Can a lawyer submit a preliminary response by email?

How much time can a lawyer expect to have for submitting a preliminary response?

Can a lawyer ask disciplinary counsel not to send the preliminary response, or portions of the response, to the grievant?

What is the best way for a lawyer to ask disciplinary counsel to send a redacted response?

Can a lawyer assert any privileges to a response?

Can ODC refer a lawyer’s response to other authorities?

Can a lawyer choose to be represented by counsel for a preliminary response?

Can a lawyer charge a client for the time it takes to respond to a grievance?

Can a lawyer sue a grievant for statements in the grievance that the lawyer considers harmful or illegal?

Is a lawyer’s response to a grievance public information?

If ODC dismisses a grievance and the grievant requests review, how and when should a lawyer respond?

 

Can a lawyer submit a preliminary response by email?

Yes. If the response is less than 100 pages a lawyer can respond by sending a response as an email attachment to caa@wsba.org. The attachment can be PDF, Excel, or Word compatible up to 10 megabytes total. We do not accept files in JPG of GIF formats.

 

How much time can a lawyer expect to have for submitting a preliminary response?

Generally, disciplinary counsel will not extend deadlines for a lawyer to submit a preliminary written response. Under ELC 5.3, a lawyer has a duty to furnish a prompt response to a request by disciplinary counsel for information relevant to grievances. If disciplinary counsel does not receive a lawyer’s preliminary written response to a grievance within 30 days of asking for it, disciplinary counsel will send a letter giving the lawyer 10 more days to respond.


Can a lawyer ask disciplinary counsel not to send the preliminary response, or portions of the response, to the grievant?

Yes. Under ELC 5.1(c)(3), disciplinary counsel may withhold all or a portion of a response from the grievant if the response refers to information protected by RPC 1.6 or RPC 1.9 to which the grievant is not privy, information of a personal and private nature about the respondent or others, or if the interests of justice would be better served by not releasing the response.


What is the best way for a lawyer to ask disciplinary counsel to send a redacted response?

To make sure disciplinary counsel sees a request for redaction and redacts the appropriate information, submit two responses – a redacted response that is clearly marked as appropriate for transmittal to the grievant and a separate un-redacted response that clearly indicates it is to be withheld from the grievant. Disciplinary counsel reviews a high volume of correspondence and it is otherwise easy to miss a request to withhold information, particularly if it’s in a footnote, in the middle of a paragraph, or in the last line of a response. Make sure any request for redaction is clear and obvious.

 

Can a lawyer assert any privileges to a response?

Yes. Under ELC 5.4, a lawyer’s duty to cooperate is subject to the lawyer’s privilege against self-incrimination, where applicable. Although a lawyer may not assert the attorney-client privilege or other prohibitions on revealing information relating to the representation of a client as a basis for refusing to provide information, nothing in the ELC waives or requires waiver of any lawyer’s own privilege or other protection as a client against the disclosure of confidences or secrets.

 

Can ODC refer a lawyer’s response to other authorities?

Yes. With some exception, ODC can release information from its files to authorities in any jurisdiction authorized to investigate alleged criminal or unlawful activity, judicial or lawyer misconduct, or disability. See ELC 3.4(h).

 

Can a lawyer choose to be represented by counsel for a preliminary response?

Yes. Under ELC 2.13, a lawyer may be represented by counsel.

 

Can a lawyer charge a client for the time it takes to respond to a grievance?

No. Generally, under ELC 2.13, a respondent lawyer may not seek to charge a grievant a fee or recover costs from a grievant for responding to a grievance.

 

Can a lawyer sue a grievant for statements in the grievance that they consider harmful?

No. Under ELC 2.12, communications to disciplinary counsel acting under authority of the ELC are absolutely privileged and no lawsuit predicated thereon may be filed against a grievant providing information.

 

Is a lawyer’s response to a grievance public information?

ODC will keep a lawyer’s response to a grievance confidential at the time it is submitted, although it might become public depending on the disposition of the grievance. Nevertheless, ODC cannot restrict a lawyer’s ability or a grievant’s ability to communicate about the grievance or the lawyer’s response to the grievance to third parties. See ELC 3.2.

 

If ODC dismisses a grievance and the grievant requests review, how and when should a lawyer respond? 

A lawyer is not required to respond if the grievant requests review. If a lawyer chooses to respond to the grievant’s allegations, ODC will transmit the response to the grievant and review committee; however, the review committee will not consider information that a lawyer asks to withhold from the grievant. Accordingly, please do not submit information that ODC cannot transmit to the grievant. This form with relevant ELC information may be helpful.