ELC Rules - 2.5, 2.7, 3.3, 3.4, 4.2, 5.3, 5.5, 5.6, 6.6, 9.3, 10.7, 10.16, Title 15, 15.1.

• Proposed Changes to ELC Rules - 2.5, 2.7, 3.3, 3.4, 4.2, 5.3, 5.5, 5.6, 6.6, 9.3, 10.7, 10.16, Title 15, 15.1. (in Word Format)
• Comments Received for ELC Rules - 2.5, 2.7, 3.3, 3.4, 4.2, 5.3, 5.5, 5.6, 6.6, 9.3, 10.7, 10.16, Title 15, 15.1.

Suggested Amendments to

Rules for Enforcement of Lawyer Conduct (ELC)

A. Proponent

Washington State Bar Association

Board of Governors

Douglas J. Ende

Chief Disciplinary Counsel

B. Spokesperson

Paula C. Littlewood

Executive Director

C. Purpose

These amendments to the Rules for Enforcement of Lawyer Conduct (ELC) are suggested to correct typographical and other clerical errors, to improve internal rules-based processes in light of ongoing experience in the discipline system, or to clarify ambiguities in the rules where appropriate disciplinary procedures are unclear or inconsistent. Since the adoption and implementation of general amendments to the ELC effective January 1, 2014 (hereinafter 2014 ELC Amendments), WSBA staff in the Office of Disciplinary Counsel and Office of General Counsel have monitored and tracked the need for particular changes to the ELC and periodically submitted recommended amendments for adoption. At its July 2016 meeting, the Washington State Bar Association Board of Governors reviewed and approved these suggested amendments for submission to the Supreme Court.

The following are summaries and explanations of each suggested change:

● ELC 2.5: There are two suggested changes to this rule regarding hearing officers. First, as a technical change, it is suggested that the citation to ELC 10.7(b) in subsection (e)(2)(H) be changed to ELC 10.7(c) to conform to the suggested amendment to ELC 10.7 (described later in this GR 9 Cover Sheet),which, if adopted, would introduce a new subpart (b) to ELC 10.7. This suggested amendment is necessary only if the suggested change to ELC 10.7 is adopted.

Second, it is suggested that in subsection (e)(2)(H) of ELC 2.5 the term “or” be replaced with “of.” This change will correct a clerical error in the 2014 ELC amendments.

● ELC 2.7: Existing ELC 2.7(a)(1) concerning conflicts review officers contains an incorrect citation: As a technical change, it is suggested that the reference to ELC 5.6(a) be changed to ELC 5.7(a) in conformance with the renumbering of rule 5.7 in the 2014 ELC Amendments.

● ELC 3.3: Under existing ELC 3.3(d) and ELC 6.6, diversion contracts and declarations are confidential and may only be released with the consent of the respondent lawyer under ELC 3.4(c). Experience has shown that requiring authorization from the respondent lawyer to release a diversion contract or declaration is underinclusive and overly restrictive. ELC 3.4 identifies a number of situations in which release of otherwise confidential disciplinary information may be authorized, including but not limited to investigative disclosures; to correct false or misleading public statements; to protect the interests of clients, the public, or the integrity of the disciplinary process; to cooperate with law enforcement and other disciplinary authorities; etc. It is foreseeable there will be instances where obtaining a respondent’s authorization will be impractical or may compromise an ongoing investigation. It is suggested that ELC 3.3(d) be amended to provide that a diversion contract or declaration may be released under the existing provisions of ELC 3.4, rather than only under ELC 3.4(c). A counterpart amendment to ELC 6.6, which discusses the confidentiality of diversion declarations, is also suggested.

● ELC 3.4, section (j): Custodians may be appointed under ELC 7.7 to protect client interests when a lawyer is deceased, disabled, missing, disbarred, or suspended. ELC 3.4(j) authorizes outside counsel to access otherwise confidential disciplinary information in order to perform their duties. Under existing ELC 3.4(j), custodians are omitted from the list of outside counsel who may access confidential disciplinary information, which is inconsistent with the access provided to other outside counsel under the rules. It is suggested that language in subsection (j) be amended to clarify that custodians have access to confidential disciplinary information necessary to perform their duties.

● ELC 3.4, new section (n): The ELC provide no explicit direction regarding whether confidential disciplinary information not subject to release under ELC Title 3 may be subject to subpoena in civil, criminal, or other proceedings and under what authority such subpoenas may be issued. This has led to the issuance of subpoenas in civil and criminal proceedings seeking confidential disciplinary information from WSBA, and to the ensuing entanglement of WSBA in legal disputes about the subpoena power of superior courts and courts of limited jurisdiction over information made confidential by Supreme Court rule. It is suggested that a new subsection (n) to ELC 3.4 be added to clarify that confidential disciplinary information is not subject to subpoena in other proceedings except by leave of the Supreme Court upon a showing of compelling need. This suggested change is intended to clarify the limits of the authority of a party outside of the discipline system to compel from WSBA the production of, or testimony about, information expressly made confidential by the ELC.

● ELC 4.2: The suggested changes to two subsections of ELC 4.2 regarding filing procedures are intended to make filing more efficient and align filing requirements with current and anticipated discipline-system document-management practices for electronic filings. First, existing ELC 4.2(a) does not require that documents filed with the Disciplinary Board Clerk be signed. However, it is the Clerk’s practice to require a signature. It is suggested that subsection (a) be amended to reflect this practice by requiring that documents filed with the Clerk be signed. Additionally, existing subsection (a) addresses filing by first-class mail but does not include a reference to electronic filing under subsection (c). It is suggested that subsection (a) be amended to clarify that filing may be made by first-class mail or electronically under subsection (c).

Second, existing ELC 4.2(c) permits electronic filing by e-mail or facsimile. However, a decreasing number of lawyers use facsimile machines, and the Clerk is in the process of developing an electronic filing system. It is suggested that subsection (c) be amended to remove filing by facsimile and to provide that filing can be made by an electronic system provided by the Clerk. Additionally, under existing subsection (c), original paper copies must be filed with the Clerk after being electronically filed. It is suggested that subsection (c) be amended to clarify that there is no need to file a paper version of such a document after it has been electronically filed.

● ELC 5.3: Under ELC 5.3 and ELC 5.5, a respondent may object to an investigative inquiry or subpoena as provided in ELC 5.6. ELC 5.6 provides procedures for review of an objection by a hearing officer. A series of recommended amendments to ELC 5.3, ELC 5.5, and ELC 5.6 addresses uncertainties regarding how objections to investigative inquiries and subpoenas are resolved by a hearing officer. Existing ELC 5.3(i) is silent about how objections to investigative inquiries are resolved. The suggested change to subsection (i) seeks to clarify that objections must be made in writing within 30 days of service of the inquiry and that they are reviewed by motion under ELC 5.6. Providing that an objection must be in writing clarifies the required form for an objection, and providing that an objection is reviewed by motion removes uncertainty regarding who bears the obligation to present such an objection to the hearing officer for resolution. Adding a time period for submitting an objection is intended to prevent unnecessary delay in disciplinary investigations. Counterpart amendments to ELC 5.5(e), regarding objections to investigative subpoenas and ELC 5.6(b) regarding review of objections, are also suggested.

● ELC 5.5: Under ELC 5.3 and ELC 5.5, a respondent may object to an investigative inquiry or subpoena as provided in ELC 5.6. ELC 5.6 provides procedures for review of an objection by a hearing officer. A series of recommended amendments to ELC 5.3, ELC 5.5, and ELC 5.6 addresses uncertainties regarding how objections to investigative inquiries and subpoenas are resolved by a hearing officer. Existing ELC 5.5(e) is silent about how objections to investigative subpoenas are resolved. The suggested changes to subsection (e)(1) seek to clarify that objections must be in writing or on the record and that they are reviewed by motion under ELC 5.6. Providing that an objection must be in writing or on the record clarifies the required form for an objection, and providing that an objection is reviewed by motion removes uncertainty regarding who bears the obligation to present such an objection to the hearing officer for resolution. The suggested changes to subsection (e)(2) seek to clarify when an objection is considered timely made with the intent of preventing unnecessary delay in disciplinary investigations. Counterpart amendments to ELC 5.3(i), regarding objections to investigative inquiries, and ELC 5.6(b), regarding review of objections, are also suggested.

● ELC 5.6: Under ELC 5.3 and ELC 5.5, a respondent may object to an investigative inquiry or subpoena as provided in ELC 5.6. ELC 5.6 provides procedures for review of an objection by a hearing officer. A series of recommended amendments to ELC 5.3, ELC 5.5, and ELC 5.6 addresses uncertainties regarding how objections to investigative inquiries and subpoenas are resolved by a hearing officer. Existing ELC 5.6(b) provides no direction regarding how to obtain a ruling on an objection once an objection has been made, nor does it provide clear timelines for doing so. As an adjunct to the suggested changes to ELC 5.3(i) and ELC 5.5(e), it is suggested that a new subsection (b)(1) to ELC 5.6 be added to require a lawyer to file a motion seeking review of the objection within 15 days of the date of the objection. A 15-day period provides adequate time to prepare and file such a motion, and also creates an interval during which an objection may be resolved between the parties, potentially avoiding the need for a hearing officer to resolve the dispute. Counterpart amendments to ELC 5.3(i), regarding objections to investigative inquiries, and ELC 5.5(e), regarding objections to investigative subpoenas, are also suggested.

● ELC 6.6: Under existing ELC 3.3(d) and ELC 6.6, diversion contracts and declarations are confidential and may only be released with the consent of the respondent lawyer under ELC 3.4(c). Experience has shown that requiring authorization from the respondent lawyer to release a diversion contract or declaration is underinclusive and overly restrictive. ELC 3.4 identifies a number of situations in which release of otherwise confidential disciplinary information may be authorized, including but not limited to investigative disclosures; to correct false or misleading public statements; to protect the interests of clients, the public, or the integrity of the disciplinary process; to cooperate with law enforcement and other disciplinary authorities; etc. It is foreseeable there will be instances where obtaining a respondent’s authorization will be impractical or may compromise an ongoing investigation. It is suggested that ELC 6.6 be amended to provide that a diversion declaration may be released under the existing provisions of ELC 3.4, rather than only under ELC 3.4(c). A counterpart amendment to ELC 3.3(d), regarding the confidentiality of diversion contracts and declarations, is also suggested.

● ELC 9.3: There are two suggested changes to this rule regarding resignations in lieu of discipline. First under existing ELC 9.3(b), a resignation form must be affirmed under oath and notarized. This is inconsistent with other disciplinary procedures, as no other notarization requirement exists under the ELC. This creates practical hurdles to resolving disciplinary matters efficiently and inexpensively. It is suggested that subsection (b) be amended to clarify that a resignation form need not be notarized.

Second, under existing ELC 9.3(f), a respondent resigning under the rule must pay expenses of $1,000 under ELC 13.9(c) plus costs under ELC 13.9(b). This often creates an impediment to resolving matters through resignation because respondents are unwilling, reluctant, or unable to pay these expenses. The suggested amendment removes the payment of these costs and expenses as a condition precedent to finalizing a resignation in lieu of discipline and instead requires that the respondent consent to the entry of an order assessing the expenses under ELC 13.9(e). Additionally, it is suggested that the amount of expenses be increased from $1,000 to $1,500 to conform to expense amounts in ELC 13.9(c) for matters that become final without review by the Disciplinary Board. The impact of the increase in expenses is offset by the suggested amendment’s removal of the requirement that a respondent pay actual costs under ELC 13.9(b).

● ELC 10.7: ELC 10.7 concerns amendments of formal complaints. Under existing ELC 10.7, without chief hearing officer approval, disciplinary counsel may amend a formal complaint at any time to add facts and charges that relate to matters in the formal complaint. See ELC 10.7(a). However, disciplinary counsel may not amend a formal complaint to dismiss charges without leave of the chief hearing officer under ELC 10.7(b); this inconsistency creates a procedural hurdle to simplifying the facts and charges at issue in a disciplinary proceeding. It is suggested that a new subsection (b) be added to clarify that disciplinary counsel may dismiss charges and amend a formal complaint accordingly without seeking authorization from the chief hearing officer. The suggested amendment would require renumbering of ELC 10.7 subsections and a conforming amendment to ELC 2.5. A counterpart amendment to ELC 2.5(e), regarding the authority of the chief hearing officer, is also suggested. The suggested amendment to ELC 2.5(e)(2)(H) is necessary only if this suggested amendment to ELC 10.7 is adopted.

● ELC 10.16: ELC 10.16 concerns decisions of hearing officers. Existing 10.16(b) states parties may submit proposed findings of fact, conclusions of law, and recommendation “as part of their argument of the case.” This language, introduced in the 2014 ELC Amendments, has led to confusion about the required timing of proposed findings. It is suggested that subsection (b) be amended to provide a more certain deadline of 20 days after the hearing has concluded by which parties should submit proposed findings, conclusions, and recommendation. This will eliminate uncertainty about the timeliness of such submissions and provide parties with a reasonable timeframe to submit their proposed findings.

● ELC Title 15: It is suggested that the word “audit” be stricken from the title to ELC Title 15. This change is suggested to correct a clerical error in amendments to the ELC effective on December 8, 2015. It was the intent of the 2015 amendments to remove the term audit from the entirety of the ELC in order to eliminate possible confusion between the two types of trust account examinations: investigative examinations and random examinations. Although the term was stricken from the text of the rules, the drafters of the suggested amendment neglected to remove the term from the heading for Title 15.

● ELC 15.1: Effective April 14, 2015, Rule 1.0 of the Rules of Professional Conduct (RPC) was divided into two rules, 1.0A and 1.0B. As such, the reference to RPC 1.0(c) in ELC 15.1(a) should be updated to RPC 1.0A(c) to cite to the appropriate rule.