July/Aug. 2022 > Inbox


We welcome letters to the editor on issues presented in the magazine. Email letters to wabarnews@wsba.org.

Regarding Regulation

Nancy Hawkins [June 2022 Bar News, “Mandatory Bar Structure: If It Ain’t Broke, Don’t Change It”] argues that democracy with all its faults is the best form of government. I agree. That means that regulation of lawyers should be governed by the people, with all their faults, just as most agencies are. Regulation of the law profession should be removed from the Supreme Court, where the public has virtually no knowledge or input, and placed in an administrative agency, with administrative agency rules, subject to court review, of course. This sounds like heresy but it is not, should one think about how it would function.  

Today, our Supreme Court creates the disciplinary code for lawyers, it creates its own procedural code, it decides all cases itself, and, to an extent unknown to me, it controls the prosecution. Some provisions of the RPC are soaked in constitutional issues: freedom of speech in any situation involving any number of groups, self-incrimination compelled of lawyers, incrimination of other lawyers required of their court opponents. The Supreme Court cannot fairly interpret its rules or rule on challenges—rules that it created itself.  

This is a quasi-criminal code. Lawyers can lose their livelihood, their money, their reputation, and risk (probably) jail for contempt of court for failing to comply and for failing to pay fines. The disciplinary process is the main function of the Bar. The code violates the due process clause.  

The regulation of the Bar suggested by the rebuttal letter [King County Bar Association, “Voluntary Bar Structure: ‘A Different Approach for the Future’”] remedies nothing because it simply adds a layer of administrative litigation to a process “overseen” by the Supreme Court.   

As to other functions of the court, supposed access to justice and “diversity” are hot political and economic issues properly within the purview of the Legislature, not the courts. Courts must decide cases according to the law and the constitutions, and they are not to inject their views on law profession economics and “diversity” into their cases or hopefully, their thinking. As to the Keller deduction, it is a joke. It is usually about $1.77 per annum. A good guess would place about half the material in Bar News as political, with almost everything favoring the Democratic and leftist parties, and none the Republican party.  

Finally, it is said that lawyer regulation is an integral function of courts. Nothing in the Constitution says that, and the due process clause trumps colonial rules on lawyer licenses. Perhaps courts can require familiarity with their rules, as most government agencies can “borrow” functions of other branches to make their own function: military courts on aircraft carriers, territorial courts outside article 3, and so forth. These functions do not enable courts to vitiate their requirement of impartiality or their obligation to enforce due process of law.   

Roger B. Ley, Portland, OR 

Editor’s note: While the Washington Supreme Court has exclusive responsibility to administer the lawyer discipline and disability system in Washington, the court has delegated the prosecution decisions to the Office of Disciplinary Counsel of the WSBA. The discipline process follows the Court’s Rules for Enforcement of Lawyer Conduct (ELC). Title 13 of the ELC contains the sanctions and remedies that can be imposed when a lawyer discipline case is resolved with a finding that a lawyer violated the Rules of Professional Conduct. Neither jail time nor fines are remedies in a lawyer discipline system.

Letters to the editor published in Bar News must respond to content presented in the magazine and also comply with Washington General Rule 12.2 and Keller v. State Bar of California, 496 U.S. 1 (1990).* Bar News may limit the number of letters published based on available space in a particular issue and, if many letters are received in response to a specific piece in the magazine, may select letters that provide differing viewpoints to publish. Bar News does not publish anonymous letters or more than one letter from the same contributor per issue. All letters are subject to editing for length, clarity, civility, and grammatical accuracy.
*GR 12.2(c) states that the WSBA is not authorized to “(1) Take positions on issues concerning the politics or social positions of foreign nations; (2) Take positions on political or social issues which do not relate to or affect the practice of law or the administration of justice; or (3) Support or oppose, in an election, candidates for public office.” In Keller v. State Bar of California, the Court ruled that a bar association may not use mandatory member fees to support political or ideological activities that are not reasonably related to the regulation of the legal profession or improving the quality of legal services.