¶64
Sanders, J.(dissenting) — We are asked to answer a simple question: whether disbarment is the appropriate sanction for Jeffrey K. Day, convicted of molesting a former juvenile client. The majority believes it is appropriate but does not stop there, broadly holding the presumptive sanction for any conviction of a class A felony involving “moral turpitude” is disbarment. Majority at 552.
¶65 I disagree. In my opinion, the proper sanction for Day is suspension. Day’s conduct did not violate RPC 8.4(b) because the required nexus between his conduct and any relevant characteristic to the practice of law was absent. Day’s conduct did violate RPC 8.4(i) because it was an unjustifiable act of assault reflecting a disregard for the rule of law and suspension is the presumptive sanction for sexual assault crimes. Last, I cannot follow the majority’s broad holding that violating the vague “moral turpitude” standard presumptively requires disbarment.
Day’s conduct does not implicate RPC 8.4(b); violations of personal trust are not violations of professional trust
¶66 “[RPC 8.4(b)] is not concerned with maintaining public confidence in the bar by disciplining lawyers harming the public image of the bar[;] [r]ather, it is concerned with protecting the public from incompetent practitioners.” In re Disciplinary Proceeding Against Curran, 115 Wn.2d 747, 768, 801 P.2d 962 (1990). Therefore “conduct reflecting adversely on a lawyer’s fitness to practice law can only be found when there is some nexus between the lawyer’s *554conduct and those characteristics relevant to law practice.” Id. (emphasis added). Day’s conduct does not implicate his fitness to practice law because there is no nexus between his conduct and any relevant characteristics necessary to the practice. That Day’s conduct violated the personal trust D.J. and D.J.’s mother placed in him as a person does not automatically violate the professional trust D.J. and D.J.’s mother placed in him as a lawyer.
¶67 The majority concludes Day’s conviction involves “a profound violation of trust, a necessary component to the practice of law.” Majority at 542. Certainly trust is a necessary component of practicing law; however, trust does not exist in a vacuum; it flows from professional obligations the lawyer owes the client or public. See ABA, Standards for Imposing Lawyer Sanctions std. 1.1 (1991 & Supp. 1992) (Standards). Because the majority does not tell us whose trust was violated, we must analyze the professional obligations flowing from Day to D.J. and from Day to D.J.’s mother.
¶68 Day owed D.J., as a former client, various professional duties. See, e.g., RPC 1.9 (“Duties to Former Clients”). The comments to the Rules of Professional Conduct provide, “[a]fter termination of a client-lawyer relationship, a lawyer has certain continuing duties with respect to confidentiality and conflicts of interest.” RPC 1.9 cmt. 1. If Day violated any one of these continuing duties, he would have clearly violated the trust D.J. placed in Day as his lawyer.
¶69 Other ethical obligations, however, cease once a client becomes a former client. See, e.g., RPC 1.8(j)(1) (“A lawyer shall not . . . have sexual relations with a current client of the lawyer.” (emphasis added)). Rules such as RPC 1.8( j)(1) recognize and permit a change in the status of the relationship from professional to personal once a lawyer’s representation ceases. With this change in status comes a change in the trust flowing from the lawyer to the former client. As the comments to RPC 1.8 explain:
*555The relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence!;] . . . thus, a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer’s fiduciary role, in violation of the lawyer’s basic ethical obligation not to use the trust of the client to the client’s disadvantage.
RPC 1.8 cmt. 17.
¶70 In other words the fiduciary role the lawyer holds in his or her professional capacity triggers the exploitation of trust resulting from a sexual relationship; without this fiduciary role personal, not professional, trust is involved and hence the lawyer is permitted to engage in consensual sexual activity with a former client.
¶71 Here, of course, Day could not engage in consensual sexual activity with D.J. Whether a lawyer’s conduct is chivalrous or criminal, however, is irrelevant to whether the lawyer breached a former client’s trust because RPC 8.4(b) is not concerned with the public’s image of the bar but protecting the public from incompetent lawyers. See Curran, 115 Wn.2d at 768. The trust flowing from Day to D.J. was one of a personal, not professional, nature. As such, violating this personal trust does not necessarily implicate a lawyer’s competence to practice law.
¶72 As for D.J.’s mother, the majority cites no RPC establishing a duty between Day and D.J.’s mother. Instead, the majority would have us believe because she knew Day was an attorney and therefore trusted Day, Day’s conduct “involved a profound violation of trust.” Majority at 542. This independent establishment of professional trust divorced from any relevant professional duty places all attorneys on precarious grounds. Every lawyer now becomes vulnerable to disciplinary action merely because the accusing party knew of the lawyer’s status as a lawyer, trusted in that status, and was somehow aggrieved. The cornucopia of frivolity this opens is staggering to comprehend. Surely, the majority cannot mean such sweeping language, divorcing professional trust from any profes*556sional ethical obligation. The majority’s reasoning defeats the purpose of the rules, to protect us from lawyers who violate professional duties. Standards std. 1.1.
¶73 This is not to dismiss that which befell D.J. and his mother but to highlight the central purpose of RPC 8.4(b), namely protecting the public from incompetent practitioners. Curran, 115 Wn.2d at 768. As such, our case law draws a clear line between conduct implicating a lawyer’s fitness to practice law and conduct that does not. Compare, e.g., In re Disciplinary Proceeding Against Huddleston, 137 Wn.2d 560, 974 P.2d 325 (1999) (false representation); In re Disciplinary Proceeding Against Plumb, 126 Wn.2d 334, 892 P.2d 739 (1995) (theft); and In re Disciplinary Proceeding Against Johnson, 114 Wn.2d 737, 790 P.2d 1227 (1990) (conversion of client funds for personal use) with Curran, 115 Wn.2d 747 (vehicular homicide).
¶74 Here, Day’s conduct did not violate any professional trust or duty placed in him as a lawyer. As such, it does not implicate the “ ‘characteristics relevant to law practice.’ ” Curran, 115 Wn.2d at 766 (quoting ABA, Model Rules of Professional Conduct 100 (1983)).
The presumptive sanction for sexual assault is suspension; “moral turpitude” is too vague and inconsistent a standard to determine appropriate conduct
¶75 In disciplinary cases the American Bar Association’s Standards directs our inquiry. In re Disciplinary Proceeding Against Poole, 156 Wn.2d 196, 220, 125 P.3d 954 (2006). Guided by the Standards we ascertain the presumptive sanction based on the ethical duty violated by the lawyer, the mental state of the lawyer, and the actual or potential injury caused by the misconduct. In re Disciplinary Proceeding Against Halverson, 140 Wn.2d 475, 492, 998 P.2d 833 (2000). Once the presumptive sanction is established, we determine whether any deviation from this presumptive sanction is proper. In re Disciplinary Proceeding Against Haley, 156 Wn.2d 324, 339, 126 P.3d 1262 (2006).
*557¶76 Two presumptive sanctions from the Standards are applicable in this instance: 5.1113 and 5.12.14 Standard 5.11 sets out disbarment as the generally appropriate sanction “where a lawyer engages in serious criminal conduct or intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.” In re Disciplinary Proceeding Against Marshall, 160 Wn.2d 317, 343, 157 P.3d 859 (2007) (emphasis omitted) (footnote omitted). Standard 5.12 sets out suspension as the generally appropriate sanction for “a lawyer [who] knowingly engages in less serious criminal conduct” implicating the lawyer’s fitness to practice. Id. at 343-44 (emphasis omitted). The commentary to the Standards specifically references sexual assault as a common example of a lawyer’s less serious criminal conduct resulting in suspension.15
¶77 The majority states, “the ABA Standards provides no guidance for sanctions related to acts involving moral turpitude.” Majority at 546. Nevertheless, “[o]ur adoption of these standards reflects our agreement with the purposes they are meant to serve, the creation of consistency in imposing sanctions both within and between jurisdictions.” *558Curran, 115 Wn.2d at 770-71. By ignoring the Standards and our reason for adopting them, the majority uses the vague label of “moral turpitude” to look into our case law to develop the presumptive sanction. Majority at 546.
¶78 From our case law the majority gleans, “the appropriate presumptive sanction for first degree child molestation, a class A felony involving an act of moral turpitude, is disbarment.” Id. at 547. However, of the two cases cited by the majority in support of this proposition, one expressly refused to address “moral turpitude” and. the other was decided years before we adopted the Standards and its purpose as our guide. See Curran, 115 Wn.2d at 764 (“Because bar counsel did not charge Curran with violating the portion of RLD 1.1(a) forbidding acts involving moral turpitude, we will not consider this here.”); In re Disciplinary Proceeding Against McGrath, 98 Wn.2d 337, 655 P.2d 232 (1982).16
¶79 Since McGrath is the only case supporting the majority’s assertion of disbarment being the appropriate presumptive sanction, future hearing officers will look to McGrath for guidance when determining whether conduct meets the criterion of “moral turpitude.” Under McGrath, “[m]oral turpitude must be determined from ‘the inherent immoral nature of the act.’ ” 98 Wn.2d at 342 (quoting In re Hopkins, 54 Wash. 569, 572, 103 P. 805 (1909)). A rule prohibiting “immoral” conduct may not provide a basis for disciplining attorneys because it is arguably unconstitutionally vague. See Curran, 115 Wn.2d at 758 (“A law forbidding conduct in terms so vague that men of common *559intelligence must necessarily guess at its meaning and differ as to its application violates due process of law.”); see also In re Disciplinary Proceeding Against Heard, 136 Wn.2d 405, 434-35, 963 P.2d 818 (1998) (“ ‘[M]oral turpitude’ is vague and overly broad absent at least some nexus to the practice of law which is the only justification for any of these rules in the first place.” (Sanders, J., dissenting)).
¶80 To avoid the vagueness problem, the majority finds a nexus between Day’s legal practice and his criminal conduct. Majority at 546. For reasons already stated this nexus is illusory, constructed from personal trust completely divorced from professional obligations. See supra at 553-56.
Departing from this presumptive sanction is inappropriate
¶81 As stated above, once we establish the presumptive sanction, we must then determine whether any departure from the presumptive sanction is proper. Haley, 156 Wn.2d at 339. In my opinion the aggravating and mitigating factors are not “sufficiently compelling to justify a departure” from the presumptive sanction.17 In re Disciplinary *560Proceeding Against Cohen, 149 Wn.2d 323, 339, 67 P.3d 1086 (2003).
¶82 In my view the factors of this case present one aggravating factor (the vulnerability of the victim) and two mitigating factors (Day’s lack of prior disciplinary record and his criminal sentence). However, the majority asserts, the hearing officer did not err when he declined to consider Day’s criminal sentence as a mitigating factor, majority at 549, and relies on McGrath to support its position that criminal convictions are a key factor to support disbarment. Majority at 548-49.
¶83 But, as stated previously, McGrath is a pre-Standards case, whereas our case law clearly holds the “imposition of other penalties or sanctions” including criminal sanctions is a mitigating factor. Standards std. 9.32. See In re Disciplinary Proceeding Against VanDerbeek, 153 Wn.2d 64, 95, 101 P.3d 88 (2004) (“We have held that criminal penalties properly serve as a mitigating factor.” (citing In re Disciplinary Proceeding Against Immelt, 119 Wn.2d 369, 372, 831 P.2d 736 (1992); In re Disciplinary Proceeding Against Petersen, 120 Wn.2d 833, 856, 846 P.2d 1330 (1993))). The majority distances itself from the clear import of this precedent (if not attempting to overrule it sub silentio) by restating the obvious: a criminal sanction’s mitigating effect is based on the circumstances of the case. But then the majority jumps to the conclusion, without the benefit of analysis, that Day’s criminal sanction provides no mitigating effect. Majority at 548. However, if a crimi*561nal sanction is to have any mitigating effect at all, which our case law instructs us it does, then the circumstances here must support some mitigating offset against the single aggravating factor.18
¶84 In Immelt this court concluded the single mitigating factor of Mr. Immelt’s criminal sanction did not permit a modification of the disciplinary sanction in light of many aggravating factors. Immelt, 119 Wn.2d at 372. In other words, the multiplicity of aggravating factors offset the mitigating effect of Mr. Immelt’s criminal sanction. Here, on the other hand, no such multiplicity exists to diminish the mitigating effect of Day’s criminal sanction. The record indicates Day has no prior disciplinary offenses, and, as discussed below, his conduct does not reflect a dishonest or selfish motive. If we are to recognize a criminal sanction as a mitigating factor, as case law instructs, under these circumstances the mitigating factor of Day’s criminal sanction is undiminished by the aggravating factor of the vulnerability of D.J. But, in its zeal to disbar Day, the majority seeks to roll back the clock to pre-Standards sanctions, ignoring over a decade of case law.
¶85 The majority finds the hearing officer erred by not extending the aggravating factor of dishonest and selfish motive to also include “touching for the purpose of sexual gratification.” Majority at 549. As the majority correctly states, our case law regarding this factor discusses only misuse of client funds, forgery, perjury, and theft. Id. Nonetheless, the majority finds an error in reasoning remi*562niscent of the maxim, justice varies with the size of the “chancellor’s foot.”19
¶86 To reiterate my view, the factual findings and case law support two mitigating factors: (1) the absence of prior disciplinary proceeding and (2) the imposition of Day’s criminal penalty. The factual findings support a single aggravating factor: the vulnerability of the victim. “[A] minimal suspension seems more appropriate in a case where . . . the mitigating factors clearly outweigh any aggravating factors.” Halverson, 140 Wn.2d at 497. However, at least these fairly cancel out any change to the standard sanction.
Conclusion
¶ 87 In our zeal to distance our honorable profession from misconduct, we should not disregard the very principles which make our profession honorable. Certainly, Day’s conduct is worthy of sanction. He violated a duty he owed to the public, specifically RPC 8.4(i), by committing an unjustifiable act of assault reflecting a disregard for the rule of law. As to an act of sexual assault, the Standards provide suspension as the appropriate sanction, not disbarment.
After modification, further reconsideration denied March 14, 2008.
Standards std. 5.11 states:
Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.
Standards std. 5.12 states, “[s]uspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.”
The commentary to Standards std. 5.12 states, “[l]awyers who engage in criminal conduct other than that described ... in Standard 5.11 should be suspended in cases where their conduct seriously adversely reflects on their fitness to practice. . . . The most common cases involve! ] lawyers who commit felonies . . . such as . . . sexual assault.”
The majority states McGrath has not been overruled. Majority at 546. Nevertheless, its reasoning has been called into doubt. Compare McGrath, 98 Wn.2d at 345 (recognizing disbarment for acts that “ ‘cast a serious reflection on the dignity of the court and on the reputation of the profession’ ” (quoting Henry S. Drinker, Legal Ethics 42-43 (1953))) with Curran, 115 Wn.2d at 768 (stating, “[t]he rule is not concerned with maintaining public confidence in the bar by disciplining lawyers harming the public image of the bar”). To restore McGrath’s “reputation of the profession” standard is to ignore the purpose of lawyer discipline. See Haley, 156 Wn.2d at 353 (Alexander, C.J., dissenting) (“We must remember that our purpose in disciplining attorneys is to ‘protect the public and to preserve confidence in the legal system.’ ” (internal quotation marks omitted) (quoting Curran, 115 Wn.2d at 762)).
The Standards provides a list of aggravating factors, which include:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency;
(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;
(g) refusal to acknowledge wrongful nature of conduct;
(h) vulnerability of victim;
(i) substantial experience in the practice of law;
(j) indifference to making restitution.
Standards std. 9.22. The Standards also provides a list of mitigating factors, which include:
(a) absence of a prior disciplinary record;
(b) absence of a dishonest or selfish motive;
(c) personal or emotional problems;
(d) timely good faith effort to make restitution or to rectify consequences of misconduct;
*560(e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings;
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical disability;
(i) mental disability or chemical dependency including alcoholism or drug abuse.. . ;
(j) delay in disciplinary proceedings;
(k) imposition of other penalties or sanctions;
(l) remorse;
(m) remoteness of prior offenses.
Standabds std. 9.32.
The majority conflates identifying a mitigating factor with weighing a mitigating factor. Our consideration of mitigating and aggravating factors is twofold: (1) identifying the factors and (2) weighing the identified factors together. See, e.g., Cohen, 149 Wn.2d at 339-42 (first identifying all the factors, then weighing them against one another). However, the majority seems to identify a factor by the weight given to it. This is incorrect; the weight of a mitigating or aggravating factor is independent of its existence. Of course, the majority must undertake this conflated analysis to avoid the obvious: the existence of more mitigating factors than aggravating factors. A more honest, albeit unprincipled, approach would be for the majority to state openly no amount of mitigating factors would change its result.
Attributed to 17th-century jurist John Selden, the “chancellor’s foot” is a “symbol of the variability of equitable justice.” Black’s Law Dictionary 246 (8th ed. 2004); see also Lonchar v. Thomas, 517 U.S. 314, 323, 116 S. Ct. 1293, 134 L. Ed. 2d 440 (1996) (“As Selden pointed out so many years ago, the alternative [to established rules and precedents] is to use each equity chancellor’s conscience as a measure of equity, which alternative would be as arbitrary and uncertain as measuring distance by the length of each chancellor’s foot. See 1 Joseph Story, Commentaries on Equity Jurisprudence 16 (13th ed. 1886).”).