June 2000

Ethics and the Law
Lawyer Discipline: 1999 Summary Report

by Barrie Althoff, WSBA Chief Disciplinary Counsel

This article summarizes what happened during 1999 in Washington's lawyer disciplinary system. Grievants filed with the WSBA Office of Disciplinary Counsel (ODC) allegations of unethical conduct by Washington lawyers. The ODC investigates, and either dismisses the grievance or prosecutes the lawyer. Prosecutions must first be authorized by order of a three-person review committee (two lawyers and 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, 48 Washington lawyers were the subject of 49 disciplinary sanctions or actions. Of these, 38 were formal disciplinary sanctions (permanent public records): 11 lawyers were disbarred, 15 were suspended from practice for disciplinary reasons, six were reprimanded, and six were censured. These include one lawyer who was both reprimanded and censured. In addition, 11 lawyers were formally admonished for their conduct (generally a public record for only three years). Another nine lawyers were suspended from practice on an interim basis (not a disciplinary sanction) pending disciplinary proceedings.

Of Washington's approximately 18,250 active in-state lawyers last year, one in every 493 (about one-fifth of one percent) was formally sanctioned (disbarred, suspended for discipline, reprimanded or censured). One in every 1,659 (less than one-tenth of one percent) was formally admonished. Or collectively, one in every 380 Washington lawyers (less than three-tenths of one percent) was either sanctioned or admonished. Alternatively, 379 out of 380 Washington lawyers (more than 99.7 percent) were not subject to any disciplinary action last year.

During 1999, the ODC opened files on 2,594 new matters including: 1,777 new written grievances (allegations of unethical conduct), 444 lawyer-client file disputes, and 373 lawyer-client non-communication matters. While some lawyers were subject to multiple grievances, grievances averaged about one for every seven lawyers (14 percent) — or alternatively, 86 percent of Washington's lawyers did not have any grievances filed against them. The number of grievances per lawyer does not, however, accurately reflect client satisfaction. If each of Washington's more than 18,250 active in-state lawyers represented only 20 clients in 1999 (an unrealistically low assumption), less than one percent of those 365,000 lawyer-client representations resulted in a grievance — or, more than 99 percent did not result in a grievance. This suggests that Washington lawyers continue to do a very good job in satisfying their clients.

Although most grievances are closed out a short time after being opened, to the grievant and respondent they nearly always seem to take too long to resolve. Older cases often have been deferred pending resolution of criminal or civil litigation involving the same or similar issues (about 80 grievances were so deferred in 1999), or are usually more complex and likely to be ordered to a hearing. From 1996 to 1999, 92 percent (9,947 grievances) of the 10,793 grievances filed had been closed as of December 30, 1999, while eight percent (846 grievances) remained open. The open grievances consisted of 555 grievances filed in 1999 (66 percent), 191 grievances filed in 1998 (23 percent), 79 grievances filed in 1997 (nine percent), and 21 grievances filed before 1997 (two percent). As of April 28, 2000, only 376 of those 846 grievances remained open, so that with the addition of new grievances filed during 2000, the total open inventory of grievances as of that date was 758 cases. In addition to the open investigations, as of the same date the ODC had open 97 formal prosecutions representing 216 separate grievances against 93 lawyers. These prosecutions range from matters just ordered to hearing, to cases awaiting Supreme Court decisions.

About 53 percent of all grievances were filed by clients (31 percent) or ex-clients (22 percent), while 17 percent were filed by opposing clients (15 percent) or opposing counsel (two percent). The WSBA itself filed 11 percent of grievances, mostly for trust account problems. The rest of the grievances were filed by other lawyers (three percent), court reporters and expert witnesses (two percent), judges (less than one percent) and others (13 percent).

Most grievances were filed against lawyers practicing family law (29 percent), criminal law (26 percent), personal injury law (12 percent), real property law (six percent), and estates/probate law (five percent). Grievances were filed in lesser amounts against lawyers practicing in the areas of commercial law, labor/employment matters, bankruptcy, collections, immigration and corporate/business 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 often have unrealistic expectations of what their lawyer will or can do for them, or what the lawyer's services will cost.

Statistics are not available on the type of organization in which lawyers against whom grievances are filed practice. However, sole practitioners or lawyers in small partnerships appear to be more likely to receive grievances, reflecting merely that most lawyers are in such practices. In addition, however, such practices often deal with unsophisticated clients, 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 37 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. About 16 percent allege interference with justice by the lawyer (communicating with represented adversaries, making misrepresentations to a court, disobeying court orders, or filing harassing lawsuits, for example). Another 14 percent relate to the lawyer's personal conduct, including criminal convictions of the lawyer, misrepresentations by the lawyer to non-clients, failure to pay debts, practicing while suspended, use of offensive language, and so on. Another 12 percent allege the lawyer charged excessive fees, failed to return unearned fees, or made unauthorized withdrawal of disputed fees. About 10 percent allege failure by the lawyer to satisfy duties to the client, including 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 10 percent allege trust account violations.

The ODC examines each submission it receives to determine if it alleges an ethical violation. About 11 percent of 1999 submissions failed to do so and were dismissed. If a submission alleges an ethical violation, the ODC considers its materiality and investigates as appropriate. In 1999, the ODC dismissed 29 percent of submissions after either a formal (18 percent) or informal (11 percent) investigation showed that, although a violation was alleged, there was either no evidence or insufficient evidence to establish a violation had occurred. Another seven percent were dismissed further into the disciplinary process by a Review Committee or the Disciplinary Board. File disputes (15 percent) and non-communication matters (13 percent) were generally closed and resolved informally outside of the grievance-discipline process. About six percent of closures were viewed as essentially fee disputes not appropriate for lawyer discipline, and were dismissed and referred to voluntary fee arbitration, while another one percent were referred to informal mediation. About three percent of grievances were deferred pending resolution of civil or criminal cases in which substantially similar issues were being raised. About three percent of closed files resulted in some form of discipline.

In 1999, the Supreme Court issued two lawyer disciplinary decisions. In the first, In re John C. Huddleston, 137 Wn.2d 560 (1999), the Court disbarred a lawyer who defrauded a magazine publisher and subscribers, rejecting his contention that conduct "completely outside the practice of law" should mitigate discipline. In the same case, the Court held that in lawyer disciplinary proceedings a lawyer's alleged criminal misconduct need be proved only by the usual disciplinary proceedings standard of proof (clear preponderance of the evidence) rather than the higher criminal law standard (beyond a reasonable doubt). In the second case, In re Arthur Boelter, 139 Wn.2d. 81 (1999), the Court suspended a lawyer for six months for threatening to disclose (in an effort to collect allegedly due legal fees) a client's confidential information, for falsely claiming to have recorded conversations with a client, and for excessive legal fees.

During 1999 the Court adopted new Admission to Practice Rule 17, under which the Court may suspend a lawyer from practice for failing to comply with child support orders. During 1999 the Court left pending two 1998 rule proposals which would be enforced through the lawyer disciplinary process: (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; and (2) a proposal to add a Rule 8.4(g & h) to the RPCs that would prohibit certain discriminatory acts. In a 1998 decision, In re James A. Heard, 136 Wn.2d 405 (1998), the Court suspended a lawyer for financially and sexually exploiting a client, noting that it was not stating a general rule regarding lawyer-client sexual relationships, but was instead leaving that to the Court's normal rule-making and decision-making process. The Court cited that note in suspending a lawyer for one year in another recent sex-with-client case, In re Lowell K. Halverson, — Wn.2d – (2000).

Late in 1999, the Court also agreed with the WSBA to the appointment of a Discipline 2000 Task Force to review disciplinary procedures with a view to improving the workings of the discipline system.

The WSBA Board of Governors adopted Formal Ethics Opinion 195, relating to disclosure of client confidences and secrets in detailed billing statements to persons other than the client, to consent of the client to an insurer's review of billing statements by an outside auditor, and to ethical compliance with "billing guidelines" of a person other than the client.

Over the last several years, the ODC has sought to help Washington lawyers understand their ethical obligations by making ethics presentations and writings available to lawyers throughout the state. It continued that effort last year by making more than 70 ethics presentations and by writing monthly legal ethics articles for the Washington State Bar News.

During 1999, the WSBA executive director and the WSBA chief disciplinary counsel reviewed the ODC's structure to assure timely processing of investigations and prosecutions. As a result, they created a new case-management position in the ODC of associate director, and appointed Joy McLean, an ODC senior disciplinary counsel, to the position. They also consolidated several work teams and reorganized them on an interim basis into an investigation and a prosecution team to better address the work flow.

The ODC publishes annually the Washington Lawyer Discipline Manual. The 2000 version reprints relevant disciplinary rules, guidelines and all discipline notices for 1999, and contains the 1999 annual discipline report. It is available for $15 from the ODC.

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