State of Washington

Ethics Advisory Committee

Question

Is a judicial officer required under CJC Canon 3(C)(2) to inform appropriate authorities such as the state bar of a pending DUI charge against a local attorney?

Answer

CJC Canon 3(C)(2) provides that judges having actual knowledge that a lawyer has committed a violation of the Rules of Professional Conduct should take appropriate action. Judges having actual knowledge that a lawyer has committed a violation of the Rules of Professional 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. The Rules of Professional Conduct (RPC) 8.4(b) provide in part that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the fitness of a lawyer in other respects.

The judicial officer needs to look at several factors before deciding what action, if any, is appropriate if a judicial officer knows that a lawyer is charged with DUI. First, the judicial officer must have actual knowledge that the lawyer is guilty of DUI or there has been a probable cause determination before he or she is required to take any action.

Second, the judicial officer must then determine if the DUI raises a substantial question about the lawyer’s fitness to practice law. If the violation qualifies under the first part of Canon 3(C)(2) in that it is a violation of the RPCs, the judicial officer is required to take appropriate action. That action may include such things as monitoring the lawyer’s performance, talking to the lawyer or his or her supervisor about the DUI conviction or finding out if the lawyer has sought some type of alcohol assessment or treatment.

If the judicial officer who has actual knowledge of the DUI conviction determines it is a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s fitness as a lawyer, the judicial officer is required to take or initiate appropriate corrective action. The Code does not specifically provide what that corrective action should be. It might be appropriate for the judicial officer to do such things as speak to the lawyer or to his or her supervisor, suggest the lawyer contact an assessment or treatment program such as the Bar’s Lawyers Assistance Program (LAP) or the judicial officer may make a disciplinary complaint to the Washington State Bar Association.

The judicial officer should make an independent assessment as to what corrective action is appropriate based on the facts in each case. Factors which the judicial officer might consider in making this assessment are the severity of the alcohol problem, the impact alcohol is having on the lawyer’s ability to represent clients, the judicial officer’s personal observations of the lawyer in court, the circumstances surrounding the arrest, and any problems the lawyer has experienced with alcohol in the past.

Opinion 02-15

08/14/2002