(concurring and dissenting) — While I agree with the majority’s conclusion upholding the Disciplinary Board’s (Board) approval of all findings of fact, and its substantive conclusions of law, I dissent from the majority’s escalation of respondent’s suspension in disregard of the Board’s recommended sanction.
Importantly, neither the hearing examiner, who presided over the testimony in this case, nor any of the 15 lawyer and layperson Board members recommended a suspension greater than six months. While I agree with the majority we are not bound by the Board’s recommendation, we have said:
The only body in the state to consider the full spectrum of disciplinary matters from the most trivial to the most serious is the Disciplinary Board. It is appropriate, therefore, that we give serious consideration to the recommendations of the Disciplinary Board. As the only body to hear the full range of disciplinary matters, the Board has the opportunity to develop unique experience and perspective in the administration of sanctions. We should not lightly depart from recommendations shaped by this experience and perspective.
In re Discipline of Noble, 100 Wn.2d 88, 94, 667 P.2d 608 (1983); see In re Discipline of Johnson, 114 Wn.2d 737, 751-52, 790 P.2d 1227 (1990).20 A sanction supported by *502unanimous recommendation will also not be rejected “ 'in the absence of clear reasons’ ” In re Discipline of Heard, 136 Wn.2d 405, 424, 963 P.2d 818 (1998) (emphasis added) (quoting Johnson, 114 Wn.2d at 752). While the Board members were not in unanimous agreement on the specific length of the appropriate sanction, there was complete agreement that a sanction greater than six months was not warranted.
Ultimately, the sanction this court imposes is designed to protect the public and deter further misconduct, and not to punish. In re Discipline of Hankin, 116 Wn.2d 293, 298, 804 P.2d 30 (1991) (citing Noble, 100 Wn.2d at 95). Here, the majority concludes the Board properly determined that suspension is the presumptive sanction, and that the aggravating and mitigating factors are equal. Majority at 492-97; see In re Discipline of Haskell, 136 Wn.2d 300, 321, 962 P.2d 813 (1998) (holding approximately equal number of aggravating and mitigating factors cancel each other out). Nevertheless, the majority then asserts that some factors are more equal than others and doubles the Board’s highest recommended sanction. Majority at 497, 500. In so doing, the majority relies most heavily on the pattern of prior sexual misconduct by Halverson, see majority at 500, despite the fact only Halverson’s relationship with Wickersham is currently before this court.
By incorrectly ascribing such significance to matters *503outside the record, the majority forgets the following: (1) a motion to consolidate the misconduct grievances of four former clients was denied; (2) we know none of the facts and circumstances surrounding these prior incidents; and (3) none of the four former clients testified under oath or were subject to cross-examination.21 The existence of Halverson’s prior relationships was admitted into evidence solely to establish Halverson’s state of mind. Both the Board majority and hearing examiner concluded that Halverson acted knowingly. Therefore, it is difficult to understand how the majority, by agreeing with the Board and hearing examiner on this issue and with such limited information concerning Halverson’s prior relationships, can justify its twofold increase of the Board’s recommended sanction. The majority’s decision appears more an attempt to punish Halverson than to follow our disciplinary standards. The conduct that is the subject of the grievance, applied to our existing ethical rules, should be the issue, and not the “high profile” nature of this case. Majority at 499.
This is the first time this court has held a consensual sexual relationship between attorney and client by itself may violate the Rules of Professional Conduct.22 Prior to this case, the matter may have been an open issue, especially in light of this court’s rejection of the proposed rule explicitly forbidding attorney-client sexual relations.23 This must be compared to other cases relied upon by the majority, which almost exclusively involve misappropriations of client property, where this court has departed from Board *504recommendations because well-established precedent compelled such a result. See, e.g., In re Discipline of Petersen, 120 Wn.2d 833, 864-67, 846 P.2d 1330 (1993) (listing cases establishing disbarment as proper sanction for conversion of client funds absent “ ‘extraordinary mitigating circumstance[s]’ ”); In re Discipline of McGough, 115 Wn.2d 1, 13, 793 P.2d 430 (1990) (noting that precedent clearly established disbarment as presumed sanction for conversion of client funds); Johnson, 114 Wn.2d at 752 (noting that the “usual sanction” for conversion of chent funds is disbarment).
Compounding the problem is the majority’s erroneous labeling of six months as the presumptive minimum suspension that may be issued in this jurisdiction. Majority at 495. This is directly contradicted by our own court rules. Washington’s Rules of Lawyer Discipline estabhsh a maximum suspension of two years, but no minimum. RLD 5.1(b); see also RLD 8.1 (differentiating between responsibilities of lawyers suspended for less than 60 days and lawyers suspended for greater than 60 days).
Prior reported decisions of this court are also replete with examples of suspensions totaling less than six months. E.g., In re Discipline of Gillingham, 126 Wn.2d 454, 469, 896 P.2d 656 (1995) (60-day suspension); In re Discipline of Johnson, 118 Wn.2d 693, 708, 826 P.2d 186 (1992) (60-day suspension); In re Discipline of Burtch, 112 Wn.2d 19, 29, 770 P.2d 174 (1989) (45-day suspension); In re Discipline of McLeod, 104 Wn.2d 859, 865, 711 P.2d 310 (1985) (90-day suspension); Noble, 100 Wn.2d at 98 (90-day suspension); In re Discipline of Kennedy, 97 Wn.2d 719, 723, 649 P.2d 110 (1982) (60-day suspension); In re Discipline of Orton, 97 Wn.2d 243, 245, 643 P.2d 448 (1982) (Stafford, J., concurring) (arguing for more severe sanction of 60 days). Finally, orders of this court continue to reflect numerous suspensions of less than six months. E.g., In re Discipline of Brothers, No. 09653 (Wash. Supreme Ct. Dec. 6, 1999) (order approving stipulation to suspension).
Our holding here that this type of conduct can violate *505the existing ethical rules in this state will sufficiently deter similar conduct by others, and the majority offers no reason why a suspension of one year rather than six months is needed to preserve public confidence. Cf. Noble, 100 Wn.2d at 95 (“the Board’s recommendation may be modified where the recommended sanction is clearly insufficient to protect the public from future misconduct of the kind at issue and to deter other attorneys from such misconduct.” (emphasis added)). The majority is inappropriately making an example of the respondent rather than establishing an interpretation of our ethical rules to apply in similar situations.
I would defer to the Board’s determinations in this case and adopt its recommended six-month suspension.
In Noble, this court developed its current standard of review of Board attorney discipline decisions. Noble, 100 Wn.2d at 95-96. Since Noble, the majority of cases have either chosen to follow the Board’s recommended sanction or impose a lesser sanction. See, e.g., In re Discipline of Heard, 136 Wn.2d 405, 425, 963 P.2d 818 (1998) (adopting recommended two-year suspension); In re Discipline of Dann, 136 Wn.2d 67, 87, 960 P.2d 416 (1998) (adopting recommended one-year suspension); In re Discipline of McLendon, 120 Wn.2d 761, 775, 845 P.2d 1006 (1993) (adopting recommendation of Board dissenters to issue one-year suspension rather than disbarment suggested by Board majority); In re Discipline of Johnson, 118 Wn.2d 693, 705, 826 P.2d 186 (1992) (adopting sanction between 60 days [suggested by Board dissenters] and six months [suggested by Board majority]); In re Discipline of Hankin, 116 Wn.2d 293, 310, 804 P.2d 30 (1991) (adopting recommended one-year suspension); In re Discipline of Allotta, 109 Wn.2d 787, *502796, 748 P.2d 628 (1988) (adopting recommended sanction of disbarment); In re Discipline of Rentel, 107 Wn.2d 276, 289, 729 P.2d 615 (1986) (adopting recommended sanction of disbarment); Noble, 100 Wn.2d at 98 (adopting recommended three-month suspension). In other cases where this court has increased the recommended sanction, this decision has frequently followed the recommendation of the hearing examiner or the dissenting members of the Board. E.g., In re Discipline of McGough, 115 Wn.2d 1, 8, 793 P.2d 430 (1990) (adopting recommendation of three dissenting board members); In re Discipline of Lynch, 114 Wn.2d 598, 603, 789 P.2d 752 (1990) (adopting recommendation of four dissenting board members); In re Discipline of Felice, 112 Wn.2d 520, 528, 772 P.2d 505 (1989) (adopting hearing examiner’s recommended 30-day suspension); In re Discipline of Yates, 110 Wn.2d 444, 448-49, 755 P.2d 770 (1988) (adopting hearing examiner’s recommended sanction of disbarment). Thus, although this court is unquestionably the final authority on attorney discipline in this state, these cases illustrate that our standard of review is designed to provide an objective basis for the evaluation of the conclusions reached below, thus avoiding ad hoc determinations of sanctions. See Noble, 100 Wn.2d at 94.
While the case of “Jane Doe E” was to be considered during the proceedings, Ms. E consistently refused to comply with subpoenas and never offered testimony.
Heard, 136 Wn.2d 405, is distinguishable for the obvious reasons set forth by the majority.
See, e.g., In the Disciplinary Proceedings Against Lowell Halverson, No. 1518 (WSBA Disciplinary Bd. Order Sept. 30, 1998); Clerk’s Papers at 863-66, 864 n.5 (discussing court declining to adopt per se rule prohibiting attorney-client sexual relations); Clerk’s Papers at 891 (Wiggins, J., dissenting) (encouraging court to adopt per se rule); Clerk’s Papers at 894 (Kilpatrick, J., concurring) (discussing uncertainty surrounding court’s treatment of proposed per se rule and application of existing rules).