May 2001

Ethics and the Law
Lawyer Discipline: 2000 Summary Report

by Barrie Althoff, WSBA Chief Disciplinary Counsel

Grievants file with the WSBA Office of Disciplinary Counsel (ODC) allegations of unethical conduct by Washington lawyers. The ODC investigates and either dismisses or prosecutes the grievances, as well as those which it may open in its own name. 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 Washington Supreme Court, which has exclusive authority to suspend or disbar lawyers, serves as the disciplinary court of last resort.

In 2000, 79 formal disciplinary sanctions (permanent public records) were imposed on Washington lawyers, consisting of 18 disbarments, 26 disciplinary suspensions,14 reprimands and 21 censures. In addition, 28 lawyers were formally admonished (generally a nonpermanent public record) for their misconduct. Another 12 lawyers were suspended from practice on an interim basis (not a disciplinary sanction) pending disciplinary proceedings. The 107 sanctions/actions were imposed on 102 different lawyers, with a number of lawyers receiving multiple sanctions. The total of 107 is more than twice as many sanctions/actions as the 49 that were imposed in 1999, the difference mostly due to older backlogged investigations being completed.

As of midyear 2000, Washington had about18,700 active in-state lawyers. In 2000, about one in every 237 was formally sanctioned (disbarred, suspended for discipline, reprimanded or censured), and one in every 668 was formally admonished. Or, collectively, one in every 183 Washington lawyers (about 6/10 of one percent) was either sanctioned or admonished. Alternatively, 182 of 183 Washington lawyers (about 99.4 percent) were not subject to any disciplinary sanction or action last year.

During 2000, the ODC opened files on 3,427 new matters including 2,244 written grievances (allegations of unethical conduct), 536 lawyer-client file disputes, and 647 lawyer-client noncommunication matters. This 32 percent increase over the prior year is made up of both increased formal and informal grievances. While some lawyers were subject to multiple grievances (in one case, over 40 grievances), grievances averaged about one for every five lawyers. However, this statistic does not accurately reflect client satisfaction. If each of Washington's more than 18,700 active in-state lawyers represented only 20 clients in 2000 (an unrealistically low assumption), less than one percent of those 374,000 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 shortly after being opened, to the grievant and respondent they nearly always seem to take too long to resolve. In the past, this was a serious problem. As of December 31, 2000, however, there were only two investigations still in inventory that had been filed with the office before September 1, 2000. This excludes about 111 files that, pursuant to Supreme Court and Board of Governors' policies, have been deferred pending resolution of criminal or civil litigation involving the same or similar issues. At the close of 2000, the ODC had in inventory about 475 investigations, consisting of 122 files in the intake team, 185 files in the investigation teams, 57 files pending Review Committee action, and the deferred files. In effect, the ODC no longer has a backlog of investigations, and is handling them all on a current basis in accordance with the Board of Governors' aspirational guidelines. In addition to open investigations, the ODC had pending 116 formal prosecutions at the end of the year, ranging from matters just ordered to hearing to cases awaiting Supreme Court decisions.

In addition to the ODC's handling of formal grievance investigations and prosecutions, in 2000 its consumer affairs team received more than 4,000 telephone calls from the public calling about lawyers' performance or disciplinary histories, mailed out 3,806 grievance brochures and forms and over 1,000 other law-related information brochures, handled over 5,400 additional calls from the public on pending matters, and took part in 134 in-person meetings with members of the public.

About 55 percent of all grievances were filed by clients (24 percent) or ex-clients (31 percent), while 16 percent were filed by opposing clients (15 percent) or opposing counsel (one percent). The WSBA itself filed 11 percent of grievances, mostly for trust account problems. The rest of the grievances were filed by other lawyers (two percent), court reporters and expert witnesses (three percent), judges (less than one percent), and others (13 percent).

As in prior years, most grievances were filed against lawyers practicing family law (25 percent), criminal law (21 percent), personal injury law (10 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. Sole practitioners or lawyers in small partnerships, however, appear more likely to receive grievances, reflecting that such practices often deal with more 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 44 percent of formal 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 17 percent allege interference with justice by the lawyer, by, for example, communicating with represented adversaries, making misrepresentations to a court, disobeying court orders, or filing harassing lawsuits. Another 11 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. Another eight 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 18 percent of 2000 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 2000, the ODC dismissed 34 percent of submissions after either a formal (19 percent) or informal (15 percent) investigation showed that, although a violation was alleged, there was either no evidence or insufficient evidence to establish a violation had occurred. Another 11 percent were dismissed further into the disciplinary process by a Review Committee or the Disciplinary Board. File disputes (15 percent) and noncommunication matters (19 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 two 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.

During 2000, the Supreme Court issued three published opinions in lawyer disciplinary cases relating to lawyers' misconduct. In the first, In re Discipline of Halverson, 140 Wn.2d 475 (2000), the Court suspended a lawyer from the practice of law for one year, holding that the lawyer's sexual relationship with his client constituted a conflict of interest under RPC 1.7(b), that he failed to communicate with the client under RPC 1.4(b), and that he failed to exercise independent judgment under RPC 1.2. Shortly after issuing this opinion the Court adopted new RPC 1.8(k), which generally prohibits lawyers from having sexual relationships with clients.

In the second, In re Discipline of Anschell, 141 Wn.2d 593 (2000), the Court ordered a two-year suspension (followed by two years' supervised probation) and restitution for a lawyer for repeated misconduct in a high-volume, low-fee immigration practice. The Court found violations by the lawyer of RPC 1.3 (diligence), RPC 1.4 (communication with clients), RPC 1.5 (reasonable fees), RPC 1.15(d) (refunding unearned fees), and Rule 2.8 of the Rules for Lawyer Discipline (requiring a lawyer to cooperate in a bar disciplinary investigation).

In the third, In re Discipline of Tasker, 141 Wn.2d 557 (2000), the Court, in an opinion by Justice Sanders (Justices Ireland and Bridge dissenting), rejected the 9-1 recommendation of the Disciplinary Board that a lawyer be disbarred, and instead suspended a lawyer for two years. The lawyer's misconduct included repeated commingling of personal and client funds in client trust accounts so as to avoid paying court-ordered child support, paying personal expenses out of client trust accounts and violating trust account rules, and lying at a disciplinary hearing. The Court held that delay in prosecution and the lawyer's "rehabilitation" during the delay mitigated the otherwise applicable presumptive sanction of disbarment. Although the opinion stated that the lawyer's testimony amply demonstrated he lied at his disciplinary hearing, and that the lying was undisputed, no weight was given to lying as a sanction aggravator.

Acceptance of "rehabilitation" as a mitigator in this case leads to some peculiar conclusions. Apparently if a lawyer is caught in misconduct, but thereafter behaves before being prosecuted and while under observation of a prosecutor (especially if the prosecution takes longer than the Court in hindsight thinks should be taken), the lawyer is deemed "rehabilitated" and entitled to a reduced sanction. This curious result, undoubtedly welcomed by the well-behaved incarcerated, proves the wisdom of the ancient maxim to "make virtue out of necessity."

An observer might query what it takes to get disbarred in Washington, since a lawyer who hid money in his client trust account to avoid paying court-ordered child support, used client funds to pay his own personal expenses, and lied to the Bar is, in effect, found still fit to serve as a fiduciary and "guardian of the law" (see the Preamble to the RPCs). The decision does little to lessen public skepticism about the honesty of lawyers or the efficacy of their self-regulation. The case should best be seen as a peculiar aberration not indicative of what is an acceptable minimal level of conduct for Washington lawyers.

During 2000 the Court also adopted two lawyer-conduct rule proposals which had been pending several years before the Court: (1) a new Rule 1.8(k) to the Rules of Professional Conduct that generally prohibits lawyer-client sexual relationships as conflicts of interest; and (2) a revision to RPC 8.4(g) and a new RPC 8.4(h) which, respectively, adopt a single statewide standard as to discriminatory lawyer conduct and which prohibit certain discriminatory conduct.

Late in 1999, the Supreme Court and the WSBA jointly appointed a Discipline 2000 Task Force to review the Rules for Lawyer Discipline and disciplinary procedures with a view to improving the workings of the discipline system. That task force met numerous times throughout 2000 and expects to complete its work by the end of the current year.

The WSBA Board of Governors adopted Formal Ethics Opinion 196, prohibiting a law firm from using the name of a suspended or disbarred lawyer as part of its name.

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 numerous legal ethics articles.

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

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