State of Washington

Ethics Advisory Committee

Questions:

A judicial officer previously granted a motion vacating a judgment in favor of a collection agency on the basis the agency was not licensed as required by Washington law. RCW 19.16.260(1)(a). The same collection agency and attorney have filed another case and motion for default. The complaint alleges the collection agency is properly licensed with the State. While the collection agency is required to be licensed under Washington law, the statute specifically says no proof of licensing is required before entry of a default judgment. RCW 19.16.260(1)(a).

1. Before ruling on the motion, should the judicial officer ask for proof the collection agency is licensed?
2. Should the judicial officer review the Department of Revenue website to verify the collection agency's license status?
3. Is it proper to file a complaint with the bar association because the lawyer alleged in the complaint the collection agency is properly licensed, or with the Attorney General regarding the collection agency's unlicensed status?

Answer:

1. "A judge shall perform judicial and administrative duties, competently and diligently." CJC Rule 2.5. "A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially." CJC Rule 2.2. Judicial officers have a duty to apply the law whether they approve or disapprove of the law. CJC Rule 2.2, Comment [2]. A judicial officer, "shall not investigate facts in a matter pending or impending before that judge, and shall consider only the evidence presented and any facts that may properly be judicially noticed, unless expressly authorized by law." CJC Rule 2.9(C)

Asking questions of litigants or their counsel is an important tool judges can use to perform their judicial duties competently and diligently. However, at a hearing on a default motion involving a collection agency, where the complaint alleges the agency is licensed and the statute plainly states that proof the collection agency is licensed is not required for entry of a default judgment, asking for proof that the collection agency is licensed provides no information necessary for the judge to decide the matter by applying the law. Also, if the judicial officer intends to decide the matter by asking for proof of the collection agency's licensure based on knowledge gained from another matter in order to gather evidence not presented and not necessary to uphold and apply the law, the judge is investigating facts in a pending matter in violation of CJC Rule 2.9(C).

2. A judicial officer, "shall not investigate facts in a matter pending or impending before that judge, and shall consider only the evidence presented and any facts that may properly be judicially noticed, unless expressly authorized by law." CJC Rule 2.9(C). This includes investigating information maintained in electronic mediums not brought to the court's attention, such as the Department of Revenue website. CJC Rule 2.9 Comment [6].

While a judicial officer can consider facts proper for judicial notice, a judicial officer's knowledge of a fact does not mean the fact is proper for judicial notice. ER 201(b); CLEAN v. State, 130 Wn.2d 782, 809, 928 P.2d 1054 (1996); EAO 13-07. Absent express legal authorization, the judicial officer should not investigate facts by searching public records. CJC Rule 2.9 Comment [6]; EAO 13-07. But if the judicial officer does wish to take judicial notice of facts contained in a public record, they should provide the opposing party an opportunity to be heard. EAO 13-07, citing ER 201(e). Therefore, a judicial officer should not investigate the collection agency's licensing status by reviewing the Department of Revenue website absent express legal authorization or notice to the opposing party.

3. A judicial officer with, "credible information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct should take appropriate action." CJC Rule 2.15(D). Appropriate action can include communicating that concern to the lawyer directly, or reporting the suspected violation to the appropriate authority, agency, or body. CJC Rule 2.15, Comment [3]; EAO 16-08.

A judicial officer that has, "knowledge that a lawyer has committed a violation of the Rules of Professional Conduct in a way that raises a substantial question regarding the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects should inform the appropriate authority." CJC Rule 2.15(B). Knowledge means actual knowledge and can be inferred. CJC Terminology, "Knowingly," "knowledge," "known," and "knows". The "appropriate authority" is the organization that can initiate disciplinary action with regard to the lawyer's behavior, in this case the bar association. CJC Terminology, "appropriate authority".

The judicial officer retains discretion to report a lawyer's misconduct or a violation of the Rules of Professional Conduct. CJC Rule 2.15, Comments [1] and [2]; EAO 91-04. However, a report should be made if, "the victim is unlikely to discover the offense," or, "the lawyer's conduct raises a serious question as to the honesty, trustworthiness or fitness," of the lawyer. CJC Rule 2.15, Comments [1] and [2]. When deciding how to proceed, the judicial officer should consider that failure to inform the bar association of attorney misconduct may undermine public confidence in the judiciary or legal profession. CJC Rule 2.15 Comment [2].

The Code of Judicial Conduct imposes no ethical obligation on a judicial officer to report the collection agency's unlicensed status to the Attorney General. There also is no ethical prohibition against reporting any presumed violation. EAO 02-09; EAO 93-11.

If the judicial officer does choose to report the behavior of the attorney or party, the report should not be made while the matter is pending or impending before the court, and the judicial officer should not disclose non-public information acquired in a judicial capacity for any purpose unrelated to the judge's judicial duties. CJC Rule 2.10; CJC Rule 3.5; EAO 16-08.

¹  The Committee notes that investigating the licensing status of a collection agency to verify the allegations in the complaint after the matter is no longer pending before the court is not a violation of CJC Rule 2.9(C).

Opinion 24-02

09/23/2024