(concurring in part, dissenting in part) — I dissent from the majority’s determination that Lowell Halverson violated his duty to communicate or failed to exercise independent professional judgment and did not render candid advice. Further, because Halverson acted negligently and not knowingly, I conclude that a reprimand is a sufficient sanction.
Standard of Proof in Attorney Discipline Cases is High
Although the majority recognizes counsel for the Washington State Bar Association (WSBA) must prove allegations of misconduct by a clear preponderance of the evidence, Majority at 485-86, the majority does not appear to appreciate the weight of the burden placed on the accuser:
Every doubt should be resolved in his [the attorney’s] favor, and only upon a clear preponderance of the evidence that the acts charged have been done, and were prompted by improper motives, should disciplinary action be taken. The privilege— and it is a privilege, not a right — to practice his profession cannot be lost to the practitioner upon slight evidence.
In re Discipline of Little, 40 Wn.2d 421, 430, 244 P.2d 255 (1952). Further, the trier of fact’s determination that the *506prosecution has failed to meet its burden ends the inquiry and the appellate court may not reassess the credibility of testimony given to question those who actually viewed the evidence firsthand. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Findings of Fact
By upholding certain challenged findings of fact, the majority demonstrates its paternalistic perception of female dissolution clients. The majority opines “Wickersham depended upon Halverson,” Majority at 484, and claims a “power imbalance” Halverson allegedly exercised in his representation of female dissolution clients. Majority at 484. These views are more in the nature of conclusions than facts. See Para-Medical Leasing, Inc. v. Hangen, 48 Wn. App. 389, 397, 739 P.2d 717 (1987). Conclusions are reviewed de novo. City of Redmond v. Central Puget Sound Growth Management Hearings Bd., 136 Wn.2d 38, 46, 959 P.2d 1091 (1998). However these conclusions are neither supported by the facts of this case nor based on human experience:
The tenacious image of the vulnerable, needy, childlike woman is nowhere more prevalent than in the discussion of a female divorce client. Having lost her husband, she is described as emotionally unstable, feeling unattractive, and anxious to receive the attention and approval of another man. One judge mused about the vulnerability of the female divorce client:
We conjure up with ease the client entering her lawyer’s office. Her marriage has collapsed and she is concerned about her failed relationship. Perhaps she has been rejected by her spouse. More often than not, she has serious financial problems which may present her with areas of stress with which she has not previously been required to cope. Her children may be severely disturbed over the failed marriage and the pulling and tugging by the parents which is generally attendant to these situations. As she walks through the door of the office, at last she finds someone who cares about her problem, someone who will protect her legally and someone whom she can trust.
*507Linda Fitts Mischler, Reconciling Rapture, Representation, and Responsibility: An Argument Against Per Se Bans on Attorney-Client Sex, 10 Geo. J. Legal Ethics 209, 240-41 (Winter 1997) (quoting In re Marriage of Kantar, 220 Ill. App. 3d 323, 581 N.E.2d 6, 13, 163 Ill. Dec. 55 (1991) (Greiman, J., concurring)).
Viewing female dissolution clients as “victims” who need the support, assistance and guidance of their powerful male attorneys is degrading because it undermines women’s right of independent self-determination. Moreover it does not accurately portray the dynamics of an attorney-client relationship.24 Rather it is the client who has the power to choose her attorney from the multitude of attorneys competing to gain her business. It is the client who has the power to determine the objectives of the representation and whether to accept or reject an offer of settlement. See Rules of Professional Conduct (RPC) 1.2(a) (“A lawyer shall abide by a client’s decisions concerning the objectives of the representation .... A lawyer shall abide by the client’s decision whether to accept an offer of settlement of a matter.”). It is the client who has the power to terminate the services of her lawyer for any reason or no reason at all. It is the client who has the power to sue an attorney if he fails to adequately represent her wishes — a power successfully exercised by Halverson’s client here. See Majority at 481 (“Wickersham’s civil suit against Halverson settled in 1995 by sealed agreement for a substantial sum . . . .”).25 And it was this client who chose to initiate and enter a consensual sexual relationship with her attorney.
*508While rules governing attorney-client sex appear to control male sexuality — by disciplining attorneys who engage in the sexual relationships, the vast majority of whom are male— they indirectly control female sexuality by denying self-determination to female clients who desire a dual relationship with an attorney.
Mischler, supra, at 235. Thus, characterizing Halverson’s client as a defenseless victim subject to the overwhelming power of her attorney is inaccurate, not supported by the record, and inconsistent with the legal entitlements of all concerned.
The majority also improperly focuses on the emotional harm which purportedly befell Halverson’s client as a result of their affair. “[A]s a result of Halverson’s conduct, Wickersham suffered personal harm in the form of depression and anxiety.” Majority at 484. While this may be true, broken hearts and personal disappointments are not the proper subjects of an attorney discipline proceeding which must focus on state licensure requirements. The Illinois Appellate Court reasoned in an analogous situation:
[T]o allow an action for legal malpractice based upon the fact that an intimate relationship occurred between the attorney and his client during the course of the legal relationship, when supported only by damages such as mental anguish, shame, humiliation, injury to feelings, defamation, or some unspecified injury to character, would be tantamount to allowing a claim for seduction, alienation of affections, or criminal conversion to proceed under less strict standards than required by statute for actions of this type, merely by virtue of the fact that the parties involved happened to have met in the context of a legal relationship.
Suppressed v. Suppressed, 206 Ill. App. 3d 918, 565 N.E.2d 101, 106 n.3, 151 Ill. Dec. 830 (1990). While we may consider actual or potential harm caused by the violation of an ethical duty to determine a presumptive sanction, it is not proper to consider personal harm unrelated to the violation of an attorney’s ethical duty to faithfully represent the *509legal interests of his client in a legal setting. As the professional conduct rules do not require lawyers to avoid hurt feelings or disappointment resulting from the termination of a personal relationship — even if that relationship involved a client — consideration of Wickersham’s emotional harm is improper.26
RPC 1.7(b) — Duty to Avoid Conflicts of Interest
As an initial matter, I am not persuaded that a consensual sexual relationship between an attorney and his client— initiated by the client — inherently creates a potential conflict of interest.
A sexual relationship with a client, however, does not inherently create a contrary interest. As long as the intimate relationship remains intact, the interests of the attorney and client are not incompatible per se. Indeed, they are strongly aligned. The personal relationship may strengthen the representation, increasing the zeal with which the attorney approaches the case.
Mischler, supra, Reconciling Rapture, Representation, and Responsibility at 228 (footnote omitted).
And if, as the majority concludes, Halverson unreasonably. believed that a sexual relationship with his client would not affect the representation, his failure to obtain his client’s written consent after full disclosure is irrelevant. Rule of Professional Conduct 1.7(b) makes clear that a lawyer shall not represent a client unless the lawyer both: (1) reasonably believes the representation will not be adversely affected, and (2) obtains written client consent after fully disclosing the material facts. RPC 1.7(b). Thus, the majority’s statement “nor did Halverson disclose to Wickersham the risks involved or the material implications of the sexual relationship upon the dissolution proceeding,” Majority at 486-87, is beside the point as Halverson’s violation of RPC 1.7(b) could not have been avoided even if *510he had obtained his client’s informed written consent, unless we first conclude he could have reasonably concluded the representation would not be adversely affected. As disciplinary board member and former appellate judge Charles Wiggins aptly recognized in his dissent to the Board majority opinion: “It makes little sense to analyze the ways in which Halverson failed to disclose the conflict he failed to recognize.” Dissenting Opinion at 3 (WSBA Disciplinary Board, Oct. 5, 1998) (hereinafter Wiggins Dissent).
RPC 1.4(b) — Duty to Communicate
Without analysis, the majority holds: “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).”27 Majority at 487. This conclusion is erroneous for several reasons.
As an initial matter, the hearing officer found no violation of this rule. Accordingly, there are no findings of fact to explain what Halverson failed to disclose to enable his client to make informed decisions regarding the representation. As the hearing officer comprehensively chronicled even irrelevant facts (finding of fact 21 states “[djuring sexual intercourse, the couple did not utilize birth control”), it is consistent to presume the hearing officer would have made explicit findings detailing what Halverson improperly failed to disclose — had Halverson failed to communicate necessary matters to his client. Not only did the hearing officer refuse to find facts indicating Halverson violated RPC 1.4(b), the facts actually found by the hearing officer suggest Halverson did not violate RPC 1.4(b).
14. Ms. Wickersham knew that Respondent was married. The couple discussed the need for an agreement that Respondent’s wife not find out about any relationship between them.
15. Respondent advised Ms. Wickersham that their intimate re*511lationship would need to be separate from the lawyer-client relationship. Respondent also advised that he desired his contact with Ms. Wickersham’s minor child to be kept to a minimum and that he not “bond” with the child.
Findings of Fact, Conclusions of Law and Order for Further Hearing at 6 (WSBA Disciplinary Board, Jan. 8, 1998) (emphasis added). Although the Board may be allowed in certain cases to make additional findings based on new evidence taken on administrative appeal, the Board is not allowed to ignore the examiner’s findings and replace those with new ones based on previously considered evidence. See In re Discipline of Lynch, 114 Wn.2d 598, 608, 789 P.2d 752 (1990). Accordingly, the WSBA has failed to prove Halverson violated RPC 1.4(b) by any measure of evidence— much less a clear preponderance.
In addition to the absence of findings to prima facie satisfy the requisite elements of proof, the Board’s conclusion that Halverson violated RPC 1.4(b) is based on the erroneous premise that Halverson should have obtained his client’s informed, written consent prior to beginning their sexual relationship. See Opinion at 16 (WSBA Disciplinary Board, Oct. 5, 1998). As explained above, Halverson’s conceded failure to obtain his client’s informed consent is immaterial as Halverson violated RPC 1.7(b) by fading to recognize the representation could be adversely affected by a sexual relationship with his client.
Further the majority’s unquestioning deference to the Board’s conclusion that Halverson violated RPC 1.4(b) is misguided when the underlying purposes of RPC 1.4(b) are considered. The American Bar Association’s (ABA) annotation of Model Rules of Professional Conduct explains:
The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.
Annotated Model Rules of Professional Conduct Rule 1.4 cmt. at 53 (2d ed. 1992). This comment illustrates the *512purpose of RPC 1.4(b) is to facilitate the client’s participation in her representation.
Rule 1.4(b) has a slightly different focus, specifically the client’s right to participate, as set forth in Rule 1.2(a). Since the client has the right to make strategic decisions, he must be given the information necessary for informed decision making.
1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 1.4:101, at 83 (2d ed. Supp. 1991).
A review of the record demonstrates that Halverson clearly complied with the directive of RPC 1.4(b). Before becoming involved with his client, Halverson advised her against rushing into any new relationships and informed her that doing so could jeopardize her position in the dissolution. Report of Proceedings (RP) at 321-22. Halverson “talked about the ethical part of getting involved with a client,” RP at 328, and told his client he should not begin a sexual relationship with her. RP at 329-30. And Halverson also advised his client to tell the truth if ever asked about their relationship. RP at 527. This evidence demonstrates Halverson did in fact provide his client with sufficient information to facilitate her informed decision making. Accordingly, I would affirm the hearing officer’s conclusion Halverson did not violate RPC 1.4(b).
RPC 2.1 — Duty to Exercise Independent Professional Judgment
The majority also finds Halverson did not exercise independent professional judgment in violation of RPC 2.1.28 The majority concludes Halverson failed to: (1) advise his client of the potential ramifications the affair might have on the dissolution or his ability to represent her; (2) advise *513her of his published professional opinion that persons involved in a dissolution should not begin a new relationship; and (3) take precautions to avoid pregnancy or discuss the consequences of such event.29 Majority at 488.
ABA Formal Opinion 92-364 carefully delineates how a sexual relationship can violate RPC 2.1:
The lawyer must evaluate the client’s situation, objectively and reasonably, fairly considering all possible courses of action.
It can be difficult, however, to separate sound judgment from the emotion or bias that may result from a sexual relationship. A lawyer involved in a sexual and emotional relationship with a client may encounter particular difficulty in providing “the straightforward advice” which “often involves unpleasant facts and alternatives that a client may be disinclined to confront.” Rule 2.1 comment. Because of a desire to preserve the relationship, the lawyer may “be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.” Id. Thus, a lawyer who engages in a sexual relationship with a client during the course of representation risks losing the objectivity and reasonableness that form the basis of the lawyer’s independent professional judgment.
ABA Comm, on Ethics and Professional Responsibility Formal Op. 92-364, at 7 (1992) (emphasis added). The ABA opinion thus simply describes the risks of an attorney-client sexual relationship and cautions that such relationships “may” violate professional obligations. But as Charles Wiggins explains in his dissent:
There is no evidence that Halverson was deterred from giving or failed to give Wickersham “straightforward advice” or candid advice “unpalatable to the client.” Nor is there any evidence that Halverson could not render or failed to render independent professional judgment.
Wiggins Dissent at 10. In fact, the evidence is to the con*514trary. As previously discussed, Halverson advised his client against any sexual relationship, explained that a relationship with him would be improper, and instructed her to tell the truth if asked about their relationship. More fundamentally, there is no showing his advice regarding the substance of the litigation was unsound. Charles Wiggins asked of the Board: “What independent professional judgment did he fail to exercise? What candid advice did he fail to give?” Wiggins Dissent at 8. Like the Board, the majority has not satisfactorily answered these questions. Accordingly, I would hold Halverson’s alleged violation of RPC 2.1 has not been established by clear and convincing evidence.
Sanction
The majority concludes that because “Halverson acted knowingly, the Board properly concluded that suspension should be the presumed sanction, as opposed to disbarment or a mere reprimand.” Majority at 494. However, the majority’s conclusion Halverson acted “knowingly” is inconsistent with its earlier analysis.
The majority concludes Halverson violated RPC 1.7(b) (conflict of interest) for the following reasons:
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.
Majority at 487 (emphasis added). Nevertheless, the majority concludes
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.
Majority at 494 (emphasis added). I disagree. The hearing *515officer made no such findings. Rather, the hearing officer found:
32. 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.
Findings of Fact, Conclusions of Law and Order for Further Hearing, supra, at 8 (emphasis added). This language that Halverson “should have known” — used by both the hearing officer and the majority opinion in describing Halverson’s violation of RPC 1.7(b) — indicates that Halverson was simply negligent in determining the representation of his client would not be materially limited by his own interests. The following is the applicable ABA standard to determine Halverson’s presumed sanction:
Reprimand is generally appropriate when a lawyer is negligent in determining whether the representation of a client may be materially affected by the lawyer’s own interests, or whether the representation will adversely affect another client, and causes injury or potential injury to a client.
ABA Standards for Imposing Lawyer Sanctions Std. 4.33 (1991). The ABA Standards define “negligence” as “the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation.” ABA Standards, Definitions at 7. The majority reasons that “Halverson’s subjective belief that the relationship would not adversely affect the representation was not objectively reasonable.” Majority at 487. If we use that reasoning, it is clear Halverson acted negligently, not knowingly. Thus, a reprimand should be the presumed sanction for Halverson’s misconduct.
*516Aggravating and mitigating factors may be considered to determine whether such factors warrant an alteration of the presumed sanction. In re Discipline of Johnson, 118 Wn.2d 693, 701, 826 P.2d 186 (1992). But although the majority finds that the Board properly considered the relevant aggravating and mitigating factors, the majority holds “we do not agree that an approximately equal number of aggravating and mitigating factors necessarily warrants a minimal suspension.” Majority at 497. The majority’s logic ignores binding precedent and demonstrates its desire to punish Halverson — an improper purpose of disciplinary sanctions.
In In re Discipline of Haskell, 136 Wn.2d 300, 962 P.2d 813 (1998), we departed from the presumptive sanction of disbarment and imposed a sanction of suspension, despite equal aggravating and mitigating factors. “In reaching this determination, we have been little-influenced by mitigating and aggravating factors which essentially cancel each other out.” Id. at 321. The majority ignores this precedent and fails to cite any authority for the proposition that “an approximately equal number of aggravating and mitigating factors” warrants an upward departure from a presumptive sanction. This illustrates the “majority’s decision appears more an attempt to punish Halverson than to follow our disciplinary standards.” Concurrence/dissent at 503 (Johnson, J.).30
Conclusion
No one disputes that Lowell Halverson acted wrongly, fool*517ishly, and hurtfully when he entered into a sexual relationship with Lisa Wickersham. It was a grievous wrong and grievously has Halverson answered for it. The task before this [court], however, is not to pass moral judgment on Halverson, but to determine whether he violated any of the Rules of Professional Conduct, and if so, the appropriate sanction to protect the public and to deter future wrongdoing by Halverson and others.
Wiggins Dissent at 1. Although Halverson’s conduct arguably violated RPC 1.7(b), it did not violate RPC 1.4(b) or RPC 2.1. And as both the hearing officer and the majority acknowledge Halverson “should have known” better, the appropriate sanction under these circumstances is a reprimand.
Reconsideration denied July 6, 2000.
Counsel for the WSBA perpetuates this outdated stereotype, arguing: “Mr. Halverson was a very prominent, successful, powerful lawyer, a President of the Bar Association. Ms. Wickersham was a much younger, a woman without a college degree, with a young child, who was intimidated by her attorney husband, and who was terrified of losing custody of her baby daughter.” Disciplinary Counsel’s Resp. Br. at 14.
Not only did Halverson settle his client’s civil suit for an undisclosed “substantial sum” of money, Halverson provided his client with over $13,000 of free legal work — described by Wickersham’s second attorney as work of “excellent” quality — which greatly aided Halverson’s client in obtaining a good outcome. Report of Proceedings at 574-76.
By the same token Halverson has no doubt sustained severe emotional distress which might have cost him his marriage hut for the grace of his wife.
RPC 1.4(b) provides: “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
RPC 2.1 provides:
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.
I would hardly impose a professional duty upon an attorney to tell an adult mother that intercourse may result in conception.
In doubling the Board’s recommended sanction, the majority finds relevant that Halverson’s personal conduct contradicted his published professional advice and considered his “status in the legal community” of particular importance. Majority at 499. The practical result of the majority’s logic is that lawyers may now be sanctioned for personal conduct falling below their own personal standards, although not necessarily below the standards for professional discipline set by this court by rule. Further, attaching relevance to a lawyer’s status punishes lawyers for becoming active in the legal community and encourages the Bar to target “high profile” attorneys for discipline to make an example of those who have risen to the top of their profession through exemplary service to their clients. If anything, these factors should be considered in mitigation of a sanction, not aggravation.