November 2001

Ethics and the Law
Washington’s Lawyer Discipline System

by Barrie Althoff, WSBA Chief Disciplinary Counsel

This article describes the organization and operation of the Washington lawyer discipline system. A previous article described what happened in that system during the year 2000. See, Barrie Althoff, "Lawyer Discipline: 2000 Summary Report," Washington State Bar News (May 2001, p. 44). A subsequent article will explain how disciplinary sanctions are determined and imposed.

Authority and Purpose
The Washington State Supreme Court has exclusive jurisdiction within Washington for the administration of the lawyer discipline system governing Washington lawyers. Pursuant to its Rules for Lawyer Discipline, the Supreme Court has delegated the administration and operation of that system to the Washington State Bar Association (the Bar), although it has reserved to itself the ultimate authority to suspend or disbar lawyers from the practice of law. With a few exceptions, lawyers practicing law in Washington must be members of the Bar and are thus subject to the Rules for Lawyer Discipline.

The mission of the Bar is to promote justice and to serve its members and the public. One of the ways it does this is by administering and operating the lawyer discipline system on behalf of the Washington State Supreme Court. This system provides a forum and procedures whereby complaints about a lawyer’s conduct can be fairly and objectively investigated and, where appropriate, prosecuted through a public hearing.

The lawyer discipline system protects the public by holding lawyers accountable for their ethical misconduct. The system is complementary to, and not a substitute for, any civil right of action that a consumer might have against a lawyer, and any criminal cause of action that might accrue because of the lawyer’s conduct.

Aside from the discipline system, the Supreme Court and the Bar also protect and assist the public through the Bar’s operation of a voluntary fee-arbitration program and a mediation program to resolve disputes between lawyers and others. Various other programs exist to help lawyers better serve their clients by maintaining their professional competence, by managing their practices, and by dealing with problems that arise in their lives.

Structure and Funding
Although the Washington State Supreme Court has delegated the responsibility for operating the lawyer discipline system to the Bar, the Court supervises and retains authority over that system. The Bar fulfills its duty to oversee and operate the system through various boards, committees and staff.

The Bar’s Board of Governors (mostly elected by the members of the Bar), together with its president (elected by the Board of Governors), supervise and oversee the general functioning of other participants in the system, provide resources to operate the system, and appoint and remove certain staff and volunteers in the lawyer discipline system.

The supervision and oversight responsibilities for the lawyer discipline system are fulfilled largely through the Discipline Committee of the Board of Governors, through the Bar’s executive director, and through periodic reports from and meetings with others involved in the discipline system. Neither the Board of Governors nor the executive director are involved in individual adjudicative decisions.

The Board of Governors funds the lawyer discipline system through Bar members’ annual licensing fees, about 50 percent of which are applied to the costs of that system. The 1999-2000 fiscal-year expenditure of $3,122,472 for lawyer discipline and trust-account audits was thus paid for solely by lawyer members of the Bar, without the application of any public tax revenues or other public funds. The 2000-2001 fiscal-year budget for lawyer discipline and trust-account audits is $3,186,747. In addition, the Bar operates a client security fund, funded by annual assessments on each lawyer, which makes gifts (approximately $208,000 in 2001) to client applicants who have been damaged by their lawyers’ dishonesty or failure to properly account for money or property entrusted to them.

Separation of Investigative/Prosecutorial and Adjudicative Functions
Although the lawyer discipline system is operated within the Bar, and although the Bar’s executive director, under the direction of the Bar’s Board of Governors, employs all Bar staff, the Bar has clearly separated the investigative and prosecutorial functions from the adjudicative functions.

Investigative and Prosecutorial Functions. The Bar’s Office of Disciplinary Counsel (ODC) receives, investigates and prosecutes allegations of ethical misconduct ("grievances") by Washington lawyers to determine whether the alleged misconduct should have an impact on the lawyer’s license to practice law. In effect, the ODC is the statewide complaint bureau and prosecutor for ethical complaints against Washington lawyers.

The ODC is headed by the director of lawyer discipline/chief disciplinary counsel. Reporting to the director are the associate director of lawyer discipline, whose primary responsibility is to oversee case management of investigations and prosecutions; four managing disciplinary counsel, who carry active caseloads and oversee the intake team and the three investigation/prosecution teams; and 13 disciplinary counsel (several of whom work on a part-time basis), three investigators, four paralegals, two legal assistants, four secretaries, a file clerk and a docket assistant.

Disciplinary counsel are sometimes assisted in their investigations by "special district counsel," volunteer lawyers appointed by the Bar’s Board of Governors with authority to investigate, but not prosecute, cases. Special district counsel are assigned by the chief disciplinary counsel to assist disciplinary counsel on individual cases as needed. In certain cases, often those involving possible conflicts of interest, the Bar’s executive director may appoint a nonstaff lawyer as a "special disciplinary counsel" with the authority to both investigate and prosecute specific cases.

In receiving grievances about lawyers, the ODC’s role is that of an impartial investigator. At the same time, it seeks to educate consumers and lawyers on the ethical duties of lawyers and, where possible, to resolve informally possible disagreements as to those duties. The ODC’s Consumer Affairs team regularly meets with potential grievants, both by telephone and in person, before grievances are filed, to explain the jurisdiction of the ODC, what the potential grievant can reasonably and realistically expect from filing a grievance, and the extent of a lawyer’s ethical duty. The expectation is that this will both better educate the public as to the lawyer discipline system and reduce the number of grievances being filed.

The ODC maintains an active informal mediation program to deal with very common and frequent (a) disputes over who owns and has a right to possession of the file created and maintained by a lawyer when representing a client, and (b) noncommunication problems between a lawyer and a client. If these informal mediations are unsuccessful, the clients or ex-clients often file formal disciplinary grievances against the lawyers, especially if the conduct has been repeated. The informal handling of these matters by the ODC has resulted in fewer formal grievances being filed in these areas.

File disputes often arise when a dissatisfied client seeks a new lawyer but has not paid the former lawyer. The former lawyer then seeks to be paid by not delivering the file needed by the new lawyer. When the ODC is contacted in this situation, rather than opening a grievance against the lawyer in custody of the file, a paralegal from the ODC will usually promptly contact the client and lawyer(s) (by fax and/or telephone) to determine the facts, make available to them the relevant ethical rules, and suggest solutions on how to resolve the dispute in a manner satisfactory to all persons. Noncommunication problems usually are resolved by a simple letter or telephone call to the lawyer from the ODC.

The Consumer Affairs team of the ODC annually handles nearly 10,000 telephone calls and numerous in person meetings, and provides thousands of information sheets on law practice areas and grievance procedures. Team members typically listen to a grievance, suggest possible ways to resolve the problem informally, explain the Bar’s disciplinary jurisdiction and grievance procedures (and, if applicable, the Bar’s voluntary fee-arbitration and mediation programs), and suggest other resources or services that may be helpful in resolving the matter. In some cases a grievant may at that time file a grievance. If the grievant is unable to complete the grievance form because of disability or language problems, the staff attempts to provide reasonable assistance to the person or to refer the person to other resources where assistance may be found.

The ODC also operates an active lawyer discipline prevention program by speaking annually at more than 70 continuing legal education and other programs, and writing and publishing various articles relating to lawyer ethics, discipline and professionalism.

Adjudicative Functions. The final adjudicative authority in the lawyer discipline system is the Washington State Supreme Court. Other persons and entities involved as adjudicators in the system include the Disciplinary Board, the review committees that make up that board, hearing officers, and Bar staff who support these entities.

The Disciplinary Board is made up of 14 members — 10 lawyers appointed by the Bar’s Board of Governors, and four nonlawyers appointed by the Washington State Supreme Court. Two of the lawyers serve as chair and vice-chair, respectively, of the Disciplinary Board; the other 12 members break into four groups with each group comprising a review committee, each consisting of two lawyers and one nonlawyer.

The four three-person review committees serve as gatekeepers to public disciplinary hearings in the lawyer discipline system — first, to consider appeals by grievants of grievances dismissed by disciplinary counsel, and second, to consider recommendations by disciplinary counsel for public hearings of lawyer discipline matters.

The Disciplinary Board itself serves primarily as an appellate court in the lawyer discipline system, hearing appeals of hearing-officer decisions, reviewing all hearing-officer recommendations for suspension or disbarment, and approving or disapproving all proposed stipulations to discipline in lieu of public disciplinary hearings.

The Disciplinary Board also monitors the performance of the volunteer hearing officers who act as trial court judges in the lawyer discipline system. Hearing officers hear evidence and argument, enter findings of fact and conclusions of law, and make recommendations to the Disciplinary Board for disposition of the matter. Hearing officers are appointed by the Board of Governors, and are then assigned to specific cases by the chair of the Disciplinary Board. The Disciplinary Board is assisted by Bar staff (independent from the staff that supports the ODC), including an assistant general counsel and a clerk to the Disciplinary Board.

Grievances. Grievances arise in all areas of law, but most frequently in family and criminal law cases, personal injury cases, real property and trust/estate cases, and litigation cases. They range from simple noncommunication or improper withholding of a client file from a client, to serious misconduct such as theft of client funds, material misrepresentations to clients or courts, or sexual or physical assaults.

Because the disciplinary system exists for the protection of the public and to assure the integrity of the Bar, the system is structured to encourage anyone believing a lawyer has engaged in unethical conduct to communicate that belief to the Bar. Thus, anyone may be a grievant. Grievants are most frequently clients, former clients, judges, opposing parties, opposing counsel, otherwise concerned members of the public, or the Bar itself. There is no requirement that the grievant have any legal "standing," nor are there any filing fees or statutes of limitation for filing a grievance.

Grievances must be written. When a grievance is received, it is analyzed to determine whether it should be investigated, referred to a more appropriate forum, or dismissed. A copy of the grievance is usually sent (stamped "confidential" on the envelope) to the lawyer for response to disciplinary counsel. Some grievances which disciplinary counsel believe do not require a lawyer’s response, however, are dismissed immediately, with a copy of the grievance and the dismissal letter sent to the lawyer simply for the lawyer’s information. For example, grievances alleging misconduct by a lawyer which, even if the facts were as alleged would not be an ethical violation, are usually dismissed in this manner.

Other grievances may be more appropriate for referral. For example, fee disputes are generally referred to the Bar’s voluntary fee-arbitration program, while disputes between lawyers and other professionals are often referred to the Bar’s voluntary mediation program. Although the Washington lawyer disciplinary system has concurrent jurisdiction with the Washington Commission on Judicial Conduct over alleged ethical violations by Washington lawyers who are judges, submissions to the ODC alleging such misconduct are generally not opened as grievances, but are instead initially referred to the commission for primary consideration.

If a grievance raises the same or substantially the same issues being considered in other civil or criminal litigation, the ODC will usually defer acting on the grievance until the other litigation is resolved. This deferral is pursuant to policies enunciated by the Bar’s Board of Governors and the Washington State Supreme Court. Deferral prevents Bar resources from being used to investigate private disputes and assures that the ODC’s actions do not impede other civil or criminal investigations.

Grievances alleging ineffective assistance of counsel in criminal proceedings are, like other grievances, each considered individually, but most are dismissed unless there has been a judicial finding of impropriety. Upon such a finding, the allegations will generally be investigated to determine whether the conduct in question rises to the level of ethical misconduct which should subject the lawyer to discipline.

Investigations. If it is determined that investigation of a grievance is warranted, the grievance is assigned to a disciplinary counsel for investigation. With certain exceptions, the Supreme Court’s Rules for Lawyer Discipline require that Bar staff and agents, but not grievants or the lawyer against whom the grievance is filed, maintain the confidentiality of disciplinary investigations. Thus, while grievants and respondents generally may freely and publicly discuss a grievance, the Bar generally may not comment on or even acknowledge the existence of a grievance until it becomes public information pursuant to the Rules for Lawyer Discipline.

Following investigation, a grievance may be dismissed, recommended for public hearing, or negotiated for resolution by stipulation with a respondent lawyer.

If disciplinary counsel determines to dismiss a grievance, counsel does so by a letter addressed to the grievant and the respondent lawyer which summarizes the grievance, identifies the alleged ethical issues, and analyzes the grievant’s allegations under the Rules of Professional Conduct and Rules for Lawyer Discipline. A grievant may request a review committee to review the propriety of the dismissal. Upon such a request, disciplinary counsel, regardless of any belief or lack of belief in the merit of the grievance, has only two choices: either re-open the investigation or submit the request for review to a review committee. If disciplinary counsel does not re-open the investigation, it must send the request for review to a review committee even if disciplinary counsel continues to believe the grievance should be dismissed.

If disciplinary counsel determines not to dismiss a grievance, disciplinary counsel so advises the grievant and the respondent lawyer by letter. The letter summarizes the grievance, identifies the alleged ethical issues, analyzes the lawyer’s alleged misconduct, and provides a summary analysis of the estimated likely range of sanction if the alleged misconduct were proven. The letter and any responses to it from the grievant or the respondent lawyer are then transmitted as an investigation report to a review committee. A confidential investigation by the ODC generally becomes public information when an investigation report recommending that a public hearing be held or that an admonition be issued is transmitted to a review committee.

Review Committees. All submissions to a review committee are entirely by document presentation with no oral presentations made by disciplinary counsel, respondent, grievant or their counsel.

A review committee has several options as to reports submitted to it by disciplinary counsel and as to dismissed grievances appealed to it by grievants. The committee can (1) dismiss the grievance outright, (2) dismiss the grievance with a confidential nonpublic "advisory letter" advising the lawyer on how to improve his or her practice to adhere more clearly to the ethical requirements, (3) issue a public admonition to the lawyer, or (4) order the matter to a public hearing.

If a review committee dismisses a grievance, or rejects a grievant’s appeal of disciplinary counsel’s dismissal of the grievance, the grievant may appeal the decision to the chair of the Disciplinary Board, who may in turn refer the matter to the Disciplinary Board. The chair’s (or board’s) decision on whether or not to dismiss the grievance is final.

Prosecutions. If a review committee orders a public disciplinary hearing to be held on whether a lawyer’s conduct constitutes an ethical violation, the ODC then drafts a formal complaint which is somewhat like a civil complaint initiating a private lawsuit or a criminal charging document specifying the violations alleged. If multiple grievances against a lawyer are ordered to a hearing, they are usually consolidated into a single formal complaint and a single hearing. The formal complaint is then filed with the Disciplinary Board, and all further proceedings are generally public. After the formal complaint is filed, the lawyer responds to the complaint, discovery may be conducted, and a public hearing is held in a manner somewhat similar to an administrative proceeding.

The filing of the formal complaint formally commences the public disciplinary proceedings. The parties to the disciplinary proceeding are the Bar (through the ODC) and the respondent lawyer against whom the grievance was filed. Grievants are not parties to the disciplinary proceeding, but instead may serve as witnesses in a manner somewhat similar to a witness in a criminal proceeding.

Disciplinary hearings (other than those related to a lawyer’s possible disability) are open to the public. At the hearing, the hearing officer hears evidence and argument, enters findings of fact and conclusions of law, and makes a recommendation to the Disciplinary Board for dismissal or for imposition of a disciplinary action.

Disciplinary Actions/Sanctions/Stipulations. Disciplinary "actions" include both disciplinary "sanctions" (each of which results in a permanent public disciplinary record) and admonitions (which result in a temporary public disciplinary record generally retained for only three to five years). An admonition is a disciplinary "action" (but not a disciplinary "sanction") issued to a lawyer for misconduct involving inattention, neglect, or lack of competence in handling a matter.

Disciplinary sanctions are, in order of increasing severity, censures, reprimands, suspensions and disbarments. A censure is a public written statement that describes the misconduct and censures the lawyer for the misconduct. A reprimand involves a similar public written statement, but in addition, the statement is personally read aloud to the lawyer in a nonpublic portion of a meeting of the Bar’s Board of Governors. A suspension from the practice of law may be for any period of time not to exceed two years, and may include conditions to be fulfilled by the lawyer. A disbarment revokes the lawyer’s license to practice law, with a disbarred lawyer not being able to seek re-admission to the Bar sooner than five years after being disbarred. Only the Supreme Court may order a lawyer suspended or disbarred.

If a hearing officer recommends an admonition, censure or reprimand, and the recommendation is not appealed, the action is final. Decisions of hearing officers may be appealed to the Disciplinary Board. All hearing officer recommendations for suspension or disbarment of a lawyer are automatically reviewed by the Disciplinary Board and by the Supreme Court.

The Bar’s Disciplinary Board reviews all recommendations by hearing officers for suspension and disbarment, and all stipulations to disciplinary action. It also serves as the appellate court for hearing appeals from the decisions of lawyer discipline system hearing officers. If the Disciplinary Board determines a lawyer should be suspended or disbarred, the determination is automatically reviewed by the Washington State Supreme Court; the Court may also, in its discretion, review other actions of the Disciplinary Board.

As an alternative to a public disciplinary hearing, a respondent lawyer may agree with disciplinary counsel to imposition of a specific disciplinary sanction or action. These agreements or stipulations are then submitted to the Disciplinary Board for approval, and, if approved, then become public. If the stipulation involves either suspension or disbarment, the stipulation goes to the Washington Supreme Court for its consideration and imposition of an appropriate order. The Court may, in its discretion, approve the stipulation or take such other action as it deems appropriate, including imposing a different sanction or dismissing the case. If the Disciplinary Board does not approve a stipulation, the stipulation remains confidential, and the matter either then proceeds to a public hearing or a new stipulation is negotiated.

Another alternative to formal discipline may be available if the alleged misconduct is "less serious misconduct," that is, conduct not involving misappropriation of client money, dishonesty, fraud, deceit or misrepresentation; or serious injury to clients or conduct of the same type for which the lawyer has been previously disciplined. The ODC may divert such a case out of the formal discipline system into various alternatives. For this to happen, the lawyer must admit to the misconduct and sign a contract to do certain things outside the formal discipline system to address the misconduct. For example, the agreement may require the lawyer to agree to implement better office procedures, agree to arbitrate or mediate fee or other disputes, obtain counseling or treatment, take educational courses, or make restitution for injuries the lawyer has caused. If the lawyer satisfies the diversion contract, the disciplinary grievance is dismissed; if the lawyer does not satisfy the contract, the grievance is reinstated.

Occasionally, a lawyer with a pending disciplinary investigation or proceeding will seek to resign from the Bar rather than go through the disciplinary process. Under the Bar’s bylaws, such a lawyer may resign only with the consent of the Bar’s Board of Governors. If the disciplinary investigation or proceedings involve serious ethical misconduct, only very rarely will that consent be given. Instead, the lawyer’s option is to stipulate to the misconduct or complete the disciplinary process.

Proposals for Change
In early 2000, the Washington State Supreme Court and the Bar’s Board of Governors jointly appointed the Discipline 2000 Task Force, composed of individuals with very extensive knowledge and experience in lawyer discipline. The full task force met 13 times, and its committees met more than 70 times, with all meetings open to the public. The task force focused on improving the effectiveness, fairness and efficiency of the procedures within the existing structure, since it believed that the structure of Washington’s lawyer discipline system was sound and appropriate without need for major structural change. Thus, substantially all the description given above of Washington’s lawyer discipline system would remain unchanged.

The Discipline 2000 Task Force submitted its report in July 2001 to the Bar’s Board of Governors, which voted at its September 2001 meeting to adopt most of the task force’s recommendations and submit them to the Supreme Court for possible rule adoption. Under normal Court rule making procedures, the Court will likely publish the suggested rules for comment in January 2002. If the Court adopts them, they would likely become effective September 1, 2002.

Among the task force’s recommended changes adopted by the board for submission to the Court are the following: (a) appoint a chief hearing officer and pay the appointee a small stipend; (b) authorize hearing officers to approve stipulations not involving suspension or disbarment rather than requiring those stipulations to be submitted to the Disciplinary Board; (c) subject hearing officers to conduct standards modeled after the state judicial standards; (d) permit certain dispositive motions and require scheduling orders to keep cases moving timely; (e) do more to recover discipline costs, including updating the amounts of cost assessed against lawyers receiving discipline and having final unpaid cost orders result in entry of a judgment; (f) modify sanctions to be consistent with the ABA Standards for Imposing Lawyer Sanctions by eliminating the sanction of "censure" and increasing the maximum suspension period from two years to three years; (g) permit, under very narrow circumstances, a lawyer facing discipline to permanently resign (the lawyer must admit the misconduct, arrange for restitution and costs, and will be considered disbarred); (h) clarify the rules for disability proceedings and provide for limited guardianships in superior court; (i) modify hearing and appellate procedures to conform more closely with civil, administrative and appellate practice; (j) clarify the lawyer’s duty to cooperate in disciplinary investigations as to the waivers required and the effect of attorney/client privilege; (k) provide respondents more efficient means of seeking review of their matters in the system; and (l) rewrite, reorganize, clarify and rename the existing Rules for Lawyer Discipline (with a suggested new name of "Rules for Enforcement of Lawyer Conduct").

The most important task-force recommendation that was not adopted by the Board of Governors was the unanimous recommendation to reduce the number of disciplinary hearing officers to no more than 10, and to pay them a small stipend. The goal sought by the recommendation was to create a small cadre of hearing officers who, by frequently handling lawyer disciplinary proceedings, would develop extensive knowledge and experience in, and familiarity with, lawyer disciplinary issues and procedures. The board’s principal stated reasons for rejecting the recommendation were budgetary concerns and uncertainty that payment of a stipend would, in fact, attract the caliber of lawyers sought as hearing officers. The board concluded, however, that in the future it may want to reconsider the recommendation.

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