October 1999

Ethics & The Law Losing or Damaging the License to Practice Law

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

When we think of the ethical standards applicable to lawyers, we usually think of the Rules of Professional Conduct (RPCs). Even if we comply with all of the RPCs, however, we can still be subject to lawyer discipline, because violation of the RPCs is only one of the many grounds for lawyer discipline. We also can lose our license to practice law for conduct that is not ethical misconduct under the RPCs. This article surveys the grounds for imposing discipline and reviews various non-disciplinary conduct which may result in the interim or permanent loss of a lawyer’s license to practice law.

The rules setting out the ethical standards for lawyers are principally found in the RPCs. The RPCs require us to be competent and diligent, to charge only reasonable fees and to avoid conflicts of interest, to maintain client confidences and secrets and yet be candid with courts and others, and so on. The "Preliminary Statement" to the RPCs observes that the RPCs state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action. While failure to comply with the RPCs is the primary reason lawyers are subjected to discipline, such failures are only one of many grounds for lawyer discipline.

The principal rules governing lawyer discipline are the Rules for Lawyer Discipline (RLDs). Since they principally describe the procedures governing lawyer disciplinary investigations and prosecutions, we might assume we can ignore them as irrelevant to our practices, unless, of course, we become involved in the lawyer discipline system by having a grievance filed against us. On the whole, this assumption is correct: most of the RLDs are not relevant to lawyers unless they have a grievance filed against them, disciplinary proceedings are pending, their trust accounts are being audited, they have overdrawn their trust accounts, or they become so seriously mentally or physically disabled as to raise questions about their ability to practice law. There is one provision of the RLDs, however, of which no lawyer should be ignorant: RLD 1.1. This provision sets out 16 different grounds for discipline, only one of which is a violation of the RPCs. Those 16 grounds are the following:

Moral Turpitude, Dishonesty, Corruption, Criminal Acts. RLD 1.1(a) subjects a lawyer to discipline for committing any act involving moral turpitude, dishonesty, or corruption, or any unjustified act of assault or other act which reflects disregard for the rule of law. It does not matter whether the act was committed in the course of a lawyer’s conduct as a lawyer, or otherwise, or whether the act constitutes a felony or misdemeanor. Further, if the act does constitute a felony or misdemeanor, conviction thereof in a criminal proceeding is not a condition precedent to disciplinary action, nor does acquittal or dismissal thereof preclude the commencement of a disciplinary proceeding. A recent Washington Supreme Court opinion on this provision found that a lawyer who engaged in a sexual relationship with a brain-injured personal-injury client committed, under the circumstances of that case, an act of moral turpitude under RLD 1.1(a). In re Discipline of James A. Heard, 136 Wn.2d 405 (1998). Another recent Washington Supreme Court case held that the standard of proof under RLD 1.1(1) for proving conduct alleged to be criminal is the standard for lawyer disciplinary cases, namely, a "clear preponderance of the evidence" as specified in RLD 4.11(b), and not the "beyond a reasonable doubt" standard generally applicable to criminal violations. In re Discipline of James Huddleston, 137 Wn.2d 560 (1999).

Willful Disobedience of Court Order. RLD 1.1(b) provides that a lawyer is subject to discipline for the willful disobedience or violation of a court order directing the lawyer to do or cease doing an act which he or she ought in good faith to do.

Violation of Oath of Admission. RLD 1.1(c) subjects a lawyer to discipline for violating his or her oath as an attorney, which is set out at Admission to Practice Rule 5(c). In the oath the lawyer declares that he or she will, among other things, abide by the RPCs; maintain the respect due to the courts of justice and judicial officers; not counsel or maintain any suit or proceeding which shall appear unjust, or any defense except as the lawyer believes is honestly debatable under the law, and will employ only means consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement. The lawyer also declares that he or she will maintain client confidences and secrets, and will not accept compensation from third parties without the knowledge and approval of the client or of the court. The lawyer also declares he or she will "abstain from offensive personalities," and not advance a fact prejudicial to the honor or reputation of a party or witness unless doing so is required by the justice of the client’s case. Finally, the lawyer declares that he or she "will never reject, from any consideration personal to the lawyer, the cause of the defenseless or oppressed, or delay unjustly, the cause of any person."

Unauthorized Representation. RLD 1.1(d) subjects a lawyer to discipline for willfully purporting to act as a lawyer for any person without the authority of that person.

Lending Name or Fronting for Another. RLD 1.1(e) subjects a lawyer to discipline for permitting his or her name to be used as a lawyer for another person who is not a lawyer authorized to practice law in Washington. In effect, it prohibits a Washington lawyer from fronting for another person who is not authorized to practice law in Washington.

Misrepresentation/Concealment in Bar Admission. If a lawyer misrepresents or conceals a material fact in his or her application for admission to the Bar, or to take the Bar Exam, or for reinstatement, the lawyer is subject to discipline by RLD 1.1(f).

Reciprocal Discipline. RLD 1.1(g) subjects a lawyer to discipline in Washington under the RLD 12.6 reciprocal discipline provisions if the lawyer has been subject to discipline in another jurisdiction. By the reciprocal discipline provisions Washington only needs to prove the fact that the lawyer was disciplined in another jurisdiction and does not need to prove the underlying misconduct. For example, if a lawyer were admitted in New York and in Washington and was suspended in New York, Washington would usually also impose a suspension on the lawyer even if the conduct occurred entirely in New York. Alternatively, Washington could institute a new disciplinary proceeding on the basis of the underlying misconduct.

Practice Related to Suspended or Disbarred Lawyer. RLD 1.1(h) subjects a lawyer to discipline for "practicing law with or in cooperation with a disbarred or suspended lawyer, or maintaining an office for the practice of law in a room or office occupied or used in whole or in part by a disbarred or suspended lawyer, or permitting a disbarred or suspended lawyer to use his or her name for the practice of law, or practicing law for or on behalf of a disbarred or suspended lawyer, or practicing law under any arrangement or understanding for division of fees or compensation of any kind with a disbarred or suspended lawyer." The purpose of the provision is to protect the public by assuring that a disbarred or suspended lawyer does not circumvent the lawyer discipline system by continuing to practice law directly or indirectly while disbarred or suspended. The effect of the provision is to prohibit hiring a disbarred or suspended lawyer in any capacity related to the practice of law. See WSBA Formal Opinion 184 (1990).

Violation of the Rules of Professional Conduct. Under RLD 1.1(i), a lawyer may be subjected to disciplinary sanctions or actions for any violation of the RPCs. This provision is the primary and most widely used basis for lawyer discipline.

Violation of the Rules for Lawyer Discipline/Trust Account Provisions. Under RLD 1.1(j), a lawyer may be subjected to discipline for failing to meet his or her duties under the RLDs, including, for example: failing to respond to a grievance, or to answer a formal disciplinary complaint, or to cooperate with disciplinary discovery, or to appear to receive a reprimand, or to notify clients and others of inability to act when suspended or disbarred, or to cease practice when disbarred or suspended or placed on disability status. A lawyer may also be disciplined for failing to cooperate with examinations of the lawyer’s trust account, or to notify the WSBA of trust account overdrafts, or to file the lawyer’s annual trust account compliance certificate. A lawyer failing to file such certificate may also be subjected, at the lawyer’s cost, to an audit of the lawyer’s books and records. In each case, discipline may arise for the violation without regard to the underlying conduct in question. For example, if a lawyer was asked to respond to a wholly frivolous grievance filed by a disgruntled client against a lawyer, but failed to do so, the lawyer may be disciplined for the failure to respond even though the underlying grievance was without merit and did not give a basis for discipline.

Violation of the Code of Judicial Conduct. Lawyers who run for judicial office or who serve as judges, either full-time or part-time, are subject to all or part of the Code of Judicial Conduct. RLD 1.1(k) then subjects them to lawyer discipline for any violation of that Code. Subject to this Code, the WSBA and the Commission on Judicial Conduct have concurrent jurisdiction over conduct of lawyers who are judges and of lawyer-candidates who win a judicial election; the WSBA has exclusive jurisdiction over the conduct of lawyers who are not judges who run unsuccessfully for judicial election.

Unauthorized Practice of Law. RLD 1.1(l) subjects a lawyer to discipline for engaging in the practice of law while the lawyer is an inactive member of the WSBA, or while the lawyer is suspended from the practice of law for any cause.

Failure to Satisfy Probation or Stipulation Conditions. RLD 1.1(m) subjects a lawyer to discipline for failing to satisfy any condition of probation or any stipulated condition in connection with a disciplinary case. RLD 5.2 authorizes a lawyer found to have committed misconduct to be placed on probation under various conditions, such as required alcohol or drug treatment; medical, psychological or psychiatric care; or professional office-practice or management counseling. RLD 4.14 authorizes stipulated settlement of disciplinary cases, including imposition of terms and conditions of probation.

Failure to Pay Ordered Restitution/Costs. RLD 1.1(n) subjects a lawyer to discipline for willfully failing to pay restitution or to pay costs of disciplinary proceedings when required to do so under the RLDs.

Indirect Violations of the RLDs. RLD 11.1(o) subjects a lawyer to discipline for attempting to commit an act, or assisting another in committing or attempting to commit an act, which if completed would be prohibited by RLD 1.1. For example, if a lawyer’s partner were suspended from the practice of law, and the lawyer sought to assist his or her suspended partner to continue practicing law by allowing the partner to continue to use their office to practice law, both lawyers would be subject to discipline.

Unfitness to Practice Law. RLD 11.1(p) is a general provision that subjects a lawyer to discipline for engaging in any "conduct demonstrating unfitness to practice law."

In addition to the above-listed grounds for discipline under RLD 1.1, which, depending on the severity of the misconduct in question, may lead to the suspension or disbarment of a lawyer from the practice of law, or to some lesser form of disciplinary action or sanction (such as an admonition, censure or reprimand), there are several other situations, not necessarily involving any ethical misconduct, which may lead to a lawyer’s loss of ability to practice law. These include:

Voluntary Relinquishment of Right to Practice Law. A lawyer not involved in disciplinary proceedings may voluntarily resign from the WSBA or transfer to inactive or judicial membership status, with the result that the lawyer may not practice law in Washington thereafter unless he or she returns to active membership status.

Failure to Pay License Fees. Under Supreme Court rules and RCW 2.48.160 of the State Bar Act, a lawyer who fails to pay annual license fees is to be suspended from the active practice of law. A lawyer continuing to practice law while suspended for nonpayment is subject to discipline under RLD 1.1(l).

Failure to Pay Assessment for Lawyers’ Fund for Client Protection. The Supreme Court annually assesses each lawyer an amount for the fund. Although the assessment is usually thought of as part of a lawyer’s license fees, failure to pay the assessment is, by reason of APR 15(d), grounds for suspension of a lawyer’s license to practice law.

Failure to Satisfy CLE Requirements. Admission to Practice Rule 11.2(a) imposes on each lawyer the duty to complete 45 hours of approved continuing legal education every three years, of which six hours must be devoted to legal ethics, professionalism or professional responsibility. APR 11.6(b) provides that a lawyer failing to do so may, after various notices and orders, be transferred to inactive status. The actual order implementing the transfer suspends the lawyer from the active practice of law pending compliance with APR 11. Although this suspension is not a disciplinary suspension, it results in the lawyer being unable to practice law, and a lawyer’s practice of law while so suspended subjects the lawyer to disciplinary action under RLD 1.1(l).

Noncompliance with Child Support Orders. RCW 2.48.166 provides that the Supreme Court may by rule provide for the suspension of a lawyer who has been certified by the Department of Social and Health Services as a person who has failed to pay required child support or who has failed to comply with child residential/visitation orders. The Court’s recently adopted APR 17, effective September 1, 1999, provides for suspension or failure to pay child support. Although RCW 2.48.165 provides for a similar suspension for failure to repay student loans, the Supreme Court has declined to adopt specific rules providing for such suspension.

Interim Suspension for Conviction of a Crime. RLD 3.1 provides that the WSBA shall file a petition with the Supreme Court for the interim suspension of a lawyer convicted of a felony or other serious crime. If the crime is a felony, the lawyer is then suspended; if the crime is not a felony, a show-cause hearing is held to determine whether the crime is a serious crime. If it is, the lawyer is suspended; if it is not, the lawyer remains able to practice law pending resolution of any disciplinary proceedings arising from the alleged criminal conduct. Interim suspensions under this provision are not disciplinary suspensions and continue until the disciplinary proceedings based on the underlying conduct are concluded.

Suspension Due to Disability. Under RLD 3.2(a), a lawyer may be suspended from the practice of law, and thus lose the right to practice law, due to a disability where in disciplinary proceedings it appears there may be substantial harm, loss or damage to the public; or where the lawyer alleges he or she is unable to conduct a proper defense because of mental or physical incapacity.

Transfer to Disability Inactive Status. Under RLD 10.1, a lawyer will automatically be transferred to disability inactive status, and thus lose the right to practice law, upon receipt by the WSBA of appropriate documentation demonstrating that the lawyer (1) has been found to be incapable of assisting in his or her own defense in a criminal action; or (2) has been acquitted of a crime on the ground of insanity; or (3) has had a guardian (but not a limited guardian) appointed for his or her person or estate upon a finding of the lawyer’s incompetency; or (4) has been found to be mentally incapable of conducting the practice of law in any other jurisdiction.

Under RLD 10.2, a lawyer may also be transferred to disability inactive status, and thus lose the right to practice law, upon a finding that the lawyer is unable adequately to practice law because of insanity, mental illness, senility, excessive use of alcohol or drugs, or other mental or physical incapacity. If there are disciplinary proceedings underway against the lawyer, the lawyer may also be transferred to disability inactive status if there is a finding that the lawyer is incapable of conducting a proper defense to a disciplinary proceeding against him or her because of the lawyer’s alleged disability condition. If the lawyer alleges during a disciplinary proceeding that he or she is unable to conduct a proper defense because of mental or physical incapacity, the WSBA will automatically initiate interim suspension proceedings under RLD 3.2, discussed above. Proceedings under RLD 10.2 are confidential and suspensions thereunder are not disciplinary in nature.

Suspension Due to Disbarment Recommendation. If the Disciplinary Board enters a decision recommending that a lawyer be disbarred, WSBA disciplinary counsel is to file with the Supreme Court a petition under RLD 3.2(b) for suspension of the lawyer pending conclusion of the disciplinary proceedings. The lawyer is thereupon suspended, and thus loses the right to practice law, unless the lawyer makes an affirmative showing to the Court that his or her continuing to practice will not be detrimental to the integrity and standing of the Bar and the administration of justice, or will not be contrary to the public interest.

To practice law in Washington a lawyer must be an active member of the WSBA and must comply with the RPCs, the RLDs, the APRs, and more generally, other laws. To avoid being subject to discipline the lawyer must comply with each of the RPCs, and must also avoid the other 15 grounds for discipline listed in RLD 1.1. In addition, to continue practicing law the lawyer must not engage in conduct which leads to the suspension of his or her license to practice law, or to the transfer from active to inactive or to disability inactive status.

Acquiring the right to practice law requires of lawyers very significant time, effort and expense. Lawyers should recall the pride they felt when they graduated from law school, when they were first admitted to the Bar, when they first wrote the word "lawyer" or "Esquire" after their name, and when they first introduced themselves as a lawyer. They should then assure that their conduct does not preclude them from continuing to practice the noble profession of law.

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