| |
Rules for Enforcement of Lawyer Conduct (ELC)
Table of Rules
Title 1 – Scope, Jurisdiction, and Definitions
ELC 1.1 Scope of Rules
ELC 1.2 Jurisdiction
ELC 1.3 Definitions
ELC 1.4 No Statute of Limitation
ELC 1.5 Violation of Duties Imposed by These Rules
Title 2 – Organization and Structure
ELC 2.1 Supreme Court
ELC 2.2 Board of Governors
ELC 2.3 Disciplinary Board
ELC 2.4 Review Committees
ELC 2.5 Hearing Officer or Panel
ELC 2.6 Hearing Officer Conduct
ELC 2.7 Conflicts Review Officer
ELC 2.8 Disciplinary Counsel; Special Disciplinary Counsel
ELC 2.9 Adjunct Investigative Counsel
ELC 2.10 Removal of Appointees
ELC 2.11 Compensation and Expenses
ELC 2.12 Communications to the Association Privileged
ELC 2.13 Respondent Lawyer
Title 3 – Access and Notice
ELC 3.1 Open Meetings and Public Disciplinary Information
ELC 3.2 Confidential Disciplinary Information
ELC 3.3 Application to Stipulations, Disability Proceedings, and Diversion Contracts
ELC 3.4 Release or Disclosure of Otherwise Confidential Information
ELC 3.5 Notice of Discipline
ELC 3.6 Maintenance of Records
Title 4 – General Procedural Rules
ELC 4.1 Service of Papers
ELC 4.2 Filing; Orders
ELC 4.3 Papers
ELC 4.4 Computation of Time
ELC 4.5 Stipulation to Extension or Reduction of Time
ELC 4.6 Subpoena Under the Law of Another Jurisdiction
ELC 4.7 Enforcement of Subpoenas
Title 5 – Grievance Investigations and Disposition
ELC 5.1 Grievants
ELC 5.2 Confidential Sources
ELC 5.3 Investigation of Grievance
ELC 5.4 Privileges
ELC 5.5 Discovery Before Formal Complaint
ELC 5.6 Disposition of Grievance
ELC 5.7 Advisory Letter
Title 6 -- Diversion
ELC 6.1 Referral to Diversion
ELC 6.2 Less Serious Misconduct
ELC 6.3 Factors For Diversion
ELC 6.4 Notice to Grievant
ELC 6.5 Diversion Contract
ELC 6.6 Affidavit Supporting Diversion
ELC 6.7 Effect of Non-Participation In Diversion
ELC 6.8 Status of Grievance
ELC 6.9 Termination of Diversion
Title 7 – Interim Procedures
ELC 7.1 Interim Suspension For Conviction of A Crime
ELC 7.2 Interim Suspension In Other Circumstances
ELC 7.3 Automatic Suspension When Respondent Asserting Incapacity
ELC 7.4 Stipulation to Interim Suspension
ELC 7.5 Interim Suspensions Expedited
ELC 7.6 Effective Date of Interim Suspensions
ELC 7.7 Appointment of Custodian to Protect Clients' Interests
Title 8 – Disability Proceedings
ELC 8.1 Action On Adjudication of Incompetency
ELC 8.2 Determination of Incapacity to Practice Law
ELC 8.3 Disability Proceedings During the Course of Disciplinary Proceedings
ELC 8.4 Appeal of Transfer to Disability Inactive Status
ELC 8.5 Stipulated Transfer to Disability Inactive Status
ELC 8.6 Costs In Disability Proceedings
ELC 8.7 Burden and Standard of Proof
ELC 8.8 Reinstatement to Active Status
ELC 8.9 Petition For Limited Guardianship
Title 9 – Resolutions Without Hearing
ELC 9.1 Stipulations
ELC 9.2 Reciprocal Discipline and Disability Inactive Status; Duty to Self-Report
ELC 9.3 Resignation In Lieu of Disbarment
Title 10 – Hearing Procedures
ELC 10.1 General Procedure
ELC 10.2 Hearing Officer or Panel
ELC 10.3 Commencement of Proceedings
ELC 10.4 Notice to Answer
ELC 10.5 Answer
ELC 10.6 Default Proceedings
ELC 10.7 Amendment of Formal Complaint
ELC 10.8 Motions
ELC 10.9 Interim Review
ELC 10.10 Prehearing Dispositive Motions
ELC 10.11 Discovery and Prehearing Procedures
ELC 10.12 Scheduling Hearing
ELC 10.13 Disciplinary Hearing
ELC 10.14 Evidence and Burden of Proof
ELC 10.15 Bifurcated Hearings
ELC 10.16 Decision of Hearing Officer or Panel
Title 11 – Review by Board
ELC 11.1 Scope of Title
ELC 11.2 Decisions Subject to Board Review
ELC 11.3 Sua Sponte Review
ELC 11.4 Transcript of Hearing
ELC 11.5 Record On Review
ELC 11.6 Designation of Bar File Documents and Exhibits
ELC 11.7 Preparation of Bar File Documents and Exhibits
ELC 11.8 Briefs For Reviews Involving Suspension or Disbarment Recommendation
ELC 11.9 Briefs For Reviews Not Involving Suspension or Disbarment Recommendation
ELC 11.10 Supplementing Record on Review
ELC 11.11 Request For Additional Proceedings
ELC 11.12 Decision of Board
ELC 11.13 Chair May Modify Requirements
Title 12 – Review by Supreme Court
ELC 12.1 Applicability of Rules of Appellate Procedure
ELC 12.2 Methods of Seeking Review
ELC 12.3 Appeal
ELC 12.4 Discretionary Review
ELC 12.5 Record to Supreme Court
ELC 12.6 Briefs
ELC 12.7 Argument
ELC 12.8 Effective Date of Opinion
ELC 12.9 Violation of Rules
Title 13 – Sanctions and Remedies
ELC 13.1 Sanctions and Remedies
ELC 13.2 Effective Date of Suspensions and Disbarments
ELC 13.3 Suspension
ELC 13.4 Reprimand
ELC 13.5 Admonition
ELC 13.6 Discipline For Cumulative Admonitions
ELC 13.7 Restitution
ELC 13.8 Probation
ELC 13.9 Costs and Expenses
Title 14 – Duties on Suspension or Disbarment
ELC 14.1 Notice to Clients and Others; Providing Client Property
ELC 14.2 Lawyer to Discontinue Practice
ELC 14.3 Affidavit of Compliance
ELC 14.4 Lawyer to Keep Records of Compliance
Title 15 – Audits and Trust Account Overdraft Notification
ELC 15.1 Audit and Investigation of Books and Records
ELC 15.2 Cooperation of Lawyer
ELC 15.3 Disclosure
ELC 15.4 Trust Account Overdraft Notification
ELC 15.5 Declaration or Questionnaire
ELC 15.6 Regulations
Title 16 – Effect of These Rules On Pending Proceedings
ELC 16.1 Effect On Pending Proceedings
ELC 1.1
SCOPE OF RULES
These rules govern the procedure by which a lawyer may be
subjected to disciplinary sanctions or actions for violation
of the Rules of Professional Conduct adopted by the
Washington Supreme Court.
[Adopted effective October 1, 2002.]
ELC 1.2
JURISDICTION
Except as provided in RPC 8.5(c), any lawyer admitted, or permitted by rule,
to practice law in this state, and any lawyer specially admitted by a court of
this state for a particular case, is subject to these Rules for Enforcement of
Lawyer Conduct. Jurisdiction exists regardless of the lawyer's residency or
authority to practice law in this state.
[Adopted effective October 1, 2002; amended effective September 1, 2010]
ELC 1.3
DEFINITIONS
Unless the context clearly indicates otherwise, terms used
in these rules have the following meanings:
(a) "Association" means the Washington State Bar
Association.
(b) "Bar file" means the pleadings, motions, rulings,
decisions, and other formal papers filed in a proceeding.
(c) "Board" when used alone means the Disciplinary Board.
(d) “Chair” when used alone means the Chair of the
Disciplinary Board.
(e) “Clerk” when used alone means the Clerk to the
Disciplinary Board.
(f) “Disciplinary action” means sanctions under rule 13.1
and admonitions under rule 13.5.
(g) “Final” means no review has been sought in a timely
fashion or all appeals have been concluded.
(h) “Grievant” means the person or entity who files a
grievance, except for a confidential source under rule 5.2.
(i) “Hearing officer” means the person assigned under rule
10.2(a)(1) or, when a hearing panel has been assigned, the
hearing panel chair.
(j) “Mental or physical incapacity” includes, but is not
limited to, insanity, mental illness, senility, or
debilitating use of alcohol or drugs.
(k) "Panel" means a hearing panel under rule 10.2(a)(2).
(l) “Party” means disciplinary counsel or respondent, except
in rules 2.3(h) and 2.6(e) “party” also includes a grievant.
(m) “Respondent” means a lawyer against whom a grievance is
filed or a lawyer investigated by disciplinary counsel.
(n) “APR” means the Admission to Practice Rules.
(o) “CR” means the Superior Court Civil Rules.
(p) “RAP” means the Rules of Appellate Procedure.
(q) “RPC” means the Rules of Professional Conduct adopted by
the Washington Supreme Court.
(r) Words of authority.
(1) “May” means “has discretion to,” “has a right to,” or
“is permitted to”.
(2) “Must” means “is required to”.
(3) “Should” means recommended but not required, except:
(A)in rules 2.3(h) and 2.6, “should” has the meaning
ascribed to it in the Code of Judicial Conduct; and
(B) in title 12, “should” has the meaning ascribed to it in
the Rules of Appellate Procedure.
[Adopted effective October 1, 2002.]
ELC 1.4
NO STATUTE OF LIMITATION
No statute of limitation or other time limitation restricts
filing a grievance or bringing a proceeding under these
rules, but the passage of time since an act of misconduct
occurred may be considered in determining what if any action
or sanction is warranted.
[Adopted effective October 1, 2002.]
ELC 1.5
VIOLATION OF DUTIES IMPOSED BY THESE RULES
A lawyer violates RPC 8.4(l) and may be disciplined under these
rules for violating duties imposed by these rules, including but
not limited to the following duties:
· respond to inquiries or requests about matters under investigation, rule 5.3(f);
· file an answer to a formal complaint or to an amendment to a formal
complaint, rule 10.5;
· cooperate with discovery and comply with hearing orders, rules 10.11(g) and 5.5;
· attend a hearing and bring materials requested by disciplinary counsel,
rule 10.13(b) and (c);
· respond to subpoenas and comply with orders enforcing subpoenas, rule 10.13(e);
· notify clients and others of inability to act, rule 14.1;
· discontinue practice, rule 14.2;
· file an affidavit of compliance, rule 14.3;
· maintain confidentiality, rule 3.2(f);
· report being disciplined or transferred to disability inactive status in another
jurisdiction, rule 9.2(a);
· cooperate with an examination of books and records, rule 15.2;
· notify the Association of a trust account overdraft, rule 15.4(d);
· file a declaration or questionnaire certifying compliance with RPC 1.15A, rule 15.5;
· comply with conditions of probation, rule 13.8;
· comply with conditions of a stipulation, rule 9.1;
· pay restitution, rule 13.7; or
· pay costs, rule 5.3(f) or 13.9.
[Adopted effective October 1, 2002; September 1, 2006.]
ELC 2.1
SUPREME COURT
The Washington Supreme Court has exclusive responsibility in
the state to administer the lawyer discipline and disability
system and has inherent power to maintain appropriate
standards of professional conduct and to dispose of
individual cases of lawyer discipline and disability.
Persons carrying out the functions set forth in these rules
act under the Supreme Court’s authority.
[Adopted effective October 1, 2002.]
ELC 2.2
BOARD OF GOVERNORS
(a) Function. The Board of Governors of the Association:
(1) supervises the general functioning of the
Disciplinary Board, review committees, disciplinary
counsel, Association staff, and adjunct investigative
counsel;
(2) makes appointments, removes those appointed, and
fills vacancies as provided in these rules; and
(3) performs other functions and takes other actions
provided in these rules, delegated by the Supreme
Court, or necessary and proper to carry out its duties.
(b) Limitation of Authority. The Board of Governors has no
right or responsibility to review hearing officer, hearing
panel, or Disciplinary Board decisions or recommendations in
specific cases.
(c) Restriction on Representing Respondents. Former members
of the Board of Governors and former Presidents of the
Association are subject to the restrictions on representing
respondents in rule 2.13(b).
[Adopted effective October 1, 2002.]
ELC 2.3
DISCIPLINARY BOARD
(a) Function. The Board performs the functions provided
under these rules, delegated by the Board of Governors or
Supreme Court, or necessary and proper to carry out its
duties.
(b) Membership.
(1) Composition. The Board consists of not fewer than
three nonlawyer members, appointed by the Court, and
not fewer than one lawyer member from each
congressional district, appointed by the Board of
Governors.
(2) Qualifications. Lawyer members must have been
active members of the Association for at least seven
years.
(3) Voting. Each member, including the Chair and the
Vice Chair, whether nonlawyer or lawyer, has one vote.
(4) Quorum. A majority of the Board members
constitutes a quorum. If there is a quorum, the
concurrence of a majority of those present and voting
constitutes action of the Board, so long as at least
seven members vote.
(5) Leave of Absence While Grievance Is Pending. If a
grievance is filed against a lawyer member of the
Board, the following procedures apply:
(A) the member initially decides whether to remain
on the Board or take a leave of absence until the
matter is resolved;
(B)if the member chooses to remain on the Board, the
Conflicts Review Officer must promptly provide a
confidential summary of the grievance to the Board
of Governors with a copy to the member;
(C)the Board of Governors should then, or at any time
thereafter it deems appropriate, determine if the
member is so impaired from serving on the
Disciplinary Board that the member should take, or
continue to take, a leave of absence to protect the
integrity of the discipline system. In making this
determination, the Board of Governors should
consider, among other things, the facts,
circumstances, and nature of the misconduct
alleged, the possible outcome, and the extent of
public concern regarding the matter;
(D)the Board of Governors’ deliberations are
confidential. All materials of the Board of
Governors in connection with such a matter are
confidential unless released under rule 3.4(d) or
(e).
(c) Terms of Office. The term of office for a Board member
is three years. Newly created Board positions may be filled
by appointments of less than three years, as designated by
the Court or the Board of Governors, to permit as equal a
number of positions as possible to be filled each year.
Terms of office begin October 1 and end September 30 or when
a successor has been appointed, whichever occurs later.
Members may not serve more than one term except as otherwise
provided in these rules. Members continue to serve until
replaced, except a member’s term of office ends immediately
if a disciplinary sanction is imposed.
(d) Chair. The Board of Governors annually designates one
lawyer member of the Board to act as Chair and another as
Vice Chair. The Vice Chair serves in the absence of or at
the request of the Chair.
(e) Unexpired Terms. The Board of Governors fills unexpired
terms in lawyer membership on the Board. The Supreme Court
fills unexpired terms in nonlawyer membership. A member
appointed to fill an unexpired term will complete the
unexpired term of the member replaced, and may be
reappointed to a consecutive term if the unexpired term is
less than 18 months.
(f) Pro Tempore Members. If a Board member is disqualified
or unable to function, the Chair may, by written order,
designate a member pro tempore. A member pro tempore must
have either previously served on the Board or be appointed
as an alternate Board member by the Board of Governors if a
lawyer or by the Supreme Court if a nonlawyer. Only a
lawyer may be appointed to substitute for a lawyer member,
and only a nonlawyer to substitute for a nonlawyer member.
(g) Meetings. The Board meets regularly at times and places
it determines. The Chair may convene special Board
meetings. In the Chair’s discretion, the Board may meet and
act through electronic, telephonic, written, or other means
of communication.
(h) Disqualification.
(1) A Board member should disqualify him or herself from
a particular matter in which the member’s impartiality
might reasonably be questioned, including, but not
limited to, instances in which:
(A)the member has a personal bias or prejudice
concerning a party, or personal knowledge of
disputed evidentiary facts concerning the matter;
(B)the member previously served as a lawyer or was a
material witness in the matter in controversy, or a
lawyer with whom the member practices law serves or
has previously served as a lawyer concerning the
matter, or such lawyer is or has been a material
witness concerning the matter;
(C)the member knows that, individually or as a
fiduciary, the member or the member’s spouse or
relative residing in the member’s household, has an
economic interest in the subject matter in
controversy or in a party to the matter, or is an
officer, director, or trustee of a party or has any
other interest that could be substantially affected
by the outcome of the matter, unless there is a
remittal of disqualification under section (i);
(D)the member or the member’s spouse or relative
residing in the member’s household, or the spouse
of such a person:
(i)is a party to the matter, or an officer,
director, or trustee of a party;
(ii) is acting as a lawyer in the matter;
(iii) is to the member’s knowledge likely to be
a material witness in the matter;
(E)the member served as a hearing officer or hearing
panel member for a hearing on the matter, or served
on a review committee that issued an admonition to
the lawyer regarding the matter.
(i) Remittal of Disqualification. A member disqualified
under subsection (h)(1)(C) or (h)(1)(D) may, instead of
withdrawing from consideration of the matter, disclose on
the record the basis of the disqualification. If, based on
such disclosure, the parties and lawyers, independently of
the member’s participation, all agree in writing or on the
record that the member’s relationship is immaterial or that
the member’s economic interest is de minimis, the member is
no longer disqualified, and may participate in the matter.
If a party is not immediately available, the member may
proceed on the assurance of the party’s counsel that the
party’s consent will be subsequently given.
(j) Counsel and Clerk. The Executive Director of the
Association, under the direction of the Board of Governors,
may appoint a suitable person or persons to act as counsel
and clerk to the Board, to assist the Board and the review
committees in carrying out their functions under these
rules.
(k) Restriction on Representing Respondents. Former members
of the Disciplinary Board are subject to the restrictions on
representing respondents in rule 2.13(b).
[Adopted effective October 1, 2002.]
ELC 2.4
REVIEW COMMITTEES
(a) Function. A review committee performs the functions
provided under these rules, delegated by the Board or the
Chair, or necessary and proper to carry out its duties.
(b) Membership. The Chair appoints three or more review
committees of three members each from among the Board
members. Each review committee consists of two lawyers and
one nonlawyer. The Chair may reassign members among the
several committees on an interim or permanent basis. The
Chair does not serve on a review committee.
(c) Review Committee Chair. The Chair of the Disciplinary
Board designates one member of each review committee to act
as its chair.
(d) Terms of Office. A review committee member serves as
long as the member is on the Board.
(e) Distribution of Cases. The Clerk assigns matters to the
several review committees under the Chair’s direction,
equalizing the committee’s caseloads as possible.
(f) Meetings. A review committee meets at times and places
determined by the review committee chair, under the general
direction of the Chair of the Disciplinary Board. In the
review committee chair’s discretion, the committee may meet
and act through electronic, telephonic, written, or other
means of communication.
(g) Adjunct Review Committee Members. Notwithstanding other
provisions of these rules, if deemed necessary to the
efficient operation of the discipline system, the Board may
authorize the Chair to appoint former Board members as
adjunct review committee members for a period deemed
necessary by the Chair, but those appointments terminate at
the end of the term of the Chair making the appointment.
The Chair may remove adjunct review committee members when
deemed appropriate. The Chair may appoint adjunct review
committee members to existing review committees or may
create adjunct review committees. An adjunct member has the
same authority as a regular review committee member and must
comply with rule 2.3(b)(5) but is not otherwise a Board
member.
[Adopted effective October 1, 2002.]
ELC 2.5
HEARING OFFICER OR PANEL
(a) Function. A hearing officer or panel to whom a case has
been assigned for hearing conducts the hearing and performs
other functions as provided under these rules.
(b) Qualifications. A hearing officer must be an active
member of the Association, have been an active or judicial
member of the Association for at least seven years, have no
record of public discipline, and have experience as an
adjudicator or as an advocate in contested adjudicative
hearings.
(c) Hearing Officer Selection Panel. The hearing officer
selection panel makes recommendations to the Board of
Governors for appointment, reappointment, and removal of
hearing officers. The panel is appointed by the Board of
Governors and includes, but is not limited to, a Board of
Governors member who serves as its chair, one or more former
Chairs of the Disciplinary Board, and one or more former
nonlawyer members of the Disciplinary Board.
(d) Appointment. The Board of Governors appoints hearing
officers to the hearing officer list giving consideration to
recommendations of the hearing officer selection panel. The
list should include as many lawyers as the Board of
Governors considers necessary to carry out the provisions of
these rules effectively and efficiently. In making
appointments, the Board of Governors should consider
diversity in gender, ethnicity, geography, and practice
experience. The Board of Governors also maintains a list of
nonlawyers willing to serve on hearing panels under section
(h).
(e) Terms of Appointment. Appointment to the hearing
officer list, or the list of nonlawyers, is for an initial
period of one year, followed by periods of five years.
Reappointment is in the Board of Governors’ discretion. A
hearing officer or panel member may continue to act in any
matter assigned before his or her term expires. On the
recommendation of the hearing officer selection panel, the
Board of Governors may remove a person from the list of
hearing officers or from the list of nonlawyer panel
members.
(f) Chief Hearing Officer. The Board of Governors appoints
a chief hearing officer who, in addition to hearing matters,
assigns cases, monitors and evaluates the performance of
hearing officers and panel members, establishes requirements
for and supervises hearing officer and hearing panel member
training, administers hearing officer compensation, hears
prehearing motions when no hearing officer has been
assigned, and performs other administrative duties necessary
for an efficient and effective hearing system. If the chief
hearing officer position is vacant or the chief hearing
officer has recused or been disqualified from a particular
matter, the Chair may, as necessary, perform the
administrative duties of chief hearing officer.
(g) Case Assignment. The chief hearing officer assigns
hearing officers to cases from the list of hearing officers
appointed by the Board of Governors.
(h) Hearing Panel. If a hearing panel is assigned to hear a
matter, the chief hearing officer appoints the panel. A
panel consists of three persons, with at least one from the
hearing officer list and at least one nonlawyer from the
list maintained by the Board of Governors.
(i) Training. Hearing officers and hearing panel members
must comply with training requirements established by the
chief hearing officer.
[Adopted effective October 1, 2002.]
ELC 2.6
HEARING OFFICER CONDUCT
(a) “Hearing Officer” Includes Panel Members. In this rule,
the term “hearing officer” includes hearing panel members.
(b) Integrity of Hearing Officer System. The integrity and
fairness of the disciplinary system requires that hearing
officers observe high standards of conduct. To the extent
applicable, the Code of Judicial Conduct should guide
hearing officers. The following rules have been adapted
from Canon 2 and Canon 3 of the Code of Judicial Conduct as
particularly applicable to hearing officers, and the words
“should” and “shall” have the meanings ascribed to them in
those rules.
(c) Hearing Officer’s Duty To Avoid Impropriety and the
Appearance of Impropriety. Hearing officers should respect
and comply with the law and act at all times in a manner
that promotes public confidence in the integrity and
impartiality of the disciplinary system. Hearing officers
should not allow family, social, or other relationships to
influence their conduct or judgment. Hearing officers
should not lend the prestige of the hearing officer position
to advance the private interests of the hearing officer or
others; nor should hearing officers convey or permit others
to convey the impression that they are in a special position
to influence them. Hearing officers should not be members
of any organization practicing discrimination prohibited by
law.
(d) Conduct of Those on Hearing Officer List. A person on
the hearing officer list should not:
(1) testify voluntarily as a character witness in a
disciplinary proceeding;
(2) serve as an expert witness related to the
professional conduct of lawyers in any proceeding; or
(3) serve as special disciplinary counsel, adjunct
investigative counsel, or respondent’s counsel.
(e) Performing Duties Impartially and Diligently. When
acting as a hearing officer, the following standards apply:
(1) Adjudicative Responsibilities.
(2)
(A)Hearing officers should be faithful to the law and
maintain professional competence in it. Hearing
officers should be unswayed by partisan interests,
public clamor, or fear of criticism.
(B)Hearing officers should maintain order and decorum
in proceedings before them.
(C)Hearing officers should be patient, dignified, and
courteous to parties, witnesses, lawyers, and
others with whom hearing officers deal in their
official capacity, and should require similar
conduct of lawyers, and of the staff, and others
subject to their direction and control.
(D)Hearing officers should accord to every person who
is legally interested in a proceeding, or that
person’s lawyer, full right to be heard according
to law, and, except as authorized by law, neither
initiate nor consider ex parte or other
communications concerning a pending or impending
proceeding. Hearing officers, however, may obtain
the advice of a disinterested expert on the law
applicable to a proceeding before them, by amicus
curiae only, if they afford the parties reasonable
opportunity to respond.
(E)Hearing officers shall perform their duties without
bias or prejudice.
(F)Hearing officers should dispose promptly of
assigned matters.
(G)Hearing officers shall not, while a proceeding is
pending or impending, make any public comment that
might reasonably be expected to affect its outcome
or impair its fairness or make any nonpublic
comment that might substantially interfere with a
fair hearing. The hearing officer shall require
similar abstention on the part of personnel subject
to the hearing officer’s direction and control.
This section does not prohibit hearing officers
from making public statements in the course of
their official duties or from explaining for public
information the procedures of the discipline
system.
(2) Administrative Responsibilities.
(A) Hearing officers should diligently discharge their
administrative responsibilities.
(B) Hearing officers should require their staff and others
subject to their direction and control to observe the
standards of fidelity and diligence that apply to them.
(3) Disciplinary Responsibilities.
(A) Hearing officers having actual knowledge that another
hearing officer has committed a violation of these rules
should take appropriate action. Hearing officers having
actual knowledge that another hearing officer has committed
a violation of these rules that raises a substantial
question as to the other hearing officer’s fitness for
office should take or initiate appropriate corrective
action, which may include informing the appropriate
authority.
(B) Hearing officers having actual knowledge that a lawyer
has committed a violation of the Rules of Professional
Conduct or Rules for Enforcement of Lawyer Conduct should
take appropriate action. Hearing officers having actual
knowledge that a lawyer has committed a violation of the
Rules of Professional Conduct or Rules for Enforcement of
Lawyer Conduct that raises a substantial question as to the
lawyer’s fitness as a lawyer should take or initiate
appropriate corrective action, which may include informing
the appropriate authority.
(4) Disqualification.
(A) Hearing officers should disqualify themselves in a
proceeding in which their impartiality might reasonably be
questioned, including but not limited to instances in which:
(i) the hearing officer has a personal bias or prejudice
concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding;
(ii) the hearing officer previously served as a lawyer or
was a material witness in the matter in controversy, or a
lawyer with whom the hearing officer previously practiced
law served during such association as a lawyer concerning
the matter, or such lawyer has been a material witness
concerning it;
(iii) the hearing officer knows that, individually or as
a fiduciary, the hearing officer or the hearing officer’s
spouse or member of the hearing officer’s family residing in
the hearing officer’s household, has an economic interest in
the subject matter in controversy or in a party to the
proceeding, or is an officer, director or trustee of a party
or has any other interest that could be substantially
affected by the outcome of the proceeding, unless there is a
remittal of disqualification;
(iv) the hearing officer or the hearing officer's spouse or
member of the hearing officer's family residing in the
hearing officer's household, or the spouse of such a person:
(a) is a party to the proceeding, or an
officer, director, or trustee of a party;
(b) is acting as a lawyer in the proceeding;
(c) is to the hearing officer's knowledge
likely to be a material witness in the
proceeding.
(B) Hearing officers should inform themselves about their
personal and fiduciary economic interests, and make a
reasonable effort to inform themselves about the personal
economic interests of their spouse and minor children
residing in their household.
(5) Remittal of Disqualification. A hearing officer
disqualified by the terms of subsections (e)(4)(A)(iii) or
(iv) may, instead of withdrawing from the proceeding,
disclose on the record the basis of the disqualification.
If, based on such disclosure, the parties and lawyers,
independently of the hearing officer's participation, all
agree in writing or on the record that the hearing officer's
relationship is immaterial or that the hearing officer's
economic interest is de minimis, the hearing officer is no
longer disqualified and may participate in the proceeding.
When a party is not immediately available, the hearing
officer may proceed on the assurance of the lawyer that the
party's consent will be subsequently given.
[Adopted effective October 1, 2002.]
ELC 2.7
CONFLICTS REVIEW OFFICER
(a) Function. Conflicts Review Officers review grievances filed against
disciplinary counsel and other lawyers employed by the Association, hearing
officers, conflicts review officers and conflicts review officers pro tempore,
and members of the Disciplinary Board, the Board of Governors, and the Supreme
Court. Conflicts Review Officers also review grievances filed against persons
who have been assigned cases as adjunct investigative counsel or special
disciplinary counsel, or appointed in disability matters pursuant to ELC
8.2(c)(2), at the time the grievance is filed.
(1) Limitation of Authority. A Conflicts Review Officer's duties are
limited to performing the initial review of grievances covered by this Rule.
A Conflicts Review Officer may obtain the respondent lawyer's response to the
grievance, if he/she feels it necessary to do so, in his/her sole discretion.
A Conflicts Review Officer may dismiss the grievance, defer the investigation,
or assign the grievance to special disciplinary counsel for investigation.
(2) Independence. Conflicts Review Officers act independently of
disciplinary counsel and the Association.
(b) Appointment and Qualifications.
(1) The Supreme Court, on the recommendation of the Board of Governors,
shall appoint three active members of the Association as Conflicts Review
Officers. Each Conflicts Review Officer is appointed for a three-year term
on a staggered basis, and may be recommended for reappointment at the
discretion of the Board of Governors. Applications shall be solicited from
those eligible to serve and submitted to the Board of Governors in such
manner as the Association deems most appropriate under the policies and
procedures then in effect for recruitment and appointment of volunteers in
the discipline system.
(2) When no Conflicts Review Officer is available to handle a matter due
to conflict of interest or other good cause, the Supreme Court, on the
recommendation of the Board of Governors, shall appoint a Conflicts Review
Officer pro tempore for the matter.
(3) To be eligible for appointment as Conflicts Review Officer or
Conflicts Review Officer pro tempore, a lawyer must have prior experience as a
Disciplinary Board member, disciplinary counsel, or special disciplinary
counsel. Conflicts Review Officers and Conflicts Review Officers pro
tempore may have no other active role in the discipline system during the
term of appointment.
(4) The Association shall assign matters to the Conflicts Review Officers
in such a manner as to balance their caseloads insofar as it is practicable to do so.
(c) Access to Disciplinary Information. Conflicts Review Officers and
Conflicts Review Officers pro tempore have access to any otherwise confidential
disciplinary information necessary to perform the duties required by these
rules. Conflicts Review Officers and Conflicts Review Officers pro tempore
shall return original files to the Association promptly upon completion of the
duties required by these rules and shall not retain copies.
(d) Compensation and Expenses. The Association reimburses Conflicts Review
Officers and Conflicts Review Officers pro tempore for all necessary and
reasonable expenses, and may provide compensation at a level established by the
Board of Governors.
[Adopted, effective October 1, 2002; amended, effective January 12, 2010]
ELC 2.8
DISCIPLINARY COUNSEL; SPECIAL DISCIPLINARY COUNSEL
(a) Function. Disciplinary counsel acts as counsel on the
Association’s behalf on all matters under these rules, and
performs other duties as required by these rules, the
Executive Director, or the Board of Governors.
(b) Appointment. The Executive Director of the Association,
under the direction of the Board of Governors, employs a
suitable member or members of the Association as
disciplinary counsel. Special disciplinary counsel may be
appointed whenever necessary to conduct an individual
investigation or proceeding.
[Adopted effective October 1, 2002.]
ELC 2.9
ADJUNCT INVESTIGATIVE COUNSEL
(a) Function. Adjunct investigative counsel performs the
functions set forth in these rules.
(b) Appointment and Term of Office. The Board of Governors,
in consultation with the Chief Disciplinary Counsel,
appoints adjunct investigative counsel from among the active
members of the Association, who have been active or judicial
Association members for at least seven years, have no record
of disciplinary misconduct, and are in good standing. In
appointing adjunct investigative counsel, the Board of
Governors should consider diversity in gender, ethnicity,
geography, and practice experience. Each adjunct
investigative counsel is appointed for a five year term on a
staggered basis and may be reappointed. Adjunct
investigative counsel should be trained in the investigation
of discipline cases.
[Adopted effective October 1, 2002.]
ELC 2.10
REMOVAL OF APPOINTEES
The power granted by these rules to any person, committee,
or board to make any appointment includes the power to
remove the person appointed whenever that person appears
unwilling or unable to perform his or her duties, or for any
other cause, and to fill the resulting vacancy.
[Adopted effective October 1, 2002.]
ELC 2.11
COMPENSATION AND EXPENSES
(a) Compensation. The Association compensates the chief
hearing officer to the extent authorized by the Board of
Governors. The Association may compensate hearing officers
and hearing panel members to the extent authorized by the
Board of Governors. Board members and adjunct investigative
counsel receive no compensation for their services.
(b) Expenses. The Association pays expenses incurred by
hearing officers, hearing panel members, the chief hearing
officer, Board members, and adjunct investigative counsel in
connection with their duties, subject to any limitation
established by resolution of the Board of Governors.
(c) Special Appointments. The Association pays the fees for
counsel appointed under rules 7.7, 8.2(c)(2), or 8.3(d)(3)
and costs or expenses reasonably incurred by these counsel.
[Adopted effective October 1, 2002.]
ELC 2.12
COMMUNICATIONS TO THE ASSOCIATION PRIVILEGED
Communications to the Association, Board of Governors, Disciplinary Board,
review committee, hearing officer or panel, disciplinary counsel, adjunct
investigative counsel, Association staff, or any other individual acting under
authority of these rules, are absolutely privileged, and no lawsuit predicated
thereon may be instituted against any grievant, witness, or other person
providing information.
[Adopted effective October 1, 2002; Amended effective January 2, 2008.]
ELC 2.13
RESPONDENT LAWYER
(a) Right to Representation. A lawyer may be represented by
counsel during any stage of an investigation or proceeding
under these rules.
(b) Restrictions on Representation of Respondent. A former
Association president, a former Board of Governors member,
or a former Disciplinary Board member cannot represent a
respondent lawyer in any proceeding under these rules until
three years after leaving office. Service as an Adjunct
Review Committee Member or as a Member Pro Tempore of the
Board does not invoke this rule.
(c) Restriction on Charging Fee To Respond to Grievance. A
respondent lawyer may not seek to charge a grievant a fee or
recover costs from a grievant for responding to a grievance
unless otherwise permitted by these rules.
(d) Medical and Psychological Records. A respondent must
furnish written releases or authorizations to permit
disciplinary counsel access to medical, psychiatric, or
psychological records as may be relevant to the
investigation or proceeding, subject to a motion to the
chief hearing officer, or the hearing officer if one has
been appointed, to limit the scope of the requested releases
or authorizations for good cause shown.
[Adopted effective October 1, 2002.]
ELC 3.1
OPEN MEETINGS AND PUBLIC DISCIPLINARY INFORMATION
(a) Open Meetings. Disciplinary hearings and meetings of
the Board are public. Except as otherwise provided in these
rules, Supreme Court proceedings are public to the same
extent as other Supreme Court proceedings. Deliberations of
a hearing officer or panel, board, review committee, or
court, and matters made confidential by a protective order,
or by other provisions of these rules, are not public.
(b) Public Disciplinary Information. The public has access
to the following information subject to these rules:
(1) the record before a review committee and the
order of the review committee in any matter that a
review committee has ordered to hearing or ordered an
admonition be issued;
(2) the record upon distribution to a review
committee or to the Supreme Court in proceedings based
on a conviction of a felony or serious crime, as
defined in rule 7.1(a);
(3) the record upon distribution to a review
committee or to the Supreme Court in proceedings under
rule 7.2;
(4) a statement of concern to the extent provided
under rule 3.4(f);
(5) the record and order upon approval of a
stipulation for discipline imposing a sanction or
admonition, and the order approving a stipulation to
dismissal of a matter previously made public under
these rules;
(6) the record before a hearing officer or panel;
(7) the record and order before the Board in any matter
reviewed under rule 10.9 or title 11;
(8) the bar file and any exhibits and any Board or review
committee order in any matter that the Board or a
review committee has ordered to public hearing, or any
matter in which disciplinary action has been taken, or
any proceeding under rules 7.1-7.6;
(9) in any disciplinary matter referred to the Supreme
Court, the file, record, briefs, and argument in the
case;
(10) a lawyer’s resignation in lieu of disbarment under
rule 9.3; and
(11) any sanction or admonition imposed on a respondent.
(c) Regulations. Public access to file materials and
proceedings permitted by this rule may be subject to
reasonable regulation as to time, place, and manner of
access. Certified copies of public bar file documents will
be made available at the same rate as certified copies of
superior court records. Uncertified copies of public bar
file documents will be made available at a rate to be set by
the Executive Director of the Association.
[Adopted effective October 1, 2002.]
ELC 3.2
CONFIDENTIAL DISCIPLINARY INFORMATION
(a) Scope of Confidentiality. All disciplinary materials
that are not public information as defined in rule 3.1(b)
are confidential, and are held by the Association under the
authority of the Supreme Court, including but not limited to
materials submitted to a review committee under rule 8.9 or
information protected by rule 3.3(b), rule 5.4(b), rule
5.1(c)(3), a protective order under rule 3.2(e), rule
3.2(b), court order, or other applicable law (e.g., medical
records, police reports, etc.).
(b) Restriction on Release of Client Information.
Notwithstanding any other provision of this title, no
information identified or known to the Association to
constitute client information that a lawyer would be
required to keep confidential under RPC 1.6 may be released
under rule 3.4(c) - (i) unless the client consents,
including implied consent under rule 5.1(b).
(c) Investigative Confidentiality. During the course of an
investigation or proceeding, the Chief Disciplinary Counsel
may direct that otherwise public information be kept
confidential if necessary to further the purposes of the
investigation. At the conclusion of the proceeding, those
materials become public information unless subject to a
protective order.
(d) Discipline Under Prior Rules. Discipline imposed under
prior rules of this state that was confidential when imposed
remains confidential. A record of confidential discipline
may be kept confidential during proceedings under these
rules, or in connection with a stipulation under rule 9.1,
through a protective order under section (e).
(e) Protective Orders. To protect a compelling interest of
a grievant, witness, third party, respondent lawyer, or
other participant in an investigation, on motion and for
good cause shown, the Board Chair, the chair of a review
committee to which a matter is assigned, or a hearing
officer to whom a matter is assigned may issue a protective
order prohibiting the disclosure or release of specific
information, documents, or pleadings, and direct that the
proceedings be conducted so as to implement the order.
Filing a motion for a protective order stays the provisions
of this title as to any matter sought to be kept
confidential until five days after a ruling is served on the
parties. The Board reviews decisions granting or denying a
protective order if either the respondent lawyer or
disciplinary counsel requests a review within five days of
service of the decision. On review, the Board may affirm,
reverse, or modify the protective order. The Board’s
decision is not subject to further review. A request for
review by the Board stays the provisions of this title as to
any matter sought to be kept confidential in that request,
and the request itself is confidential until a ruling is
issued.
(f) Wrongful Disclosure or Release. Disclosure or release,
except as permitted by these rules, by any person involved
with an investigation or proceeding, either as the
Association’s officer or agent (including, but not limited
to, its staff, members of the Board of Governors, the
Disciplinary Board, a review committee, hearing panels,
hearing officers, disciplinary counsel, adjunct
investigative counsel, a lawyer appointed under rule 7.7, or
any other individual acting under authority of these rules)
of any information about a pending or completed
investigation or proceeding, except as permitted by these
rules, may subject that person to an action for contempt of
the Supreme Court. If the person is a lawyer, wrongful
disclosure or release may also be grounds for discipline.
[Adopted effective October 1, 2002.]
ELC 3.3
APPLICATION TO STIPULATIONS, DISABILITY PROCEEDINGS, AND
DIVERSION CONTRACTS
(a) Application to Stipulations. A stipulation under rule
9.1 providing for imposition of a disciplinary sanction or
admonition is confidential until approved, except that a
grievant may be advised concerning a stipulation and its
proposed or actual content at any time. An approved
stipulation is public, unless:
(1) it is approved before the filing of a formal
complaint;
(2) it provides for dismissal of a grievance without a
disciplinary sanction or admonition; and
(3) proceedings have not been instituted for failure
to comply with the terms of the stipulation.
(b) Application to Disability Proceedings. Disability
proceedings under title 8 are confidential. However, a
grievant may be advised that a lawyer against whom the
grievant has complained is subject to disability
proceedings. The following information is public:
(1) that a lawyer has been transferred to disability
inactive status, or has been reinstated to active
status; and
(2) that a disciplinary proceeding is deferred pending
supplemental proceedings under title 8.
(c) Diversion Contracts. Diversion contracts and supporting
affidavits and declarations under rules 6.5 and 6.6 are
confidential, despite rule 3.1(b)(1), unless admitted into
evidence in a disciplinary proceeding following termination
of the diversion contract for material breach. When a
matter that has previously become public under rule 3.1(b)
is diverted by a diversion contract, that contract and the
supporting documents are confidential but the fact that the
matter was diverted from discipline is public information.
[Adopted effective October 1, 2002.]
ELC 3.4
RELEASE OR DISCLOSURE OF OTHERWISE CONFIDENTIAL INFORMATION
(a) Disclosure of Information. Except as provided in rule
3.2(e), the grievant, respondent lawyer, or any witness may
disclose the existence of proceedings under these rules or
any documents or correspondence the person received.
(b) Investigative Disclosure. The Association may disclose
information as necessary to conduct the investigation or to
keep a grievant advised of the status of a matter except as
prohibited by rule 3.3(b), 5.4(b), or 5.1(c)(3), a
protective order under rule 3.2(e), other court order, or
other applicable law.
(c) Release Based upon Lawyer's Waiver. Upon a written
waiver by a lawyer, the Association may release the status
of otherwise confidential disciplinary proceedings and
provide copies of nonpublic information to:
(1) the Washington State Bar Association Committee of
Law Examiners, the Washington State Bar Association
Character and Fitness Committee, the National
Conference of Bar Examiners, or the comparable body in
other jurisdictions to evaluate the character and
fitness of an applicant for admission to the practice
of law in that jurisdiction;
(2) the Washington State Bar Association Judicial
Recommendation Committee, or the comparable body in
other jurisdictions, to evaluate the character and
fitness of a candidate for judicial office;
(3) the Governor of the State of Washington, or of any
other state, or his or her delegate, to evaluate the
character and fitness of a potential nominee to
judicial office; and
(4) any other agency that a lawyer authorizes to
investigate the lawyer's disciplinary record.
(d) Response to Inquiry or False or Misleading Statement.
(1) Subject to rule 3.2(e), the President, the Board
of Governors, the Executive Director, or Chief
Disciplinary Counsel, or a designee of any of them, may
release otherwise confidential information:
(A) to respond to specific inquiries about matters
that are in the public domain; or
(B) if necessary to correct a false or misleading
public statement.
(2) A respondent must be given notice of a decision to
release information under this section unless the
President, the Board of Governors, the Executive
Director, or the Chief Disciplinary Counsel finds that
notice would jeopardize serious interests of any person
or the public or compromise an ongoing investigation.
(e) Discretionary Release. The Executive Director or the
Chief Disciplinary Counsel may authorize the general or
limited release of any confidential information obtained
during an investigation when it appears necessary to protect
the interests of clients or other persons, the public, or
the integrity of the disciplinary process. A respondent
must be given notice of a decision to release information
under this section before its release unless the Executive
Director or the Chief Disciplinary Counsel finds that notice
would jeopardize serious interests of any person or the
public, or that the delay caused by giving the respondent
notice would be detrimental to the integrity of the disciplinary process.
(f) Statement of Concern.
(1) Authority. The Chief Disciplinary Counsel has
discretion to file a statement of concern with the
Clerk when deemed necessary to protect members of the
public from a substantial threat, based on information
from a pending investigation into a lawyer's apparent
ongoing serious misconduct not otherwise made public by these rules.
(2) Procedure.
(A) On or before the date it is filed, a copy of the
statement of concern must be served under rule 4.1
on the lawyer about whom the statement of concern
has been made. The statement of concern is not
public information until 14 days after service.
(B) The lawyer may at any time appeal to the Chair to
have the statement of concern withdrawn.
(C) If an appeal to the Chair is filed with the Clerk
under rule 4.2(a) within 14 days of service of the
statement of concern, the statement of concern is
not public information unless the Chair so orders
and becomes public information upon issuance of the Chair's order.
(D) The Chair's decision is not subject to further review.
(E) The Chief Disciplinary Counsel may withdraw a
statement of concern at any time.
(g) Release to Judicial Officers. Any state or federal
judicial officer may be advised of the status of a
confidential disciplinary grievance about a lawyer appearing
before the judicial officer in a representational capacity
and may be provided with requested confidential information
if the grievance is relevant to the lawyer's conduct in a
matter before that judicial officer. The judicial officer
must maintain the confidentiality of the matter.
(h) Cooperation with Criminal and Disciplinary Authorities.
Except as provided in rule 3.2(e), information or testimony
may be released to authorities in any jurisdiction
authorized to investigate alleged criminal activity or
judicial or lawyer misconduct.
(i) Release to Lawyers' Fund for Client Protection.
Information obtained in an investigation and about
applications pending before the Lawyers' Fund for Client
Protection may be released to the Fund. The Fund must treat
such information as confidential unless this title or the
Executive Director authorizes release.
(j) Conflicts Review Officer. Conflicts review officers
have access to any otherwise confidential disciplinary
information necessary to perform their duties.
(k) Board of Governors Access. In furtherance of its
supervisory function, and not in derogation of the
foregoing, the Board of Governors has access to all
confidential disciplinary information, but must maintain its confidentiality.
(l) Release to Practice of Law Board. Information obtained
in an investigation relating to possible unauthorized
practice of law may be released to the Practice of Law
Board. Such information shall remain under the control of
the Office of Disciplinary Counsel and the Practice of Law
Board must treat it as confidential unless this title or the
Executive Director authorizes release.
[Adopted effective October 1, 2002; September 1, 2005.]
ELC 3.5
NOTICE OF DISCIPLINE
(a) Notice to Supreme Court. The counsel to the Board must
provide the Supreme Court with:
(1) a copy of any decision imposing a disciplinary sanction
when that decision becomes final;
(2) a copy of any admonition, together with the order
issuing the admonition, when the admonition is accepted or
otherwise becomes final; and
(3) a copy of any resignation in lieu of disbarment.
(b) Other Notices. The counsel to the Board must also
notify the following entities of the imposition of a
disciplinary sanction or admonition, a resignation in lieu
of disbarment, or the filing of a statement of concern under
rule 3.4(f) as follows, in such form as may appear
appropriate:
(1) the lawyer discipline authority or highest court
in any jurisdiction where the lawyer is believed to be
admitted to practice;
(2) the chief judge of each federal district court in
Washington State and the chief judge of the United
States Court of Appeals for the Ninth Circuit;
(3) the National Discipline Data Bank; and
(4) the Washington State Bar News.
(c) Preparation of Bar News Notice. The counsel to the
Board has discretion in drafting notices for publication in
the Washington State Bar News, and should include sufficient
information to adequately inform the public and the members
of the Association about the misconduct found, the rules
violated and the disciplinary action imposed. All notices
should include the respondent lawyer’s name, bar number,
date of admission, the time frame of the misconduct, the
rules violated, and the disciplinary action. The counsel to
the Board must serve a copy of the draft notice on
respondent and disciplinary counsel under rule 4.1 and
review any comments filed with the counsel to the Board
within five days of service, but counsel to the Board’s
decision about the content of the notice is not subject to
further review.
(d) Notices of Suspension, Disbarment, Resignation in Lieu
of Disbarment, or Disability Inactive Status. The
Association must publish a notice of the disbarment,
suspension, resignation in lieu of disbarment, or transfer
to disability inactive status of a lawyer in the Washington
State Bar News and electronic or other index or site
maintained by the Association for public information. The
Association must provide copies of these notices to the news
media in a manner designed to notify the public in the
county or region where the lawyer has maintained a practice.
For a transfer to disability inactive status, no reference
may be made to the specific disability.
(e) Notice to Judges. The Association must promptly notify
the presiding judge of the superior court of the county in
which the lawyer maintained a practice of the lawyer's
disbarment, suspension, resignation in lieu of disbarment,
or transfer to disability inactive status, and may similarly
notify the presiding judge of any district court located in
the county where the lawyer practiced, or the judge of any
other court in which the lawyer may have practiced or is
known to have practiced.
[Adopted effective October 1, 2002.]
ELC 3.6
MAINTENANCE OF RECORDS
(a) Permanent Records. In any matter in which a
disciplinary sanction has been imposed, the bar file and
transcripts of the proceeding are permanent records.
Related file materials, including investigative files, may
be maintained in disciplinary counsel’s discretion.
Exhibits may be returned to the party supplying them, but
copies should be retained where possible.
(b) Destruction of Files. In any matter in which a
grievance or investigation has been dismissed without the
imposition of a disciplinary sanction, whether following a
hearing or otherwise, file materials relating to the matter
may be destroyed three years after the dismissal first
occurred, and must be destroyed at that time on the
respondent lawyer’s request unless the files are being used
in an ongoing investigation or unless other good cause
exists for retention. However, file materials on a matter
concluded with an admonition must be retained at least five
years after the admonition was issued. If disciplinary
counsel opposes a request by a respondent for destruction of
files under this rule, the Board rules on that request.
(c) Retention of Docket. If a file on a matter has been
destroyed under section (b), the Association may retain a
docket record of the matter for statistical purposes only.
That docket record must not include the name or other
identification of the respondent.
(d) Deceased Lawyers. Records and files relating to a
deceased lawyer, including permanent records, may be
destroyed at any time in disciplinary counsel’s discretion.
[Adopted effective October 1, 2002.]
ELC 4.1
SERVICE OF PAPERS
(a) Service Required. Every pleading, every paper relating
to discovery, every written request or motion other than one
which may be heard ex parte, and every similar paper or
document issued by disciplinary counsel or the respondent
lawyer under these rules must be served on the opposing
party. If a hearing is pending and a hearing officer has
been assigned, except for discovery, the party also must
serve a copy on the hearing officer or panel chair or, if
required by these rules, on each member of a hearing panel.
(b) Methods of Service.
(1) Service by Mail.
(A) Unless personal service is required or these rules
specifically provide otherwise, service may be
accomplished by postage prepaid mail. If properly
made, service by mail is deemed accomplished on the
date of mailing and is effective regardless of
whether the person to whom it is addressed actually
receives it.
(B) Except as provided below, service by mail must be
by certified or registered mail, return receipt
requested. Service may be by first class mail if:
(i) the parties so agree;
(ii) the document is a notice of dismissal by
disciplinary counsel or by a review committee
under rule 5.6, a notice regarding deferral
under rule 5.3(c), or a request for review of
any of these notices;
(iii) one or more properly made certified
mailings is returned as unclaimed; or
(iv) service is on a hearing officer or panel.
(C) The address for service by mail is as follows:
(i) for the respondent, or his or her attorney of
record, the address in the answer, a notice of
appearance, or any subsequent document filed by
the respondent or his or her attorney; or, in
the absence of an answer, the respondent’s
address on file with the Association;
(ii) for disciplinary counsel, at the address
of the Association or other address that
disciplinary counsel requests.
(2) Service by Delivery. If service by mail is
permitted, service may instead be accomplished by
leaving the document at the address for service by
mail.
(3) Personal Service. Personal service on a
respondent is accomplished as follows:
(A) if the respondent is found in Washington State, by
personal service in the manner required for
personal service of a summons in a civil action in
the superior court;
(B) if the respondent cannot be found in Washington
State, service may be made either by:
(i) leaving a copy at the respondent’s place of
usual abode in Washington State with a person
of suitable age and discretion then resident
therein; or
(ii) mailing by registered or certified mail,
postage prepaid, a copy addressed to the
respondent at his or her last known place of
abode, office address maintained for the
practice of law, post office address, or
address on file with the Association.
(C) if the respondent is found outside of Washington
State, then by the methods of service described in
(A) or (B) above.
(c) Service Where Question of Mental Competence. If a
guardian or guardian ad litem has been appointed for a
respondent who has been judicially declared to be of unsound
mind or incapable of conducting his or her own affairs,
service under sections (a) and (b) above must also be made
on the guardian or guardian ad litem.
(d) Proof of Service. If personal service is required,
proof of service may be made by affidavit of service,
sheriff's return of service, or a signed acknowledgment of
service. In other cases, proof of service may also be made
by certificate of a lawyer similar to that allowed by CR
5(b)(2)(B), which certificate must state the form of mail
used. Proof of service in all cases must be filed but need
not be served on the opposing party.
[Adopted effective October 1, 2002.]
ELC 4.2
FILING; ORDERS
(a) Filing Originals. Except in matters before the Supreme
Court, the original of any pleading, motion, or other paper
authorized by these rules, other than discovery, must be
filed with the Clerk. Filing may be made by first class
mail and is deemed accomplished on the date of mailing.
Filing of papers for matters before the Supreme Court is
governed by the Rules of Appellate Procedure.
(b) Filing and Service of Orders. Any written order,
decision, or ruling, except an order of the Supreme Court or
an informal ruling issued under rule 10.8(e), must be filed
with the Clerk, and the Clerk serves it on the respondent
lawyer and disciplinary counsel.
[Adopted effective October 1, 2002.]
ELC 4.3
PAPERS
All pleadings or other papers must be typewritten or
printed, double spaced, on good quality 8½ by 11-inch paper.
The use of letter-size copies of exhibits is encouraged if
it does not impair legibility.
[Adopted effective October 1, 2002.]
ELC 4.4
COMPUTATION OF TIME
CR 6(a) and (e) govern the computation of time under these
rules.
[Adopted effective October 1, 2002.]
ELC 4.5
STIPULATION TO EXTENSION OR REDUCTION OF TIME
Except for notices of appeal or matters pending before the
Supreme Court, the respondent lawyer and disciplinary
counsel may stipulate in any proceeding to extension or
reduction of the time requirements.
[Adopted effective October 1, 2002.]
ELC 4.6
SUBPOENA UNDER THE LAW OF ANOTHER JURISDICTION
Disciplinary counsel, the chief hearing officer, or the
Chair may issue a subpoena for use in lawyer discipline or
disability proceedings in another jurisdiction if the
issuance of the subpoena has been authorized under the law
of that jurisdiction and upon a showing of good cause. The
subpoena may compel the attendance of witnesses and
production of documents in the county where the witness
resides or is employed or elsewhere as agreed by the
witness. These rules apply to service, enforcement, and
challenges to subpoenas issued under this rule.
[Adopted effective October 1, 2002.]
ELC 4.7
ENFORCEMENT OF SUBPOENAS
(a) Authority. To enforce subpoenas issued under these
rules, the Supreme Court delegates contempt authority to the
Superior Courts as necessary for the Superior Courts to act
under this rule.
(b) Procedure.
(1) If a person fails to obey a subpoena, or obeys the
subpoena but refuses to testify or produce documents
when requested, disciplinary counsel, the respondent
lawyer or the person issuing the subpoena may petition
the Superior Court of the county where the hearing is
being conducted, where the subpoenaed person resides or
is found, or where the subpoenaed documents are
located, for enforcement of the subpoena. The petition
must:
(A) be accompanied by a copy of the subpoena and proof
of service;
(B) state the specific manner of the lack of
compliance; and
(C) request an order compelling compliance.
(2) Upon the filing of the petition, the Superior
Court enters an order directing the person to appear
before it at a specified time and place to show cause
why the person has not obeyed the subpoena or has
refused to testify or produce documents. A copy of the
Superior Court’s show cause order must be served on the
person.
(3) At the show cause hearing, if it appears to the
Superior Court that the subpoena was properly issued,
and that the particular questions the person refused to
answer or the requests for production of documents were
reasonable and relevant, the Superior Court enters an
order requiring the person to appear at a specified
time and place and testify or produce the required
documents. On failing to obey this order, the person
is dealt with as for contempt of court.
[Adopted effective October 1, 2002.]
ELC 5.1
GRIEVANTS
(a) Filing of Grievance. Any person or entity may file a
grievance against a lawyer admitted to practice law in this
state, or against a lawyer specially admitted by a court of
this state for a particular case.
(b) Consent to Disclosure. By filing a grievance, the
grievant consents to disclosure of the content of the
grievance to the respondent lawyer, or to any other person
contacted during the investigation of the grievance, or to
any person under rules 3.1 – 3.4, unless a protective order
is issued under rule 3.2(e) or the grievance was filed under
rule 5.2. By filing a grievance, the grievant also agrees
that the respondent or any other lawyer contacted by the
grievant may disclose to disciplinary counsel any
information relevant to the investigation, unless a
protective order is issued under rule 3.2(e).
(c) Grievant Rights. A grievant has the following rights:
(1) to be advised promptly of the receipt of the
grievance, and of the name, address, and office phone
number of the person assigned to its investigation if
such an assignment is made;
(2) to have a reasonable opportunity to speak with the
person assigned to the grievance, by telephone or in
person, about the substance of the grievance or its
status;
(3) to receive a copy of any response submitted by the
respondent, except:
(A) if the response refers to a client’s confidences or
secrets to which the grievant is not privy;
(B) if the response contains information of a personal
and private nature about the respondent; or
(C) if a review committee determines that the interests
of justice would be better served by not releasing
the response;
(4) to submit additional supplemental written
information or documentation at any time;
(5) to attend any hearing conducted into the
grievance, subject to these rules and any protective
order issued under rule 3.2(e);
(6) to provide relevant testimony at any hearing
conducted into the grievance, subject to these rules
and any protective order issued under rule 3.2(e);
(7) to be notified of any proposed decision to refer
the respondent to diversion and to be given a
reasonable opportunity to submit to disciplinary
counsel a written comment thereon;
(8) to be advised of the disposition of the grievance;
and
(9) to request reconsideration of a dismissal of the
grievance as provided in rule 5.6(b).
(d) Grievant Duties. A grievant must do the following, or
the grievance may be dismissed:
(1) give the person assigned to the grievance
documents or other evidence in his or her possession,
and witnesses’ names and addresses;
(2) assist in securing relevant evidence; and
(3) appear and testify at any hearing resulting from
the grievance.
[Adopted effective October 1, 2002.]
ELC 5.2
CONFIDENTIAL SOURCES
If a person files a grievance or provides information to
disciplinary counsel or the Association about a lawyer’s
possible misconduct or disability, and asks to be treated as
a confidential source, an investigation may be conducted in
the Association’s name. The confidential source has neither
the rights nor the duties of a grievant. Unless otherwise
ordered, the person’s identity may not be disclosed, either
during the investigation or in subsequent formal
proceedings. If the respondent lawyer requests disclosure
of the person’s identity, the Chair, the chair of a review
committee, or a hearing officer before whom a matter is
pending examines disciplinary counsel and any requested
documents or file materials in camera without the presence
of the respondent or respondent’s counsel and may order
disciplinary counsel to reveal the identity to the
respondent if doing so appears necessary for the respondent
to conduct a proper defense in the proceeding.
[Adopted effective October 1, 2002.]
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.]
ELC 5.4
PRIVILEGES
(a) Privilege Against Self-Incrimination. A lawyer’s duty
to cooperate is subject to the lawyer’s privilege against
self-incrimination, where applicable.
(b) Attorney-Client Privilege. A lawyer may not assert the
attorney-client privilege or other prohibitions on revealing
client confidences or secrets as a basis for refusing to
provide information during the course of an investigation,
but information obtained during an investigation involving
client confidences or secrets must be kept confidential to
the extent possible under these rules unless the client
otherwise consents. Nothing in these rules waives or
requires waiver of any lawyer’s own privilege or other
protection as a client against the disclosure of confidences
or secrets.
[Adopted effective October 1, 2002.]
ELC 5.5
DISCOVERY BEFORE FORMAL COMPLAINT
(a) Procedure. Before filing a formal complaint,
disciplinary counsel may depose either a respondent lawyer
or a witness, or issue requests for admission to the
respondent. To the extent possible, CR 30 or 31 applies to
depositions under this rule. CR 36 governs requests for
admission.
(b) Subpoenas for Depositions. Disciplinary counsel may
issue subpoenas to compel the respondent’s or a witness’s
attendance, or the production of books, documents, or other
evidence, at a deposition. Subpoenas must be served as in
civil cases in the superior court and may be enforced under
rule 4.7.
(c) Cooperation. Every lawyer must promptly respond to
discovery requests from disciplinary counsel.
[Adopted effective October 1, 2002.]
ELC 5.6
DISPOSITION OF GRIEVANCE
(a) Dismissal by Disciplinary Counsel. Disciplinary counsel
may dismiss grievances with or without investigation. On
dismissal, disciplinary counsel must notify the grievant of
the procedure for review in this rule.
(b) Review of Dismissal. A grievant may request review of
dismissal of the grievance by delivering or depositing in
the mail a request for review to the Association no later
than 45 days after the Association mails the notice of
dismissal. Mailing requires postage prepaid first class
mail. If review is requested, disciplinary counsel may
either reopen the matter for investigation or refer it to a
review committee.
(c) Report in Other Cases. Disciplinary counsel must report
to a review committee the results of investigations except
those dismissed or diverted.
(d) Authority on Review. In reviewing grievances under this
rule, a review committee may:
(1) affirm the dismissal;
(2) issue an advisory letter under rule 5.7;
(3) issue an admonition under rule 13.5;
(4) order a hearing on the alleged misconduct; or
(5) order further investigation as may appear
appropriate.
[Adopted effective October 1, 2002.]
ELC 5.7
ADVISORY LETTER
An advisory letter may be issued when a hearing does not
appear warranted but it appears appropriate to caution a
respondent lawyer concerning his or her conduct. An
advisory letter may be issued by a review committee but may
not be issued when a grievance is dismissed following a
hearing. An advisory letter does not constitute a finding
of misconduct, is not a sanction, is not disciplinary
action, and is not public information.
[Adopted effective October 1, 2002.]
ELC 6.1
REFERRAL TO DIVERSION
In a matter involving less serious misconduct as defined in
rule 6.2, before filing a formal complaint, disciplinary
counsel may refer a respondent lawyer to diversion.
Diversion may include
· fee arbitration;
· arbitration;
· mediation;
· law office management assistance;
· lawyer assistance programs;
· psychological and behavioral counseling;
· monitoring;
· restitution;
· continuing legal education programs; or
· any other program or corrective course of action agreed
to by disciplinary counsel and respondent to address
respondent’s misconduct.
Disciplinary counsel may negotiate and execute diversion
contracts, monitor and determine compliance with the terms
of diversion contracts, and determine fulfillment or any
material breach of diversion contracts, subject to review
under rule 6.9.
[Adopted effective October 1, 2002.]
ELC 6.2
LESS SERIOUS MISCONDUCT
Less serious misconduct is conduct not warranting a sanction
restricting the respondent lawyer’s license to practice law.
Conduct is not ordinarily considered less serious misconduct
if any of the following considerations apply:
(A) the misconduct involves the misappropriation of
funds;
(B) the misconduct results in or is likely to result in
substantial prejudice to a client or other person,
absent adequate provisions for restitution;
(C) the respondent has been sanctioned in the last
three years;
(D) the misconduct is of the same nature as misconduct
for which the respondent has been sanctioned or
admonished in the last five years;
(E) the misconduct involves dishonesty, deceit, fraud,
or misrepresentation;
(F) the misconduct constitutes a “serious crime” as
defined in rule 7.1(a); or
(G) the misconduct is part of a pattern of similar
misconduct.
[Adopted effective October 1, 2002.]
ELC 6.3
FACTORS FOR DIVERSION
Disciplinary counsel considers the following factors in
determining whether to refer a respondent lawyer to
diversion:
(A) whether the presumptive sanction under the ABA
Standards for Imposing Lawyer Sanctions for the
violations raised by the grievance or grievances is
likely to be no more severe than reprimand or
admonition;
(B) whether participation in diversion is likely to
improve the respondent’s future professional
conduct and accomplish the goals of lawyer
discipline;
(C) whether aggravating or mitigating factors exist;
and
(D) whether diversion was already tried.
[Adopted effective October 1, 2002.]
ELC 6.4
NOTICE TO GRIEVANT
As provided in rule 5.1(c)(7), disciplinary counsel must
notify the grievant, if any, of the proposed decision to
refer the respondent lawyer to diversion, and must give the
grievant a reasonable opportunity to submit written
comments. The grievant must be notified when the grievance
is diverted and when the grievance is dismissed on
completion of diversion. Such decisions to divert or
dismiss are not appealable.
[Adopted effective October 1, 2002.]
ELC 6.5
DIVERSION CONTRACT
(a) Negotiation. Disciplinary counsel and the respondent
lawyer negotiate a diversion contract, the terms of which
are tailored to the individual circumstances.
(b) Required Terms. A diversion contract must:
(1) be signed by the respondent and disciplinary
counsel;
(2) set forth the terms and conditions of the plan for
the respondent and, if appropriate, identify the use of
a practice monitor and/or a recovery monitor and the
monitor’s responsibilities. If a recovery monitor is
assigned, the contract must include respondent’s
limited waiver of confidentiality permitting the
recovery monitor to make appropriate disclosures to
fulfill the monitor’s duties under the contract;
(3) provide for oversight of fulfillment of the
contract terms. Oversight includes reporting any
alleged breach of the contract to disciplinary counsel;
(4) provide that the respondent will pay all costs
incurred in connection with the contract. The contract
may also provide that the respondent will pay the costs
associated with the grievances to be deferred; and
(5) include a specific acknowledgment that a material
violation of a term of the contract renders the
respondent’s participation in diversion voidable by
disciplinary counsel.
(c) Amendment. The contract may be amended on agreement of
the respondent and disciplinary counsel.
[Adopted effective October 1, 2002.]
ELC 6.6
AFFIDAVIT SUPPORTING DIVERSION
A diversion contract must be supported by the respondent
lawyer’s affidavit or declaration as approved by
disciplinary counsel setting forth the respondent’s
misconduct related to the grievance or grievances to be
deferred under this title. If the diversion contract is
terminated due to a material breach, the affidavit or
declaration is admissible into evidence in any ensuing
disciplinary proceeding. Unless so admitted, the affidavit
or declaration is confidential and must not be provided to
the grievant or any other individual outside the Office of
Disciplinary Counsel, but may be provided to a review
committee or the Board considering the grievance.
[Adopted effective October 1, 2002.]
ELC 6.7
EFFECT OF NON-PARTICIPATION IN DIVERSION
The respondent lawyer has the right to decline disciplinary
counsel’s offer to participate in diversion. If the
respondent chooses not to participate, the matter proceeds
as though no referral to diversion had been made.
[Adopted effective October 1, 2002.]
ELC 6.8
STATUS OF GRIEVANCE
After a diversion contract is executed by the respondent
lawyer and disciplinary counsel, the disciplinary grievance
is deferred pending successful completion of the contract.
[Adopted effective October 1, 2002.]
ELC 6.9
TERMINATION OF DIVERSION
(a) Fulfillment of the Contract. The contract terminates
when the respondent lawyer has fulfilled the terms of the
contract and gives disciplinary counsel an affidavit or
declaration demonstrating fulfillment. Upon receipt of this
affidavit or declaration, disciplinary counsel must
acknowledge receipt and either dismiss any grievances
deferred pending successful completion of the contract or
notify the respondent that fulfillment of the contract is
disputed. The grievant cannot appeal the dismissal.
Successful completion of the contract is a bar to any
further disciplinary proceedings based on the same
allegations.
(b) Material Breach. A material breach of the contract is
cause for termination of the diversion. After a material
breach, disciplinary counsel must notify the respondent of
termination from diversion and disciplinary proceedings may
be instituted, resumed, or reinstated.
(c) Review by the Chair. The Chair may review disputes
about fulfillment or material breach of the terms of the
contract on the request of the respondent or disciplinary
counsel. The request must be filed with the Board within 15
days of notice to the respondent of the determination for
which review is sought. Determinations by the Chair under
this section are not subject to further review and are not
reviewable in any proceeding.
[Adopted effective October 1, 2002.]
ELC 7.1
INTERIM SUSPENSION FOR CONVICTION OF A CRIME
(a) Definitions.
(1) "Conviction" for the purposes of this rule occurs
upon entry of a plea of guilty, unless the defendant
affirmatively shows that the plea was not accepted or
was withdrawn, or upon entry of a finding or verdict of
guilty, unless the defendant affirmatively shows that
judgment was arrested or a new trial granted.
(2) "Serious crime" includes any:
(A) felony;
(B) crime a necessary element of which, as determined
by its statutory or common law definition, includes
any of the following:
· interference with the administration of justice;
· false swearing;
· misrepresentation;
· fraud;
· deceit;
· bribery;
· extortion;
· misappropriation; or
· theft; or
(C) attempt, or a conspiracy, or solicitation of
another, to commit a "serious crime".
(b) Court Clerk To Advise Association of Conviction. When a
lawyer is convicted of a crime, the clerk of the court must
advise the Association of the conviction, and on request
provide the Association with certified copies of any order
or other document showing the conviction.
(c) Procedure upon Conviction.
(1) If a lawyer is convicted of a felony, disciplinary
counsel must file a formal complaint regarding the
conviction. Disciplinary counsel must also petition
the Supreme Court for an order suspending the
respondent lawyer during the pendency of disciplinary
proceedings. The petition for suspension may be filed
before the formal complaint.
(2) If a lawyer is convicted of a crime that is not a
felony, disciplinary counsel may refer the matter to a
review committee to determine whether the crime is a
serious crime. If so, disciplinary counsel proceeds in
the same manner as for a felony.
(3) If a lawyer is convicted of a crime that is neither a
felony nor a serious crime, the review committee
considers a report of the conviction in the same manner
as any other report of possible misconduct by a lawyer.
(d) Petition. A petition to the Supreme Court for
suspension under this rule must include a copy of any
available document establishing the fact of conviction. If
the crime is not a felony, the petition must also include a
copy of the review committee order finding that the crime is
a serious crime. Disciplinary counsel may also include
additional facts, statements, arguments, affidavits, and
documents in the petition. A copy of the petition must be
personally served on the respondent, and proof of service
filed with the Court.
(e) Immediate Interim Suspension. Upon the filing of a
petition for suspension under this rule, the Court
determines whether the crime constitutes a serious crime as
defined in section (a).
(1) If the crime is a felony, the Court must enter an
order immediately suspending the respondent from the
practice of law.
(2) If the crime is not a felony, the Court conducts a
show cause proceeding under rule 7.2(b) to determine if
the crime is a serious crime. If the Court determines
the crime is a serious crime, the Court must enter an
order immediately suspending the respondent from the
practice of law. If the Court determines that the
crime is not a serious crime, upon being so advised,
the Association processes the matter as it would any
other grievance.
(3) If suspended, the respondent must comply with
title 14.
(4) Suspension under this rule occurs:
(A) whether the conviction was under a law of this
state, any other state, or the United States;
(B) whether the conviction was after a plea of guilty,
nolo contendere, not guilty, or otherwise; and
(C) regardless of the pendency of an appeal.
(f) Duration of Suspension. A suspension under this rule
must terminate when the disciplinary proceeding is fully
completed, after appeal or otherwise.
(g) Termination of Suspension.
(1) Petition and Response. A respondent may at any
time petition the Board to recommend termination of an
interim suspension. Disciplinary counsel may file a
response to the petition. The Chair may direct
disciplinary counsel to investigate as appears
appropriate.
(2) Board Recommendation. If either party requests,
the Board must hear oral argument on the petition at a
time and place and under terms as the Chair directs.
The Board may recommend termination of a suspension
only if the Board makes an affirmative finding of good
cause to do so. There is no right of appeal from a
Board decision declining to recommend termination of a
suspension.
(3) Court Action. The Court determines the procedure
for its consideration of a recommendation to terminate
a suspension.
(h) Notice of Dismissal to Supreme Court. If disciplinary
counsel has filed a petition for suspension under this rule,
and the disciplinary proceedings based on the criminal
conviction are dismissed, the Supreme Court must be provided
a copy of the decision granting dismissal whether or not the
respondent is suspended at the time of dismissal.
[Adopted effective October 1, 2002.]
ELC 7.2
INTERIM SUSPENSION IN OTHER CIRCUMSTANCES
(a) Types of Interim Suspension.
(1) Review Committee Finding of Risk to Public.
Disciplinary counsel may petition the Supreme Court for
an order suspending the respondent lawyer during the
pendency of any proceeding under these rules if:
(A) it appears that a respondent's continued practice
of law poses a substantial threat of serious harm
to the public; and
(B) a review committee recommends an interim suspension.
(2) Board Recommendation for Disbarment. When the
Board enters a decision recommending disbarment,
disciplinary counsel must file a petition for the
respondent's suspension during the remainder of the
proceedings. The respondent must be suspended absent
an affirmative showing that the respondent's continued
practice of law will not be detrimental to the
integrity and standing of the bar and the
administration of justice, or be contrary to the public
interest. If the Board's decision is not appealed and
becomes final, the petition need not be filed, or if
filed may be withdrawn.
(3) Failure To Cooperate with Investigation. When
any lawyer fails without good cause to comply with a
request under rule 5.3(f) for information or documents,
or with a subpoena issued under rule 5.3(f), or fails
to comply with disability proceedings as specified in
rule 8.2(d), disciplinary counsel may petition the
Court for an order suspending the lawyer pending
compliance with the request or subpoena. If the lawyer
complies with the request or subpoena, the lawyer may
petition the Court to terminate the suspension on terms
the Court deems appropriate.
(b) Procedure.
(1) Petition. A petition to the Court under this rule
must set forth the acts of the lawyer constituting
grounds for suspension, and if filed under subsection
(a)(2) must include a copy of the Board's decision.
The petition may be supported by documents or
affidavits. The Association must serve the petition by
mail on the day of filing. In addition, a copy of the
petition must be personally served on the lawyer no
later than the date of service of the show cause order.
(2) Show Cause Order. Upon filing of the petition,
the Chief Justice orders the lawyer to appear before
the Court on a date set by the Chief Justice, and to
show cause why the petition for suspension should not
be granted. Disciplinary counsel must have a copy of
the order to show cause personally served on the lawyer
at least ten days before the scheduled show cause
hearing. Subsection (b)(5) notification requirements
must be included in the show cause order.
(3) Answer to Petition. The lawyer may answer the
petition. An answer may be supported by documents or
affidavits. Failure to answer does not result in
default or waive the right to appear at the show cause hearing.
(4) Filing of Answer. A copy of any answer must be
filed with both the Court and disciplinary counsel by
the date specified in the show cause order, which will
be at least five days before the scheduled show cause hearing.
(5) Notification. The lawyer must inform the court no
less than 7 days prior to the show cause hearing
whether the lawyer will appear for the show cause
hearing, or the hearing will be stricken and the Court
will decide the matter without oral argument.
(6) Application of Other Rules. If the Court enters
an order suspending the lawyer, the rules relating to
suspended lawyers, including title 14, apply.
[Adopted effective October 1, 2002; amended effective January 3,2006.]
ELC 7.3
AUTOMATIC SUSPENSION WHEN RESPONDENT ASSERTING INCAPACITY
When a respondent lawyer asserts incapacity to conduct a
proper defense to disciplinary proceedings, upon receipt of
appropriate documentation of the assertion, the respondent
must be suspended on an interim basis by the Supreme Court
pending the conclusion of the disability proceedings.
However, if the hearing officer in the supplemental
proceeding files a decision that the respondent is not
incapacitated, on petition of either party, the Court may
terminate the interim suspension.
[Adopted effective October 1, 2002.]
ELC 7.4
STIPULATION TO INTERIM SUSPENSION
At any time a respondent lawyer and disciplinary counsel may
stipulate that the respondent be suspended during the
pendency of any investigation or proceeding because of
conviction of a serious crime, a substantial threat of
serious harm to the public, or incapacity to practice law.
A stipulation must state the factual basis for the
stipulation and be submitted directly to the Supreme Court
for expedited consideration. Stipulations under this rule
are public upon filing with the Court, but the Court may
order that supporting materials are confidential. Either
party may petition the Court to terminate the interim
suspension, and on a showing that the cause for the interim
suspension no longer exists, the Court may terminate the
suspension.
[Adopted effective October 1, 2002.]
ELC 7.5
INTERIM SUSPENSIONS EXPEDITED
(a) Expedited Review. Petitions seeking interim suspension
under this title receive an expedited hearing, ordinarily no
later than 14 days from issuance of an order to show cause.
(b) Procedure During Court Recess. When a petition seeking
interim suspension under this title is filed during a recess
of the Supreme Court, the Chief Justice, the Acting Chief
Justice, or the senior Justice under SAR 10, subject to
review by the full Court on motion for reconsideration, may
rule on the motion for interim suspension.
[Adopted effective October 1, 2002.]
ELC 7.6
EFFECTIVE DATE OF INTERIM SUSPENSIONS
Interim suspensions become effective on the date of the
Supreme Court’s order unless the order provides otherwise.
[Adopted effective October 1, 2002.]
ELC 7.7
APPOINTMENT OF CUSTODIAN TO PROTECT CLIENTS' INTERESTS
(a) Custodians Allowed. The Chair, on motion by
disciplinary counsel or any other interested person, may
appoint one or more lawyers or Association counsel as a
custodian to act as counsel for the limited purpose of
protecting clients’ interests whenever a lawyer has been
transferred to disability inactive status, suspended, or
disbarred, and fails to carry out the obligations of title
14 or fails to protect the clients' interests, or whenever a
lawyer disappears or dies, unless a partner, personal
representative, or other responsible person appears to be
properly protecting the clients’ interests. The Chair may
enter orders to carry out the provisions and purposes of
this rule.
(b) Duties. The custodian takes possession of the necessary
files and records and takes action as seems indicated to
protect the clients' interests or required by the Chair’s
orders or these rules. Such action may include but is not
limited to assuming control of trust accounts or other
financial affairs. Any bank or other person honoring the
authority of the custodian is exonerated from any resulting
liability. In determining ownership of funds in the trust
account, including by subrogation or indemnification, the
custodian should act as a reasonably prudent lawyer
maintaining a client trust account. The custodian may rely
on a certification of ownership issued by a person who
conducts audits for the Association under rule 15.1. If the
client trust account does not contain sufficient funds to
meet known client balances, the custodian may disburse funds
on a pro rata basis.
(c) Discharge. On motion by disciplinary counsel or any
interested person, the Chair may discharge the custodian
from further duties. The Chair may also order destruction
of files and records as appropriate.
(d) Costs. Payment of any costs incurred by the Association
under this rule may be a condition of reinstatement of a
disbarred lawyer or a lawyer transferred to disability
inactive status, or may be ordered as restitution in a
disciplinary proceeding for failure to comply with rule
14.1.
[Adopted effective October 1, 2002.]
ELC 8.1
ACTION ON ADJUDICATION OF INCOMPETENCY
(a) Grounds. The Association must automatically transfer a
lawyer from active to disability inactive membership status
upon receipt of a certified copy of the judgment, order, or
other appropriate document demonstrating that the lawyer:
(1) was found to be incapable of assisting in his or
her own defense in a criminal action;
(2) was acquitted of a crime based on insanity;
(3) had a guardian (but not a limited guardian)
appointed for his or her person or estate on a finding
of incompetency; or
(4) was found to be mentally incapable of conducting
the practice of law in any other jurisdiction.
(b) Notice to Lawyer. The Association must forthwith notify
the disabled lawyer and his or her guardian, if one has been
appointed, of the transfer to disability inactive status.
The Association must also notify the Supreme Court of the
transfer and provide a copy of the judgment, order, or other
appropriate document on which the transfer was based.
[Adopted effective October 1, 2002.]
ELC 8.2
DETERMINATION OF INCAPACITY TO PRACTICE LAW
(a) Review Committee May Order Hearing. Disciplinary
counsel reports to a review committee on investigations into
an active, suspended, or inactive respondent lawyer’s mental
or physical capacity to practice law. The committee orders
a hearing if it appears there is reasonable cause to believe
that the respondent does not have the mental or physical
capacity to practice law. In other cases, the committee may
direct further investigation as appears appropriate or
dismiss the matter.
(b) Not Disciplinary Proceedings. Proceedings under this
rule are not disciplinary proceedings.
(c) Procedure.
(1) Applicable Rules. Proceedings under this rule are
conducted under the procedural rules for disciplinary
proceedings.
(2) Appointment of Counsel. If counsel for the
respondent does not appear within the time for filing
an answer, the Chair must appoint a member of the
Association as counsel for the respondent.
(3) Health Records. After a review committee orders a
hearing under this rule, disciplinary counsel may
require the respondent to furnish written releases and
authorizations for medical, psychological, or
psychiatric records as may be relevant to the inquiry,
subject to a motion to the hearing officer, or if no
hearing officer has been appointed, to the chief
hearing officer, to limit the scope of the requested
releases or authorizations for good cause.
(4) Examination. Upon motion, the hearing officer, or
if no hearing officer has been appointed, the chief
hearing officer, may order an examination by a
physician of the respondent’s physical condition or by
a mental health professional (as defined by RCW
71.05.020) of the respondent’s mental condition to
assist in determining the respondent’s capacity to
practice law. Unless waived by the parties, the
examiner must submit a report of the examination,
including the results of any tests administered and any
diagnosis, to the hearing officer, disciplinary
counsel, and the respondent.
(5) Hearing Officer Recommendation. If the hearing
officer or panel finds that the respondent does not
have the mental or physical capacity to practice law,
the hearing officer or panel must recommend that the
respondent be transferred to disability inactive
status.
(6) Appeal Procedure. The procedures for appeal and
review of suspension recommendations apply to
recommendations for transfer to disability inactive
status.
(7) Transfer Following Board Review. If, after review
of the decision of the hearing officer or panel, the
Board finds that the respondent does not have the
mental or physical capacity to practice law, it must
enter an order immediately transferring the respondent
to disability inactive status. The transfer is
effective upon service of the order under rule 4.1.
(d) Interim Suspension.
(1) When a review committee orders a hearing on the
capacity of a respondent to practice law, disciplinary
counsel must petition the Supreme Court for the
respondent’s interim suspension under rule 7.2(a)
unless the respondent is already suspended on an
interim basis.
(2) Even if the Court previously denied a petition for
interim suspension under subsection (d)(1),
disciplinary counsel may petition the Court for the
interim suspension of a respondent under rule 7.2(a)(3)
if the respondent fails:
(A)to appear for an independent examination under this
rule;
(B)to waive health care provider-patient privilege as
required by this rule; or
(C)to appear at a hearing under this rule.
(e) Termination of Interim Suspension. If the hearing
officer or panel files a decision recommending that a
respondent placed on interim suspension under this rule not
be transferred to disability inactive status, upon either
party’s petition, the Court may terminate the interim
suspension.
[Adopted effective October 1, 2002.]
ELC 8.3
DISABILITY PROCEEDINGS DURING THE COURSE OF DISCIPLINARY
PROCEEDINGS
(a) Supplemental Proceedings on Capacity To Defend. A
hearing officer or hearing panel, or chief hearing officer
if no hearing officer has been appointed, must order a
supplemental proceeding on the respondent lawyer’s capacity
to defend the disciplinary proceedings if the respondent
asserts, or there is reasonable cause to believe, that the
respondent is incapable of properly defending the
disciplinary proceeding because of mental or physical
incapacity.
(b) Purpose of Supplemental Proceedings. In a supplemental
proceeding, the hearing officer or panel determines if the
respondent:
(1) is incapable of defending himself or herself in
the disciplinary proceedings because of mental or
physical incapacity;
(2) is incapable, because of mental or physical
incapacity, of defending against the disciplinary
charges without the assistance of counsel; or
(3) is currently unable to practice law because of
mental or physical incapacity.
(c) Not Disciplinary Proceedings. Proceedings under this
rule are not disciplinary proceedings.
(d) Procedure for Supplemental Proceedings.
(1) Applicable Rules. Proceedings under this rule are
conducted under the procedural rules for disciplinary
proceedings.
(2) Deferral of Disciplinary Proceedings. The
disciplinary proceedings are deferred pending the
outcome of the supplemental proceeding.
(3) Appointment of Counsel. If counsel for the
respondent does not appear within 20 days of notice to
the respondent of the issues to be considered in a
supplemental proceeding under this rule, or within the
time for filing an answer, the Chair must appoint a
member of the Association as counsel for the respondent
in the supplemental proceedings.
(4) Health Records. Disciplinary counsel may require
the respondent to furnish written releases and
authorizations for medical, psychological, or
psychiatric records as may be relevant to the
determination under section (b), subject to a motion to
the hearing officer to limit the scope of the requested
releases or authorizations for good cause. If the
respondent asserted incapacity, there is a rebuttable
presumption that good cause does not exist.
(5) Examination. Upon motion, the hearing officer may
order an examination by a physician of the respondent’s
physical condition or by a mental health professional
(as defined by RCW 71.05.020) of the respondent’s
mental condition to assist in the determinations to be
made under section (b). Unless waived by the parties,
the examiner must submit a report of the examination,
including the results of any tests administered and any
diagnosis, to the hearing officer, disciplinary
counsel, and the respondent.
(6) Failure To Appear or Cooperate. If the respondent
fails to appear for an independent examination, fails
to waive health care provider-patient privilege as
required in these rules, or fails to appear at the
hearing, the following procedures apply:
(A) If the Association has the burden of proof, the
hearing officer must hold a hearing and, if
presented with sufficient evidence to determine
incapacity, order the respondent transferred to
disability inactive status. If there is
insufficient evidence to determine incapacity, the
hearing officer must enter an order terminating the
supplemental proceedings and reinstating the
disciplinary proceedings. A respondent who does
not appear at the hearing may move to vacate the
order of transfer under rule 10.6(c).
(B) If the respondent has the burden of proof, the
hearing officer must enter an order terminating the
supplemental proceedings and resuming the
disciplinary proceedings.
(7) Hearing Officer Decision.
(A) Capacity To Defend and Practice Law. If the
hearing officer or panel finds that the respondent
is capable of defending himself or herself and has
the mental and physical capacity to practice law,
the disciplinary proceedings resume.
(B) Capacity To Defend with Counsel. If the hearing
officer or panel finds that the respondent is not
capable of defending himself or herself in the
disciplinary proceedings but is capable of
adequately assisting counsel in the defense, the
supplemental proceedings are dismissed and the
disciplinary proceedings resume. If counsel does
not appear on behalf of the respondent within 20
days of service of the hearing officer’s decision,
the Chair must appoint a member of the Association
as counsel for the respondent in the disciplinary
proceeding.
(C) Finding of Incapacity. If the hearing officer or
panel finds that the respondent either does not
have the mental or physical capacity to practice
law, or is incapable of assisting counsel in
properly defending a disciplinary proceeding
because of mental or physical incapacity, the
hearing officer or panel must recommend that the
respondent be transferred to disability inactive
status. The procedures for appeal and review of
suspension recommendations apply to recommendations
for transfer to disability inactive status.
(8) Transfer Following Board Review.
(A) The Board must enter an order immediately
transferring the respondent to disability inactive
status if after review of a hearing officer’s or
panel’s recommendation of transfer to disability
inactive status, the Board finds that the
respondent:
(i) does not have the mental or physical capacity
to practice law; or
(ii) is incapable of assisting counsel in
properly defending a disciplinary proceeding
because of mental or physical incapacity.
(B) The transfer is effective upon service of the order
on the respondent under rule 4.1.
(e) Interim Suspension. When supplemental proceedings have
been ordered, disciplinary counsel must petition the Supreme
Court for the respondent’s interim suspension under rule
7.2(a)(1) or seek automatic suspension under rule 7.3 unless
the respondent is already suspended on an interim basis.
[Adopted effective October 1, 2002.]
ELC 8.4
APPEAL OF TRANSFER TO DISABILITY INACTIVE STATUS
The respondent lawyer may appeal an order of transfer to
disability inactive status under rule 12.3. The Board’s
order remains in effect, regardless of the pendency of an
appeal, unless and until reversed by the Supreme Court.
[Adopted effective October 1, 2002.]
ELC 8.5
STIPULATED TRANSFER TO DISABILITY INACTIVE STATUS
(a) Requirements. At any time a respondent lawyer and
disciplinary counsel may stipulate to the transfer of the
respondent to disability inactive status under this title.
The respondent and disciplinary counsel must sign the
stipulation.
(b) Form. The stipulation must:
(1) state with particularity the nature of the
respondent’s incapacity to practice law and the nature
of any pending disciplinary proceedings that will be
deferred as a result of the respondent’s transfer to
disability inactive status;
(2) state that it is not binding on the Association as
a statement of all existing facts relating to the
professional conduct of the respondent and that any
additional existing facts may be proved in a subsequent
disciplinary proceeding; and
(3) fix the amount of costs and expenses to be paid by
the respondent.
(c) Approval. The stipulation must be presented to the
Board. The Board reviews the stipulation based solely on
the record agreed to by the respondent and disciplinary
counsel. The Board may either approve the stipulation or
reject it. Upon approval, the transfer to disability
inactive status is not subject to further review.
(d) Stipulation Not Approved. If the stipulation is
rejected by the Board, the stipulation has no force or
effect and neither it nor the fact of its execution is
admissible in any pending or subsequent disciplinary
proceeding or in any civil or criminal action.
[Adopted effective October 1, 2002.]
ELC 8.6
COSTS IN DISABILITY PROCEEDINGS
When reviewing a matter under this title, the Board may
authorize disciplinary counsel to seek assessment of the
costs and expenses against the respondent lawyer. If the
Board authorizes, disciplinary counsel may file a statement
of costs within 20 days of service of the Board’s order.
Rule 13.9 governs assessment of these costs and expenses.
The respondent is not required to pay the costs and expenses
until 90 days after reinstatement to active status.
[Adopted effective October 1, 2002.]
ELC 8.7
BURDEN AND STANDARD OF PROOF
In proceedings under rules 8.2 or 8.3, the party asserting
or alleging the incapacity has the burden of establishing it
by a preponderance of the evidence. If the issue of
incapacity is raised by a hearing officer or panel, the
Association has the burden of proof.
[Adopted effective October 1, 2002.]
ELC 8.8
REINSTATEMENT TO ACTIVE STATUS
(a) Right of Petition and Burden. A respondent lawyer
transferred to disability inactive status may resume active
status only by Board or Supreme Court order. Any respondent
transferred to disability inactive status may petition the
Board for transfer to active status. The respondent has the
burden of showing that the disability has been removed.
(b) Petition. The petition for reinstatement must:
(1) state facts demonstrating that the disability has
been removed;
(2) include the name and address of each psychiatrist,
psychologist, physician, or other person and each
hospital or other institution by whom or in which the
respondent has been examined or treated since the
transfer to disability inactive status; and
(3) be filed with the Clerk and served on disciplinary
counsel.
(c) Waiver of Privilege. The filing of a petition for
reinstatement to active status by a respondent transferred
to disability inactive status waives any privilege as to
treatment of any medical, psychological, or psychiatric
condition during the period of disability. The respondent
must furnish, if requested by the Board or disciplinary
counsel, written consent to each treatment provider to
divulge information and records relating to the disability.
(d) Initial Review by Chair. The Chair reviews the petition
and any response by disciplinary counsel and directs
appropriate action to determine whether the disability has
been removed, including investigation by disciplinary
counsel or any other person or an examination by a physician
of the respondent’s physical condition or by a mental health
professional (as defined by RCW 71.05.020) of the
respondent’s mental condition.
(e) Board Review.
(1) The respondent must have a reasonable opportunity
to review any reports of investigations or examinations
ordered by the Chair and submit additional materials
before the matter is submitted to the Board.
(2) On submission, the Board reviews the petition and
any reports as expeditiously as possible and takes one
or more of the following actions:
(A) grants the petition;
(B) directs additional action as the Board deems
necessary to determine whether the disability has
been removed;
(C) orders that a hearing be held before a hearing
officer or panel under the procedural rules for
disciplinary proceedings;
(D) directs the respondent to establish proof of
competence and learning in the law, which may
include certification by the bar examiners of
successful completion of an examination for
admission to practice;
(E) denies the petition;
(F) directs the respondent to pay the costs of the
reinstatement proceedings; or
(G) approves or rejects a stipulation to reinstatement
between the respondent and the Association.
(3) The petition may be denied without the respondent
having an opportunity for a hearing before a hearing
officer or panel only if the Board determines that a
hearing is not necessary because:
(A) the respondent fails to state a prima facie case
for reinstatement in the petition; or
(B) the petition does not indicate a material change of
circumstance since a previous denial of a petition
for reinstatement.
(f) Petition Granted. If the petition for reinstatement is
granted, the Association immediately restores the respondent
to the respondent’s prior status and notifies the Supreme
Court of the transfer. If a disciplinary proceeding has
been deferred because of the disability transfer, the
proceeding resumes upon reinstatement.
(g) Review by Supreme Court. If the petition for
reinstatement is not granted, the respondent may appeal the
Board’s decision to the Supreme Court, by filing a notice of
appeal with the Clerk within 15 days of service of the
Board’s decision on the respondent. Title 12 applies to
review under this section.
[Adopted effective October 1, 2002.]
ELC 8.9
PETITION FOR LIMITED GUARDIANSHIP
(a) Guardian Powers and Qualifications. A guardian may be appointed
under this rule to take any action deemed advisable related to the
respondent lawyer's license to practice law and any disciplinary or
disability investigation or proceeding.
(b) Referral to Review Committee. A hearing officer or panel, the
Association, the respondent, or respondent's counsel may request that
a review committee authorize the filing of a petition for a limited
guardianship of a respondent as described in section (a). The person
requesting the petition must give notice to the parties at the time of
the request. The Association and the respondent may submit
declarations or affidavits relevant to the Review Committee's decision.
(c) Review Committee Determination. The review committee may
authorize the Association to petition for the appointment of a limited
guardian as described in section (a) when the review committee
reasonably believes that grounds for such an appointment exist under
RCW 11.88.010(2). The review committee may require the respondent to
submit to any necessary examinations or evaluations and may retain
independent counsel to assist in the investigation and the filing of any petition.
(d) Action for Limited Guardianship.
(1) Upon authorization of a review committee, the Association
may file a petition in any Superior Court seeking a limited
guardian to act regarding the respondent's license or any
disciplinary or disability investigation or proceeding.
(2) Notwithstanding any other provisions regarding the
qualifications of a guardian ad litem, any guardian ad litem
appointed under this rule must be a lawyer qualified to maintain
and protect the confidences and secrets of the respondent's clients.
(3) Upon application to the Superior Court, the respondent may
have the matter moved to the county where the respondent is
domiciled or maintains an office or another county as authorized by law.
(4) The guardianship proceedings must be sealed to the extent
necessary to protect confidences and secrets of the respondent's
clients or on any other basis found by the Superior Court.
(5) The costs of any guardianship are paid out of the
guardianship estate, except if the guardianship estate is
indigent, the Association pays the costs.
[Adopted effective October 1, 2002.]
ELC 9.1
STIPULATIONS
(a) Requirements. Any disciplinary matter or proceeding may
be resolved by a stipulation at any time. The stipulation
must be signed by the respondent lawyer and approved by
disciplinary counsel. The stipulation may impose terms and
conditions of probation and contain any other appropriate
provisions.
(b) Form. A stipulation must:
(1) provide sufficient detail regarding the particular
acts or omissions of the respondent to permit the Board
or hearing officer to form an opinion as to the
propriety of the proposed resolution, and, if approved,
to make the stipulation useful in any subsequent
disciplinary proceeding against the respondent;
(2) set forth the respondent’s prior disciplinary
record or its absence;
(3) state that the stipulation is not binding on the
Association as a statement of facts about the
respondent’s conduct, and that additional facts may be
proved in a subsequent disciplinary proceeding; and
(4) fix the amount of costs and expenses to be paid by
the respondent.
(c) Approval.
(1) By Hearing Officer. A hearing officer or panel
may approve a stipulation disposing of a matter pending
before the officer or panel, unless the stipulation
requires the respondent’s suspension or disbarment.
This approval constitutes a final decision and is not
subject to further review.
(2) By Board. All other stipulations must be
presented to the Board. The Board reviews a
stipulation based solely on the record agreed to by the
respondent lawyer and disciplinary counsel. The
parties may jointly ask the Chair to permit them to
address the Board regarding a stipulation. Such
presentations are at the Chair’s discretion. The Board
may approve, conditionally approve, or reject a
stipulation. Regardless of the provisions of rule
3.3(a), the Board may direct that information or
documents considered in reviewing a stipulation be kept
confidential.
(d) Conditional Approval. The Board may condition its
approval of a stipulation on the agreement by the
respondent and disciplinary counsel to a different
disciplinary action, probation, restitution, or other
terms the Board deems necessary to accomplish the
purposes of lawyer discipline. If the Board conditions
approval of a stipulation, the stipulation as conditioned
is deemed approved if, within 14 days of service of the
order, or within additional time granted by the Chair,
both parties serve on the Clerk written consent to the
conditional terms in the Board’s order.
(e) Reconsideration. Within 14 days of service of an order
rejecting or conditionally approving a stipulation, the
parties may serve on the Clerk a joint motion for
reconsideration and may ask to address the Board on the
motion.
(f) Stipulation Rejected. The Board’s order rejecting a
stipulation must state the reasons for the rejection. A
rejected stipulation has no force or effect and neither it
nor the fact of its execution is admissible in evidence in
any disciplinary, civil, or criminal proceeding.
(g) Failure To Comply. A respondent’s failure to comply
with the terms of an approved stipulation may be grounds for
discipline.
[Adopted effective October 1, 2002.]
ELC 9.2
RECIPROCAL DISCIPLINE AND DISABILITY INACTIVE STATUS; DUTY
TO SELF-REPORT
(a) Duty To Self-Report Discipline or Transfer to Disability
Inactive Status. Within 30 days of being disciplined or
transferred to disability inactive status in another
jurisdiction, a lawyer admitted to practice in this state
must inform disciplinary counsel of the discipline or
transfer.
(b) Obtaining Order. Upon notification from any source that
a lawyer admitted to practice in this state was disciplined
or transferred to disability inactive status in another
jurisdiction, disciplinary counsel must obtain a certified
copy of the order and file it with the Supreme Court.
(c) Supreme Court Action. Upon receipt of a certified copy
of an order demonstrating that a lawyer admitted to practice
in this state has been disciplined or transferred to
disability inactive status in another jurisdiction, the
Supreme Court orders the respondent lawyer to show cause
within 30 days of service why it should not impose the
identical discipline or disability inactive status. The
Association must personally serve this order, and a copy of
the order from the other jurisdiction, on the respondent
under rule 4.1(b)(3).
(d) Deferral. If the other jurisdiction has stayed the
discipline or transfer, any reciprocal discipline or
transfer in this state is deferred until the stay expires.
(e) Discipline or Transfer To Be Imposed.
(1) Thirty days after service of the order under
section (c), the Supreme Court imposes the identical
discipline or disability inactive status unless
disciplinary counsel or the lawyer demonstrates, or the
Court finds, that it clearly appears on the face of the
record on which the discipline or disability transfer
is based, that:
(A) the procedure so lacked notice or opportunity to be
heard that it denied due process;
(B) the proof of misconduct or disability was so infirm
that the Court is clearly convinced that it cannot,
consistent with its duty, accept the finding of
misconduct or disability;
(C) the imposition of the same discipline would result
in grave injustice;
(D) the established misconduct warrants substantially
different discipline in this state;
(E) the reason for the original transfer to disability
inactive status no longer exists; or
(F) appropriate discipline has already been imposed in
this jurisdiction for the misconduct.
(2) If the Court determines that any of the factors in
subsection (1) exist, it enters an appropriate order.
The burden is on the party seeking different discipline
in this jurisdiction to demonstrate that imposing the
same discipline is not appropriate.
(f) Conclusive Effect. Except as this rule otherwise
provides, a final adjudication in another jurisdiction that
a lawyer has been guilty of misconduct or should be
transferred to disability inactive status conclusively
establishes the misconduct or the disability for purposes of
a disciplinary or disability proceeding in this state.
[Adopted effective October 1, 2002.]
ELC 9.3
RESIGNATION IN LIEU OF DISBARMENT
(a) Grounds. A respondent lawyer who desires not to contest
or defend against allegations of misconduct may, at any time
before the answer in any disciplinary proceeding is due,
resign his or her membership in the Association in lieu of
further disciplinary proceedings.
(b) Process. The respondent first notifies disciplinary
counsel that the respondent intends to submit a resignation
and asks disciplinary counsel to prepare a statement of
alleged misconduct and to provide a declaration of costs.
After receiving the statement and the declaration of costs,
if any, the respondent may resign by submitting to
disciplinary counsel a signed resignation, sworn to or
affirmed under oath and notarized, that:
(1) includes disciplinary counsel’s statement of the
alleged misconduct and either an admission of that
misconduct or a statement that while not admitting the
misconduct the respondent agrees that the Association
could prove by a clear preponderance of the evidence
that the respondent committed violations sufficient to
result in respondent’s disbarment;
(2) affirmatively acknowledges that the resignation is
permanent including the statement:
“I understand that my resignation is permanent
and that any future application by me for
reinstatement as a member of the Washington
State Bar Association is currently barred. If
the Supreme Court changes this rule or an
application is otherwise permitted in the
future, it will be treated as an application by
one who has been disbarred for ethical
misconduct, and that, if I file an application,
I will not be entitled to a reconsideration or
reexamination of the facts, complaints,
allegations, or instances of alleged misconduct
on which this resignation was based.”;
(3) assures that the respondent will:
(A) notify all other jurisdictions in which the
respondent is or has been admitted to practice law
of the resignation in lieu of disbarment;
(B) seek to resign permanently from the practice of law
in any other jurisdiction in which the respondent
is admitted; and
(C) provide disciplinary counsel with copies of any of
these notifications and any responses;
(4) assures that the respondent will:
(A) notify all other professional licensing agencies in
any jurisdiction from which the respondent has a
professional license that is predicated on the
respondent’s admission to practice law of the
resignation in lieu of disbarment;
(B) seek to resign permanently from any such license;
and
(C) provide disciplinary counsel with copies of any of
these notifications and any responses;
(5) states that when applying for any employment or
license the respondent agrees to disclose the
resignation in lieu of disbarment in response to any
question regarding disciplinary action or the status of
the respondent’s license to practice law;
(6) states that the respondent agrees to pay any
restitution or additional costs and expenses ordered by
the review committee, and attaches payment for costs as
described in section (f) below, or states that the
respondent will execute a confession of judgment or
deed of trust as described in section (f); and
(7) states that when the resignation becomes effective,
the respondent will be subject to all restrictions that
apply to a disbarred lawyer.
(c) Public Filing. Upon receipt of a resignation meeting
the requirements set forth above, and any executed
confession of judgment or deed of trust required under
section (f), disciplinary counsel promptly causes it to be
filed with the Clerk as a public and permanent record of the
Association.
(d) Effect. A resignation under this rule is effective upon
its filing with the Clerk. All disciplinary proceedings
against the respondent terminate except disciplinary counsel
has the discretion to continue any investigations deemed
appropriate under the circumstances to create a record of
the respondent’s actions. The Association immediately
notifies the Supreme Court of a resignation under this rule
and the respondent’s name is forthwith stricken from the
roll of lawyers. Upon filing of the resignation, the
resigned respondent must comply with the same duties as a
disbarred lawyer under title 14 and comply with all
restrictions that apply to a disbarred lawyer. Notice is
given of the resignation in lieu of disbarment under rule
3.5.
(e) Resignation is Permanent. Resignation under this rule
is permanent. A respondent who has resigned under this rule
will never be eligible to apply and will not be considered
for admission or reinstatement to the practice of law nor
will the respondent be eligible for admission for any
limited practice of law.
(f) Costs and Expenses.
(A) If a respondent resigns under this rule, the
expenses under rule 13.9(c) are $1,000 for any
proceedings for which an answer was not due when
the respondent notified disciplinary counsel of the
respondent’s intent to resign under section (b).
With the resignation, the respondent must pay this
$1,000 expense, plus all actual costs for which
disciplinary counsel provides documentation, up to
an additional $1,000. If the respondent
demonstrates inability to pay these costs and
expenses, instead of paying this amount, the
respondent must execute, in disciplinary counsel’s
discretion, a confession of judgment or a deed of
trust for that amount. Disciplinary counsel may
file a claim under section (g) for costs not
covered by the payment, confession of judgment, or
deed of trust.
(B) If at the time respondent serves the notice of
intent to resign, an additional proceeding is
pending against the respondent for which an answer
has been filed or is due, disciplinary counsel may
also file a claim under section (g) for costs and
expenses for that proceeding.
(g) Review of Costs, Expenses, and Restitution. Any claims
for restitution or for costs and expenses not resolved by
agreement between disciplinary counsel and the respondent
may be submitted at any time, including after the
resignation, to a review committee in writing for the
determination of appropriate restitution or costs and
expenses. The Lawyers’ Fund for Client Protection may
request review including a determination by the review
committee of whether any funds were obtained by the
respondent by dishonesty of, or failure to account for money
or property entrusted to, the respondent in connection with
the respondent’s practice of law or while acting as a
fiduciary in a matter related to the respondent’s practice
of law. The review committee’s order is not subject to
further review and is the final assessment of restitution or
costs and expenses for the purposes of rule 13.9 and may be
enforced as any other order for restitution or costs and
expenses. The record before the review committee and the
review committee’s order is public information under rule
3.1(b).
[Adopted effective October 1, 2002.]
ELC 10.1
GENERAL PROCEDURE
(a) Applicability of Civil Rules. The civil rules for the
superior courts of the State of Washington serve as guidance
in proceedings under this title and, where indicated, apply
directly. A party may not move for summary judgment, but
either party may move at any time for an order determining
the collateral estoppel effect of a judgment in another
proceeding. Motions for judgment on the pleadings and
motions to dismiss based upon the pleadings are available
only to the extent permitted in rule 10.10.
(b) Meaning of Terms in Civil Rules. In applying the civil
rules to proceedings under these rules, terms have the
following meanings:
(1) "Court" or "judge” means the hearing officer or
hearing panel or its chair, as appropriate; and
(2) "Parties” means the respondent lawyer and
disciplinary counsel.
(c) Hearing Officer Authority. In addition to the powers
specifically provided in these rules, the hearing officer
may make any ruling that appears necessary and appropriate
to insure a fair and orderly proceeding.
[Adopted effective October 1, 2002.]
ELC 10.2
HEARING OFFICER OR PANEL
(a) Assignment.
(1) Hearing Officer. The chief hearing officer
ordinarily assigns a single hearing officer, from those
eligible under rule 2.5, to hear a matter ordered to
hearing.
(2) Hearing Panel. On either party’s motion, or when
otherwise deemed advisable, the chief hearing officer
may assign a hearing panel. In determining whether to
assign a hearing panel, the chief hearing officer
considers whether public interest in the proceeding
makes a panel advisable and whether a nonlawyer on a
hearing panel could contribute to the fairness, or the
perception of fairness, in the process and the outcome.
When a panel is assigned, the chief hearing officer
designates one lawyer member as panel chair. The chief
hearing officer’s ruling on assigning a hearing panel
is not subject to interim review. The chief hearing
officer makes an assignment to fill any hearing officer
or panel member vacancy.
(b) Disqualification and Removal.
(1) Removal Without Cause. Either party may have an
assigned hearing officer or hearing panel member
removed, without establishing cause for the removal, by
filing a written request with the chief hearing officer
within ten days of service on the moving party of that
officer or panel member’s assignment. A party may only
once request removal without cause in any proceeding.
(2) Disqualification for Cause. Either party may seek
to disqualify any assigned hearing officer or hearing
panel member for good cause. A motion under this
subsection must be filed promptly after the party
knows, or in the exercise of due diligence should have
known, of the basis for the disqualification.
(3) Removal. The chief hearing officer decides all
requests for removal and disqualification motions,
except the Chair decides a request to remove or
disqualify the chief hearing officer. The decision of
the chief hearing officer or Chair on a request for
removal or a motion to disqualify is not subject to
interim review. Upon removal or disqualification of an
assigned hearing officer or hearing panel member, the
chief hearing officer assigns a replacement.
[Adopted effective October 1, 2002.]
ELC 10.3
COMMENCEMENT OF PROCEEDINGS
(a) Formal Complaint.
(1) Filing. After a matter is ordered to hearing,
disciplinary counsel files a formal complaint with the
Clerk.
(2) Service. After the formal complaint is filed, it
must be personally served on the respondent lawyer,
with a notice to answer.
(3) Content. The formal complaint must state the
respondent’s acts or omissions in sufficient detail to
inform the respondent of the nature of the allegations
of misconduct. Disciplinary counsel must sign the
formal complaint, but it need not be verified.
(4) Prior Discipline. Prior disciplinary action against
the respondent may be described in a separate count of
the formal complaint if the respondent is charged with
conduct demonstrating unfitness to practice law.
(b) Filing Commences Proceedings. A disciplinary proceeding
commences when the formal complaint is filed.
(c) Joinder. The body ordering a hearing on alleged
misconduct or the hearing officer or panel may in its
discretion consolidate for hearing two or more charges
against the same respondent, or may join charges against two
or more respondents in one formal complaint.
[Adopted effective October 1, 2002.]
ELC 10.4
NOTICE TO ANSWER
(a) Content. The notice to answer must be substantially in
the following form:
BEFORE THE DISCIPLINARY BOARD OF THE
WASHINGTON STATE BAR ASSOCIATION
In re ) NOTICE TO ANSWER
) NOTICE OF HEARING OFFICER [OR PANEL]
_________________, ) NOTICE OF DEFAULT PROCEDURE
Lawyer. )
To: The above named lawyer:
A formal complaint has been filed against you, a copy of
which is served on you with this notice. You are notified
that you must file your answer to the complaint within 20
days of the date of service on you, by filing the original
of your answer with the Clerk to the Disciplinary Board of
the Washington State Bar Association, [insert address] and
by serving one copy [on the hearing officer] [on each member
of the hearing panel] if one has been assigned and one copy
on disciplinary counsel at the address[es] given below.
Failure to file an answer may result in the imposition of a
disciplinary sanction against you and the entry of an order
of default under rule 10.6 of the Rules for Enforcement of
Lawyer Conduct.
Notice of default procedure: Your default may be entered
for failure to file a written answer to this formal
complaint within 20 days of service as required by rule 10.6
of the Rules for Enforcement of Lawyer Conduct. The entry
of an order of default may result in the charges of
misconduct in the formal complaint being admitted and
discipline being imposed or recommended based on the
admitted charges of misconduct. If an order of default is
entered, you will lose the opportunity to participate
further in these proceedings unless and until the order of
default is vacated on motion timely made under rule 10.6(c)
of the Rules for Enforcement of Lawyer Conduct. The entry
of an order of default means that you will receive no
further notices regarding these proceedings except those
required by rule 10.6(b)(2).
The [hearing officer] [hearing panel] assigned to this
proceeding is: [insert name, address, and telephone number
of hearing officer, or name, address, and telephone number
of each hearing panel member with an indication of the chair
of the panel].
Dated this __________ day of __________________, 20___.
WASHINGTON STATE BAR ASSOCIATION
By
_________________________________
Disciplinary Counsel, Bar No.
Address:
_______________________________
Telephone:
_____________________________
(b) Notice When Hearing Officer or Panel Not Assigned. If
no hearing officer or panel has been assigned when a formal
complaint is served, disciplinary counsel serves the formal
complaint and a notice to answer as in section (a), but
without reference to the hearing officer or panel.
[Adopted effective October 1, 2002.]
ELC 10.5
ANSWER
(a) Time to Answer. Within 20 days of service of the formal
complaint and notice to answer, the respondent lawyer must
file and serve an answer. Failure to file an answer as
required may be grounds for discipline and for an order of
default under rule 10.6. The filing of a motion to dismiss
for failure to state a claim stays the time for filing an
answer during the pendency of the motion.
(b) Content. The answer must contain:
(1) a specific denial or admission of each fact or
claim asserted in the formal complaint in accordance
with CR 8(b);
(2) a statement of any matter or facts constituting a
defense, affirmative defense, or justification, in
ordinary and concise language without repetition; and
(3) an address at which all further pleadings,
notices, and other documents in the proceeding may be
served on the respondent.
(c) Filing and Service. The answer must be filed and served
under rules 4.1 and 4.2. If a hearing panel has been
assigned to hear a matter, the respondent must serve each
member with a copy of the answer.
[Adopted effective October 1, 2002.]
ELC 10.6
DEFAULT PROCEEDINGS
(a) Entry of Default.
(1) Timing. If a respondent lawyer, after being
served with a notice to answer as provided in rule
10.4, fails to file an answer to a formal complaint or
to an amendment to a formal complaint within the time
provided by these rules, disciplinary counsel may serve
the respondent with a written motion for an order of
default.
(2) Motion. Disciplinary counsel must serve the
respondent with a written motion for an order of
default and a copy of this rule at least five days
before entry of the order of default. The motion for
an order of default must include the following:
(A) the dates of filing and service of the notice to
answer, formal complaint, and any amendments to the
complaint; and
(B) disciplinary counsel’s statement that the
respondent has not timely filed an answer as
required by rule 10.5 and that disciplinary counsel
seeks an order of default under this rule.
(3) Entry of Order of Default. If the respondent
fails to file a written answer with the Clerk within
five days of service of the motion for entry of an
order of default, the hearing officer, or if no hearing
officer or panel has been assigned, the chief hearing
officer, on proof of proper service of the motion,
enters an order finding the respondent in default.
(4) Effect of Order of Default. Upon entry of an
order of default, the allegations and violations in the
formal complaint and any amendments to the complaint
are deemed admitted and established for the purpose of
imposing discipline and the respondent may not
participate further in the proceedings unless the order
of default is vacated under this rule.
(b) Proceedings After Entry of an Order of Default.
(1) Service. The Clerk serves the order of default
and a copy of this rule under rule 4.2(b).
(2) No Further Notices. After entry of an order of
default, no further notices must be served on the
respondent except for copies of the decisions of the
hearing officer or hearing panel and the Board.
(3) Disciplinary Proceeding. Within 60 days of the
filing of the order of default, the hearing officer
must conduct a disciplinary proceeding to recommend
disciplinary action based on the allegations and
violations established under section (a). At the
discretion of the hearing officer or panel, these
proceedings may be conducted by formal hearing, written
submissions, telephone hearing, or other electronic
means. Disciplinary counsel may present additional
evidence including, but not limited to, requests for
admission under rule 10.11(b), and depositions,
affidavits, and declarations regardless of the
witness’s availability.
(c) Setting Aside Default.
(1) Motion To Vacate Order of Default. A respondent
may move to vacate the order of default and any
decision of the hearing officer or panel or Board
arising from the default on the following grounds:
(A) mistake, inadvertence, surprise, excusable neglect,
or irregularity in obtaining the default;
(B) erroneous proceedings against a respondent who was,
at the time of the default, incapable of conducting
a defense;
(C) newly discovered evidence that by due diligence
could not have been previously discovered;
(D) fraud, misrepresentation, or other misconduct of an
adverse party;
(E) the order of default is void;
(F) unavoidable casualty or misfortune preventing the
respondent from defending; or
(G) any other reason justifying relief from the
operation of the default.
(2) Time. The motion must be made within a reasonable
time and for grounds (A) and (C) within one year after
entry of the default. If the respondent's motion is
based on allegations of incapability of conducting a
defense, the motion must be made within one year after
the disability ceases.
(3) Burden of Proof. The respondent bears the burden
of proving the grounds for setting aside the default.
If the respondent proves that the default was entered
as a result of a disability which made the respondent
incapable of conducting a defense, the default must be
set aside.
(4) Service and Contents of Motion. The motion must
be filed and served under rules 4.1 and 4.2 and be
accompanied by a copy of respondent's proposed answer
to each formal complaint for which an order of default
has been entered. The proposed answer must state with
specificity the respondent's asserted defenses and any
facts that respondent asserts as mitigation. The
motion to vacate the order of default must be supported
by an affidavit showing:
(A) the date on which the respondent first learned of
the entry of the order of default;
(B) the grounds for setting aside the order of default;
and
(C) an offer of proof of the facts that the respondent
expects to establish if the order of default is
vacated.
(5) Response to Motion. Within ten days of filing and
service of the motion to vacate, disciplinary counsel
may file and serve a written response.
(6) Decision. The hearing officer or panel decides a
motion to vacate the order of default on the written
record without oral argument. If the proceedings have
been concluded, the chief hearing officer assigns a
hearing officer or panel to decide the motion. Pending
a ruling on the motion, the hearing officer or panel
may order a stay of proceedings not to exceed 30 days.
In granting a motion to vacate an order of default, the
hearing officer or panel has discretion to order
appropriate conditions.
(7) Appeal of Denial of Motion. A respondent may
appeal to the Chair a denial of a motion to vacate an
order of default by filing and serving a written notice
of appeal stating the arguments against the hearing
officer or panel's decision. The respondent must file
the notice of appeal within ten days of service on the
respondent of the order denying the motion. The appeal
is decided on the written record without oral argument.
Pending a ruling on the appeal, the Chair may order a
stay of proceedings not to exceed 30 days. In granting
a motion to vacate an order of default, the Chair has
discretion to order appropriate conditions.
(8) Decision To Vacate Is Not Subject to Interim
Review. An order setting aside an order of default is
not subject to interim review.
(d) Order of Default Not Authorized in Certain Proceedings.
The default procedure in this rule does not apply to a
proceeding to inquire into a lawyer's capacity to practice
law under title 8 except as provided in that title.
[Adopted effective October 1, 2002.]
ELC 10.7
AMENDMENT OF FORMAL COMPLAINT
(a) Right To Amend. Disciplinary counsel may, without
review committee authorization, amend a formal complaint at
any time to add facts or charges that relate to matters in
the formal complaint or to the respondent lawyer’s conduct
regarding the pending proceedings.
(b) Amendment with Authorization. Disciplinary counsel must
seek review committee authorization for amendments other
than those under section (a). The review committee may
authorize the amendment or may require that the additional
facts or charges be the subject of a separate formal
complaint. The Chair, with the consent of the respondent,
and after consultation with the hearing officer on the
previously filed matter, may consolidate the hearing on the
separate formal complaint with the hearing on the other
pending formal complaint against the respondent.
(c) Service and Answer. Disciplinary counsel serves an
amendment to a formal complaint on the respondent as
provided in rule 4.1 but need not serve a Notice to Answer
with the amendment. Rule 10.5 governs the answer to an
amendment except that any part of a previous answer may be
incorporated by reference.
[Adopted effective October 1, 2002.]
ELC
10.8 MOTIONS
(a) Filing and Service. Motions to the hearing officer,
except motions which may be made ex parte or motions at
hearing, must be in writing and filed and served as required
by rules 4.1 and 4.2.
(b) Response. The opposing party has five days from service
of a motion to respond, unless the time is shortened by the
hearing officer for good cause. A request to shorten time
for response to a motion may be made ex parte.
(c) Consideration of Motion. Upon expiration of the time
for response, the hearing officer should promptly rule on
the motion, with or without argument as may appear
appropriate. Argument on a motion may be heard by
conference telephone call.
(d) Ruling. A ruling on a written motion must be in writing
and filed with the Clerk.
(e) Minor Matters. Alternatively, motions on minor matters
may be made by letter to the hearing officer, with a copy to
the opposing party and to the Clerk. The provisions of
sections (b) and (c) apply to these motions. A ruling on
such motion may also be by letter to each party with a copy
to the Clerk.
(f) Chief Hearing Officer Authority. Before the assignment
of a hearing officer or panel, the chief hearing officer may
rule on any prehearing motion.
[Adopted effective October 1, 2002.]
ELC 10.9
INTERIM REVIEW
Unless these rules provide otherwise, the Board may review
any interim ruling on request for review by either party, if
the Chair determines that review is necessary and
appropriate and will serve the ends of justice.
[Adopted effective October 1, 2002.]
ELC 10.10
PREHEARING DISPOSITIVE MOTIONS
(a) Respondent Motion. A respondent lawyer may move for
dismissal of all or any portion of one or more counts of a
formal complaint for failure to state a claim upon which
relief can be granted.
(b) Disciplinary Counsel Motion. Disciplinary counsel may
move for an order finding misconduct based on the pleadings.
In ruling on this motion, the hearing officer or panel may
find that all or some of the misconduct as alleged in the
formal complaint is established, but will determine the
sanction after a hearing.
(c) Time for Motion. A motion under this rule must be filed
within 30 days of the filing of the answer to a formal
complaint or amended formal complaint. A respondent may,
within the time provided for filing an answer, instead file
a motion under this rule. If the motion does not result in
the dismissal of the entire formal complaint, the respondent
must file and serve an answer to the remaining allegations
within ten days of service of the ruling on the motion.
(d) Procedure. Rule 10.8 and CR 12 apply to motions under
this rule. No factual materials outside the answer and
complaint may be presented. If the motion results in
dismissal of part but not all of a formal complaint, the
Board must hear an interlocutory appeal of the order by
either party. The appeal must be filed within 15 days of
service of the order.
[Adopted effective October 1, 2002.]
ELC 10.11
DISCOVERY AND PREHEARING PROCEDURES
(a) General. The parties should cooperate in mutual
informal exchange of relevant non-privileged information to
facilitate expeditious, economical, and fair resolution of
the case.
(b) Requests for Admission. After a formal complaint is
filed, the parties may request admissions under CR 36.
Under appropriate circumstances, the hearing officer may
apply the sanctions in CR 37(c) for improper denial of
requests for admission.
(c) Other Discovery. After a formal complaint is filed, the
parties have the right to other discovery under the Superior
Court Civil Rules, including under CR 27–31 and 33 –35, only
on motion and under terms and limitations the hearing
officer deems just or on the parties’ stipulation.
(d) Limitations on Discovery. The hearing officer may
exercise discretion in imposing terms or limitations on the
exercise of discovery to assure an expeditious, economical,
and fair proceeding, considering all relevant factors
including necessity and unavailability by other means, the
nature and complexity of the case, seriousness of charges,
the formal and informal discovery that has already occurred,
the burdens on the party from whom discovery is sought, and
the possibility of unfair surprise.
(e) Deposition Procedure.
(1) Subpoenas for depositions may be issued under CR 45.
Subpoenas may be enforced under rule 4.7.
(2) For a deposition outside Washington State, a
commission need not issue, but a copy of the order of
the chief hearing officer or hearing officer, certified
by the officer, is sufficient to authorize the
deposition.
(f) CR 16 Orders. The hearing officer may enter orders
under CR 16.
(g) Duty to Cooperate. A respondent lawyer who has been
served with a formal complaint must respond to discovery
requests and comply with all lawful orders made by the
hearing officer. The hearing officer or panel may draw
adverse inferences as appear warranted by the failure of
either the Association or the respondent to respond to
discovery.
[Adopted effective October 1, 2002.]
ELC 10.12
SCHEDULING HEARING
(a) Where Held. All disciplinary hearings must be held in
Washington State, unless the respondent lawyer is not a
resident of the state, or cannot be found in the state.
(b) Scheduling of Hearing. If possible, the parties should
arrange a date, time, and place for the hearing by agreement
among themselves and the hearing officer or panel members.
Alternatively, at any time after the respondent has filed an
answer to the formal complaint, or after the time to file
the answer has expired, either party may move for an order
setting a date, time, and place for the hearing. Rule 10.8
applies to this motion. The motion must state:
· the requested date or dates for the hearing;
· other dates that are available to the requesting party;
· the expected duration of the hearing;
· discovery and anything else that must be completed
before the hearing; and
· the requested time and place for the hearing.
A response to the motion must contain the same information.
(c) Scheduling Order. The hearing officer must enter an
order setting the date and place of the hearing. This order
may include any prehearing deadlines the hearing officer
deems required by the complexity of the case, and may be in
the following form with the following timelines:
IT IS ORDERED that the hearing is set and the parties
must comply with prehearing deadlines as follows:
1. Witnesses. A list of intended witnesses, including
addresses and phone numbers, must be filed and served
by [Hearing Date (H)-8 weeks].
2. Discovery. Discovery cut-off is [H-6 weeks].
3. Motions. Prehearing motions, other than motions to
bifurcate, must be served by [H-4 weeks]. An exhibit
not ordered or stipulated admitted may not be attached
to a motion or otherwise transmitted to the hearing
officer unless the motion concerns the exhibit’s
admissibility. The hearing officer will advise counsel
whether oral argument is necessary, and, if so, the
date and time, and whether it will be heard by
telephone. (Rule 10.15 provides the deadline for a
motion to bifurcate.)
4. Exhibits. A list of proposed exhibits must be filed
and served by [H-3 weeks].
5. Service of Exhibits/Summary. Copies of proposed
exhibits and a summary of the expected testimony of
each witness must be served on the opposing counsel by
[H-2 weeks].
6. Objections. Objections to proposed exhibits, including
grounds, must be exchanged by [H-1 week].
7. Briefs. Any hearing brief must be served and filed by
[H-1 week]. Exhibits not ordered or stipulated
admitted may not be attached to a hearing brief or
otherwise transmitted to the hearing officer before the
hearing.
8. Hearing. The hearing is set for [H] and each day
thereafter until recessed by the hearing officer, at
[location].
(d) Motion for Hearing Within 120 Days. A respondent’s
motion under section (b) for a hearing within 120 days must
be granted, unless disciplinary counsel shows good cause for
setting the hearing at a later date.
(e) Notice. Service of a copy of an order or ruling of the
hearing officer setting a date, time, and place for the
hearing constitutes notice of the hearing. The respondent
must be given at least ten days notice of the hearing absent
consent.
(f) Continuance. Either party may move for a continuance of
the hearing date. The hearing officer has discretion to
grant the motion for good cause shown.
[Adopted effective October 1, 2002.]
ELC 10.13
DISCIPLINARY HEARING
(a) Representation. The Association is represented at the
hearing by disciplinary counsel. The respondent lawyer may
be represented by counsel.
(b) Respondent Must Attend. A respondent given notice of a
hearing must attend the hearing. Failure to attend the
hearing, without good cause, may be grounds for discipline.
If, after proper notice, the respondent fails to attend the
hearing, the hearing officer or panel:
(1) may draw an adverse inference from the
respondent's failure to attend as to any questions that
might have been asked the respondent at the hearing;
and
(2) must admit testimony by deposition regardless of
the deponent’s availability. An affidavit or
declaration is also admissible, if:
(A) the facts stated are within the witness’s personal
knowledge;
(B) the facts are set forth with particularity; and
(C) it shows affirmatively that the witness could
testify competently to the stated facts.
(c) Respondent Must Bring Requested Materials. Disciplinary
counsel may request in writing, served on the respondent at
least three days before the hearing, that the respondent
bring to the hearing any documents, files, records, or other
written materials or things. The respondent must comply
with this request and failure to bring requested materials,
without good cause, may be grounds for discipline.
(d) Witnesses. Except as provided in subsection (b)(2) and
rule 10.6, witnesses must testify under oath. Testimony may
also be submitted by deposition as permitted by CR 32.
Testimony must be recorded by a court reporter or, if
allowed by the hearing officer, by tape recording. The
parties have the right to cross-examine witnesses who
testify and to submit rebuttal evidence.
(e) Subpoenas. The parties may subpoena witnesses,
documents, or things under the terms of CR 45. A witness
must promptly comply with all subpoenas issued under this
rule and with all lawful orders made by the hearing officer
under this rule. Subpoenas may be enforced under rule 4.7.
The hearing officer or panel may additionally draw adverse
inferences as appear warranted by the respondent’s failure
to respond.
(f) Prior Disciplinary Record. The respondent’s record of
prior disciplinary action, or the fact that the respondent
has no prior disciplinary action, must be made a part of the
hearing record before the hearing officer or panel files a
decision.
[Adopted effective October 1, 2002.]
ELC 10.14
EVIDENCE AND BURDEN OF PROOF
(a) Proceedings Not Civil or Criminal. Hearing officers
should be guided in their evidentiary and procedural rulings
by the principle that disciplinary proceedings are neither
civil nor criminal but are sui generis hearings to determine
if a lawyer's conduct should have an impact on his or her
license to practice law.
(b) Burden of Proof. Disciplinary counsel has the burden of
establishing an act of misconduct by a clear preponderance
of the evidence.
(c) Proceeding Based on Criminal Conviction. If a formal
complaint charges a respondent lawyer with an act of
misconduct for which the respondent has been convicted in a
criminal proceeding, the court record of the conviction is
conclusive evidence at the disciplinary hearing of the
respondent’s guilt of the crime and violation of the statute
on which the conviction was based.
(d) Rules of Evidence. Consistent with section (a) of this
rule, the following rules of evidence apply during
disciplinary hearings:
(1) evidence, including hearsay evidence, is
admissible if in the hearing officer’s judgment it is
the kind of evidence on which reasonably prudent
persons are accustomed to rely in the conduct of their
affairs. The hearing officer may exclude evidence that
is irrelevant, immaterial, or unduly repetitious;
(2) if not inconsistent with subsection (1), the
hearing officer shall refer to the Washington Rules of
Evidence as guidelines for evidentiary rulings;
(3) documents may be admitted in the form of copies or
excerpts, or by incorporation by reference;
(4) Official Notice.
(A) official notice may be taken of:
(i) any judicially cognizable facts;
(ii) technical or scientific facts within the
hearing officer’s or panel’s specialized
knowledge; and
(iii) codes or standards adopted by an agency of
the United States, of this state, or of another
state, or by a nationally recognized
organization or association.
(B) the parties shall be notified either before or
during hearing, or by reference in preliminary
reports or otherwise, of the material noticed and
the sources thereof, including any staff memoranda
and data, and they shall have an opportunity to
contest the facts and material noticed. A party
proposing that official notice be taken may be
required to produce a copy of the material to be
noticed.
(e) APA as Guidance. The evidence standards in this rule
are based on the evidence provisions of the Washington
Administrative Procedures Act, which, when not inconsistent
with these standards, should be looked to for guidance.
“Shall” has the meaning in this rule ascribed to it in the
APA.
[Adopted effective October 1, 2002.]
ELC 10.15
BIFURCATED HEARINGS
(a) When Allowed. Upon written motion filed no later than
60 days before the scheduled hearing, either party may
request that the disciplinary proceeding be bifurcated. The
hearing officer or panel must weigh the reasons for
bifurcation against any increased cost and delay,
inconvenience to participants, duplication of evidence, and
any other factors, and may grant the motion only if it
appears necessary to insure a fair and orderly hearing
because the respondent has a record of prior disciplinary
sanction or because either party would suffer significant
prejudice or harm.
(b) Procedure.
(1) Violation Hearing.
(A) A bifurcated proceeding begins with an initial
hearing to make factual determinations and legal
conclusions as to the violations charged, including
the mental state necessary for the violations.
During this stage of the proceedings, evidence of a
prior disciplinary record is not admissible to
prove the respondent’s character or to impeach the
respondent’s credibility. However, evidence of
prior acts of misconduct may be admitted for other
purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.
(B) At the conclusion of that hearing, the hearing
officer or panel files findings and conclusions.
(i) If no violation is found, the proceedings are
concluded, the findings and conclusions are the
decision of the hearing officer or panel, and
the sanction hearing is canceled.
(ii) If any violation is found, after the
expiration of the time for a motion to amend
under rule 10.16(c), or after ruling on that
motion, the findings and conclusions as to
those violations are not subject to
reconsideration by the hearing officer.
(2) Sanction Hearing. If any violation is found, a
second hearing is held to determine the appropriate
sanction recommendation. During the sanction hearing,
evidence of the existence or lack of any prior
disciplinary record is admissible. No evidence may be
admitted to contradict or challenge the findings and
conclusions as to the violations. At the conclusion of
the sanction hearing, the hearing officer or panel
files findings and conclusions as to a sanction
recommendation, that, together with the previously
filed findings and conclusions, is the decision of the
hearing officer or panel.
(3) Timing. If a motion for bifurcation is granted, the
violation hearing is held on the date previously set
for hearing. Upon granting a motion to bifurcate, the
hearing officer must set a date and place for the
sanction hearing. Absent extraordinary circumstances,
the sanction hearing should be held no later than 45
days after the anticipated last day of the violation
hearing.
[Adopted effective October 1, 2002.]
ELC 10.16
DECISION OF HEARING OFFICER OR PANEL
(a) Decision. Within 20 days after the proceedings are
concluded, unless extended by agreement, the hearing officer
should file with the Clerk a decision in the form of
findings of fact, conclusions of law, and recommendation.
(b) Preparation of Findings. The hearing officer or hearing
panel write their own findings of fact, conclusions of law,
and recommendations. At the request of the hearing officer,
or without a request, either party may submit proposed
findings, conclusions, and recommendation.
(c) Amendment.
(1) Timing of Motion. Either party may move to
modify, amend, or correct the decision as follows:
(A) In a proceeding not bifurcated, within ten days of
service of the decision on the respondent lawyer;
(B) In a bifurcated proceeding, within five days of
service of:
(i) the violation findings of fact and conclusions
of law; or
(ii) the sanction recommendation, but this
motion may not seek to modify, amend, or
correct the violation findings or conclusions.
(C) If a hearing panel member dissents from a decision
of the majority, the five or ten day period does
not begin until the written dissent is filed or the
time to file a dissent has expired, whichever is
sooner.
(2) Procedure. Rule 10.8 governs this motion, except
that all members of a hearing panel must be served with
the motion and any response and participate in a
decision on the motion. A panel’s deliberation may be
conducted through telephone conference call. The
hearing officer or panel should rule on the motion
within 15 days after the filing of a timely response or
after the period to file a response under rule 10.8(b)
has expired. The ruling may deny the motion or may
amend, modify, or correct the decision.
(3) Effect of Failure To Move. Failure to move for
modification, correction, or amendment does not affect
any appeal to the Board or review by the Supreme Court.
(d) Dissent of Panel Member. Any member of a hearing panel
who dissents from the decision of the majority of the panel
should file a dissent, which may consist of alternative
findings, conclusions, or recommendation. A dissent should
be filed within ten days of the filing of the majority’s
decision and becomes part of the record of the proceedings.
(e) Panel Members Unable To Agree. If no two panel members
are able to agree on a decision, each panel member files
findings, conclusions, and a recommendation, and the Board
reviews the matter whether or not an appeal is filed.
(f) When Final. If a hearing officer or panel recommends
reprimand or an admonition, or recommends dismissal of the
charges, the recommendation becomes the final decision if
neither party files an appeal and if the Chair does not
refer the matter to the Board for consideration within the
time permitted by rule 11.2(b)(3). If the Chair refers the
matter to the Board for consideration of a sua sponte
review, the decision is final upon entry of an order
dismissing sua sponte review under rule 11.3 or upon other
Board decision under rule 11.12(g).
[Adopted effective October 1, 2002.]
ELC 11.1
SCOPE OF TITLE
This title provides the procedure for Board review following
a hearing officer or panel’s findings of fact, conclusions
of law, and recommendation. It does not apply to Board
review of interim rulings under rule 10.9.
[Adopted effective October 1, 2002.]
ELC 11.2
DECISIONS SUBJECT TO BOARD REVIEW
(a) Decision. For purposes of this title, “Decision” means
the hearing officer or panel’s findings of fact, conclusions
of law, and recommendation, provided that if either party
properly files a motion to amend under rule 10.16(c), the
“Decision” includes the ruling on the motion, and becomes
subject to Board review only upon the ruling on the motion.
(b) Review of Decisions. The Board reviews the following
Decisions:
(1) those recommending suspension or disbarment;
(2) those in which no two members of a hearing panel
are able to agree on a Decision; and
(3) all others if within 15 days of service of the
Decision on the respondent:
(A) either party files a notice of appeal; or
(B) the Chair files a notice of referral for sua sponte
consideration of the Decision.
[Adopted effective October 1, 2002.]
ELC 11.3
SUA SPONTE REVIEW
(a) Procedure. Sua sponte review commences when the Chair
files a notice of referral under rule 11.2(b)(3)(B). Upon
this filing, the Chair causes a copy to be served on the
parties and schedules the matter for consideration by the
Board. On consideration, the Board either issues an order
for sua sponte review setting forth the issues to be
reviewed or dismisses the sua sponte review. If the Board
issues an order for sua sponte review, the procedures of
rule 11.9(e) apply unless otherwise modified by the order,
except either party may raise any issue for Board review.
(b) Standards. The Board uses sua sponte review only in
extraordinary circumstances to prevent substantial injustice
or to correct a clear error. Sua sponte review uses the
same standards of review as other cases.
[Adopted effective October 1, 2002.]
ELC 11.4
TRANSCRIPT OF HEARING
(a) Ordering Transcript. A hearing transcript or partial
transcript may be ordered at any time by the hearing officer
or panel, respondent lawyer, disciplinary counsel, or the
Board. Disciplinary counsel must order the entire
transcript if the hearing officer or panel recommends
suspension or disbarment or if no two panel members can
agree on a Decision. If a notice of appeal is filed under
rule 11.2(b)(3)(A), disciplinary counsel must order the
entire transcript unless the parties agree that no
transcript or only a partial transcript is necessary for
review. For sua sponte review, the Chair determines the
procedure for ordering the transcript if not already
ordered.
(b) Filing and Service. The original of the transcript is
filed with the Clerk. Disciplinary counsel must cause a
copy of the transcript to be served on the respondent except
if the respondent ordered the transcript.
(c) Proposed Corrections. Within ten days of service of a
copy of the transcript on the respondent, or within ten days
of filing the transcript if the respondent ordered the
transcript, each party may file any proposed corrections to
the transcript. Each party has five days after service of
the opposing party’s proposed corrections to file objections
to those proposed corrections.
(d) Settlement of Transcript. If either party files
objections to any proposed correction under section (c), the
hearing officer, upon review of the proposed corrections and
objections, enters an order settling the transcript.
Otherwise, the transcript is deemed settled and any proposed
corrections deemed incorporated in the transcript.
[Adopted effective October 1, 2002.]
ELC 11.5
RECORD ON REVIEW
(a) Generally. The record on review consists of:
(1) any hearing transcript or partial transcript; and
(2) bar file documents and exhibits designated by the
parties.
(b) References to the Record. Briefs filed under rules 11.8
and 11.9 must specifically refer to the record if available,
using the designations TR for transcript of hearing, EX for
exhibits, and BF for bar file documents.
(c) Avoid Duplication. Material appearing in one part of
the record on review should not be duplicated in another
part of the record on review.
(d) No Additional Evidence. Evidence not presented to the
hearing officer or panel must not be presented to the Board.
[Adopted effective October 1, 2002.]
ELC 11.6
DESIGNATION OF BAR FILE DOCUMENTS AND EXHIBITS
The parties designate bar file documents and exhibits for
Board consideration under the procedure of RAP 9.6 with the
following adaptations and modifications:
(a) Bar File Documents. The bar file documents are
considered the clerk’s papers.
(b) Disciplinary Board and Clerk. The Disciplinary Board is
considered the appellate court and the Clerk to the
Disciplinary Board is considered the trial court clerk.
(c) Time for Designation.
(1) Review of Suspension or Disbarment Recommendation.
When review is under rule 11.2(b)(1), the respondent
lawyer must file and serve the respondent’s designation
of bar file documents and exhibits within 30 days of
service of the Decision.
(2) Review Not Involving Suspension or Disbarment
Recommendation. When review is under rule
11.2(b)(3)(A), the party seeking review must file and
serve that party’s designation of bar file documents
and exhibits within 15 days of filing the notice of
appeal. When review is under rule 11.2(b)(2) or
11.2(b)(3)(B), the respondent is considered the party
seeking review for designating bar file documents and
exhibits.
(d) Hearing Officer Recommendation. The bar file documents
must include the hearing officer or panel’s recommendation.
[Adopted effective October 1, 2002.]
ELC 11.7
PREPARATION OF BAR FILE DOCUMENTS AND EXHIBITS
(a) Preparation. The Clerk prepares the bar file documents
and exhibits in the format required by RAP 9.7(a) & (b), and
distributes them to the Board. The Clerk provides the
parties with a copy of the index of the bar file documents
and the cover sheet listing the exhibits.
(b) Costs. Costs for preparing bar file documents and
exhibits may be assessed as costs under rule 13.9(b)(9).
[Adopted effective October 1, 2002.]
ELC 11.8
BRIEFS FOR REVIEWS INVOLVING SUSPENSION OR DISBARMENT
RECOMMENDATION
(a) Caption of Briefs. Parties should caption their briefs
as follows:
[Name of Party] Brief [in Support of/in Opposition to]
Hearing [Officer’s] [Panel’s] Decision
[Name of Party] Reply Brief
(b) Briefs in Support or Opposition. In a matter before the
Board under rule 11.2(b)(1), each party may file a brief in
support of or in opposition to the Decision, or any part of
it.
(c) Time for Filing Briefs. Briefs, if any, must be filed
as follows:
(1) The respondent lawyer must file a brief within 20
days of service on the respondent of the later of:
(A) a copy of the hearing transcript; or
(B) the Decision.
(2) Disciplinary counsel must file a brief within 15
days of service on disciplinary counsel of the
respondent’s brief, or, if no brief is filed by the
respondent, within 15 days of the expiration of the
period for the respondent to file a brief.
(3) The respondent may file a reply to disciplinary
counsel’s brief within ten days of service of that
brief on the respondent.
[Adopted effective October 1, 2002.]
ELC 11.9
BRIEFS FOR REVIEWS NOT INVOLVING SUSPENSION OR
DISBARMENT RECOMMENDATION
(a) Caption of Briefs. The parties should caption briefs as
follows:
[Name of Party] Brief in Opposition to Hearing
[Officer’s] [Panel’s] Decision
[Name of Party] Response
[Name of Party] Reply
(b) Brief in Opposition.
(1) The party seeking review must file a brief in
opposition to the Decision within 20 days of the later
of:
(A) service on the respondent lawyer of a copy of the
transcript, unless the parties have agreed that no
transcript is necessary; or
(B) filing of the notice of appeal.
(2) Failure to file a brief within the required period
constitutes an abandonment of the appeal.
(c) Response. The opposing party has 15 days from service
of the statement of the party seeking review to file a brief
responding to the issues raised on appeal.
(d) Reply. The party seeking review may file a reply to the
response within ten days of service of the response.
(e) Procedure when Both Parties Seek Review or When No Two
Panel Members Can Agree. When both parties file notices of
appeal under rule 11.2(b)(3)(A) or when no two panel members
are able to agree on a Decision, the respondent is
considered the party seeking review and disciplinary counsel
is considered the opposing party. In that case,
disciplinary counsel’s response may raise any issue for
Board review, and the respondent has an additional five days
to file the reply permitted by section (d).
[Adopted effective October 1, 2002.]
ELC 11.10
SUPPLEMENTING RECORD ON REVIEW
The record on review may be supplemented under the
procedures of RAP 9.6 except that leave to supplement is
freely granted. The Board may direct that the record be
supplemented with any portion of the record before the
hearing officer, including any bar file documents and
exhibits.
[Adopted effective October 1, 2002.]
ELC 11.11
REQUEST FOR ADDITIONAL PROCEEDINGS
In any brief permitted in rules 11.8 and 11.9, either party
may request that an additional hearing be held before the
hearing officer or panel to take additional evidence based
on newly discovered evidence. A request for an additional
hearing must be supported by affidavit describing in detail
the additional evidence sought to be admitted and any
reasons why it was not presented at the previous hearing.
The Board may grant or deny the request in its discretion.
[Adopted effective October 1, 2002.]
ELC 11.12
DECISION OF BOARD
(a) Basis for Review. Board review is based on the hearing
officer or panel’s Decision, any hearing panel member’s
dissent, the parties’ briefs filed under rule 11.8 or 11.9,
and the record on review.
(b) Standards of Review. The Board reviews findings of fact
for substantial evidence. The Board reviews conclusions of
law and recommendation de novo. Evidence not presented to
the hearing officer or panel cannot be considered by the
Board.
(c) Oral Argument. The Board hears oral argument if
requested by either party or the Chair. A party’s request
must be filed no later than the deadline for that party to
file his or her last brief, including a response or reply,
under rule 11.8 or 11.9. The Chair’s notice of oral
argument must be filed and served on the parties no later
than 14 days before the oral argument. The Chair sets the
time, place, and terms for oral argument.
(d) Action by Board. On review, the Board may adopt,
modify, or reverse the findings, conclusions, or
recommendation of the hearing officer or panel. The Board
may also direct that the hearing officer or panel hold an
additional hearing on any issue, on its own motion, or on
either party’s request.
(e) Order or Opinion. The Board must issue a written order
or opinion. If the Board amends, modifies, or reverses any
finding, conclusion, or recommendation of the hearing
officer or panel, the Board must state the reasons for its
decision in a written order or opinion. A Board member
agreeing with the majority’s order or opinion may file
separate concurring reasons. A Board member dissenting from
the majority’s order or opinion may set forth in writing the
reasons for that dissent. The decision should be prepared
as expeditiously as possible and consists of the majority’s
opinion or order together with any concurring or dissenting
opinions. None of the opinions or orders may be filed until
all opinions are filed. A copy of the complete decision is
served by the Clerk on the parties.
(f) Procedure to Amend, Modify, or Reverse if No Appeal.
(1) If the Board intends to amend, modify, or reverse
the hearing officer or panel’s recommendation in a
matter that has not been appealed to the Board by
either party, the Board issues a notice of intended
decision.
(2) Either party may, within 15 days of service of
this notice, file a request that the Board reconsider
the intended decision.
(3) If a request is filed, the Board reconsiders its
intended decision and the intended decision has no
force or effect. The Chair determines the procedure
for the Board’s reconsideration, including whether to
grant requests for oral argument.
(4) If no timely request for reconsideration is filed,
the Board forthwith issues an order adopting the
intended decision effective on the date of the order.
If a party files a timely request for reconsideration,
the Board issues an order or opinion after
reconsideration under section (e).
(g) Decision Final Unless Appealed. The Board’s decision is
final if neither party files a notice of appeal nor a
petition for review within the time permitted by title 12 or
upon the Supreme Court’s denial of a petition for
discretionary review.
[Adopted effective October 1, 2002.]
ELC 11.13
CHAIR MAY MODIFY REQUIREMENTS
Upon written motion filed with the Clerk by either party,
for good cause shown, the Chair may modify the time periods
in title 11, and make other orders as appear appropriate to
assure fair and orderly Board review. However, the time
period for filing a notice of appeal in rule 11.2(b)(3)(A)
may not be extended or altered.
[Adopted effective October 1, 2002.]
ELC 12.1
APPLICABILITY OF RULES OF APPELLATE PROCEDURE
The Rules of Appellate Procedure serve as guidance for
review under this title except as to matters specifically
dealt with in these rules.
[Adopted effective October 1, 2002.]
ELC 12.2
METHODS OF SEEKING REVIEW
(a) Two Methods for Seeking Review of Board Decisions. The
methods for seeking Supreme Court review of Board decisions
entered under rule 11.12(e) are: review as a matter of
right, called "appeal”, and review with Court permission,
called "discretionary review". Both "appeal" and
"discretionary review" are called "review".
(b) Power of Court Not Affected. This rule does not affect
the Court’s power to review any Board decision recommending
suspension or disbarment and to exercise its inherent and
exclusive jurisdiction over the lawyer discipline and
disability system. The Court notifies the respondent lawyer
and disciplinary counsel of the Court’s intent to exercise
sua sponte review within 90 days of the Court receiving
notice of the decision under rule 3.5(a), rule 7.1(h), or
otherwise.
[Adopted effective October 1, 2002.]
ELC 12.3
APPEAL
(a) Respondent’s Right to Appeal. The respondent lawyer has
the right to appeal a Board decision recommending suspension
or disbarment. There is no other right of appeal.
(b) Notice of Appeal. To appeal, the respondent must file a
notice of appeal with the Clerk within 15 days of service of
the Board’s decision on the respondent.
[Adopted effective October 1, 2002.]
ELC 12.4
DISCRETIONARY REVIEW
(a) Decisions Subject to Discretionary Review. Board
decisions under rule 11.12(e) not recommending suspension or
disbarment are subject to Supreme Court review only through
discretionary review. The Court accepts discretionary
review only if:
(1) the Board’s decision is in conflict with a Supreme
Court decision;
(2) a significant question of law is involved;
(3) there is no substantial evidence in the record to
support a material finding of fact on which the Board’s
decision is based; or
(4) the petition involves an issue of substantial
public interest that the Court should determine.
(b) Petition for Review. Either party may seek
discretionary review by filing a petition for review with
the Court within 25 days of service of the Board’s decision.
(c) Content of Petition; Answer; Service; Decision. A
petition for review should be substantially in the form
prescribed by RAP 13.4(c) for petitions for Supreme Court
review of Court of Appeals decisions. References in that
rule to the Court of Appeals are considered references to
the Board. The appendix to the petition or an appendix to
an answer or reply may additionally contain any part of the
record, including portions of the transcript or exhibits, to
which the party refers. RAP 13.4(d) – (h) govern answers
and replies to petitions for review and related matters
including service and decision by the Court.
(d) Acceptance of Review. The Court accepts discretionary
review of a Board decision by granting a petition for
review. Upon acceptance of review, the same procedures
apply to matters subject to appeal and matters subject to
discretionary review.
[Adopted effective October 1, 2002.]
ELC 12.5
RECORD TO SUPREME COURT
(a) Transmittal. The Clerk should transmit the record to
the Supreme Court within 30 days of the filing of the notice
of appeal, service of the order accepting review, or filing
of the transcript of oral argument before the Board, if any.
(b) Content. The record transmitted to the Court consists
of:
(1) the notice of appeal, if any;
(2) the Board’s decision;
(3) the record before the Board;
(4) the transcript of any oral argument before the
Board; and
(5) any other portions of the record before the
hearing officer, including any bar file documents or
exhibits, that the Court deems necessary for full
review.
(c) Notice to Parties. The Clerk serves each party with a
list of the portions of the record transmitted.
(d) Transmittal of Cost Orders. Within ten days of entry of
an order assessing costs under rule 13.9(e), the Clerk
should transmit it to the Court as a separate part of the
record, together with the supporting statements of costs and
expenses and any exceptions or reply filed under rule
13.9(d).
(e) Additions to Record. Either party may at any time move
the Court for an order directing the transmittal of
additional portions of the record to the Court.
[Adopted effective October 1, 2002.]
ELC 12.6
BRIEFS
(a) Brief Required. The party seeking review must file a
brief stating his or her objections to the Board’s decision.
(b) Time for Filing. The brief of the party seeking review
should be filed with the Supreme Court within 30 days of
service under rule 12.5(c) of the list of portions of the
record transmitted to the Court.
(c) Answering Brief. The answering brief of the other party
should be filed with the Court within 30 days after service
of the brief of the party seeking review.
(d) Reply Brief. A reply brief of a party seeking review
should be filed with the Court within the sooner of 20 days
after service of the answering brief or 14 days before oral
argument. A reply brief should be limited to a response to
the issues in the brief to which the reply brief is
directed.
(e) Briefs When Both Parties Seek Review. When both the
respondent lawyer and disciplinary counsel seek review of a
Board decision, the respondent is deemed the party seeking
review for the purposes of this rule. In that case,
disciplinary counsel may file a brief in reply to any
response the respondent has made to the issues presented by
disciplinary counsel, to be filed with the Court the sooner
of 20 days after service of the respondent’s reply brief or
14 days before oral argument.
(f) Form of Briefs. Briefs filed under this rule must
conform as nearly as possible to the requirements of RAP
10.3 and 10.4. Bar file documents should be abbreviated BF,
the transcript or partial transcript of the hearing should
be abbreviated TR, and exhibits should be abbreviated EX.
(g) Reproduction and Service of Briefs by Clerk. The
Supreme Court clerk reproduces and distributes briefs as
provided in RAP 10.5.
[Adopted effective October 1, 2002.]
ELC 12.7
ARGUMENT
(a) Rules Applicable. Oral argument before the Supreme
Court is conducted under title 11 of the Rules of Appellate
Procedure, unless the Court directs otherwise.
(b) Priority. Disciplinary proceedings have priority and
are set upon compliance with the above rules.
[Adopted effective October 1, 2002.]
ELC 12.8
EFFECTIVE DATE OF OPINION
(a) Effective when Filed. An opinion in a disciplinary
proceeding takes effect when filed unless the Court
specifically provides otherwise.
(b) Motion for Reconsideration. A motion for
reconsideration may be filed as provided in RAP 12.4, but
the motion does not stay the judgment unless the Court
enters a stay.
[Adopted effective October 1, 2002.]
ELC 12.9
VIOLATION OF RULES
Sanctions for violation of these rules may be imposed on a
party under RAP 18.9. Upon dismissal under that rule of a
review sought by a respondent lawyer and expiration of the
period to file objections under RAP 17.7, or upon dismissal
of review by the Court if timely objections are filed, the
Board’s decision is final.
[Adopted effective October 1, 2002.]
ELC 13.1
SANCTIONS AND REMEDIES
Upon a finding that a lawyer has committed an act of
misconduct, one or more of the following may be imposed:
(a) Sanctions.
(1) Disbarment;
(2) Suspension under rule 13.3; or
(3) Reprimand.
(b) Admonition. An admonition under rule 13.5.
(c) Remedies.
(1) Restitution;
(2) Probation;
(3) Limitation on practice;
(4) Requirement that the lawyer attend continuing
legal education courses;
(5) Assessment of costs; or
(6) Other requirements consistent with the purposes of
lawyer discipline.
[Adopted effective October 1, 2002.]
ELC 13.2
EFFECTIVE DATE OF SUSPENSIONS AND DISBARMENTS
Suspensions and disbarments are effective on the date set by
the Supreme Court’s order, which will ordinarily be seven
days after the date of the order. If no date is set, the
suspension or disbarment is effective on the date of the
Court’s order.
[Adopted effective October 1, 2002.]
ELC 13.3
SUSPENSION
(a) Term of Suspension. A suspension must be for a fixed
period of time not exceeding three years.
(b) Reinstatement.
(1) After the period of suspension, the Association
administratively returns the suspended respondent
lawyer to the respondent’s status before the suspension
without further order by the Court upon:
(A) the respondent’s compliance with all current
licensing requirements; and
(B) disciplinary counsel’s certification that the
respondent has complied with any specific
conditions ordered, and has paid any costs or
restitution ordered or is current with any costs or
restitution payment plan.
(2) A respondent may ask the Chair to review an
adverse determination by disciplinary counsel regarding
compliance with the conditions for reinstatement,
payment of costs or restitution, or compliance with a
costs or restitution payment plan. On review, the
Chair may modify the terms of the payment plan if
warranted. The Chair determines the procedure for this
review. The Chair’s ruling is not subject to further
review. If the Chair determines that the Board should
review the matter, the Chair directs the procedure for
Board review and the Board’s decision is not subject to
further review.
[Adopted effective October 1, 2002.]
ELC 13.4
REPRIMAND
(a) Administration. The Association administers a
reprimand to a respondent lawyer by written statement
signed by its President.
(b) Notice and Review of Contents. The Association must
serve the respondent with a copy of the proposed
reprimand. Within five days of service of the proposed
reprimand, the respondent may file a request for review
of the content of the proposed reprimand. This request
stays the administration of the reprimand. When timely
requested, the Disciplinary Board reviews the proposed
reprimand in light of the decision or stipulation
imposing the reprimand and may take any appropriate
action. The Board's action is final and not subject to
further review. If no request is received, the content
of the reprimand is final, and the reprimand is administered.
[Adopted Amended effective September 1, 2005]
ELC 13.5
ADMONITION
(a) By a Review Committee.
(1) A review committee may issue an admonition when
investigation of a grievance shows misconduct.
(2) A respondent lawyer may protest either the review
committee’s or the Board’s prehearing issuance of an
admonition by filing a notice to that effect with the
Clerk within 30 days of service of the admonition.
Upon receipt of a timely protest, the admonition is
rescinded, and the grievance is deemed ordered to
hearing.
(b) Following a Hearing. A hearing officer or panel may
recommend that a respondent receive an admonition following
a hearing.
(c) By Stipulation. The parties may stipulate to an
admonition under rule 9.1.
(d) Effect. An admonition is admissible in subsequent
disciplinary or disability proceedings involving the
respondent. Rule 3.6(b) governs destruction of file
materials relating to an investigation or hearing concluded
with an admonition, including the admonition.
(e) Action on Board Review. Upon review under title 11, the
Board may dismiss, issue an admonition, or impose sanctions
or other remedies under rule 13.1.
(f) Signing of Admonition. The review committee chair signs
an admonition issued by a review committee. The
Disciplinary Board Chair or the Chair’s designee signs all
other admonitions.
[Adopted effective October 1, 2002.]
ELC 13.6
DISCIPLINE FOR CUMULATIVE ADMONITIONS
(a) Grounds. A lawyer may be subject to sanction or other
remedy under rule 13.1 if the lawyer receives three
admonitions within a five year period.
(b) Procedure. Upon being presented with evidence that a
respondent lawyer has received three admonitions within a
five year period, a review committee may authorize the
filing of a formal complaint based solely on the provisions
of this rule. A proceeding under this rule is conducted in
the same manner as any disciplinary proceeding. The issues
in the proceeding are whether the respondent has received
three admonitions within a five year period and, if so, what
sanction or other remedy should be recommended.
[Adopted effective October 1, 2002.]
ELC 13.7
RESTITUTION
(a) Restitution May Be Required. A respondent lawyer who
has been sanctioned under rule 13.1 or admonished under rule
13.5(b) may be ordered to make restitution to persons
financially injured by the respondent’s conduct.
(b) Payment of Restitution.
(1) A respondent ordered to make restitution must do
so within 30 days of the date on which the decision
requiring restitution becomes final, unless the
decision provides otherwise or the respondent enters
into a periodic payment plan with disciplinary counsel.
(2) Disciplinary counsel may enter into an agreement
with a respondent for a reasonable periodic payment
plan if:
(A) the respondent demonstrates in writing present
inability to pay restitution and
(B) disciplinary counsel consults with the persons owed
restitution.
(3) A respondent may ask the Chair to review an
adverse determination by disciplinary counsel of the
reasonableness of a proposed periodic payment plan for
restitution. The Chair directs the procedure for this
review. The Chair’s ruling is not subject to further
review. If the Chair determines that the Board should
review the matter, the Chair directs the procedure for
Board review and the Board’s decision is not subject to
further review.
(c) Failure To Comply. A respondent’s failure to make
restitution when ordered to do so, or to comply with the
terms of a periodic payment plan may be grounds for
discipline.
[Adopted effective October 1, 2002.]
ELC 13.8
PROBATION
(a) Conditions of Probation. A respondent lawyer who has
been sanctioned under rule 13.1 or admonished under rule
13.5(b) may be placed on probation for a fixed period of two
years or less.
(1) Conditions of probation may include, but are not
limited to requiring:
(A) alcohol or drug treatment;
(B) medical care;
(C) psychological or psychiatric care;
(D) professional office practice or management
counseling; or
(E) periodic audits or reports.
(2) Upon disciplinary counsel’s request, the Chair may
appoint a suitable person to supervise the probation.
Cooperation with a person so appointed is a condition
of the probation.
(b) Failure To Comply. Failure to comply with a condition
of probation may be grounds for discipline and any sanction
imposed must take into account the misconduct leading to the
probation.
[Adopted effective October 1, 2002.]
ELC 13.9
COSTS AND EXPENSES
(a) Assessment. The Association’s costs and expenses may be
assessed as provided in this rule against any respondent
lawyer who is ordered sanctioned or admonished.
(b) Costs Defined. The term "costs" for the purposes of
this rule includes all monetary obligations, except attorney
fees, reasonably and necessarily incurred by the Association
in the complete performance of its duties under these rules,
whether incurred before or after the filing of a formal
complaint. Costs include, by way of illustration and not
limitation:
(1) court reporter charges for attending and
transcribing depositions or hearings;
(2) process server charges;
(3) necessary travel expenses of hearing officers,
hearing panel members, disciplinary counsel, adjunct
investigative counsel, or witnesses;
(4) expert witness charges;
(5) costs of conducting an examination of books and
records or an audit under title 15;
(6) costs incurred in supervising probation imposed
under rule 13.8;
(7) telephone toll charges;
(8) fees, costs, and expenses of a lawyer appointed
under rule 8.2 or rule 8.3;
(9) costs of copying materials for submission to a
review committee, a hearing officer or panel, or the
Board; and
(10) compensation provided to hearing officers or panel
members under rule 2.11.
(c) Expenses Defined. "Expenses" for the purposes of this
rule means a reasonable charge for attorney fees and
administrative costs. Expenses assessed under this rule may
equal the actual expenses incurred by the Association, but
in any case cannot be less than the following amounts:
(1) for an admonition that is accepted under rule
13.5(a), $750;
(2) for a matter that becomes final without review by
the Board, $1,500;
(3) for a matter that becomes final following Board
review, without appeal to the Supreme Court, a total of
$2,000;
(4) for a matter appealed to the Supreme Court or in
which the Court accepts discretionary review but not
requiring briefing, a total of $2,500; and
(5) for a matter appealed to the Supreme Court or in
which the Court accepts discretionary review in which
briefing is required, a total of $3,000.
(d) Statement of Costs and Expenses, Exceptions, and Reply.
(1) Timing. Disciplinary counsel must file a
statement of costs and expenses with the Clerk within
20 days from any of the following events:
(A) an admonition is accepted;
(B) the decision of a hearing officer or panel or the
Board imposing an admonition or a sanction becomes
final;
(C) a notice of appeal from a Board decision is filed
and served; or
(D) the Supreme Court accepts or denies discretionary
review of a Board decision.
(2) Content. A statement of costs and expenses must
state with particularity the nature and amount of the
costs claimed and also state the expenses requested.
Disciplinary counsel must sign the statement, and this
signature constitutes a certification that all
reasonable attempts have been made to insure the
statement’s accuracy.
(3) Service. The Clerk serves a copy of the statement
on the respondent.
(4) Exceptions. The respondent may file exceptions no
later than 20 days from service of the statement of
costs and expenses.
(5) Reply. Disciplinary counsel may file a reply no
later than ten days from service of any exceptions.
(e) Assessment. The Chair enters an order assessing costs
and expenses after the expiration of the time for filing
exceptions or replies.
(f) Review of Chair’s Decision.
(1) Matters Reviewed by Court. In matters reviewed by
the Supreme Court under title 12, the Chair’s decision
is subject to review only by the Court.
(2) All Other Matters. In all other matters, the
following procedures apply:
(A) Request for Review by Board. Within 20 days of
service on the respondent of the order assessing
costs and expenses, either party may file a request
for Board review of the order.
(B) Board Action. Upon the timely filing of a request,
the Board reviews the order assessing costs and
expenses, based on the Association’s statement of
costs and expenses and any exceptions or reply, the
decision of the hearing officer or panel or of the
Board, and any written statement submitted by
either party within the time directed by the Chair.
The Board may approve or modify the order assessing
costs and expenses. The Board’s decision is final
when filed and not subject to further review.
(g) Assessment in Matters Reviewed by the Court. When a
matter is reviewed by the Court as provided in title 12, any
order assessing costs and expenses entered by the Chair
under section (e) and the statement of costs and expenses
and any exceptions or reply filed in the proceeding are
included in the record transmitted to the Court. Upon
filing of an opinion by the Court imposing a sanction or
admonition, costs and expenses may be assessed in favor of
the Association under the procedures of RAP Title 14, except
that "costs" as used in that title means any costs and
expenses allowable under this rule.
(h) Assessment Discretionary. Assessment of any or all
costs and expenses may be denied if it appears in the
interests of justice to do so.
(i) Payment of Costs and Expenses.
(1) A respondent ordered to pay costs and expenses
must do so within 30 days of the date on which the
assessment becomes final, unless the order assessing
costs and expenses provides otherwise or the respondent
enters into a periodic payment plan with disciplinary
counsel.
(2) The respondent must pay interest on any amount not
paid within 30 days of the date the assessment is final
at the maximum rate permitted under RCW 19.52.020.
(3) Disciplinary counsel may enter into an agreement
with a respondent for a reasonable periodic payment
plan if the respondent demonstrates in writing present
inability to pay assessed costs and expenses.
(A) Any payment plan entered into under this rule must
provide for interest at the maximum rate permitted
under RCW 19.52.020.
(B) A respondent may ask the Chair to review an adverse
determination by disciplinary counsel regarding
specific conditions for a periodic payment plan.
The Chair directs the procedure for this review.
The Chair’s ruling is not subject to further
review. If the Chair determines that the Board
should review the matter, the Chair directs the
procedure for Board review, and the Board’s
decision is not subject to further review.
(j) Failure To Comply. A respondent’s failure to pay costs
and expenses when ordered to do so or to comply with the
terms of a periodic payment plan may be grounds for
discipline.
(k) Costs in Other Cases. Rule 9.1 governs costs and
expenses in cases resolved by stipulation. Rule 8.6 governs
assessment of costs and expenses in disability proceedings.
(l) Money Judgment for Costs and Expenses. After the
assessment of costs and expenses is final, upon application
by the Association, the Supreme Court commissioner or clerk
may enter a money judgment on the order for costs and
expenses if the respondent has failed to pay the costs and
expenses as provided by this rule. The Association must
serve the application for a money judgment on the respondent
under rule 4.1. The respondent may file an objection with
the commissioner or clerk within 20 days of service of the
application. The sole issue to be determined by the
commissioner or clerk is whether the respondent has complied
with the duty to pay costs and expenses under this rule.
The commissioner or clerk may enter a money judgment in
compliance with RCW 4.64.030 and notify the Association and
the respondent of the judgment. On application, the
commissioner or clerk transmits the judgment to the clerk of
the superior court in any county selected by the Association
and notifies the respondent of the transmittal. The clerk
of the superior court files the judgment as a judgment in
that court without payment of a filing fee.
[Adopted effective October 1, 2002.]
ELC 14.1
NOTICE TO CLIENTS AND OTHERS; PROVIDING CLIENT PROPERTY
(a) Providing Client Property. A lawyer who has been
suspended from the practice of law, disbarred, or
transferred to disability inactive status must provide each
client or the client’s substituted counsel upon request with
the client’s assets, files, and other documents in the
lawyer’s possession, regardless of any possible claim of
lien under RCW 60.40.
(b) Notice if Suspended for 60 Days or Less. A lawyer who
has been suspended for 60 days or less under rule 13.3 must
within ten days of the effective date of the suspension:
(1) notify every client involved in litigation or
administrative proceedings, and counsel for each
adverse party (or the adverse party directly if not
represented by counsel), of the suspension, the reason
therefor, and of the lawyer’s consequent inability to
act as a lawyer after the effective date of the
suspension, and advise each of these clients to seek
prompt substitution of another lawyer. If the client
does not substitute counsel within ten days of this
notice, the lawyer must advise the court or agency of
the lawyer's inability to act; and
(2) notify all other clients of the suspension, the
reason therefor, and consequent inability to act during
the suspension. The notice must advise the client to
seek legal advice elsewhere if needed during the
suspension.
(c) Notice if Otherwise Suspended or Disbarred. A lawyer
who has been disbarred or suspended for more than 60 days,
for nonpayment of dues, or under title 7 or APR 11 must
within ten days of the effective date of the disbarment or
suspension:
(1) notify every client of the lawyer’s inability to
act as the client’s lawyer and the reason therefor, and
advise the client to seek legal advice elsewhere;
(2) advise every client involved in litigation or
administrative proceedings to seek the prompt
substitution of another lawyer. If the client does not
substitute counsel within ten days of being notified of
the lawyer's inability to act, the lawyer must advise
the court or agency of the lawyer's inability to act;
and
(3) notify counsel for each adverse party in pending
litigation or administrative proceedings, or the
adverse party directly if not represented by counsel,
of the lawyer's inability to act further on the
client's behalf.
(d) Notice if Transferred to Disability Inactive Status. A
lawyer transferred to disability inactive status, or his or
her guardian if one has been appointed, must give all
notices required by section (c), except that the notices
need not refer to disability.
(e) Address of Client. All notices to lawyers, adverse
parties, courts, or agencies as required by sections (b),
(c), or (d) must contain the client’s name and last known
address, unless doing so would disclose a confidence or
secret of the client. If the name and address are omitted,
the client must be advised that so long as his or her
address remains undisclosed and no new lawyer is
substituted, the client may be served by leaving papers with
the clerk of the court under CR 5(b)(1) in pending superior
court actions, and that comparable provisions may allow
similar service in other court proceedings or administrative
actions.
[Adopted effective October 1, 2002.]
ELC 14.2
LAWYER TO DISCONTINUE PRACTICE
A disbarred or suspended lawyer, or a lawyer transferred to
disability inactive status, must not practice law after the
effective date of the disbarment, suspension, or transfer to
disability inactive status, and also must take whatever
steps necessary to avoid any reasonable likelihood that
anyone will rely on him or her as a lawyer authorized to
practice law. This rule does not preclude a disbarred or
suspended lawyer, or a lawyer transferred to disability
inactive status, from disbursing assets held by the lawyer
to clients or other persons or from providing information on
the facts and the lawyer’s theory of a case and its status
to a succeeding lawyer, provided that the suspended or
disbarred lawyer not be involved in any discussion regarding
matters occurring after the date of the suspension or
disbarment. The lawyer must provide this information on
request and without charge.
[Adopted effective October 1, 2002.]
ELC 14.3
AFFIDAVIT OF COMPLIANCE
Within 25 days of the effective date of a lawyer’s
disbarment, suspension, or transfer to disability inactive
status, the lawyer must serve on disciplinary counsel an
affidavit stating that the lawyer has fully complied with
the provisions of this title. The affidavit must also
provide a mailing address where communications to the lawyer
may thereafter be directed. The lawyer must attach to the
affidavit copies of the form letters of notification sent to
the lawyer's clients and opposing counsel or parties and
copies of letters to any court, together with a list of
names and addresses of all clients and opposing counsel or
parties to whom notices were sent. The affidavit is a
confidential document except the lawyer’s mailing address is
treated as a change of mailing address under APR 13(b).
[Adopted effective October 1, 2002.]
ELC 14.4
LAWYER TO KEEP RECORDS OF COMPLIANCE
A lawyer who has been disbarred, suspended, or transferred
to disability inactive status must maintain written records
of the various steps taken by him or her under this title,
so that proof of compliance will be available in any
subsequent proceeding.
[Adopted effective October 1, 2002.]
ELC 15.1
AUDIT AND INVESTIGATION OF BOOKS AND RECORDS
The Board and its Chair have the following authority to examine,
investigate, and audit the books and records of any lawyer to
ascertain and obtain reports on whether the lawyer has been and is
complying with RPC 1.15A:
(a) Random Examination. The Board may authorize examinations
of the books and records of any lawyer or law firm selected at
random. Only the lawyer or law firm's books and records may be
examined in an examination under this section.
(b) Particular Examination. Upon receipt of information that a
particular lawyer or law firm may not be in compliance with RPC
1.15A, the Chair may authorize an examination limited to the lawyer
or law firm's books and records. Information may be presented to
the Chair without notice to the lawyer or law firm. Disclosure of
this information is subject to rules 3.1 - 3.4.
(c) Audit. After an examination under section (a) or (b), if
the Chair determines that further examination is warranted, the
Chair may order an appropriate audit of the lawyer's or firm's
books and records, including verification of the information in
those records from available sources.
[Adopted effective October 1, 2002; September 1, 2006.]
ELC 15.2
COOPERATION OF LAWYER
Any lawyer or firm who is subject to examination,
investigation, or audit under rule 15.1 must cooperate with
the person conducting the examination, investigation, or
audit, subject only to the proper exercise of any privilege
against self-incrimination, by:
(a) producing forthwith all evidence, books, records, and
papers requested for the examination, investigation, or
audit;
(b) furnishing forthwith any explanations required for the
examination, investigation, or audit;
(c) producing written authorization, directed to any bank or
depository, for the person to examine, investigate, or audit
trust and general accounts, safe deposit boxes, and other
forms of maintaining trust property by the lawyer in the
bank or depository.
[Adopted effective October 1, 2002.]
ELC 15.3
DISCLOSURE
The examination and audit report are only available to the
Board, disciplinary counsel, and the lawyer or firm
examined, investigated, or audited, and to the Board of
Governors on its request, unless a disciplinary proceeding
is commenced in which case the disclosure provisions of
title 3 apply.
[Adopted effective October 1, 2002.]
ELC 15.4.
TRUST ACCOUNT OVERDRAFT NOTIFICATION
(a) Overdraft Notification Agreement Required. To be authorized as a
depository for lawyer trust accounts referred to in RPC 1.15A(i) or LPO trust
accounts referred to in LPO RPC 1.12A(i), a financial institution, bank, credit
union, savings bank, or savings and loan association must file with the Legal
Foundation of Washington an agreement, in a form provided by the Washington
State Bar Association, to report to the Washington State Bar Association if any
properly payable instrument is presented against a lawyer, LPO or closing firm
trust account containing insufficient funds, whether or not the instrument is
honored. The agreement must apply to all branches of the financial institution
and cannot be canceled except on 30 days' notice in writing to the Legal
Foundation of Washington. The Legal Foundation of Washington must provide
copies of signed agreements and notices of cancellation to the Washington State
Bar Association
(b) Overdraft Reports.
(1) The overdraft notification agreement must provide that all reports made
by the financial institution must contain the following information:
(A) the identity of the financial institution;
(B) the identity of the (1) the lawyer or law firm, or (2) the limited
practice officer or closing firm;
(C) the account number; and
(D) either:
(i) the amount of overdraft and date created; or
(ii) the amount of the returned instrument(s) and the date returned.
(2) The financial institution must provide the information required by the
notification agreement within five banking days of the date the item(s) was
paid or returned unpaid.
(c) Costs. Nothing in these rules precludes a financial institution from
charging a particular lawyer or law firm for the reasonable cost of producing
the reports and records required by this rule, but those charges may not be a
transaction cost charged against funds payable to the Legal Foundation of
Washington under RPC 1.15A(i)(1) and ELC 15.7(e).
(d) Notification by Lawyer. Every lawyer who receives notification that any
instrument presented against his or her trust account was presented against
insufficient funds, whether or not the instrument was honored, must promptly
notify the Office of Disciplinary Counsel of the Association of the information
required by section (b). The lawyer must include a full explanation of the
cause of the overdraft.
ELC 15.5
DECLARATION OR QUESTIONNAIRE
(a) Questionnaire. The Association annually sends each active
lawyer a written declaration or questionnaire designed to
determine whether the lawyer is complying with RPC 1.15A. Each
active lawyer must complete, execute, and deliver to the
Association this declaration or questionnaire by the date
specified in the declaration or questionnaire.
(b) Noncompliance. Failure to file the declaration or
questionnaire by the date specified in section (a) is grounds for
discipline. This failure also subjects the lawyer who has failed
to comply with this rule to a full audit of his or her books and
records as provided in rule 15.1(c), upon request of disciplinary
counsel to a review committee. A copy of any request made under
this section must be served on the lawyer. The request must be
granted on a showing that the lawyer has failed to comply with
section (a) of this rule. If the lawyer should later comply,
disciplinary counsel has discretion to determine whether an audit
should be conducted, and if so the scope of that audit. A lawyer
audited under this section is liable for all actual costs of
conducting such audit, and also a charge of $100 per day spent by
the auditor in conducting the audit and preparing an audit report.
Costs and charges are assessed in the same manner as costs under rule 5.3(f).
[Adopted effective October 1, 2002; September 1, 2006.]
ELC 15.6
REGULATIONS
The Disciplinary Board may adopt regulations regarding the
powers in this title subject to the approval of the Board of
Governors and the Supreme Court.
[Adopted effective October 1, 2002.]
ELC 15.7.
TRUST ACCOUNTS AND THE LEGAL FOUNDATION OF WASHINGTON
(a) Legal Foundation of Washington. The Legal Foundation of Washington
(Legal Foundation) was established by Order of the Supreme Court of Washington
to administer distribution of Interest on Lawyer's Trust Account (IOLTA) funds
to civil legal aid programs.
(1) Administrative Responsibilities. The Legal Foundation is responsible for
assessing the products and services offered by financial institutions operating
in the state of Washington and determining whether such institutions meet the
requirements of this rule, ELC 15.4, and ELPOC 15.4. The Legal Foundation
must maintain a list of financial institutions authorized to establish client
trust accounts and publish the list on a website maintained by the Legal
Foundation for public information. The Legal Foundation must provide a copy of
the list to any person upon request.
(2) Annual Report. The Legal Foundation must prepare an annual report to the
Supreme Court of Washington that summarizes the Foundation's income, grants and
operating expenses, implementation of its corporate purposes, and any problems
arising in the administration of the IOLTA program.
(b) Definitions. The following definitions apply to this rule:
(1) United States Government Securities. United States Government
Securities are defined as direct obligations of the United States Government,
or obligations issued or guaranteed as to principal and interest by the United
States or any agency or instrumentality thereof, including United States
Government-Sponsored Enterprises.
(2) Daily Financial Institution Repurchase Agreement. A daily financial
institution repurchase agreement must be fully collateralized by United States
Government Securities and may be established only with an authorized financial
institution that is deemed to be "well capitalized" under applicable
regulations of the Federal Deposit Insurance Corporation and the National
Credit Union Association.
(3) Money Market Funds. A money market fund is an investment company
registered under the Investment Company Act of 1940, as amended, that is
regulated as a money market funder under Rules and Regulations adopted by the
Securities and Exchange Commission pursuant to said Act, and at the time of the
investment, has total assets of at least five hundred million dollars
($500,000,000). A money market fund must be comprised solely of United States
Government Securities or investments fully collateralized by United States
Government Securities.
(c) Authorized Financial Institutions. Any bank, savings bank, credit
union, savings and loan association, or other financial institution that meets
the following criteria is eligible to become an authorized financial
institution under this rule:
(1) is insured by the Federal Deposit Insurance Corporation (FDIC) or the
National Credit Union Administration;
(2) is authorized by law to do business in Washington;
(3) complies with all requirements set forth in section (d) of this rule and
in ELC 15.4; and
(4) if offering IOLTA accounts, complies with all requirements set forth in
section (e) of this rule.
The Legal Foundation determines whether a financial institution is an
authorized financial institution under this section. Upon a determination of
compliance with all requirements of this rule and ELC 15.4, the Legal
Foundation must list a financial institution as an authorized financial
institution under section (a)(1). At any time, the Legal Foundation may
request that a listed financial institution establish or certify compliance
with the requirements of this rule or ELC 15.4. The Legal Foundation may remove
a financial institution from the list of authorized financial institutions upon
a determination that the financial institution is not in compliance.
(d) Requirements of All Trust Accounts. All trust accounts established
pursuant to RPC 1.15A(i) or LPORPC 1.12A(h) must be insured by the Federal
Deposit Insurance Corporation or the National Credit Union Administration up to
the limit established by law for those types of accounts or be backed by
United States Government Securities. Trust account funds must not be
placed in stocks, bonds, mutual funds that invest in stock or bonds, or similar
uninsured investments.
(e) IOLTA Accounts. To qualify for Legal Foundation approval as an
authorized financial institution offering IOLTA accounts, in addition to
meeting all other requirements set forth in this Rule, a financial institution
must comply with the requirements set forth in this section.
(1) Interest Comparability. For accounts established pursuant to RPC
1.15A, authorized financial institutions must pay the highest interest rate
generally available from the institutions to its non-IOLTA account customers
when IOLTA accounts meet or exceed the same minimum balance or other account
eligibility qualifications, if any. In determining the highest interest rate
generally available to its non-IOLTA customers, authorized financial
institutions may consider factors, in addition to the IOLTA account balance,
customarily considered by the institution when setting interest rates for its
customers, provided that such factors do not discriminate between IOLTA
accounts and accounts of non-IOLTA customers and that these factors do not
include that the account is an IOLTA account. An authorized financial
institution may satisfy these comparability requirements by selecting one of
the following options:
(i) Establish the IOLTA account as the comparable interest-paying product; or
(ii) Pay the comparable interest rate on the IOLTA checking account in lieu
of actually establishing the comparable interest-paying product; or
(iii) Pay a rate on IOLTA equal to 75% of the Federal Funds Targeted Rate as
of the first business day of the month or IOLTA remitting period, or .75%,
whichever is higher, and which rate is deemed to be already net of allowable
reasonable service charges or fees.
(2) Remit Interest to Legal Foundation of Washington. Authorized financial
institutions must remit the interest accruing on all IOLTA accounts, net
of reasonable account fees, to the Legal Foundation monthly, on a report form
prescribed by the Legal Foundation. At a minimum, the report must show details
about the account, including but not limited to the name of the lawyer, law
firm, LPO, or Closing Firm for whom the remittance is sent, the rate of
interest applied, the amount of service charges deducted, if any, and the
balance used to compute the interest. Interest must be calculated on the
average monthly balance in the account, or as otherwise computed in accordance
with applicable state and federal regulations and the institution's standard
accounting practice for non-IOLTA customers. The financial institution must
notify each lawyer, law firm, LPO, or Closing Firm of the amount of interest
remitted to the Legal Foundation on a monthly basis on the account statement or
other written report.
(3) Reasonable account fees. Reasonable account fees may only include per
deposit charges, per check charges, a fee in lieu of minimum balances, sweep
fees, FDIC insurance fees, and a reasonable IOLTA account administration fee.
No service charges or fees other than the allowable, reasonable fees may be
assessed against the interest or dividends on an IOLTA account. Any service
charges or fees other than allowable reasonable fees must be the sole
responsibility of, and may be charged to, the lawyer, law firm, LPO, or Closing
Firm maintaining the IOLTA account. Fees or charges in excess of the interest
or dividends earned on the account must not be deducted from interest or
dividends earned on any other account or from the principal.
(4) Comparable Accounts. Subject to the requirements set forth in
sections (d) and (e), an IOLTA account may be established as:
(i) A business checking account with an automated investment feature, such
as a daily bank repurchase agreement or a money market fund; or
(ii) A checking account paying preferred interest rates, such as a money
market or indexed rates; or
(iii) A government interest-bearing checking account such as an account
used for municipal deposits; or
(iv) An interest-bearing checking account such as a negotiable order of
withdrawal (NOW) account, business checking account with interest; or
(v) Any other suitable interest-bearing product offered by the authorized
financial institution to its non-IOLTA customers.
(5) Nothing in this rule precludes an authorized financial institution from
paying an interest rate higher than described above or electing to waive any
service charges or fees on IOLTA accounts.
ELC 16.1
EFFECT ON PENDING PROCEEDINGS
These rules and any subsequent amendments will apply in their
entirety, on the effective date as ordered by the Supreme Court,
to any pending matter or investigation that has not yet been
ordered to hearing. They will apply to other pending matters
except as would not be feasible or would work an injustice. The
hearing officer or panel chair assigned to hear a matter, or the
Chair in a matter pending before the Board, may rule on the
appropriate procedure with a view to insuring a fair and orderly
proceeding.
[Adopted effective October 1, 2002.]
|
|
