ELC 5.3 INVESTIGATION OF GRIEVANCE (a) Review and Investigation. Disciplinary counsel must review and may investigate any alleged or apparent misconduct by a lawyer and any alleged or apparent incapacity of a lawyer to practice law, whether disciplinary counsel learns of the misconduct by grievance or otherwise. If there is no grievant, the Association may open a grievance in the Association’s name. (b) Adjunct Investigative Counsel. Disciplinary counsel may assign a case to adjunct investigative counsel for investigation. Disciplinary counsel assists in those investigations and monitors the performance of adjunct investigative counsel. On receiving a report of an investigation by an adjunct investigative counsel, disciplinary counsel may, as appears appropriate, request or conduct additional investigation or take any action under these rules. (c) Deferral by Disciplinary Counsel. (1) Disciplinary counsel may defer an investigation into alleged acts of misconduct by a lawyer: (A) if it appears that the allegations are related to pending civil or criminal litigation; (B) if it appears that the respondent lawyer is physically or mentally unable to respond to the investigation; or (C) for other good cause, if it appears that the deferral will not endanger the public. (2) Disciplinary counsel must inform the grievant and respondent of a decision to defer or a denial of a request to defer and of the procedure for requesting review. A grievant or respondent may request review of a decision on deferral. If review is requested, disciplinary counsel refers the matter to a review committee for reconsideration of the decision on deferral. To request review, the grievant or respondent must deliver or deposit in the mail a request for review to the Association no later than 45 days after the Association mails the notice regarding deferral. (d) Dismissal of Grievance Not Required. None of the following alone requires dismissal of a grievance: the unwillingness of a grievant to continue the grievance, the withdrawal of the grievance, a compromise between the grievant and the respondent, or restitution by the respondent. (e) Duty To Furnish Prompt Response. Any lawyer must promptly respond to any inquiry or request made under these rules for information relevant to grievances or matters under investigation. Upon inquiry or request, any lawyer must: (1) furnish in writing, or orally if requested, a full and complete response to inquiries and questions; (2) permit inspection and copying of the lawyer’s business records, files, and accounts; (3) furnish copies of requested records, files, and accounts; (4) furnish written releases or authorizations if needed to obtain documents or information from third parties; and (5) comply with discovery conducted under rule 5.5. (f) Failure To Cooperate. (1) Noncooperation Deposition. If a lawyer has not complied with any request made under section (e) or rule 2.13(d) for more than 30 days, disciplinary counsel may notify the lawyer that failure to comply within ten days may result in the lawyer’s deposition or subject the lawyer to interim suspension under rule 7.2. Ten days after this notice, disciplinary counsel may serve the lawyer with a subpoena for a deposition. Any deposition conducted after the ten-day period and necessitated by the lawyer’s continued failure to cooperate may be conducted at any place in Washington State. (2) Costs and Expenses. (A) Regardless of the underlying grievance’s ultimate disposition, a lawyer who has been served with a subpoena under this rule is liable for the actual costs of the deposition, including but not limited to service fees, court reporter fees, travel expenses, and the cost of transcribing the deposition, if ordered by disciplinary counsel. In addition, a lawyer who has been served with a subpoena for a deposition under this rule is liable for a reasonable attorney fee of $500. (B) The procedure for assessing costs and expenses is as follows: (i) Disciplinary counsel applies to a review committee by itemizing the cost and expenses and stating the reasons for the deposition. (ii) The lawyer has ten days to respond to disciplinary counsel’s application. (iii) The review committee by order assesses appropriate costs and expenses. (iv) Rule 13.9(e) governs Board review of the review committee order. (3) Grounds for Discipline. A lawyer’s failure to cooperate fully and promptly with an investigation as required by section (e) or rule 2.13(d) is also grounds for discipline. [Adopted effective October 1, 2002.]
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