In re the Disciplinary Proceeding Against Heard

Talmadge, J. In this case we review the Washington State Bar Association (WSBA) Disciplinary Board’s (the Board) unanimous recommendation of a two-year suspension of an attorney’s license to practice law. The recommendation is based on two principal areas of misconduct— the attorney’s mishandling of a client’s personal injury settlement and his sexual exploitation of that client. James Heard negotiated a settlement on behalf of his client during the handling of a personal injury matter. He evaluated the case at more than $150,000, and retained the only cash in the settlement—$50,000 in insurance proceeds. However, much of the settlement’s “value” ultimately proved to be illusory. During the process, Heard failed to apprise his client of the problematic quality of the settlement or that he was retaining the only cash in the settlement. Heard also committed an act of moral turpitude by exploiting his professional relationship with the client to [409] give her alcohol and have sexual relations with her, knowing she had a history of alcohol and drug problems and had sustained severe head injuries in an accident. We affirm the Board’s determination Heard violated the Rules of Professional Conduct (RPC) in handling the settlement and the Rules of Lawyer Discipline (RLD) by engaging in an act of moral turpitude. We suspend him for two years from the practice of law and order him to pay restitution and costs. ISSUES 1. Does an attorney violate the RPC 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? 2. Does an attorney commit an act of moral turpitude within the meaning of the RLD if he exploits his professional relationship with a vulnerable client by providing her alcohol and having sexual relations with her? FACTS In 1989, 23-year-old Katrina Menz was seriously injured in an accident while a passenger on a motorcycle. Menz sustained severe head injuries from the accident, was comatose for a week, and remained in the hospital for several weeks thereafter. Menz’s mother retained attorney James A. Heard, then 43 years old, to represent Menz in her action to recover damages for her injuries. Although Menz’s mother signed the retainer agreement, Katrina Menz never did. The retainer agreement provided for a contingent fee paying Heard one-third of all funds collected on Menz’s behalf. Heard sought insurance payments from various insurers. He obtained payment from Menz’s insurer, Viking Insurance Company, which paid Menz $25,000 under the under410 insured motorist coverage provision of her automobile liability insurance policy. He obtained a $25,000 settlement from the liability insurer for the co-owners of the motorcycle, Edward and Virginia Gerrish. Heard also filed a lawsuit for Menz against the driver of the motorcycle, Richard McKee. Heard negotiated a settlement with McKee, who was apparently uninsured. In exchange for a release of liability, McKee gave Menz: (1) his 1987 Mazda RX7; (2) a $35,000 unsecured promissoiy note; and (3) a quitclaim deed for a $50,000 interest he allegedly held in his sister’s Seattle home. The settlement agreement asserted a value for the Mazda RX7: “I agree that the value of said automobile shall be Fifteen Thousand Dollars ($15,000).” Ex. 3. The car’s actual value was never determined by appraisal or otherwise. Menz took title and possession of the car. Similarly, the promissory note was valued at $35,000, although Menz exchanged it with the Department of Social and Health Services (DSHS) in full satisfaction of a $46,890 past medical payment lien DSHS held against any tort recovery Menz obtained.1 The most problematic of the settlement’s features was [411] McKee’s alleged interest in his sister’s house. The settlement agreement explained that McKee had loaned his sister $40,000 and, in return, he was claiming an “untitled interest” in her house worth perhaps $50,000. Ex. 3. The agreement, as drafted by Heard, provided a “warranty” by McKee: “I agree that my interest in said real property is Fifty Thousand Dollars ($50,000.00), although the actual interest of my equity in the property may be less than $50,000.00 but I warrant that it is no less than $40,000.” Ex. 3. The interest in the house was never appraised. McKee had no recorded property interest in the house and no security interest. Heard’s office called McKee’s sister shortly after the negotiation of the settlement and confirmed McKee’s sister alone owned the house and she planned to sell it. Heard never relayed this information to his client. McKee’s sister sold the house shortly thereafter. Menz never received a deed reflecting McKee’s alleged interest in the house, nor anything of value with respect to McKee’s “interest.” Prior to the conclusion of the settlement, Heard went to Menz’s house and asked her if she would like to discuss the case. Heard knew of Menz’s vulnerability, having had access to her medical history. He had successfully secured a guardian ad litem for her in the lawsuit and had instituted a separate guardianship proceeding, which was later dropped.2 He also knew she had prior problems with drug and alcohol abuse. Moreover, he knew she was. scheduled for further surgery, a cranio-plasty, in February 1990. Nev [412] ertheless, they went to a local lounge to “discuss her case” where they started drinking. They then decided to visit another local lounge. Heard told Menz to drive his car despite her protests that she should not drive due to her status as a habitual traffic offender. After more drinking at a second lounge, they returned to Heard’s apartment where they had consensual sexual relations.3 Upon negotiation of the settlement, Heard unilaterally decided to keep the $50,000 cash for his fee. He calculated the entire settlement was worth $150,000 by adding together the $50,000 actually recovered from the insurance companies, $15,000 for the alleged value of the Mazda, $35,000 for the alleged value of the promissory note, and $50,000 for the value of the alleged interest in McKee’s sister’s house. Heard never obtained his client’s consent to this arrangement, and never gave her an accounting of the handling of the settlement proceeds. Menz subsequently commenced a malpractice action against Heard, which is currently pending. Upon Menz’s complaint, the WSBA filed a formal eight-count disciplinary complaint against Heard for his conduct in representing Menz, alleging he charged Menz a fee contrary to the fee agreement in violation of RPC 1.5(a); never obtained Menz’s signature on the retainer agreement in violation of RPC 1.5(c); failed to provide Menz with a written final accounting of the case in violation of RPC 1.5(c)(1); incompetently represented Menz by advising her to sign the McKee settlement agreement without first determining whether the interest existed in violation of RPC 1.1; failed to communicate with Menz and explain matters sufficiently to allow her to make a reasonable choice regarding settlement; [413] failed to communicate with Menz regarding his knowledge that McKee owned no interest in his sister’s house in violation of RPC 1.4; failed to represent Menz with due diligence by failing to secure an interest in McKee’s sister’s house in violation of RPC 1.3; and committed an act of moral turpitude in violation of RLD 1.1(a) by having sexual relations with Menz. On December 14 and 15, 1995, a formal disciplinary hearing was held pursuant to RLD 4.10 before a hearing examiner. In a written opinion, the hearing examiner concluded the WSBA failed to meet its burden of proof on each count. WSBA disciplinary counsel appealed this decision to the Board pursuant to RLD 6.1, which allows parties, including disciplinary counsel, to appeal decisions of the hearing examiner to the Board. In a written opinion, the Board reversed the hearing examiner on seven of the eight counts, finding the hearing examiner’s conclusions were not supported by the evidence or by the law. The Board found no violation as to Heard’s alleged failure to obtain Menz’s signature on the retainer, but sustained the other seven charges against Heard. As to sanctions, the Board recommended a two-year suspension of Heard’s license to practice and ordered him to pay restitution in the amount of $28,334.34 plus interest and costs. The Board based its sanctions recommendation on a finding of numerous aggravating circumstances including dishonest or selfish motives, vulnerability of victim, refusal to acknowledge wrongdoing, and indifference in making restitution. Heard appealed the Board’s decision and sanctions recommendation to us. RLD 7.2. ANALYSIS The Washington State Supreme Court exercises plenary authority in matters of attorney discipline. RLD 2.1. Nevertheless, we have delegated specific responsibilities with respect to attorney discipline to the WSBA pursuant to the provisions of the RLD. With respect to initial fact-finding, a hearing examiner makes initial recommenda [414] tions to the Board as to findings and conclusions. The Board is free to adopt, modify, or reverse findings, conclusions or recommendations of its hearing examiner. RLD 6.7(e); In re Discipline of Lynch, 114 Wn.2d 598, 607-08, 789 P.2d 752 (1990).4 We do not disturb the Board’s findings if they are supported by the clear preponderance of the evidence. RLD 4.11(b); In re Discipline of Allotta, 109 Wn.2d 787, 792, 748 P.2d 628 (1988); In re Discipline of Curran, 115 Wn.2d 747, 759, 801 P.2d 962, 1 A.L.R.5th 1183 (1990); In re Discipline of McMullen, 127 Wn.2d 150, 161-62, 896 P.2d 1281 (1995). In this case, the Board’s findings of fact, as adopted from the hearing examiner and modified by the Board are amply supported by the record. The Board’s findings and recommendations essentially involve three issues: Heard’s alleged misconduct involving the settlement agreement and his fee, Heard’s alleged act of moral turpitude, and the sanction to be imposed against Heard, if any. We address each of these issues in order. A. Misconduct Involving the Settlement Agreement The first seven counts against Heard all relate to the settlement agreement he negotiated for Menz and his fee. Count I alleges Heard charged a fee contrary to the fee agreement in violation of RFC 1.5(a) which states: “A lawyer’s fees shall be reasonable.” The Board found Heard violated this rule by taking a $50,000 fee when the entire settlement was actually worth far less than the $150,000 value Heard attributed to it. The settlement included $50,000 in insurance money, and the 1987 Mazda RX7. The Board accepted McKee’s valuation of the vehicle at $15,000. Clerk’s Fapers at [415] 224.5 The McKee settlement also included a $35,000 promissory note given hy McKee to Menz. Menz negotiated this note to DSHS in exchange for full satisfaction of DSHS’s $46,890 lien for public medical expenses paid on Menz’s behalf. The Board, without explanation, concluded that Heard’s taking of one-third of the $35,000 promissory note “was both contrary to Washington law, and unreasonable.” Clerk’s Papers at 224. However, contrary to the Board’s conclusion, the promissory note obviously had a significant value, given the willingness of DSHS to take it in exchange for Menz’s lien. While the note was worth $35,000 on its face and was exchanged for a $46,890 lien, there is no indication of its fair or market value. A $35,000 unsecured promissory note from a party who apparently had financial problems may be worth less than face value. See Stuart M. Speiser, Attorney’s Fees § 2:15, at 103-04 (1973) (property may be included in settlement package for contingent fee purposes, but the fair or market value thereof is established “without regard to the price at which it was taken.”). Heard should have made some attempt to place value on the promissory note, or in the alternative, to agree on a fair value thereof with his client. A more troublesome quéstion is Heard’s failure to implement the statutory scheme of RCW 43.20B.060 so as to secure DSHS’s contribution of a share of Heard’s fees incurred by Menz to collect the lien. Heard’s failure in this [416] regard meant that Menz paid more in fees to Heard than she otherwise needed to. Finally, Heard improperly included McKee’s alleged $50,000 interest in his sister’s house as part of the overall recovery. Heard knew, or should have known, McKee’s interest in his sister’s house was essentially worthless. Indeed, Heard himself drafted the settlement agreement which stated McKee had an “untitled interest” in his sister’s house. Ex. 3. The settlement further stated: “I agree that my interest in said real property is Fifty Thousand Dollars ($50,000.00), although the actual interest of my equity in the property may be less than $50,000.00, but I warrant that it is no less than $40,000.00.” Ex. 3. Nothing ever came of this illusory interest. Heard knew the interest was worthless when his office contacted McKee’s sister. Yet, he did not advise Menz of its essential worthlessness. Heard considered the worthless interest in the value of the settlement for purposes of calculating his contingent fee, and therefore violated RPC 1.5(a).6 Count III alleges Heard failed to provide Menz a written final accounting of the case in violation of RPC 1.5(c)(1). That rule states: “Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.” Heard failed to provide such accounting. Count IV alleges Heard incompetently represented Menz by advising her to sign a settlement agreement with McKee without first determining whether the interest existed in violation of RPC 1.1 which states: “[a] lawyer shall provide competent representation to a client.” Heard knew, or should have known, McKee’s alleged interest in his sister’s [417] house was not perfected. Indeed, the settlement agreement, drafted by Heard himself, referred to the interest as “untitled.” Heard should have advised Menz of the facts before recommending she accept the settlement. Count V alleges Heard failed to explain matters to Menz sufficiently to allow her to make a reasonable choice regarding settlement. Count VI alleges Heard failed to communicate with Menz regarding his knowledge that McKee owned no interest in his sister’s house in violation of RPC 1.4. He failed to communicate both. Count VII alleges Heard failed to represent his client with due diligence for failing to secure an interest in McKee’s sister’s house in violation of RPC 1.3, which provides, “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” Heard failed to take any tangible steps to provide any interest for Menz in the house. We uphold the Board’s findings and conclusions with respect to the charges relating to Heard’s handling of the settlement agreement and his fee. In effect, Heard put his own interests ahead of those of his client. He negotiated a settlement of Menz’s personal injury claims that largely reserved the tangible, cash benefits of the settlement to himself. The inflated or illusory settlement assets were Menz’s. Heard neither explained the implications of the settlement to the client before recommending she agree to it nor accounted to her for his decisions regarding the disposition of the settlement proceeds. Heard violated the RPC by such conduct. B. Moral Turpitude Count VIII alleges Heard committed an act of “moral turpitude” in violation of the Rules of Lawyer Discipline 1.1(a) by having sex with his client. RLD 1.1 provides: 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, [418] dishonesty, or corruption, or any unjustified act of assault or other act which reflects disregard for the rule of law. . . . The RLD does not specifically define the term “moral turpitude,” although we have previously sustained attorney discipline based on findings of moral turpitude. In In re Discipline of McGrath, 98 Wn.2d 337, 655 P.2d 232 (1982), reinstatement granted, 112 Wn.2d 481, 772 P.2d 502 (1989), we recognized the general nature of “moral turpitude”: This definition of moral turpitude is necessarily general. In the setting of attorney discipline, its application depends upon the collective conscience and judgment of the members of this court. It is as meaningful as other phrases adopted by other courts. See Searcy v. State Bar of Texas, 604 S.W.2d 256, 258 (Tex. Civ. App. 1980) which sets forth the various definitions. “Its definition does not gain in clarity by prolixity of statement.” In re Jacoby, 74 Ohio App. 147, 155, 57 N.E.2d 932 (1943). See also 58 C.J.S. Moral 1200-07 (1948). Id. at 342. We essentially look to the inherent nature of the act committed by the attorney to answer the following question: [D]o the acts found against the appellant, and for which he was convicted . . ., violate the commonly accepted standard of good morals, honesty, and justice? Suppose we measure his conduct in this regard, not by any puritanical standard, but by the standard of right conduct generally prevailing among our people, uninfluenced by the fact that the statute law also punishes such conduct as a crime. What, then, is the answer to the question whether or not such acts involve moral turpitude? In re Discipline of Hopkins, 54 Wash. 569, 572, 103 P. 805 (1909). See also In re Discipline of Stroh, 97 Wn.2d 289, 644 P.2d 1161 (1982) (attorney’s crime of tampering with a witness strikes at the very core of the judicial system and therefore necessarily involves moral turpitude), cert. denied, 459 U.S. 1202, 103 S. Ct. 1187, 75 L. Ed. 2d 434 (1983); McGrath, 98 Wn.2d at 340-43 (attorney’s assault in [419] the second degree involving a deadly weapon constituted moral turpitude).7 Although seven states have adopted explicit limitations on attorney-client sexual relations,8 Washington has not adopted such a rule. The WSBA recently proposed such a rule to this Court which stated: “[i]t is professional misconduct for a lawyer to . . . have sexual relations with a current client of the lawyer unless a consensual sexual relationship existed between them before the lawyer/client relationship commenced.” RPC Proposed Rule 8.4, quoted in Molly A. McQueen, Regulating Attorney-Client Sex: The Need for an Express Rule, 29 Gonz. L. Rev. 405, 412 (1993/94). However, we did not adopt it. McQueen, 29 Gonz. L. Rev. at 412. 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. See, e.g., In re Discipline of Rinella, 175 Ill. 2d 504, 677 N.E.2d 909, 222 Ill. Dec. 375, cert. denied, 522 U.S. 951, 118 S. Ct. 371, 139 L. Ed. 2d 288 (1997), therein the Supreme Court of Illinois suspended an attorney from practice for three years, rejected his argument that he could not be sanctioned for engaging in sexual relations with his clients because no [420] disciplinary rule specifically proscribes such conduct. The Rinella Court noted: Initially, we reject respondent’s contention that attorney misconduct is sanctionable only when it is specifically proscribed by a disciplinary rule. On the contrary, the standards of professional conduct enunciated by this court are not a manual designed to instruct attorneys what to do in every conceivable situation. . . . [W]e do not believe that respondent, or any other member of the bar, could reasonably have considered the conduct involved here to be acceptable behavior under the rules governing the legal profession. Rinella, 175 Ill. 2d at 514-15, 677 N.E.2d at 914, 222 Ill. Dec. at 380. The court in Matter of DiSandro, 680 A.2d 73, 75 (R.I. 1996), noted there was no provision in the rules of professional conduct regarding sexual activity between attorneys and clients, but found respondent had violated ethical rules by engaging in a consensual sexual relationship with a client. In People v. Good, 893 P.2d 101 (Colo. 1995), the court recognized that no rule explicitly prohibits a sexual relationship between attorney and client, but found Good had violated the state’s ethical rules and suspended him for one year, noting: 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. Often the lawyer-client relationship is characterized by the dependence of the client on the lawyer’s professional judgment, and a sexual relationship may well result from the lawyer’s exploitation of the lawyer’s dominant position. See ABA Comm, on Ethics and Professional Responsibility, Formal Op. 92-364 at 2. Good, 893 P.2d at 103 (citation omitted). See also In re Discipline of Berg, 265 Kan. 254, 955 P.2d 1240 (1998) (Kansas Supreme Court disbarred Berg for sexual exploitation of clients, rejecting his assertion that he violated no specific rule by engaging in sexual relations with his clients). See also Jill M. Crumpacker, Note, Regulation of Lawyer-Client [421] Sex: Codifying the “Cold Shower” or a “Fatal Attraction” Per Se?, 32 Washburn L. J. 379 (1993) (discussing both sides of the issue and noting arguments against adoption of a specific rule regulating lawyer-client sex include that such rule would be redundant as existing ethics rules prohibiting attorneys from exercising undue influence or taking unfair advantage already address the issue). Id. at 395 & n.132. See also Gregory G. Sarno, Annotation, Sexual Misconduct as Ground for Disciplining Attorney or Judge, 43 A.L.R.4th 1062 (1986 & Supp. 1997, at 67-74) (collecting and discussing cases in which sanctions from reprimand to disbarment were imposed upon attorneys’ regarding their sexual improprieties, including sexual relations with clients). We have taken a similar approach on the need for an express rule banning professional-client sexual relations in Washington. Haley v. Medical Disciplinary Bd., 117 Wn.2d 720, 818 P.2d 1062 (1991), is instructive on this point. In Haley, we held conduct occurring after the termination of the professional relationship and unrelated to the specific technical skills necessary for the professional practice may still subject a professional to discipline. Haley, 117 Wn.2d at 733-35. In Haley, a 66-year-old physician performed surgery on a girl not yet 16 years old. Thereafter, subsequent to the conclusion of the physician-patient relationship, the doctor provided alcohol to the girl and commenced a sexual relationship with her. She moved into a beach house to which the physician had access. We upheld the Medical Disciplinary Board’s finding of acts of “moral turpitude,” and the Board’s decision to suspend the physician from practice for 10 years (although the suspension was stayed subject to numerous conditions). We found the physician used his professional status and position to sexually exploit a minor, given his psychological authority and power over the patient, and his behavior cast the medical profession in disrepute in the eyes of the public. Haley, 117 Wn.2d at 735-36. [422] The disciplinary rules for physicians specifically prohibited sexual contact with a patient. RCW 18.130.180(24). However, we found the rule was not violated because the physician-patient relationship had concluded. Haley, 117 Wn.2d at 728-31. Thus, Haley indicates a professional may violate rules banning acts of moral turpitude even where specific rules forbidding sex with clients do not apply. As we stated in Haley: “[w]e believe that any reasonable physician would recognize that such conduct is an abuse of the trust inherent in the physician’s role and an appropriate subject for professional discipline.” Id. at 743. The same can be said of Heard’s conduct here. The facts in the present case are quite similar to those in Haley, and may be more egregious in several respects. Heard used his professional relationship with Menz to initiate the social relationship (he went to her home and invited her to “go out” to discuss her case). As Menz’s attorney, Heard had intimate knowledge of her vulnerabilities. Heard knew Menz had sustained a significant head injury for which she required multiple surgeries, and she was psychologically and physically impaired, undergoing a period of prolonged rehabilitation. Through access to her medical records, Heard knew Menz had an extensive history of alcohol and drug problems, and had been sexually abused. He further knew that as a result of her brain injury Menz continued to have memory, reading comprehension, auditory processing, attention, speech, problem solving and other cognitive deficits. He also knew her medical providers were concerned about her judgment, safety and ability to live independently. Despite this knowledge, Heard took Menz to two cocktail lounges and gave her alcoholic beverages at both. When Menz informed Heard she should not be drinking, he assured her that eveiything would be all right. Heard then took Menz to his apartment where they engaged in sexual relations. Heard sexually exploited a client with alcohol problems and who suffered the effects of serious head injuries. Heard’s use of his professional position to exploit a vulnerable young [423] woman constituted moral turpitude within the meaning of RLD 1.1.9 C. Sanction Heard violated the RPC in connection with the settlement agreement and the fees, and committed an act of moral turpitude under the RLD. Counsel for the WSBA requested a six-month suspension for the violations, but the Board imposed a two-year suspension. Initially, we note Heard has not assigned specific error to the Board’s findings as to the recommended sanction. Those findings are verities on appeal. In re Discipline of Johnson, 118 Wn.2d 693, 701, 826 P.2d 186 (1992). While we generally adopt the Board’s sanction recommendation, we are not bound by that recommendation. RLD 2.1; In re Discipline of Noble, 100 Wn.2d 88, 95, 667 P.2d 608 (1983); In re Discipline of Felice, 112 Wn.2d 520, 526, 772 P.2d 505 (1989) (“The Supreme Court of Washington has exclusive responsibility to determine what discipline should be imposed for a lawyer’s acts of misconduct.”). In specific, we will adopt the Board’s recommendation on a sanction unless we can articulate specific grounds based on one or more of the following factors to support departure from the Board’s recommendation. 1. The purposes of attorney discipline (sanction must protect the public and deter other attorneys from similar misconduct); 2. The proportionality of the sanction to the misconduct (sanction must not depart significantly from sanctions imposed in similar cases); 3. The effect of the sanction on the attorney (sanction must not be clearly excessive); [424] 4. The record developed by the hearing panel (sanction must be fairly supported by the record and must not be based upon considerations not supported by the record); and, 5. The extent of agreement among the members of the Board (sanction supported by unanimous recommendation will not be rejected in the absence of clear reasons). In re Discipline of Johnson, 114 Wn.2d 737, 752, 790 P.2d 1227 (1990); In re Discipline of Johnson, 118 Wn.2d 693, 703, 826 P.2d 186 (1992); In re Discipline of McMullen, 127 Wn.2d 150, 162, 896 P.2d 1281 (1995). In this case, we can articulate no reason to depart from the Board’s unanimous recommendation. We have generally expressed a need for consistency in setting sanctions for violations of the Rules of Frofessional Conduct, and toward that end have adopted the ABA Standards for Imposing Lawyer Sanctions (1986). In re Discipline of Curran, 115 Wn.2d 747, 770-71, 801 P.2d 962, 1 A.L.R.5th 1183 (1990). The ABA Standards (1991 ed.) states that “Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.” Standards 4.12, at 27. In Washington, two years is the maximum period of suspension. RLD 5.1(b). In the present case, the combination of misconduct involving the settlement and attorney fees, and the act of moral turpitude justify a two-year suspension. Indeed, the ABA Standards suggests disbarment may be appropriate here. See Standards 4.11 (“Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.”). We have also noted disbarment may be appropriate in such circumstances. In In re Discipline of Salvesen, 94 Wn.2d 73, 76, 614 P.2d 1264 (1980), we noted: When lawyers use clients’ funds for their own personal use or mishandle trust funds, disbarment is the usual result. It is not the inevitable result, however, and the appropriate sane [425] tion should be determined on a case-by-case basis after consideration of all the circumstances. (Citations omitted.). In that case, which predated the ABA standards, we imposed a two-year suspension for misuse of client funds, on the basis of extensive mitigating circumstances.10 The case was a 5 to 4 decision, with a vigorous dissent advocating disbarment. Here, Heard’s financial misconduct is compounded by an act of moral turpitude. We have found acts of moral turpitude to constitute grounds for disbarment. See In re Discipline of McGrath, 98 Wn.2d 337, 655 P.2d 232 (1982) (assault with a deadly weapon involved moral turpitude and warranted disbarment), reinstatement granted, 112 Wn.2d 481, 772 P.2d 502 (1989); In re Discipline of Stroh, 97 Wn.2d 289, 644 P.2d 1161 (1982) (tampering with a witness necessarily involves moral turpitude and warrants disbarment), cert. denied, 459 U.S. 1202, 103 S. Ct. 1187, 75 L. Ed. 2d 434 (1983). In general, we can see no reason for departing from the Board’s recommended sanction of two years’ suspension, even though there are arguable grounds for Heard’s disbarment. None of the Johnson factors for departing from the Board’s recommendation are met here. Finally, the Board imposed restitution in the amount of $28,334.34 plus interest. Restitution is properly imposed against an attorney who has been found to have committed an act of misconduct and has been sanctioned for such misconduct. RLD 5.3(a); In re Discipline of Hankin, 116 Wn.2d 293, 298, 804 P.2d 30 (1991); In re Dis [426] cipline of Johnson, 118 Wn.2d 693, 707, 826 P.2d 186 (1992). We believe restitution was properly assessed against Heard, but we remand this case to the Board to re-evaluate the restitution owed by Heard. The Board determined only $65,000 of the settlement was tangible, and permitted a contingent fee on that sum. The Board properly required Heard to disgorge the remainder of the fee. As noted above, we believe Heard failed to secure an independent valuation of the automobile and the promissory note. The Board must consider the proper value of both in setting restitution. CONCLUSION James Heard engaged in numerous instances of misconduct involving the negotiation of a settlement agreement and the fee he earned for his work. He made matters worse by exploiting his authority as an attorney and taking advantage of an exceedingly vulnerable client to have sexual relations with her. We do not condone such exploitative behavior. The Board properly found Heard to have violated the RPC and the RLD and appropriately sanctioned him by suspending his license for two years, and ordering him to pay restitution to Menz. We also award costs on appeal to the WSBA. Durham, C.J., and Smith, Guy, Madsen, and Alexander, JJ., concur. Footnotes [1] DSHS has a hen against any recovery by a recipient of public medical benefits against a tortfeasor. ROW 74.09.180; ROW 43.20B.060. DSHS may compromise the amount of the lien with the recipient. ROW 43.20B.050. DSHS must share in the legal fees and expenses incurred by the recipient to obtain a recovery against the tortfeasor: (4) If recovery is made by the department under this section and the subrogation is fully or partially satisfied through an action brought by or on behalf of the recipient, the amount paid to the department shall bear its proportionate share of attorneys’ fees and costs. (a) The determination of the proportionate share to be borne by the department shall be based upon: (i) The fees and costs approved by the court in which the action was initiated; or (ii) The written agreement between the attorney and client which establishes fees and costs when fees and costs are not addressed by the court. (b) When fees and costs have been approved by a court, after notice to the department, the department shall have the right to be heard on the matter of attorneys’ fees and costs or its proportionate share. (c) When fees and costs have not been addressed by the court, the department shall receive at the time of settlement a copy of the written agreement [411] between the attorney and client which establishes fees and costs and may request and examine documentation of fees and costs associated with the case. The department may bring an action in superior court to void a settlement if it believes the attorneys’ calculation of its proportionate share of fees and costs is inconsistent with the written agreement between the attorney and client which establishes fees and costs or if the fees and costs associated with the case are exorbitant in relation to cases of a similar nature. RCW 43.20B.060C4). [2] In seeking the appointment of a guardian ad litem, Heard’s petition asserted Menz “is incompetent due to severe head injuries suffered in a motorcycle accident which occurred on August 27, 1989. She is now in a disabled condition, confined to hospital, and incapable of caring for herself or her affairs.” Ex. 16 A at 1. Similarly, the guardianship petition stated: [412] The incompetent person is conscious but totally unable to function on her own. The injuries suffered in the motorcycle accident of August 27, 1989, make her totally dependent upon medical care in order to survive. It is unclear when, if ever, she will be able to survive without round-the-clock medical care. Id. at 3. [3] Heard does not deny this sequence of events. However, due to his intoxication that night, he does not recall if he had sexual relations with Menz. Report of Proceedings at 231. [4] The Board here specifically struck the hearing examiner’s decision because it “did not comport with the law or evidence presented, and the purpose of lawyer discipline.” Clerk’s Papers 216. We give greater weight to the Board’s conclusions than to those of the hearing examiner. In re Discipline of Johnson, 118 Wn.2d 693, 703, 826 P.2d 186 (1992); Lynch, 114 Wn.2d at 607. [5] However, the Board also noted that Heard never verified the value of the car. Clerk’s Papers at 221 (Finding of Fact 34). Only the fair market value of property-received may be included in the value of the settlement for purposes of calculating the contingent fee thereof. See Robert L. Rossi, Attorneys’ Fees § 2:13, at 124 (2d ed. 1995) (where a client receives property rather than cash in settlement “the attorney is entitled to his contingent fee percentage of the fair or market value of the property.” (footnotes omitted)). Giving the Mazda a $15,000 value appears to have been improper as Heard may well have set the numbers of the settlement unnaturally high so as to maximize his fee. The 1990 Blue Book for used car prices lists a 1987 Mazda RX7 as having a base average resale price, in 1990 when the settlement was reached, of between $8,375 and $10,400. N.A.D.A. Official Used Car Guide at 99 (Dec. 1990). Heard should have had the car appraised and should have included only the fair value thereof into the total value of the settlement. [6] Count II alleged Heard did not have a written contingent fee agreement with Menz. The Board properly rejected this count as Menz’s mother signed a written fee agreement on her behalf and Menz generally understood her fee agreement with Heard. [7] Although no criminal conviction is present in this case, such conviction is not a prerequisite for a finding that Heard’s actions amounted to moral turpitude. See RLD 1.1(a) (“and if the act constitutes a felony or misdemeanor, conviction thereof in a criminal proceeding shall not he a condition precedent to disciplinary action, . . .”). In Hopkins, addressing whether an action involves moral turpitude, we noted: That question, after all, must be determined from the inherent immoral nature of the act, rather than from the degree of punishment which the statute law imposes therefor, though the latter may be some indication of the public conscience relating thereto. Hopkins, 54 Wash, at 572. [8] Iowa Code of Professional Responsibility for Lawyers EC 5-25 (1998); Minnesota Rules of Professional Conduct Rule 1.8(k) (1997); Oregon Code of Professional Responsibility DR 5-110(A) (1998); Wisconsin Rules of Professional Conduct SCR 20: 1.8(k)(2) (1998); Rules of Professional Conduct of the State Bar of California Rule 3-120 (1998); Florida Rules of Professional Conduct Rule 4-8.4(i) (1998); New York Code of Professional Responsibility DR1-102(A)(7) (1994). [9] 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. [10] We have not however shied away from imposing disbarment for misuse of client funds where circumstances warrant. See, e.g., In re Discipline of Petersen, 120 Wn.2d 833, 846 P.2d 1330 (1993); In re Discipline of McGough, 115 Wn.2d 1, 793 P.2d 430 (1990); In re Discipline of Johnson, 114 Wn.2d 737, 790 P.2d 1227 (1990); In re Discipline of Rentel, 107 Wn.2d 276, 729 P.2d 615 (1986); In re Discipline of Rosellini, 97 Wn.2d 373, 646 P.2d 122 (1982) (listing pre-ABA Standards cases in which trust account violations have led to disbarment). Cf. In re Discipline of McLendon, 120 Wn.2d 761, 845 P.2d 1006 (1993) (imposing two-year suspension, rather than disbarment, for conversion of client funds in light of “extraordinary mitigating circumstance” of attorney’s suffering from bipolar disorder during all relevant times and subsequent recovery through treatment).