Proposed Rules Archives

• Proposed Changes to RPC 8.5 - Disciplinary Authority; Choice of Law (in Word Format)
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Purpose

WSBA disciplinary authority over lawyers is established and defined by the Rules for Enforcement of Lawyer Conduct (ELC) and the Rules of Professional Conduct (RPC). ELC 1.1 provides that a lawyer may be subject to discipline for violating the RPC. Both ELC 1.2 and RPC 8.5(a) provide that any lawyer admitted to the practice of law in this state is subject to Washington’s disciplinary authority. Under ELC 5.3(a), disciplinary counsel “must review” and may investigate any alleged or apparent act of misconduct by a lawyer. The RPC provide that it is professional misconduct for a lawyer to violate the Code of Judicial Conduct. RPC 8.4(m).

The Commission on Judicial Conduct (CJC) has authority to investigate complaints of, and conduct proceedings as to, alleged violations of the Code of Judicial Conduct. RCW 2.64.057. There is no affirmative provision of law conferring exclusive jurisdiction on the CJC over complaints alleging misconduct committed by a judge.

If a judge subject to CJC jurisdiction is a lawyer, the judge is subject to WSBA disciplinary authority. Because it is a violation of RPC 8.4(m) to violate the Code of Judicial Conduct, the rules can be interpreted to confer concurrent jurisdiction with the CJC over allegations of judicial misconduct. Under this view, the rules require the WSBA Office of Disciplinary Counsel (ODC) to review grievances alleging judicial misconduct against judges. Though ODC has always endeavored to refer grievants with complaints regarding judicial acts to the CJC, it can reasonably be concluded that ODC is obliged to open a grievance file if a grievant insists that his or her allegations be reviewed by WSBA. This can result in an undesirable extension of WSBA disciplinary authority if the allegations in question relate to violations of the Code of Judicial Conduct that are appropriately investigated by the CJC.

The suggested amendment to RPC 8.5 is intended to address this dilemma. New paragraph (c) of RPC 8.5 provides that, notwithstanding the provisions of RPC 8.4(m), a lawyer, while serving as a judge, shall not be subject to the disciplinary authority provided for in the RPC or the ELC “for acts performed in his or her judicial capacity or as a candidate for judicial office.” This exception expressly does not apply if judicial discipline has been imposed for the conduct by the CJC. There are also a number of suggested new comments to the rule:

• Comment [8] describes the jurisdiction of the CJC;

• Comment [9] addresses the scope of the term “judicial capacity”;

• Comment [10] clarifies the situations in which WSBA jurisdiction would still exist over a judge;

• Comment [11] explains when prior judicial discipline should not establish a basis for subsequent lawyer discipline;

• Comment [12] deals with the jurisdictional analysis as applied to candidates for judicial office;

• Comment [13] delineates the types of judges that are subject to the new rule.

A companion amendment to ELC 1.2 is intended as a cross-reference to the provisions of suggested RPC 8.5(c) for purposes of clarity.

The suggested amendments will accommodate legitimate concerns of the judiciary while preserving necessary aspects of WSBA’s disciplinary authority over lawyers. These amendments will provide an express basis for ODC to decline to open grievances in situations where the CJC ought to be investigating the allegations in the first instance.

The draft has been circulated to and approved by the Superior Court Judges’ Association and the District and Municipal Court Judges’ Association. It has also been provided to and reviewed by the judges of the Court of Appeals and the Commission on Judicial Conduct, without objection.