GR
9 COVER SHEET
Suggested
Amendment to:
RULES
FOR ENFORCEMENT OF LAWYER CONDUCT (ELC)
ELC
3.4, 4.1, 4.3, 5.1, 5.3, 5.7, 7.2, 14.3, 15.1
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
These amendments to the Rules for Enforcement of
Lawyer Conduct (ELC) are suggested to implement and institutionalize COVID-related
electronic service and communication protocols to create efficiencies in the
discipline and disability system and to support electronic processes. A second, unrelated amendment will clarify Office
of Disciplinary Counsel obligations when dealing with certain confidential
information from grievants.
These suggested amendments do not replace or supersede
the recently proposed disciplinary procedural rules for Washington State’s
discipline and incapacity system, the Rules for Discipline and Incapacity
(RDI), now pending before the Court. See
In re Suggested New Rule Classification:
Rules for Discipline and Incapacity (RDI), Amended Order No.
25700-A-1328 (Dec. 11, 2020). Rather, the amendments are intended for
expeditious adoption to facilitate efficient communication processes under the
current rules, the ELC.
D.
History
In response to the COVID-19 public health crisis, on
March 24, 2020, the Court entered Order No. 25700-B-609, authorizing among
other things “the Chief Hearing Officer and the Disciplinary Board Chair to
issue sua sponte emergency administrative orders relating to discipline and
disability matters.” Specifically, the Court granted the Chief Hearing Officer
and Disciplinary Board Chair authority to modify the manner of “filing,
service, and delivery of other papers by the clerk . . . , and transmission of
other documents, papers, and communications authorized or required under the
ELC.”
Consistent with the Court’s Order, on March 24, 2020,
the Chief Hearing Officer and Disciplinary Board Chair entered a joint
Administrative Order in Response to Public Health Emergency in the State of
Washington (Administrative Or. Among
other activities, the Administrative Order permitted and promoted the following
actions for participants in the discipline and disability system until such
time as the order was amended or rescinded:
- Electronic
service of papers under Title 4 of the ELC unless personal service is
required.
- Electronic
transmittal of all documents, papers, and communications authorized under
the ELC.
The purpose of the Administrative Order was to
facilitate timely, safe communications and to allow for remote work during the
COVID-19 health crisis. The
Administrative Order was subsequently revised and extended twice on April 21,
2020, and May 6, 2020, and remains in effect today.
Since March 24, 2020, the discipline and incapacity
systems have operated under these two orders.
Once both the Court Order and Administrative Order are lifted, certain
ELC as drafted would prohibit electronic service and communications. These ELC amendments are intended to
institutionalize on an ongoing basis the use of electronic means of service and
communication. This will bring the rules more in line with modern day practice
and communication methods and the reality that the meaning of “business as
usual” has changed under COVID. Greater flexibility in where and how work is
done and how services are accessed is now necessary and appropriate.
Generally, these suggested amendments (1) allow for
electronic service unless personal service is required and for electronic
transmittal of documents, (2) delete references to “mail” or “mailing” where
appropriate, and (3) replace certain terms with the term “transmit” or
“transmittal” to provide more flexibility in how papers and documents are sent
under the ELC.
Additionally, an unrelated revision to ELC 3.4(b) is
suggested in order to clarify ODC obligations when dealing with certain
confidential information from grievants.
E.
Suggested Amendments
The following are summaries and explanations
of each suggested amendment:
- ELC 3.4(b). This suggested amendment is the only
suggested amendment unrelated to permitting electronic service and
communications. The suggested
amendment to ELC 3.4(b) includes two changes: (1) the addition of a clause
clarifying that “otherwise confidential information” includes relevant
information from related grievances filed by a single grievant; and (2) an
amendment to allow disclosure of otherwise confidential information as
necessary to conduct a review, in addition to an investigation. Both changes are technical in nature and
conform to current practice.
It is sometimes the
case that a grievant files separate but related grievances against multiple
respondent lawyers or files a single grievance naming multiple respondent
lawyers, which may result in the opening of separate grievance files. In these situations and analogous
circumstances, disclosing relevant information from related grievances, such as
the identities of related respondent lawyers or pertinent allegations, may be
necessary to conduct a proper review or investigation of the matters.
Additionally, disclosing such information may provide a respondent lawyer with
a more complete factual picture of the grievance and allow joint respondents to
assess the potential for joint representation.
While the existing ELC may arguably be interpreted to preclude such
disclosures, it is already within disciplinary counsel’s discretion to make
such disclosures under existing ELC 3.4(b).
The suggested changes merely serve as a clarification and are consistent
with ODC’s current and longstanding practice of providing such information to
respondents (which the grievant will have consented to under ELC 5.1(b)).
- ELC 4.1(a)(1). ELC 4.1(a)(1), regarding service, has
been simplified to provide that whenever service is required under the
ELC, it must be accomplished in accordance with the procedures specified
in ELC 4.1 or as agreed to by the parties.
This revision would provide more flexibility to parties in determining
the best method of service and to agree in advance to a preferred
method. This is a corollary to new
suggested ELC 4.1(b)(4), which would provide for electronic service as a
new means of service available under the ELC.
- ELC 4.1(a)(2), ELC 4.1(a)(2), regarding transmission of
materials, clarifies that documents that are not required to be served may
be transmitted by postage prepaid mail, electronic means including email,
or personally delivered.
- ELC 4.1(b). ELC 4.1(b), regarding methods of
service, includes several suggested amendments, the most significant of
which is the addition in section (b)(4) of a new provision providing for
electronic service and detailing its procedural requirements. Currently electronic service is not
permitted under the ELC, although in practice parties often agree to
electronic service. The amendment
would allow parties to elect to use electronic service in all
circumstances unless the ELC require personal service. The other two revisions seek to avoid
ambiguity (suggested ELC 4.1(b)(1)(A)) and to clarify how proof of service
may be made depending on the chosen method of service (suggested ELC
4.1(c)).
- ELC 4.1(d). ELC 4.1(d),
regarding proof of service, simplifies the prior rule and clarifies that
if service is made electronically, that proof of service can be made by
certificate of service.
- ELC 4.3.
The suggested amendments to ELC 4.3, regarding the form of papers,
reflect the move toward accepting papers and documents in electronic
form. The language was drawn in part
from GR 14(a), which requires that papers be “legibly written or printed.”
The suggested revision is more concise and reflective of current practice
as to the form of papers that are accepted by ODC and the Clerk to the
Disciplinary Board.
- ELC 5.1(c)(3)(B). Suggested amendments to ELC
5.1(c)(3)(B), regarding challenges to disclosure decisions, was revised to
clarify that a disciplinary counsel decision regarding a request to
withhold a portion of a grievance or response may be sent by methods other
than mailing. Currently, the rule
requires that a grievant or respondent challenge a withholding decision
within 20 days of mailing of the decision by disciplinary counsel. The rule has been revised to omit the
word “mailing” and replace it with “transmittal” to provide flexibility in
the means of sending such a decision to a grievant or respondent, which
may include transmittal by electronic means. Another amendment to the rule clarifies
that parties do not “file” but instead “transmit” challenges to disciplinary
counsel since filing has a specific meaning in the context of proceedings
under ELC Title 4.
- ELC 5.1(e)(4). The suggested amendment to ELC
5.1(e)(4), regarding vexatious grievants, removes as unnecessary reference
to service by first class mail as a possible method of service a
respondent may use when serving a motion to declare an individual a
vexatious grievant, since these suggested amendments allow for alternate
methods of service. See suggested
amendments to ELC 4.1.
- ELC
5.3(d).
ELC 5.3(d), regarding deferral decisions by disciplinary counsel,
clarifies that a grievant or respondent may request review of a deferral
decision either by depositing the request for review in the mail or by
transmitting a written request to disciplinary counsel. The option for mailing remains in the
rule to provide clear guidance on when the period to request review
expires if one chooses to mail the request. Language allowing the individual to
transmit the request is intended to provide flexibility in the means of
requesting review, consistent with the other suggested amendments. See ELC 5.7(b) for similar revisions.
- ELC 5.3(i). ELC 5.3(i), regarding objections to
investigative inquiries, was revised to replace the term “service” with
“transmittal.” The suggested
amendment clarifies existing practice that disciplinary counsel does not
“serve” investigative inquiries on lawyers as provided in ELC 4.1, “serve”
being a term of art, but instead simply transmits the inquiries to lawyers
via means that may include electronic means.
- ELC 5.7(b). ELC 5.7(b), regarding request for review
of dismissal decisions, clarifies that a grievant may request review of a
dismissal decision either by depositing the request for review in the mail
or by transmitting a written request to disciplinary counsel. The option for mailing remains in the
rule to provide clear guidance on when the period to request review
expires if one chooses to mail the request. Language allowing the individual to
transmit the request is intended to provide flexibility in the means of
requesting review, which may include by electronic means. See ELC 5.3(d) for similar revisions.
- ELC 7.2(b)(1). ELC 7.2(b)(1), regarding petitions for
interim suspension, is amended to explicitly provide for electronic
service on the day of filing. The
rule currently limits service on the day of filing to mail service. It was important to clarify the means by
which disciplinary can serve the petition on the day of filing in order to
make this suggested amendment consistent with the other suggested amendments. Personal service of the petition no
later than the date of the show cause order will still be required.
- ELC 14.3. ELC 14.3, regarding affidavits of
compliance with Title 14, is amended to require respondents to provide an
email address in addition to a mailing address where communications can be
directed. Requiring both an email
address and mailing address is consistent with APR 13, which requires
lawyers to provide both mailing and email addresses of record to the Bar
Association. It further provides
additional means of reaching respondents who may move or relocate after
suspension or disbarment.
- ELC
15.1(e)(2).
ELC 15.1(e)(2), regarding review committee action in random
examinations, is revised to clarify that a lawyer’s request for review of
a selection for random examination should be requested within 30 days of
transmittal of the selection notice.
Currently, the rule requires that a lawyer or law firm challenge a
notice of selection within 30 days of mailing of the notice to the law
firm. The rule has been revised to
omit the word “mailing” and replace it with “transmittal” to provide
flexibility in the means of sending such a notice to a lawyer or law firm,
which may include by electronic means.
F.
Hearing:
A
hearing is not requested.
G.
Expedited Consideration:
Expedited
consideration is requested to ensure electronic service and communications may
continue after the Supreme Court Order and Administrative Order are lifted and
prior to implementation of the RDI should the Court adopt the proposed RDI.