February 2001

"A Grievance Has Been Filed Against You…"

by Jan Michels
WSBA Executive Director
janm@wsba.org

Notice of a grievance can be the most unwelcome piece of correspondence you receive from your bar association. It conjures up visceral reactions, like those to a bad report card. The first place most of us look when we open Bar News is the Disciplinary Notices section. We fear the possibility of seeing the name of someone we know.

In town meetings we hear how disruptive and embarrassing it is to have a grievance pending. We want quick resolution, hopefully a dismissal. We want investigators and disciplinary counsel who understand the exigencies of our particular area of practice. We want to be kept informed each step of the way. And we all want bad lawyers out of the practice. We agree on the goals of the discipline system.

Discipline cases are handled by 16 lawyers, some of whom work part time. All have at least eight years' legal practice experience, many have significantly more, and several have more than 20 years' experience. The WSBA strives to balance staff by practice area, size of practice, experience, and geographic area of practice. It is common for disciplinary counsel to consult one another to ensure that adequate scope and experience are applied to each case. The WSBA seems unable to attract many lawyers with rural practice experience, and attracts more than a balanced share of lawyers with government experience. The salary range for disciplinary counsel is $50,000 to $75,000.

• Written grievance is received and preliminary assessment is made.
• If not dismissed, grievance is referred for assignment and investigation.
• If not dismissed, recommendation is made to a review committee, a subset of Disciplinary Board members (matter becomes public).
• If not dismissed, grievance is set for a hearing.
• Hearing officer hears case and enters findings.
• Sanction may be imposed.
• Grievant or WSBA may appeal.
• Costs are paid, and lawyer usually returns to active status.
• Occasionally, conditions are imposed.

Of the 5,000 complaint calls to the WSBA Office of Disciplinary Counsel annually, over 60 percent are resolved by consumer affairs personnel intervention concerning file ownership and client contact misunderstandings. For the remaining 2,000, a formal grievance is filed and investigated. About 85 percent of these 2,000 are dismissed, and another six percent have deferrals or miscellaneous closing actions. That leaves about 150 lawyers facing formal disciplinary action. With an active membership of over 20,000 lawyers, only 0.75 percent of Washington lawyers are found to have acted unethically each year.

Though anyone can file a grievance against a lawyer, 53 percent of grievances are filed by current or former clients, and another 31 percent by opposing parties, other counsel, or the WSBA (after being alerted by others), with various others filing the remaining 16 percent.

Family law and criminal law each constitute 25 percent of grievances. The next largest proportion is the 12 percent related to tort cases. Over half of the grievances are due to "performance," including such things as delays, failure to communicate, missed dates, bad judgment calls, and incompetence. In equal proportions (at about five to 10 percent each) are allegations of interfering with justice, personal behaviors, fees and overdrafts, and violation of duties to client.

Responding promptly and cooperating with disciplinary counsel's requests for information speeds up the process.

The role of the BOG is "oversight of the discipline system." The executive director is responsible for the administration of the discipline system and its staff. Neither the board members nor the executive director have any role in the resolution of any particular case.

We'd rather prevent than discipline. Our prevention programs include:

• Rules of Professional Conduct Committee which issues ethics opinions;
• 70-plus seminars and articles annually;
• Many formal CLE programs;
• Telephone ethics line for discussion of prospective conduct (206-727-8284);
• Law Office Management Assistance Program for consultation about trust fund management, billing, staffing and other business matters; and
• Lawyers' Assistance Program for issues related to addiction or mental health problems.

Having a responsible, accountable, timely and fair regulatory system is WSBA Strategic Goal No. 6. We meet this goal by responding to grievances within our established timelines — three months for 90 percent of grievances, six months for another 8 percent, and only a few very complex cases deferred beyond that. As of December 31, 2000 the WSBA met these timelines for all investigations.

To continue to meet our timelines and to complete the public process for all cases ordered to hearing, the WSBA faces some challenges. Remedies are being discussed by a special Discipline 2000 Task Force, whose recommendations are expected this spring. Discipline 2000 is working with the process of discipline in the Rules for Lawyer Discipline, not dealing with the Rules for Professional Conduct themselves.

Some challenges include:

• Recruiting and retaining experienced disciplinary counsel;
• Securing well-qualified, trained hearing officers so that rulings are consistent;
• A considerable time commitment by Disciplinary Board members; and
• Recovering costs. The discipline system consumes about 40 percent of license fees; cost recovery from sanctioned lawyers covers less than five percent of these costs.

Our goal statement sets an ambitious standard that we intend to meet. Discipline system improvements are constant, and with the recommendations of the Discipline 2000 Task Force, we expect many procedural improvements.

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