February 2000

Discipline Prevention — A Valued Member Service!

by Jan Michels
WSBA Executive Director
janm@wsba.org

The WSBA’s Strategic Goal #1 is to offer the services and benefits that members want. The WSBA’s Strategic Goal #5 is to conduct timely, fair, just and accurate regulatory functions. This article is about the convergence of these goals, providing members with a snapshot of the discipline function from a service perspective.

At our Town Meetings, members told us they want lawyers disciplined quickly and stringently, but they don’t want the torture of a grievance to take years to resolve. We also heard how much better it is to educate lawyers so that fewer grievances occur. Members told us that they appreciated the education and prevention programs that the WSBA has developed, but that many other members don’t know about these programs. Each year the WSBA gets over 12,000 calls, letters or drop-in questions about lawyer conduct from other lawyers, clients and third parties. The WSBA’s first response, as long as there is no public protection risk, is to resolve the issue by using the following service programs.

a) Programs

Each year the Office of Disciplinary Counsel (ODC) personnel make over 80 presentations to CLE audiences, law schools, local bar associations and others. Topics range from particular ethical dilemmas to broad presentations about the purpose and functioning of the discipline system and the regulation of the practice of law. For more information call Barrie Althoff, WSBA Chief Disciplinary Counsel, at 206-727-8255 or 800-945-WSBA, ext. 8255.

The WSBA regularly publishes the outcome of discipline matters to help members avoid repeating the errors of others. Additionally, the Board of Governors recently changed the policies for the Lawyers’ Fund for Client Protection to require the publication of attorney names and their actions if the result was the award of client protection funds.

Chief Disciplinary Counsel Barrie Althoff is a regular contributor to Bar News with analysis and counsel about the ethics of practicing law. With the increasingly complex maze of ethics and professionalism in a fast-changing legal culture, his explanations and advice can help avoid conduct problems.

The ODC often gets calls from lawyers about the conduct of partners or opposing counsel. As a courtesy to members, ODC counsel will review relevant rules and formal opinions to assist the caller in determining whether unethical conduct has occurred, and walk the caller through a likely scenario if a grievance were filed. As a result, a more informed decision can be made by the member. What often happens is that members come up with alternate ways of resolving problems with their colleagues.

The WSBA makes available to all members a trained disciplinary counsel to discuss and review prospective situations when a member has questions about ethical rules. These discussions are confidential. Input from the WSBA is based on an understanding of the rules, accumulated formal ethical opinions, and Supreme Court rulings. The hotline fields 70-80 calls a week. A formal opinion can be requested but may take longer than a quick call. The Ethics Hotline can be reached at 206-727-8284 or 800-945-WSBA, ext. 8284.

This new program (inaugurated in 1999) offers consultation and training on "best practices" for the business side of the practice of law. LOMAP has guidelines, publications, checklists, suggested forms, and other material aimed at assuring appropriate conflict checking, trust fund management, fee agreements and case-tracking systems that minimize risks.

Three specially trained ODC paralegals intervene in situations when the concern is lack of communication from a lawyer or there are file ownership disputes. The paralegals’ primary tools are their familiarity with the Rules of Professional Conduct, proximity to the discipline system, and their understanding of the nature and facets of the lawyer-client relationship. With their nudging, early alerts and explanations to both the attorney and client, they are able to resolve 85 percent of the 4,000 annual potential grievances without the need for discipline.

These voluntary programs can be used for attorney/client or interprofessional fee disputes. Both parties agree to the process and provisions of the program. While arbitration awards are binding and enforceable, mediation services encourage the parties’ resolution of their differences. Nearly 1,200 cases per year take advantage of alternate dispute resolution.

6. Diversion of Less Serious Matters (to be implemented in 2000)

In 1998, the Board of Governors and the Supreme Court approved the concept of diversion from discipline with less serious matters. The BOG Discipline Committee is currently developing the definitions and procedures for diverting matters such as minor neglect, non-intentional acts or other violations where the sanction would not restrict the practice of law. Education programs, mediation, arbitration, counseling or other remedial program participation would be in lieu of discipline proceedings. When conditions were met, the discipline matter would be dismissed and the record cleared.

The end result of these prevention and early intervention programs is that the number of grievances filed has seen only minimal growth in the 1990s. On the other hand, when a grievance is filed, the WSBA is able to investigate and prosecute if necessary, in a much more timely way.

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