Suggested

RULES FOR DISCIPLINE AND INCAPACITY

 

A.     Proponent

Terra Nevitt, Executive Director

Washington State Bar Association

B.      Spokespersons

Douglas J. Ende, Chief Disciplinary Counsel

Washington State Bar Association

 

Julie Shankland, General Counsel

Washington State Bar Association

 

C.      Purpose

The proponent recommends adoption of procedural rules for Washington State’s discipline and incapacity system, to be known as the Rules for Discipline and Incapacity (RDI). If adopted, the suggested RDI would supersede and rescind the current disciplinary procedural rules, the Rules for Enforcement of Lawyer Conduct (ELC).  The rules would also supersede and rescind the Rules for Enforcement of Limited License Legal Technician Conduct (ELLLTC) [1] and the Rules for Enforcement of Limited Practice Officer Conduct (ELPOC).

I.                                          Overview

The ELC have been in effect since October 1, 2002; they replaced the Rules for Lawyer Discipline, adopted in 1983.  The ELC have been amended from time to time since 2002, with the most substantial amendments effective on January 1, 2014.[2]  The suggested RDI represent the most substantial reexamination of the functioning of the discipline system in Washington State since enactment of the ELC in 2002.

The suggested RDI were drafted by staff from the Washington State Bar Association’s (WSBA) Office of Disciplinary Counsel (ODC), Office of General Counsel (OGC), and Regulatory Services Department (RSD), with the goal of identifying and recommending modifications to the discipline system intended to create efficiencies and improve outcomes. 

As approved in concept by the Washington Supreme Court in June 2017, the WSBA drafting work group developed a model of a single-portal, multi-license-type discipline and appeals system.  During the preliminary drafting phase of the project, substantial effort was made to streamline the rules and create system efficiencies while retaining meaningful volunteer involvement in disciplinary procedures. Key drafting objectives included establishing a professionalized adjudicative system[3] and creating one set of disciplinary procedural rules for all license types.[4] The ELC served as the template for rule drafting, and much of the language and structure of the suggested RDI is drawn from the ELC.  However, the rules have been substantially rewritten to improve efficiency of processes and ease of use. During development of the RDI, the drafting work group met with and updated regulatory boards and discipline-system entities, including the Disciplinary Board, the hearing officer panel, the Limited License Legal Technician Board, the Limited Practice Board, the Character and Fitness Board, and the Disciplinary Advisory Round Table.  A first comprehensive draft RDI was completed by the WSBA drafting work group in early February 2020.

Shortly thereafter, the WSBA drafting work group convened discipline-system stakeholder representatives to review and provide feedback on the RDI draft. The volunteer reviewers were selected from among stakeholder groups and entities involved in the discipline process in Washington, including the Washington Supreme Court, the Disciplinary Board, hearing officers, the Board of Governors, the Disciplinary Advisory Round Table, the Limited Licensee Legal Technician Board, the Limited Practice Board, conflicts review officers, and lawyers who represent respondents.  During the months of March to June 2020 and over the course of three meetings, the stakeholders provided substantive feedback both in person and in writing.  The drafting work group then considered and incorporated that feedback into the final draft of the suggested RDI. 

This purpose statement is a high-level overview of the RDI.  A comprehensive, rule-by-rule explanation of the rule set is provided in Appendix A, which includes citations to specific provisions in the ELC from which the rule was drawn, if applicable, and explanation of any deviations from the ELC.

II.                                       Suggested Rules: Key Concepts and Innovations

The suggested RDI reflect the key concepts and innovations summarized below.  This summary is intended to serve as a roadmap for many of the substantive rule revisions and departures from the ELC.

1.      Creating a comprehensive adjudicative entity composed of both professional and volunteer adjudicators. 

The suggested RDI create an adjudicative entity—the Office of the Regulatory Adjudicator (ORA)—staffed by one or more professional adjudicators who would conduct disciplinary hearings for licensed legal professionals.  Transitioning to professional adjudication is consistent with developments in a number of other jurisdictions, such as Arizona, Colorado, and Oregon.  The current Washington lawyer discipline hearings system includes approximately 44 volunteers, including hearing officers and members of the Disciplinary Board, acting in various adjudicative capacities.  For LLLTs and LPOs, hearing officers and each license type’s respective all-volunteer regulatory board is responsible for carrying out the adjudicative functions for that license.[5]  The RDI system would instead create a single, smaller pool of volunteers, the Volunteer Adjudicator Pool, who would perform meaningful, though more limited, adjudicative roles.  The Volunteer Adjudicator Pool would include members from all license types and public members.  Members of the pool, administered by the professional ORA adjudicator(s), would serve on two types of adjudicative panels:

Authorization Panel. Authorization panels would consider ODC requests, following an investigation, that disciplinary or incapacity proceedings commence by the ordering of the matter to hearing. Under the RDI, these are called requests for an order authorizing “the filing of a statement of charges” or “the initiation of incapacity proceedings,” respectively.

Appeal Panel.  Appeal panels would hear and decide intermediate disciplinary and incapacity appeals and matters on interlocutory review. 

The ORA panels would be composed of a single professional adjudicator and two to four volunteers drawn from the pool.  This approach is designed to (1) ensure that volunteer members of the matching license type are assigned to the adjudicative panels (when practicable), (2) include public participation, and (3) create efficiencies over the current all-volunteer system. 

2.      Simplifying disposition and dismissal-review options.

To create additional efficiencies within the discipline system, the suggested RDI eliminate certain grievance disposition and review options, as follows:

Review/Discipline Committee Admonitions.  As described below, the RDI would sunset committees of the three regulatory boards for the three license types in favor of ORA Authorization Panels. The authority of regulatory boards to issue admonitions without a hearing is eliminated.  Admonitions under the RDI may be imposed following a hearing or by stipulation.

Advisory Letters.  ODC routinely includes educational language in dismissal letters in an effort to bring problematic but not necessarily unethical conduct to the attention of a licensee.  This approach serves the same purpose and achieves the same result as advisory letters currently issued by a review or discipline committee, but the latter requires a far more cumbersome process.  The suggested RDI would therefore eliminate review and discipline committee advisory letters.

External/Adjudicative Dismissal Review.  Review of dismissal decisions (called “closures” in the suggested RDI) by review or discipline committees rarely results in a different outcome,^[6] yet the current review process consumes an extraordinary amount of staff and volunteer time to administer and carry out.  Elimination of the current dismissal review process would not materially impair the public protection function of discipline, but it would save substantial resources, which, from a public protection standpoint, would be more productively spent pursuing provable and serious cases of ethical misconduct.  ODC would still have the internal authority to reopen a grievance in appropriate circumstances, such as when a grievant provides additional, significant information.

3.      Maintaining the distinction between confidential versus public disciplinary information but reorganizing the ELC Title 3 rules for clarity. 

In an effort to clarify and simplify what has become a balkanized and difficult-to-comprehend area of disciplinary procedure, the drafting work group reorganized and consolidated ELC Title 3 into a number of provisions; it also severed certain components into separate, stand-alone rules.  In particular, ELC Title 3 in its current form contains multiple independent provisions scattered throughout the title regarding releases of information, each with its own terminology and applicable processes.  A major innovation in the RDI redraft of Title 3 is the consolidation of those provisions into two rules:  one regarding release without notice, and another regarding release with notice. 

Notably, however, the basic distinction between what is confidential disciplinary information and what is public disciplinary information is unchanged.  Instead, RDI Title 3 is designed to make it easier to identify public versus confidential information. In general, most grievance information will remain confidential, and a matter will only become public after an Authorization Panel authorizes the filing of a statement of charges.

4.      Reframing the role of grievants.

Under current disciplinary procedural rules, grievants are the equivalent of parties to the investigative stage of the process, with express rights to intercede during the course of an investigation, obtain confidential disciplinary information, and object to the dismissal of grievances.  Experience and statistics show that this has created an overabundance of process, incentivized submission of voluminous, unsolicited documentation, and prolonged the final disposition of grievances.  To ameliorate these lengthy, resource-intensive processes, the RDI reorient the role of a grievant (called a “complainant” in the suggested rules).  Under the RDI, a complainant is simply an individual who brings information about potential misconduct to the attention of ODC and sometimes serves as a witness during the course of a proceeding.  The role of complainants under the RDI would be analogous to the role of consumer complainants who submit complaints to the Attorney General’s Office. 

5.      Improving and clarifying processes for incapacity proceedings.

The rules governing disability proceedings have been revised and restructured substantially for clarity and to streamline procedures.  The suggested rules replace the term “disability” with “incapacity,” as the latter more accurately describes the inability to perform the functions of a licensed legal professional. The suggested rules further simplify the decision matrix for the hearing adjudicator following an incapacity hearing and make clear that an incapacity determination is not a form of discipline. 

6.      Requiring Supreme Court review and approval of all adjudicated matters.

Currently, if a matter is not appealed, the Supreme Court reviews only suspension and disbarment recommendations; other adjudicated dispositions, such as reprimands, admonitions, and dismissals, are sent to the Court informationally. In light of the Court’s plenary authority and its role as final arbiter of disciplinary and incapacity matters, under the suggested RDI, the Supreme Court would conduct final review of all matters in which there is a recommendation for or stipulation to a disciplinary sanction or the placement of a legal professional’s license in incapacity inactive status.  This proposed change in the RDI better reinforces the Court’s status as the state actor actively supervising disciplinary processes.^[7]

III.                                    Suggested RDI System

In the RDI system, a matter would proceed as follows:

ODC Intake and Investigation.  ODC would review and/or investigate all grievances (called “complaints” in the RDI) involving all license types.  Disposition options would include closure, diversion, or recommendation for the filing of a statement of charges.  Closure decisions would not be subject to adjudicative review.  Upon receipt of new or additional post-closure information from a complainant, ODC would have the authority to reopen a complaint in appropriate circumstances.

Authorization Panels.  An ODC request that a matter be ordered to a hearing would be considered by a three-person ORA Authorization Panel, composed of a professional adjudicator accompanied by volunteers from the pool, including one public member and, where practicable, one practitioner of the same license type.  An Authorization Panel would have authority to order the filing of a statement of charges or the initiation of incapacity proceedings or to deny such requests. 

Hearing Stage.  An ORA hearing adjudicator would conduct and preside over all disciplinary and incapacity hearings.  ORA adjudicators would also approve all stipulations, subject to final Supreme Court approval.  Volunteer lawyers on the Volunteer Adjudicator Pool may also serve as settlement officers to assist in the resolution of matters by stipulation.

Appeal Panel.  An intermediate appeal from a hearing adjudicator’s recommendations, as well as matters on interlocutory review, would be reviewed by a joint ORA adjudicator-volunteer panel.  Five-person ORA Appeal Panels would be composed of a professional adjudicator accompanied by volunteers from the pool, including at least one public member and, where practicable, at least one practitioner of the same license type. 

Final Appellate Review/Supreme Court Orders.  The Supreme Court would consider final appeals and order discipline for all license types.

A flow chart with more detail about the structure of the new disciplinary and incapacity system model is attached as Appendix B (Structure of the new Discipline and Incapacity System).

IV.                                 Conforming Amendments to Other Court Rules

If the suggested RDI are adopted, the proponent recommends adoption of suggested conforming amendments to other sets of rules that either cross-reference or give effect to the ELC or other rules rendered obsolete by the new system.  These amendments are largely technical in nature, although some are substantive, and are submitted for adoption simultaneously by separate GR 9.