¶31
Fairhurst, J.(dissenting) — I agree with the majority that Fernando Perez-Pena’s conviction constitutes evidence of his guilt, that the hearing officer did not err in allowing Cecelia and Arturo Garcia to testify, and that the mitigating factors of interim rehabilitation and imposition of other penalties and sanctions are inapplicable in this case. However, I disagree with the majority regarding the imposed sanction. The majority reduces the sanction recommended by the Washington State Bar Association’s (WSBA) Disciplinary Board (Board) based on its mistaken alteration of the Board’s findings regarding aggravating and mitigating factors. I am especially reluctant to reduce the imposed sanction where the Board was unanimous in its recommendation and where Perez-Pena has not shown the sanction is disproportionate. Therefore, I would affirm the sanction recommended by the Board.
¶32 This court has previously stated that “[w]e will adopt the Board’s recommended sanction unless we are clearly persuaded that the sanction was inappropriate.” In re Disciplinary Proceeding Against Miller, 149 Wn.2d 262, *839277, 66 P.3d 1069 (2003). A sanction that receives unanimous recommendation by the Board, as was the case here, is given a high degree of deference, and a “sanction supported by unanimous recommendation will not be rejected in the absence of clear reasons.” Id. at 277-78. The only reasons articulated by the majority for altering the Board’s recommended six month suspension for count 2 are alleged errors in the Board’s determinations of mitigating and aggravating factors. I focus my analysis on the majority’s errors regarding the mitigating and aggravating factors pertaining to count 2 because count 2 bears the higher sanction, and reduction of the sanction for count 1 would have had little impact on the length of Perez-Pena’s suspension if the majority had properly imposed a six month suspension for count 2.
¶33 The majority erroneously concludes that “the record does not provide evidence that Perez-Pena was acting with” dishonest or selfish motive. Majority at 836. The record provides clear evidence of a selfish motive, if not a dishonest one. The majority admits that Perez-Pena stopped payment on the first check “[biased on the threats and what he perceived as a lack of appreciation for his agreement to refund the money.” Id. at 826. This supports the conclusion that Perez-Pena retained the money, which was clearly not his, out of retaliation for the Garcias’ threats and perceived lack of gratitude. Retaliation is by nature selfish. Moreover, the majority acknowledges that the second check bounced because Perez-Pena reported the check stolen. Id. at 827. In fact, the check was not stolen; Perez-Pena was simply upset that his release forms, which were invalid anyway under RPC 1.8(h)(1), were torn. Id. Keeping money that is not yours is dishonest. Claiming that a check was stolen when it arguably was not is dishonest.
¶34 Even if there were insufficient evidence to support the conclusion that Perez-Pena had a selfish or dishonest motive, the majority errs in applying the mitigating factor of absence of selfish or dishonest motive. Id. at 836. If *840there were no evidence of selfish or dishonest motive in the record, the correct conclusion would be that neither the aggravating nor the mitigating factor applies. The majority essentially holds that insufficient evidence to support the aggravating factor automatically results in the conclusion that the mitigating factor applies. This result is not only illogical, it may also suggest that the hearing officer and Board are required to find either the aggravating factor or the mitigating factor when, in many cases, the record may be insufficient to determine the motive of the attorney facing discipline. In such cases, the court should apply neither the aggravating nor the mitigating factor.
¶35 The majority also erroneously applies to count 2 the mitigating factor that relates to fall and free disclosure to the Board or a cooperative attitude toward the proceedings. Id. The hearing officer found this mitigating factor applied to count 1, but the Board did not apply this factor to either count and was silent as to its reasons for differing from the hearing officer.
¶36 It is important to note that the mitigating factor of full and free disclosure does not mean merely showing up and answering questions truthfully because “[a]n attorney is expected to cooperate fully with the discipline process.” In re Disciplinary Proceeding Against Whitt, 149 Wn.2d 707, 721, 72 P.3d 173 (2003). Full and free disclosure should be a mitigating factor only where there is at least evidence that the attorney cooperated beyond the bare minimum required to avoid perjury. Such evidence might include self-reporting to the WSBA or offering details or evidence not in the attorney’s favor that might not otherwise come to light in the disciplinary proceeding.
¶ 37 The record does not support the finding that Perez-Pena offered full and free disclosure and cooperation throughout the disciplinary proceeding. The absence of evidence of full and free disclosure in the record would be less important if the hearing officer and the Board were unanimous. This court has been willing to overlook the absence of such evidence where the hearing officer and the *841Board were unanimous in applying this mitigating factor and the WSBA failed to contest the factor. In re Disciplinary Proceeding Against Dornay, 160 Wn.2d 671, 686-87, ¶¶ 41-43, 161 P.3d 333 (2007). However, where there is clear disagreement between the hearing officer and the Board and nothing in the record suggests full and free disclosure or a cooperative attitude, it is inappropriate to conclude that there was full and free disclosure based purely on conjecture.
¶38 The majority justifies its reliance on the hearing officer’s finding of full and free disclosure by stating that “we defer to the hearing officer on factual findings.” Majority at 835. Even if there were sufficient evidence in the record to support the application of this mitigating factor, I am troubled by the majority’s holding that whether given conduct constitutes full and fair disclosure or cooperation is a finding of fact. It may instead be a mixed finding of law and fact. Mixed findings of law and fact involve “questions in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard.” Pullman-Standard, a Div. of Pullman, Inc. v. Swint, 456 U.S. 273, 289 n.19, 102 S. Ct. 1781, 72 L. Ed. 2d 66 (1982). The question of whether Perez-Pena’s conduct in the proceedings met the standard of full and free disclosure or demonstrated a sufficiently cooperative attitude is likely to be a mixed question of law and fact because the issue is whether Perez-Pena’s conduct in the proceedings satisfies the standard required for the mitigating factor to apply. As a result, there may be reason to defer to the Board rather than to the hearing officer, especially because as “ ‘the only body to hear the full range of disciplinary matters, the [Disciplinary] Board has the opportunity to develop unique experience and perspective in the administration of sanctions.’ ” In re Disciplinary Proceeding Against Boelter, 139 Wn.2d 81, 98, 985 P.2d 328 (1999) (alteration in original) (quoting In re Disciplinary Proceeding Against Noble, 100 Wn.2d 88, 94, 667 P.2d 608 (1983)).
*842¶39 This mitigating factor also pertains to disclosure and attitude throughout the entire proceedings, not merely before the hearing officer. It seems imprudent to give the hearing officer the final say on a mitigating factor that cannot be decided before the proceeding has run its course. Establishing a general rule that defers to the hearing officer on this factor also reduces the incentive for the attorneys facing discipline to full disclosure and cooperation throughout the entire proceeding rather than through only the hearing officer’s portion.
¶40 The appropriateness of the sanction is generally determined based on the American Bar Association’s Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) (ABA Standards). In re Disciplinary Proceeding Against Haley, 156 Wn.2d 324, 339, ¶ 24, 126 P.3d 1262 (2006). Properly applied to this case, the ABA Standards support the mitigating factor of absence of prior disciplinary record and the aggravating factors of (1) dishonest or selfish motive, (2) indifference to making restitution, and (3) substantial experience in the practice of the law. In light of these aggravating and mitigating factors, and the fact that retaining unearned legal fees is a serious offense, Perez-Pena’s actions merit at least the six month suspension recommended by the Board.
¶41 In addition to considering the ABA Standards, this court evaluates the appropriateness of a sanction based on the proportionality of the sanction and unanimity of the Board’s decision. Id. “We review the proportionality of sanctions only if the issue is raised by the attorney who is being disciplined.” In re Disciplinary Proceeding Against Whitney, 155 Wn.2d 451, 469, ¶ 42, 120 P.3d 550 (2005). “[T]he attorney facing discipline bears the burden of bringing cases to the court’s attention that demonstrate the disproportionality of the sanction imposed.” In re Disciplinary Proceeding Against Cohen, 150 Wn.2d 744, 763, 82 P.3d 224 (2004); see also In re Disciplinary Proceeding Against Kagele, 149 Wn.2d 793, 821, 72 P.3d 1067 (2003). The Board was unanimous and Perez-Pena has not cited any case to *843challenge the Board’s sanction; therefore, the Board’s sanction should stand.
¶42 The sanction adopted by the majority is also inconsistent with the general rule that suspensions should be imposed for a minimum of six months. See In re Disciplinary Proceeding Against Egger, 152 Wn.2d 393, 419, 98 P.3d 477 (2004); see also ABA Standards std. 2.3. In the past, this court has adopted a suspension below the customary six month minimum only where the Board unanimously recommended a lesser suspension, see In re Disciplinary Proceeding Against Carpenter, 160 Wn.2d 16, 32, ¶ 33,155 P.3d 937 (2007), or where the Board was not unanimous in its recommendation. See, e.g., In re Disciplinary Proceeding Against Johnson, 118 Wn.2d 693, 705, 826 P.2d 186 (1992) (declining to impose the recommended six month suspension because it would have “drastic effect” upon attorney’s ability to continue repaying his clients).
¶43 The majority errs in its analysis of mitigating and aggravating factors and is too quick to abandon the Board’s recommendation. I would impose the sanction of a six month suspension as recommended by the Board; therefore, I respectfully dissent.
J.M. Johnson, J., concurs with Fairhurst, J.