Unappealing Case

Disbarment has been imposed by the Washington State Supreme Court of an attorney who wrote himself into an elderly client’s will

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

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 bane 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.

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.

The client found the attorney after her husband had died and granted him power of attorney

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.

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. 

Prior to the 2009 will, the [neighbors and friends] 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. 

The attorney eventually was removed as personal representative and paid $200,000.

The court here concluded that the Board was not obligated to conduct a sua sponte review when the attorney did not appeal.

Justice Wiggins

concur in the court’s unanimous decision to disbar Donald Peter Osborne from the practice of law. I write separately to express my opinion that the court should never have granted review of Osborne’s case. If Osborne did not even care enough to appeal to the Washington State Bar Association Disciplinary Board (Board), we should not have granted him the right to appeal to this court…

This court reviews every decision recommending suspension or disbarment and decides whether to grant sua sponte review of any decision recommending suspension or disbarment. Accordingly, instead of reviewing whether the Board appropriately denied sua sponte review, we should be exercising our own discretion to deny sua sponte review by this court.

(Mike Frisch)