s decision was completely proper as it was based upon reasonable inferences drawn from the examiner’s findings of fact and is amply supported by the record. See CP at 355 (Halverson failed to discuss potential complicating effects of affair on dissolution or custody proceedings); accord RP at 511-15 (Halverson’s testimony on direct); RP at 628-29 (Halverson’s testimony on cross).

Halverson notes that Haley is distinguishable because it involved a bright-line statutory rule prohibiting physician-patient sexual contact. See RCW 18.130.180(24). Although this statute does create a bright-line rule, the Haley court held it inapplicable because the young woman was a former patient. 117 Wn.2d at 730-31. In this

section of our opinion, we assume the hearing officer must apply the same standards as the Board, but refer only to the Board. Mitigating factors include: (

a) absence of a prior disciplinary record; (

b) absence of a dishonest or selfish motive; (

c) personal or emotional problems; (

d) timely good faith effort to make restitution or to rectify consequences of misconduct; (

e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (

f) inexperience in the practice of law; (

g) character or reputation; (

h) physical disability; (

i) mental disability or chemical dependency including alcoholism or drug abuse . . .; (

j) delay in disciplinary proceedings; (

k) imposition of other penalties or sanctions; (1) remorse; (

m) remoteness of prior offenses. ABA Standards Std. 9.32 (1991 ed. & Supp. Feb. 1992). Aggravating factors include: (

a) prior disciplinary offenses; (

b) dishonest or selfish motive; (

c) a pattern of misconduct; (

d) multiple offenses; (

e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (

f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (

g) refusal to acknowledge wrongful nature of conduct; (

h) vulnerability of victim; (

i) substantial experience in the practice of law; (

j) indifference to making restitution; (

k) illegal conduct including voluntary use of controlled dangerous substances. ABA Standards Std. 9.22 (1991 ed. & Supp. Feb. 1992). Compare ABA Standards Std. 4.33 (reprimand is presumed sanction for lawyer’s negligence regarding conflict of interest), Std. 4.31(b) (disbarment is presumed sanction when lawyer intends to benefit himself in conflicted representation), and Std. 7.3 (reprimand is generally appropriate for negligent violation of a duty to the legal profession).

We acknowledge that in some cases decided before 1986 this Court approved of suspensions less than six months without articulating specific mitigating circumstances, but we note that such cases were decided before the ABA Joint Committee on Professional Standards prepared the ABA Standards and before this Court first officially adopted such standards for use in all lawyer discipline cases. See Lynch, 114 Wn.2d at 610.

We note that the record supports consideration of additional factors not explicitly relied upon by the Board, for example, selfish motive as an aggravating factor and a good faith effort to rectify at least some of the consequences of the misconduct as a mitigating factor. We do not believe, however, that these additional factors would have changed the Board’s ultimate conclusion that the aggravating and mitigating factors cancelled each other out.

See Curran, 115 Wn.2d at 774 (a lawyer’s excellent professional reputation is not a proper mitigating factor when the lawyer’s misconduct is not directly related to professional activity (citing In re Discipline of McGrath, 98 Wn.2d 337, 344-45, 655 P.2d 232 (1982))). In so stating, we do not mean to suggest that the ABA Standards require a specific sanction for any particular lawyer misconduct. In fact, quite the opposite is true. The background

section of the ABA Standards states: “[T]he Sanctions Committee recognized that any proposed standards should serve as a model which sets forth a comprehensive system of sanctions, but which leaves room for flexibility and creativity in assigning sanctions in particular cases of lawyer misconduct.” ABA Standards, Preface at 1. The methodology

section further states: “[0]ne will look in vain for a

section of this report which recommends a specific sanction for, say, improper contact with opposing parties who are represented by counsel . . ., or any other specific misconduct.” ABA Standards, Preface at 3. Finally, the theoretical framework

section states: “The standards thus are not analogous to criminal determinate sentences, but are guidelines which give courts the flexibility to select the appropriate sanction in each particular case of lawyer misconduct.” ABA Standards, Theoretical Framework at 6.

In the following cases, this Court increased the Board’s recommended sanction finding it inadequate to serve the purposes of attorney discipline or disproportionate to sanctions imposed for similar misconduct: In re Discipline of Petersen, 120 Wn.2d 833, 846 P.2d 1330 (1993) (Board recommended two-year suspension; this Court ordered disbarment); In re Discipline of McGough, 115 Wn.2d 1, 793 P.2d 430 (1990) (Board recommended two-year suspension; this Court ordered disbarment); In re Discipline of Johnson, 114 Wn.2d 737, 790 P.2d 1227 (1990) (Board recommended one-year suspension; this Court ordered disbarment); Lynch, 114 Wn.2d at 612 (Board recommended six-month suspension; this Court ordered two-year suspension); Felice, 112 Wn.2d 520 (Board recommended letter of censure; this Court ordered a 30-day suspension); In re Discipline of Yates, 110 Wn.2d 444, 755 P.2d 770 (1988) (Board recommended two-year suspension; this Court ordered disbarment); In re Discipline of Selden, 107 Wn.2d 246, 728 P.2d 1036 (1986) (Board recommended 60-day suspension; this Court ordered disbarment).

We do not consider sanctions imposed in sexual misconduct cases from other jurisdictions because the range of such sanctions in relation to the misconduct is highly inconsistent.

Compare, e.g., In re Lewis, 262 Ga. 37, 415 S.E.2d 173 (1992) (three-year suspension imposed where attorney commenced sexual relationship •three years before being retained in divorce action even though no harm to client appeared to have resulted) with In re McBratney, 320 S.C. 416, 465 S.E.2d 733 (1996) (90-day suspension imposed where attorney gave domestic relations client one-half of a Valium, and had sexual relationship with her, and legal representation resulted in a less than favorable settlement).

See Selden, 107 Wn.2d 246 (ordering disbarment although no member of the Board recommended more than a 120-day suspension).