May 2002

Ethics and the Law
Lawyer Discipline & Ethics: 2001 Summary Report

by Barrie Althoff, WSBA Professionalism Counsel

 This article summarizes what happened in Washington lawyer discipline and ethics during calendar year 2001.

Grievants file allegations of unethical conduct by Washington lawyers with the WSBA Office of Disciplinary Counsel (ODC). The ODC investigates, and either dismisses or prosecutes grievances. 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. The WSBA Disciplinary Board, composed of the members of the review committees and a chair and vice-chair, serves as the disciplinary appellate court. The Washington Supreme Court is the disciplinary court of last resort.

In 2001, 56 formal disciplinary sanctions (permanent public records) were imposed on Washington lawyers, consisting of 20 disbarments, 15 disciplinary suspensions, 13 reprimands and 8 censures. In addition, 16 lawyers were formally admonished (generally a nonpermanent public record) for misconduct. Another five lawyers were suspended from practice on an interim basis (not a disciplinary sanction) pending disciplinary proceedings. The 72 sanctions and admonitions were imposed on 70 lawyers (one lawyer received three reprimands). By comparison, in 2000 there were 107 disciplinary sanctions/actions, but in 1999 only 49.

As of midyear 2001, Washington had 19,217 active in-state lawyers, an increase of about 500 over the prior year. In 2001, about one in every 356 Washington lawyers (compared to one in every 237 in 2000) was formally sanctioned (disbarred, suspended for discipline, reprimanded or censured), and one in every 1,201 (compared to one in every 668 in 2000) was formally admonished. Or, collectively, in 2001, one in every 275 (183 in 2000) Washington lawyers (less than four-tenths of one percent) was either sanctioned or admonished. Alternatively, 274 of 275 Washington lawyers (about 99.6 percent) were not subject to any disciplinary sanction or action last year. Washington lawyers continue overwhelmingly to represent their clients ethically.

During 2001 the ODC changed file opening/closing practices, generally resulting in fewer file openings, with the result that 2001 figures are not wholly comparable to those in prior years. However, during 2001 the ODC opened files on 2,717 new matters (compared to 3,427 in 2000). Included were 1,923 (2,244 in 2000) written grievances (allegations of unethical conduct), 378 (536 in 2000) lawyer-client file disputes, and 416 (647 in 2000) lawyer-client noncommunication matters. While some lawyers were subject to multiple grievances, written grievances averaged about one for every 10 lawyers. However, this bare statistic does not accurately reflect client satisfaction. If each of Washington's 19,217 active in-state lawyers represented only 20 clients in 2001 (an unrealistically low assumption), less than one half of one percent of those 384,340 lawyer-client representations resulted in a grievance, or, nearly 99.5 percent did not result in a grievance. This suggests that Washington lawyers continue to do a very good job in satisfying their clients.

At the end of 2001, the ODC had in inventory about 110 files in the intake phase and about 278 under investigation. Under the aspirational timelines used by the ODC, files should not remain in intake more than 60 days before being dismissed or sent to investigation, and 90 percent of investigation files should be out of investigation within 120 days and the rest within 180 days. Files assigned to outside special district counsel are exempt from the timelines. At the close of the year, about 73 percent of investigations were less than 120 days old, 16 percent were between 120 and 180 days old, and nine percent were older than 180 days (of which 42 percent were files assigned to outside special district counsel).

In addition to open investigations, the ODC ended the year with a record total of 150 formal prosecutions pending, ranging from matters just ordered to hearing to cases awaiting Supreme Court decisions. Without the generous support of many lawyers who volunteered to act as special district counsel and prosecute cases on behalf of the ODC, the closing inventory would have been even higher. The increase in pending disciplinary proceedings reflects both the completion of many investigations and the fact that disciplinary prosecutions are becoming increasingly complex, contentious and time-consuming.

In addition to the ODC's handling of formal grievance investigations and prosecutions, in 2001 its consumer-affairs team received 6,140 telephone calls from the public about lawyers' performance or disciplinary histories, mailed 2,534 grievance brochures and forms and 953 other law-related information brochures, handled 4,619 additional calls from the public on pending matters, and took part in 138 in-person meetings with members of the public.

About 53 percent of all grievances were filed by clients (21 percent) or ex-clients (32 percent), while 19 percent were filed by opposing clients (17 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 (12 percent). These percentages are consistent with past years' grievances.

In prior years most grievances generally were filed against lawyers practicing family law. In 2001, however, most grievances were filed against lawyers practicing criminal law (29 percent), then family law (22 percent), personal injury law (11 percent), estates/probate law (seven percent), real property law (four percent), and commercial law (four percent). Grievances were filed in lesser amounts against lawyers practicing in the areas of labor/employment matters, bankruptcy, collections, contracts/consumer law, landlord/tenant law, immigration and corporate/business matters.

Other than the increase in criminal law and decrease in family law formal grievances, there were no significant changes from last year in the areas in which written grievances were filed. The areas in which most grievances are filed generally are 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.

About 45 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 for the client. Another 16 percent of formal grievances 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 nine 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 seven percent allege trust-account violations. There were no significant changes in 2001 compared to 2000 as to the nature of the grievances.

The ODC examines each submission it receives to determine if it alleges an ethical violation. About 23 percent of 2001 submissions failed to do so and were dismissed. If a submission alleges an ethical violation, the ODC considers its materiality and investigates as appropriate. The ODC dismissed 29 percent of 2001 submissions after either a formal (15 percent) or informal (14 percent) investigation showed that, although a violation was alleged, there was either no evidence or insufficient evidence to establish a violation had occurred. Another 13 percent were dismissed further into the disciplinary process by a review committee or the Disciplinary Board. File disputes (14 percent) and noncommunication matters (15 percent) were generally closed and resolved informally outside of the grievance-discipline process. About four 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.

During 2001, the Supreme Court issued two published opinions in lawyer disciplinary cases. One considered whether requiring a Washington licensed lawyer as probation supervisor was appropriate for a respondent lawyer whose practice was exclusively in federal courts and whose office was outside the state of Washington. The other case looked at whether a deputy prosecuting attorney may ethically attempt to induce a witness to not testify for a person charged with a crime, even if the offer has no affect on the witness's decision not to testify.

In the first case, In re Discipline of Juarez, 143 Wn.2d 840 (2001), the Court upheld the Disciplinary Board's recommendation to suspend a lawyer from the practice of law for 18 months, to be followed by a 12-month probation period during which the lawyer's work was to be supervised by another Washington-licensed lawyer.

The lawyer was charged with various acts of misconduct. The interesting issue in the case, however, is not the misconduct but the nature of the sanction. The lawyer asserted his criminal law practice was exclusively in federal courts and that he had moved out of Washington to New Mexico. He contested whether, upon the expiration of his suspension, his probation supervisor had to be a Washington-licensed lawyer as recommended by the Disciplinary Board. The Court rejected the lawyer's argument and agreed with the observing board that the lawyer was only licensed to practice law in Washington, and his right to practice law in federal courts was dependent on his maintaining his Washington license.

The Court's second lawyer-discipline opinion was In re Discipline of Bonet, 144 Wn.2d 502 (2001). Disciplinary counsel charged the lawyer, a deputy prosecutor, with misconduct as to a potential witness for a criminal defendant. The hearing officer found that the lawyer had offered to dismiss a charge against the witness if the witness would invoke his constitutional privilege not to testify for the criminal defendant, a privilege the hearing officer found the witness did not otherwise intend to invoke. The hearing officer found that two other charges against the lawyer were not proved. Both the lawyer and disciplinary counsel appealed the hearing officer's decision to the Disciplinary Board, which found none of the charges proved, and recommended dismissing the case. Disciplinary counsel then sought, and the Supreme Court granted, discretionary review of the board's decision as one involving an issue of substantial public interest.

The Court decided that the misconduct found by the hearing officer was proved, and that the conduct violated the Rules of Professional Conduct. It then remanded the case to the Disciplinary Board to determine the appropriate sanction.

The issue of substantial public interest which formed the basis for the Court's discretionary review of the Disciplinary Board's decision, was, in the Court's words:

May a prosecuting attorney offer an inducement to a defense witness to not testify at a criminal proceeding? More specifically, is it misconduct for a deputy prosecuting attorney to attempt to induce a witness to not testify for a person charged with a crime, even if the offer has no affect on the witness's decision to not testify? [144 Wn.2d 502, 513].

The Court concluded such conduct violated RPC 3.4 (a lawyer may not falsify evidence or assist a witness to testify falsely or offer an inducement prohibited by law) and RPCs 8.4 (b) and (d) (it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer, or to engage in conduct prejudicial to the administration of justice).

New Diversion Program. During calendar year 2001 the Supreme Court adopted the recommendation of the Bar's Board of Governors to amend the Rules for Lawyer Discipline to create a new diversion program as an alternative to formal discipline.

Under the diversion program, disciplinary counsel may agree with a lawyer to divert the lawyer's disciplinary case out of the formal disciplinary process, but only if the lawyer's alleged misconduct is "less serious misconduct." That term means conduct which does not involve misappropriation of client money, dishonesty, fraud, deceit or misrepresentation; conduct which does not involve serious injury to clients; and conduct which is not of the same type for which the lawyer has been previously disciplined. Disciplinary counsel may, but is not required to, divert such a case out of the formal discipline system into various alternative programs including, for example, lawyer assistance programs, law office management programs, continuing legal education programs, and so on.

For diversion 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 implement better office procedures, 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 and processed through lawyer disciplinary procedures.

Definition of Practice of Law and Creation of the Practice of Law Board. In October 2000, the WSBA's Board of Governors approved and submitted to the Supreme Court proposed new rules defining the practice of law and establishing a board to deal with issues of unauthorized practice of law. The court approved new General Rules 24 and 25 effective September 1, 2001.

General Rule 24 clarifies what is and what is not the practice of law. This is relevant not only for nonlawyers providing client services, but also for out-of-state lawyers not admitted in Washington who may provide client services within Washington, and for Washington lawyers who may assist them, since providing legal services in a jurisdiction where a lawyer is not authorized to do so, and assisting another lawyer to do so, are both ethical violations subjecting a lawyer to disciplinary action. It also lays the groundwork for enforcement of existing statutes prohibiting the unauthorized practice of law which are largely unenforced due, at least in part, to uncertainty over what constitutes the practice of law.

General Rule 25 establishes a Practice of Law Board to address issues of unauthorized practice of law and issues related to authorized practice of law by nonlawyers. The rule includes criteria to be used in considering a recommendation to the Supreme Court that it consider establishing limited practice for nonlawyers similar to the current rule for Limited Practice for Closing Officers (APR 12).

Proposed Replacement of Disciplinary Procedural Rules. The Board of Governors approved late in 2001, and submitted to the Supreme Court early in 2002, extensive recommendations for procedural changes in Washington's lawyer discipline system. The recommendations, including a new set of disciplinary procedural rules, are now pending before the Supreme Court.

The proposed new rules substantially complete a discipline-system review begun in 1992, when the Court, the governors and the Disciplinary Board invited the ABA's Standing Committee on Professional Discipline to evaluate Washington's lawyer discipline system against the national model for such systems set out in the 1992 final report of the ABA McKay Commission. The Court and governors appointed a joint task force to consider the evaluation team's September 1993 final report on Washington's system. In December 1994, the joint task force issued its own final report largely supporting the evaluation team's recommendations and making additional recommendations. Most recommendations were subsequently approved by the governors, submitted to the Court, and adopted as rule amendments effective September 1997.

In late 1999, the governors proposed forming a new task force (Discipline 2000 Task Force) to review the Rules for Lawyer Discipline, first adopted effective in 1983, and address numerous procedural problems that had become apparent under the rules. The Court agreed to the proposal. The 1992 evaluation and subsequent joint task force consideration had looked at Washington's discipline system from the outside, comparing it to a proposed national model. The new task force was to look at the system from the inside, and thus was to be made up principally of "insiders" (respondents' counsel, disciplinary counsel and adjudicators) intimately familiar with Washington's discipline system and its strengths and weaknesses. Their mandate was to improve the effectiveness, fairness and efficiency of the existing discipline system rather than to seek alternative structures for that system.

In July 2001, the new task force submitted its report  to the governors, who, in September 2001, approved most of its recommendations and, in January 2002, submitted suggested now-pending rules changes to the Court. If the Court adopts the suggested rules, they will likely become effective September 1, 2002.

Among the recommended changes and actions are the following:

•  appoint a chief hearing officer to administer the hearing officer system;

•  authorize hearing officers to approve stipulations not involving suspension or disbarment rather than requiring those stipulations to be submitted to the Disciplinary Board;

•  subject hearing officers to conduct standards modeled after state judicial standards;

•  permit certain dispositive motions and require scheduling orders to keep cases moving timely;

•  do more to recover discipline costs, including updating the amounts of costs assessed against lawyers receiving discipline and having final unpaid cost orders result in entry of a judgment; recently, the court also inquired whether lawyers who prevail in disciplinary actions should be able to recover their costs;

•  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 to three years;

•  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);

•  clarify the rules for disability proceedings and provide for limited guardianships in superior court;

•  modify hearing and appellate procedures to conform more closely with civil, administrative and appellate practice;

• clarify the lawyer's duty to cooperate in disciplinary investigations as to the waivers required and the effect of attorney-client privilege;

•  provide respondents more efficient means of seeking review of their matters in the system; and

•  rewrite, reorganize, clarify and rename the existing Rules for Lawyer Discipline (with a suggested new name of "Rules for Enforcement of Lawyer Conduct").

The governors did not adopt a task-force recommendation to reduce the number of disciplinary hearing officers to no more than 10, and pay them a stipend. The recommendation's goal was to create a small cadre of hearing officers who, by frequently handling disciplinary proceedings, would develop extensive knowledge and experience in, and familiarity with, disciplinary issues and procedures. The governors adopted the enabling language to pay hearing officers, but did not fund it for 2002 due to budgetary concerns and uncertainty that payment of a stipend would, in fact, attract the caliber of lawyers sought as hearing officers.

Proposed Rules on Unbundled/Discrete-Task Representation. In December 2001, the governors approved submitting to the Supreme Court suggested rule changes to facilitate discrete-task representation (unbundled legal services) and limited court appearances. The suggested rules were also approved by the Washington Access to Justice Board, the Superior Court Judges' Association, and the District and Municipal Court Judges' Association. If the court adopts the suggested changes, they will likely become effective September 1, 2002.

Several Rules of Professional Conduct are proposed for revision including RPCs 1.2 (scope of representation), 4.2 (communicating with represented person), 4.3 (communicating with an unrepresented person), and a new RPC 6.5 (nonprofit and court-annexed limited legal service programs). Revisions and new rules were also suggested to the superior court civil rules and the civil rules for courts of limited jurisdiction, including specific provision for limited appearances and clarifying that a lawyer generally will not be obligated to continue a representation beyond the agreed scope of representation. The suggested rules are in part based on newly adopted changes to the ABA's Model Rules of Professional Conduct.

Creed of Professionalism. In July 2001, the governors adopted a Creed of Professionalism as a statement of professional aspiration for Washington lawyers. While not supplanting or modifying the Rules of Professional Conduct, it sets out some fundamental principles of professionalism and civility in the belief that these principles and full representation of clients are not incompatible. For the text of the creed, see page 15 of this issue.

By making ethics presentations and writings available to lawyers throughout the state, the ODC has sought to help Washington lawyers understand their ethical obligations and avoid misconduct leading to discipline. Last year, lawyers in ODC made about 80 ethics presentations and wrote various legal ethics articles.

The ODC publishes the Washington Lawyer Discipline Manual annually. The most recent version reprints relevant disciplinary rules, guidelines and year 2001 discipline notices, and contains the 2001 annual discipline report. It is available for $15 from the ODC.

Having moved in March 2002 from the position of WSBA chief disciplinary counsel and director of lawyer discipline to the new part-time position of WSBA professionalism counsel, this is my last summary discipline report. I will continue serving the Bar in my new position through presentations and writings on ethics, discipline and legal professionalism.

Seven years ago, when I started as chief disciplinary counsel, I was proud to be a Washington lawyer. After seven years at the helm of Washington's lawyer discipline system, during which the discipline system handled over 18,000 grievance investigations and prosecuted over 400 Washington lawyers for ethical misconduct, I am even prouder to be a Washington lawyer. I remain convinced that nearly all Washington lawyers are highly ethical, and serve their clients and the public well. Because of their conduct, law remains a noble profession in Washington.