September 1997

Ethics And The Law
Supreme Court Provides Greater Public Access To Disciplinary Information

by Barrie Althoff, WSBA Chief Disciplinary Counsel, & Randy Beitel, WSBA Disciplinary Counsel

Opinions expressed herein are the author's and are not official or unofficial WSBA positions.

The Supreme Court recently amended the Rules for Lawyer Discipline, effective September 1, 1997, to provide greater public access to disciplinary information. This culminates a three-year review by the Board of the Governors and the Supreme Court of how open the disciplinary process should be to the public. The amendment adopts changes recommended last October by the Board of Governors.

The amendments are intended to balance the needs of legal consumers for greater information about lawyers, of the Bar for increased public confidence in the Bar's self-regulatory lawyer discipline system, and of lawyers to protect their reputations from serious and undeserved harm resulting from sometimes baseless grievances, even though such grievances may be ultimately dismissed. The amended rules provide greater public access to the system, but only after there has first been a determination that there are substantial concerns about a lawyer's conduct.

Key Features of Current System Remain

Although the amendments are extensive and important, three key features of the existing rules remain intact:

Investigations Remain Confidential.

Investigations of disciplinary grievances remain confidential. Under both the existing and amended rules, if a grievance is dismissed as frivolous, unsupported by sufficient evidence, or beyond disciplinary jurisdiction, and the dismissals are upheld, the grievance, with a few exceptions, remains confidential and never becomes public under the RLDs. Under existing rules, if a grievance is ordered to a hearing by a Review Committee, the existence of the grievance becomes a matter of public record under the RLDs only after disciplinary counsel has filed and served a formal complaint and the respondent lawyer has answered, or the time to do so has expired. Under the amendments, grievances remain confidential until a determination has been made that there are legitimate concerns about the lawyer's conduct. This occurs once disciplinary counsel has concluded an investigation with a recommendation for discipline or an admonition. The effect of the amendments is to retain confidentiality for the overwhelming majority of grievances, but to lift that confidentiality earlier as to the much smaller number of grievances that result in recommendations for public hearings. See below.

Advisory Letters Remain Confidential.

Advisory letters remain confidential. These letters are sometimes issued by a Review Committee or the Disciplinary Board when dismissing a grievance to recommend that the lawyer take care in the future as to a particular aspect of his or her practice, but they are not based on a finding of misconduct nor are they disciplinary action. Since confidential advisory letters serve an important purpose to warn a lawyer before the lawyer's conduct results in rule violations, it is believed that this can be done most effectively by keeping advisory letters confidential.

Stipulations To Discipline Remain Confidential Until Approved.

Stipulations to discipline are agreements between respondent lawyers and disciplinary counsel that misconduct has resulted in rule violations. They become public when approved by the Disciplinary Board. Stipulations which are not approved remain confidential and are of no force or effect and can not be introduced into evidence (RLD 4.14(d)).

Key Revisions to System

The key features of the amended rules include:

Admonitions Become Public.

Admonitions are issued after a finding of misconduct involving inattention, neglect, or lack of competence. Under existing rules admonitions are generally confidential. Under the amendments, admonitions issued after the effective date will now be public. Because admonitions will thus be the least serious form of public discipline, they will remain a part of a lawyer's public disciplinary file only as long as the record of the admonition is now maintained, usually three years, after which the records will ordinarily be destroyed unless there are ongoing investigations or proceedings (RLD 5.5A(b); RLD 12.8(b)).

Recommendations For Disciplinary Action Become Public.

Under existing rules disciplinary counsel's recommendations to a Review Committee that a hearing be ordered, or an admonition be issued, are confidential, and the matter becomes public only after a formal complaint has been filed and served and the respondent lawyer has answered, or the time to do so has expired. Under the amendments, those recommendations, along with their supporting documentation, will become public when submitted to the Review Committee. Matters at this stage have been fully investigated and disciplinary counsel has determined there is adequate evidence of misconduct to support finding a rule violation and either imposing an admonition or holding a public hearing to determine if more severe discipline is warranted. Materials related to client confidences and secrets may remain confidential under a protective order. This change will thus make disciplinary proceedings public several months sooner, and in a few cases may make matters public which would under existing rules have remained confidential.

Statements of Concern.

Discipline grievances usually do not become public until many months after an investigation is undertaken. During this time disciplinary counsel may be aware of facts giving it significant concern about a lawyer's conduct, but, if anyone were to inquire about a lawyer's status with the Bar, all that could otherwise normally be said is that the public records of the WSBA reflect that the lawyer is a member in good standing and does not have any public discipline. To provide a warning to the public when deemed necessary to protect the public from a substantial threat, the Chief Disciplinary Counsel is authorized to issue a statement of concern, based on otherwise confidential disciplinary information from a pending investigation into serious ongoing misconduct, and make that public. This can happen only after service of the proposed statement on the respondent lawyer, who can appeal the issuance of the statement directly to the Chairperson of the Disciplinary Board.

Disclosure to Protect Public Interests.

While the Court retained the Bar's current ability to disclose in particular cases such confidential information as may be necessary to protect the interests of clients, other persons, the public or the integrity of the Bar, the amended rules place this discretion in the Executive Director or the Chief Disciplinary Counsel. In the past these disclosures have generally been made mostly to other investigative or prosecuting agencies, or, infrequently, to the news media in response to existing media knowledge and interest in the underlying conduct. The amended rules also clarify and expand existing WSBA policies on disclosing disciplinary information in several areas, including:

• Providing greater access to disciplinary information by state and federal judicial officers;
• Authorizing cooperation with criminal authorities;
• Granting greater ability to respond to false or misleading statements; and,
• Clarifying authorization to release information to other jurisdictions' admissions and lawyer discipline programs, and for evaluation for judicial or appointive office.

Effect on Pending Investigations and Proceedings.

Under RLD 12.16 the Court's changes will apply in their entirety to any matter or investigation which is pending and which has not been ordered to hearing, or ordered dismissed, prior to September 1, 1997. The Court's changes will apply to pending public proceedings insofar as practicable as determined by the hearing officer or the Chairperson of the Disciplinary Board.