June 1999

Ethics & The Law
Lawyer Discipline: 1998 Summary Report

Opinions expressed herein are the author's and are not official or unofficial WSBA positions.

This article summarizes what happened during 1998 in Washington's lawyer disciplinary system.

Allegations of unethical conduct by Washington lawyers are filed by grievants with the WSBA Office of Disciplinary Counsel (ODC), which investigates and either dismisses the grievance or prosecutes the involved attorney. Prosecutions must first be authorized by order of a three-person review committee (two lawyers, one nonlawyer). Volunteer lawyers act as trial-court hearing officers. Collectively, all members of all four review committees sit as the WSBA Disciplinary Board, which serves as a disciplinary appellate court. The Supreme Court, which has exclusive authority to suspend or disbar lawyers, serves as the disciplinary court of last resort.

Last year, 65 Washington lawyers were the subject of 69 disciplinary sanctions or actions. Of these, 41 were formal disciplinary sanctions (permanent public records): 15 lawyers were disbarred, 11 were suspended from practice for disciplinary reasons, seven were reprimanded (one lawyer twice), and eight were censured. The remaining 24 lawyers were formally admonished (a public record for only three years) for their conduct, with two lawyers being twice admonished. Another 11 lawyers were suspended from practice on an interim basis (not a disciplinary sanction) pending disciplinary proceedings.

Of Washington's approximately 18,000 lawyers, last year about one in every 439 (slightly over 1/5 of one percent) was formally sanctioned (disbarred, suspended for discipline, reprimanded or censured). One in every 750 (slightly over 1/10 of one percent) was formally admonished. Or, collectively, one in every 261 Washington lawyers (slightly over 3/10 of one percent) was either sanctioned or admonished. Alternatively, 260 out of 261 Washington lawyers (more than 99.6 percent) were not subject to any disciplinary action last year.

During 1998, the ODC opened up files on 2,723 new matters: 2,008 new written grievances (allegations of unethical conduct), 417 lawyer/client file disputes, and 298 lawyer/client non-communication matters. While some lawyers were subject to multiple grievances, grievances averaged about one for every seven lawyers (15 percent) — or, alternatively, 85 percent of Washington's lawyers were not the subject of a grievance. The number of grievances per lawyer does not, however, accurately reflect client satisfaction. If each of Washington's 18,000+ lawyers represented only 20 clients in 1998 (an unrealistically low assumption), fewer than one percent of those 360,000 lawyer-client representations resulted in a grievance — or, more than 99 percent did not result in a grievance. This suggests that Washington lawyers are doing a very good job in satisfying their clients.

For some persons, particularly those with a grievance pending for some time, the "discipline backlog" has taken on mythic proportions. The reality is that most grievances are closed out within a relatively short time of being opened. While a few really old grievances still remain, all are being attended to as resources permit. Older cases often have been deferred pending resolution of criminal or civil litigation involving the same or similar issues, or are usually more complex and likely to be ordered to a hearing. The reality of the "discipline backlog" is that, as of mid-April 1999, investigations have been closed on 100 percent of all 1993 and earlier grievances, more than 99.7 percent of all 1994 and 1995 grievances, 96 percent of all 1996 grievances, 89 percent of 1997 grievances, and 82 percent of 1998 grievances. Although there were delays in previous years due to lack of resources, substantially all of the 1,256 cases in inventory, which includes many cases only very recently filed, are now being investigated and processed on a timely basis.

The chart below shows the status of all grievances filed with the ODC over the last 10 years as of April 14, 1999.

During 1998, as review committees ordered more grievances to public hearings, disciplinary prosecutions increased by 68 percent, with the ODC beginning 1998 with 56 pieces of litigation on its docket and ending with 94 items, an increase of 38 items. The increase reflects primarily that the ODC successfully completed many more-complex investigations, which were then ordered to hearing.

About 57 percent of all grievances were filed by clients (34 percent) or ex-clients (23 percent), while 13 percent were filed by opposing clients (nine percent) or opposing counsel (four percent). Judges filed another three percent, other lawyers three percent, and court reporters and expert witnesses another three percent. The WSBA itself filed 11 percent of the grievances, mostly for trust-account deficiencies. The remaining 13 percent were filed by others.

By area of practice of law, most grievances were filed against lawyers practicing family law (22 percent), criminal law (21 percent), personal injury law (13 percent), bankruptcy law (seven percent), and estates/probate (four percent). Grievances were filed less frequently against lawyers practicing in the areas of immigration, collections, workers compensation, guardianships, commercial law, landlord/tenant, corporate/business, and labor law matters. The areas in which most grievances were filed are generally the most common areas of practice with the most clients, and thus are most likely to receive grievances. In addition, clients in these areas often have not previously dealt with lawyers and may not have realistic expectations of what their lawyer will or can do for them, or what the lawyer's services will cost.

Although statistics are not available on the type of organization in which lawyers against whom grievances are filed practice, sole practitioners or lawyers in small partnerships appear to be more likely to receive grievances. This reflects that most lawyers practice alone or in small partnerships. In addition, however, such practices often deal with unsophisticated clients, often handle more high-volume/low-profit cases, and may be struggling to implement the office-management and quality-control procedures more common in larger firms, which might internally catch problems before they result in grievances.

About 38 percent of grievances allege that the lawyer either did not perform promised legal services at all, unduly delayed performance beyond what the client expected, failed to adequately communicate with the client, or otherwise failed to perform required duties to the client. Another 17 percent relate to the lawyer's personal conduct, including criminal convictions of the lawyer, misrepresentations by the lawyer to nonclients, failure to pay debts, practicing while suspended, use of offensive language, and so on. About 12 percent allege interference by the lawyer with justice, for example, by communicating with represented adversaries, making misrepresentations to a court, disobeying court orders, or filing harassing lawsuits. About 11 percent allege failure by the lawyer to satisfy duties to the client, including by making misrepresentations to the client, disregarding conflicts of interest, improperly withdrawing from representation, failing to turn over files to the client, or settling cases without authority. Another nine percent allege that the lawyer charged excessive fees, failed to return unearned fees, or made unauthorized withdrawal of disputed fees. Another 11 percent allege trust-account violations.

The ODC examines each grievance to determine if it alleges an ethical violation. If so, the ODC then informally, or more extensively, investigates the grievance. About 17 percent of the files closed in 1998 were immediate dismissals for failing to allege any ethical violation, while another 17 percent were dismissals after investigation showed that, although a violation was alleged, there was either no evidence or insufficient evidence to establish that a violation had occurred. Review Committees dismissed another six percent. About 16 percent of 1998 closings related to disputes over possession of files, and another 12 percent related to non-communication problems between clients and lawyers; these two types of problems were usually resolved informally outside of the discipline/grievance process. Another eight percent of files were dismissed after a brief informal investigation. About eight percent of files were viewed as essentially fee disputes not appropriate for lawyer discipline and were dismissed and referred to voluntary fee arbitration, while another three percent were referred to the Interprofessional Committee for informal mediation. About four percent of the closed files resulted in some form of discipline. About one percent of grievances were deferred pending resolution of civil or criminal cases in which substantially similar issues were being raised.

The Supreme Court issued three important lawyer disciplinary decisions in 1998, in each case suspending the lawyer involved from the practice of law: In re Wade R. Dann, 136 Wn.2d 67 (1998); In re Stephen C. Haskell, 136 Wn.2d 300 (1998); and In re Discipline of James A. Heard, 136 Wn.2d 405 (1998). The first two cases make it clear that lawyers must be honest with their clients in billing matters and may not lie to or cheat them. The last case, based on the personal-injury representation of a client on a contingency-fee basis, made it clear that lawyers may not financially or sexually exploit their clients. While not stating a general rule regarding lawyer-client sexual relationships, instead leaving that to the Court's normal rule-making and decision-making process, the Court found that under the facts of that case, the lawyer's sexual relationship with his client was an act of moral turpitude.

During 1998 a number of rule changes, which would be enforced in part through the lawyer disciplinary process, were proposed by the WSBA Board of Governors to the Supreme Court. These included: (1) a proposal to add a Rule 1.8(k) to the Rules of Professional Conduct that would generally prohibit lawyer/client sexual relationships as conflicts of interest; (2) a proposal to add a Rule 8.4(g & h) to the RPCs that would prohibit certain acts viewed as discriminatory; and (3) a proposal to add a new Admission to Practice Rule 16 that would suspend a lawyer from practice for failing to comply with child-support or visitation orders. The Supreme Court, having published each for public comment, has yet to act on them pending expiration of the comment period. In addition, after extensive and lively debate during 1997 and 1998, the WSBA Board of Governors determined in 1998 to abandon a prior proposal to adopt a program which would have required lawyers to arbitrate fee disputes upon client request.

During 1998 the WSBA Executive Director and the WSBA Chief Disciplinary Counsel reviewed the ODC's internal practices and procedures with an eye to making the ODC more efficient and timely in processing investigations and prosecutions. While it was found to be in good condition, a number of changes were made, including consolidating and reorganizing the investigation-prosecution teams, adding an investigator and legal-assistant and clerical-support positions, transferring some non–discipline-related responsibilities to other WSBA staff, and developing career paths for staff to encourage individual professional growth and reduce turnover.

During 1998 the WSBA's Lawyer Services Department took over responsibility for the voluntary fee arbitration program previously overseen by the ODC. It also began operation of both an informal mediation program to resolve disputes between lawyers and other professionals and clients, and the Law Office Management Assistance Program, which is intended to help mostly lawyers in small practices master the practical business and management aspects of law practice to better serve their clients and avoid conduct which would lead to discipline.

The ODC publishes annually the Washington Lawyer Discipline Manual. The 1999 version contains the annual report for 1998; reprints relevant rules and guidelines; reprints all discipline notices for 1998, and the 1998 ethics articles from Bar News; and sets out statistical information going back to 1981. It is available for $15 from the ODC; to order, call 206-727-8207.

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