(dissenting) — This case arises out of Jerry Kagele’s pattern of neglect and incompetence. Specifically, Kagele failed to communicate with clients, failed to pursue his cases diligently or promptly, and went against his clients’ express wishes. Thus, we must determine the appropriate sanction for Kagele’s violation of the following ethical duties: three violations of RPC 1.3 (diligence); four violations of RPC 1.4 (communication); three violations of RPC 3.2 (expedite litigation); one violation of RPC 1.2 (representation); and one violation of RPC 1.1 (competence). The majority imposes a one year suspension. I dissent, because the majority’s reasoning is clouded by the shadow of an ethical violation not proved.
Kagele’s fee agreement stated that “[t]he retainer is considered fully-earned and nonrefundable.” Kagele’s agreement provided that the payment of the advance flat fee would cover all legal services associated with a specified *823legal problem, regardless of the extent or kind of services actually provided. However, after certain clients signed the fee agreement and tendered advance payment, Kagele engaged in a pattern of neglect and incompetence.
This case is not about whether nonrefundable retainer fees in Washington should be prohibited as a matter of public policy. Indeed the Washington State Bar Association (WSBA) does not even argue that Kagele’s fee agreement violates the RPCs. Rather it argues that Kagele violated the RPCs by charging unreasonable fees in light of his negligence. Thus, assuming a nonrefundable retainer may be reasonable at the time the agreement for services is executed, and those services are competently rendered as agreed, the WSBA argues that subsequent unethical actions of the attorney may cause a nonrefundable fee to become unreasonable.
But the majority does not address whether a nonrefundable fee can become unreasonable by subsequent unethical action of the attorney. Rather the majority holds “there are no findings of fact to support the hearing officer’s conclusions [regarding nonrefundable fees and therefore], we cannot discipline Kagele for the fees charged and retained.” Majority at 815. Though the majority purports not to discipline Kagele based on his fee agreement, the sanction is not reduced accordingly.
The WSBA Disciplinary Board’s (Board) recommendation that Kagele be suspended from the practice of law for one year is based on two violations warranting suspension. First the Board concluded that Kagele’s refusal to return any portion of his nonrefundable fees warranted suspension. Clerk’s Papers at 341, 345 (Findings of Fact & Conclusions of Law). Second, the Board concluded Kagele’s neglect and incompetence warrants suspension. Id. at 343, 344. I agree with the majority that the second claimed violation, and only this second violation, should be sustained. Nonetheless, the majority imposes the identical sanction recommended by the Board—a one year suspension. I would impose only a six month suspension because *824Kagele’s ethical violation was narrower than that which otherwise might merit a one year suspension.
“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 Disciplinary Proceeding Against Halverson, 140 Wn.2d 475, 492, 998 P.2d 833 (2000). The ABA Standards directs one to the presumptive sanction, in this case suspension. ABA Standards std. 4.42(b), at 33 (suspension is appropriate when “a lawyer engages in a pattern of neglect and causes injury . . . .”). Aggravating and mitigating factors are then applied to alter the nature or gravity of the otherwise presumed sanction. Halverson, 140 Wn.2d at 492-93; ABA Standards stds. 9.1-9.3, at 49-50; std. 2.3 cmt. at 21 (“The specific period of time for the suspension should be determined after examining any aggravating or mitigating factors . . . .”).
The majority agrees with the Board’s finding that Kagele engaged in (1) a pattern of misconduct, and (2) committed multiple offenses. Majority at 819-21. These are aggravating factors per the ABA Standards. However, the Board also found that Kagele violated RPC 1.5 and 1.15(d) regarding unreasonable fees, whereas the majority and I would dismiss these claimed violations. Accordingly, Kagele’s sanction should be reduced, not maintained.
The majority then invents a new aggravating factor, stating that “Kagele’s conduct hindered the clients’ right to terminate his representation and aggravates the circumstances of his misconduct.” Majority at 820.1 fail to see how the majority can maintain it is not disciplining Kagele for “the fees charged and retained,” as it imposes this aggravating factor. Majority at 815. This new factor assumes impropriety in the use of nonrefundable fee agreements. I posit that when a client agrees to a nonrefundable fee, nothing hinders that client from terminating representation. By contract the client might merely forfeit the fee paid, if so agreed in the fee agreement.
*825No WSBA ethics opinion clearly addresses nonrefundable retainer agreements and this court has never clarified how they may be used. What is clear, however, is that nonrefundable fee agreements are not illegal in Washington. In fact, WSBA Formal Opinion 186 condones their use:
Any fee paid to a lawyer that the client has agreed is not refundable and is earned upon receipt for handling the client’s case shall not be deposited in the lawyer’s trust account. Such a fee is a true retainer.
Wash. State Bar Ass’n, Formal Opinion 186: The Proper Handling of Advance Fee Deposits and Retainers (1990), at http://www.wsba.org/lawyers/ethics/formalopinions/186.htm (last visited June 30, 2003) (emphasis added). Admittedly, Opinion 186 deals with the proper handling of advance fee deposits and general retainers. However, the language of the ethics opinion condones the use of all nonrefundable fees. Kagele’s disciplinary proceeding is not the proper case to reevaluate the use of nonrefundable fees. Nonrefundable fees are not prohibited in Washington and therefore the use of nonrefundable fee agreements cannot be used as an aggravating factor.
Case law dictates that this court should not lightly depart from the Board’s recommendation. In re Disciplinary Proceeding Against Haskell, 136 Wn.2d 300, 317, 962 P.2d 813 (1998). The majority purports to follow this maxim. Majority at 816. However, the majority does in fact depart from the Board’s recommendation because it imposes the same sanction recommended by the Board on less egregious behavior. In other lack of diligence cases with multiple instances of misconduct this court has imposed suspensions varying in lengths of two years to far shorter.3 See, e.g.,
• In re Disciplinary Proceeding Against Anschell, 141 Wn.2d 593, 608, 619, 9 P.3d 193 (2000) (two year suspension for multiple violations, including three violations of RPC 1.3 (diligence); three violations of RPC 1.4(a), (b) (commu*826nication); one violation of RPC 1.5(a) (reasonable fee); one violation of RPC 1.15(d) (refunding unearned fees); and one violation of former RLD 2.8 (1992) (duty to cooperate with a bar disciplinary investigation));
• In re Disciplinary Proceeding Against Burtch, 112 Wn.2d 19, 22-26, 28, 770 P.2d 174 (1989) (45 day suspension for a pattern of misconduct involving: three violations of RPC 1.5(b) (failure to communicate fees); six violations of RPC 1.3 (lack of diligence); six violations of RPC 3.2 (failure to expedite litigation); two violations of RPC 1.4 (failure to keep client fully informed); two violations of RPC 1.15(d) (failure to return client documents and unearned fees); one violation of former RLD 13.3 (failure to file a timely trust account declaration); and one violation of former RLD 2.8 (failure to cooperate with disciplinary investigation). The sanction was reduced by the mitigating factor of the attorney’s financial turmoil.);4
• In re Disciplinary Proceeding Against Kennedy, 97 Wn.2d 719, 720-21, 649 P.2d 110 (1982) (60 day suspension for multiple instances of neglect, including the failure to arrive in court when expected and the failure to notify client that summary judgment had been granted); and
• In re Disciplinary Proceeding Against Yates, 90 Wn.2d 767, 768-69, 771-72, 585 P.2d 1164 (1978) (one year suspension for neglect of several client matters, plus multiple instances of prior similar misconduct).
In Anschell and Yates this court imposed two year and one year suspensions respectively, but unlike the attorneys in those cases, Kagele has no prior instances of misconduct. For Kagele a one to two year suspension is excessive. A suspension, however, should be no less than six months. ABA Standards std. 2.3 cmt. at 21 (“The amount of time for which a lawyer should be suspended, then, should generally be for a minimum of six months. . . .”). Thus, as suspension is the presumptive sanction for Kagele’s lack of diligence *827and neglect, and the accepted minimum term for a suspension is six months, and the aggravating and mitigating factors demand a lesser sanction than imposed by the Board, I posit Kagele should be sanctioned by a six month suspension.5
Therefore I dissent.
Johnson, J., concurs with Sanders, J.
The majority states that Kagele failed to bring forward cases showing that the recommended sanction is disproportionate. Majority at 821. Not so. See Br. of Pet’r at 99-102.
The Burtch court sets forth these RPC violations as those of the hearing officer, and it is not clear whether the court altered the number and/or types of violations in imposing its sanction.
I agree with the majority that in addition to suspension, we should impose a reprimand for violations of RPC 1.1 (competence) and RPC 3.2 (failure to expedite litigation).