May 2002  

From "Crime and Punishment" to a Continuum of Professional Conduct Services

by Jan Michels
WSBA Executive Director
janm@wsba.org

In 1992, the WSBA's response to grievances against lawyers was to wait for allegations of misconduct, then investigate and sanction the conduct: crime and punishment. That response was often sluggish, leaving respondent lawyers, victims of misconduct, and insurance carriers hanging for years without resolution.

Now the WSBA has a continuum of professional conduct services. Early this month the 1994 Joint Task Force on Lawyer Discipline and those instrumental in implementing the continuum of services the task force recommended will gather to celebrate the achievement of their vision. In 2002, the WSBA's response to grievances is to educate, train, prevent, resolve, restore, offer alternatives, heal, divert and, where appropriate and public protection is at stake, sanction. And, it's done in a timely and responsive manner.

The WSBA has created a new professionalism counsel position. The responsibility of this position is to oversee member education concerning ethical conduct and professionalism. Barrie Althoff, former WSBA chief disciplinary counsel, has moved into this position to continue lectures, CLE seminars and writings on professionalism and ethics.

The WSBA Law Office Management Assistance Program (LOMAP) is aimed at training members to manage the business side of the profession. Labs, demonstrations, CLE seminars and consultations often avert potential misconduct regarding performance diligence, conflicts, trust-account withdrawals, file management and fee agreements. Many other CLE programs teach members about technology, business practices, ethics and client relations.

The WSBA has an ethics call-in line (206-727-8284 or 800-945-WSBA, ext. 8284) available to lawyers interested in discussing the ethical implications of prospective behavior. This service was implemented to help lawyers think through ethical dilemmas and prevent possible misconduct.

The WSBA offers an ombudsman-type service. When clients call the WSBA concerning the conduct of their lawyers in matters of diligence, communication or file disputes, the WSBA's goal is to resolve a potential conflict without a grievance by advising both clients and lawyers of alternative actions, and offering assistance with follow-through.

All active members contribute to the Lawyers' Fund for Client Protection, which restores client financial losses and assures persons financially harmed by lawyer misconduct that the WSBA and other lawyers care about them. This program restores the public's confidence in the profession.

The WSBA offers both mediation and arbitration programs for disputes regarding lawyer fees or other aspects of lawyer-client or interprofessional services agreements. Results from participating in these programs may actually be more satisfying for the client, while allowing the lawyer to avoid disciplinary proceedings.

The WSBA understands that there may be times in members' lives when personal, emotional, addictive or financial problems may interfere with their responsible practice of law. The Lawyers' Assistance Program (LAP) provides confidential assistance to lawyers to help them address their problems. This service may also be helpful to lawyers apart from the practice of law.

For less serious misconduct that may be attributed to the need for further education, service or intervention, diversion may be offered. The diversion alternative seeks remediation rather than discipline.

After opportunities for education, training and diversion have been offered, if a lawyer violates the ethics rules and the matter cannot be otherwise resolved, or if public protection is at risk, misconduct is prosecuted and sanctions are sought. Another improvement based on the 1994 task force report is to separate, organizationally, adjudication of grievances (Disciplinary Board) from prosecution (disciplinary counsel) to ensure the independence and objectivity of the judiciary.

Implementing this continuum of services took successive boards' leadership, increased resources supported by members, and a strong commitment by disciplinary counsel. The payoff for these efforts is a starship array of professional conduct services. No one wants bad lawyers practicing law, and lawyers should receive help and support when they need it.

Completing the continuum of professional conduct services was capped by the Discipline 2000 Task Force rewrite of the Rules of Lawyer Discipline as the new proposed Rules for the Enforcement of Lawyer Conduct (ELC). These procedural rules implement the enforcement of the Rules of Professional Conduct. The rewrite makes them easy to read and follow. (Note: the ELCs are published for member review and comment. We want our professional conduct system to be supportive and member-friendly, where possible, realizing that at times the greatest friend the WSBA can be is to remove the few individuals who engage in egregious misconduct in the practice of law.

Thank you to the many who participated in implementing this vision.

Disciplinary counsel, past and present, who balance the public's interest with fierce loyalty to the best of their profession;

Lee Ripley, who originally recognized the shortcomings of the WSBA's disciplinary system;

Justice James Anderson and WSBA Past-president Paul Stritmatter, co-chairs of the 1994 Joint Task Force on Lawyer Discipline that mapped out service improvements, and the task force members for their vision: Wayne Blair, Steven Burgess, J. Donald Curran, Judge Anne Ellington, Paul Fitzpatrick, Martha Gross, Justice Richard Guy, Anita Kernie, Judge Dean Lum, Christina Meserve, Christopher Pence, Jan Eric Peterson, Judge John Skimas, Justice Charles Smith and Lois Webb;

WSBA past-presidents Judge Ronald Gould, Judge Edward Shea, Justice Tom Chambers, Mary Fairhurst, Wayne Blair, Richard Eymann and Jan Eric Peterson for their steadfast focus on a continuum of professional conduct services and their willingness to fund them;

Barrie Althoff, who upgraded the WSBA's lawyer conduct services and implemented the educational components;

Barbara Harper, who saw the confidential LAP, LOMAP and ADR programs as part of the circle of lawyer conduct services, and worked to make them relevant and effective; and

Joy McLean, who oversaw the elimination of the investigation backlog and now tackles the record high number of public proceedings that resulted.

Further information about the WSBA Office of Disciplinary Counsel may be found at www.wsba.org/info/operations/odc/.