Demystifying the Washington Discipline System

BY KIRSTEN SCHIMPFF

The discipline system evokes many different reactions among the legal profession and the public—dread, fascination, confusion, and yes, sometimes appreciation. This article aims to demystify the discipline process, answer commonly asked questions, and identify resources for those wanting more information.¹

The Washington Supreme Court has exclusive responsibility for discipline of licensed legal professionals. The court has delegated responsibility to the WSBA to administer the discipline system. All licensed legal professionals—lawyers, limited practice officers (LPOs), and limited license legal technicians (LLLTs)—are subject to the discipline system. Because the WSBA licenses far more lawyers than LPOs or LLLTs,² most matters in the discipline system relate to lawyers, and this article, therefore, primarily refers to lawyers. The process is largely the same for LPOs or LLLTs.

The Rules for Enforcement of Lawyer Conduct (ELC)³ are the procedural rules for the lawyer discipline system.⁴ The ethical rules about lawyer conduct are the Rules of Professional Conduct (RPC).⁵ The WSBA Office of Disciplinary Counsel (ODC) receives, reviews, and investigates complaints (grievances) against lawyers under the procedures laid out in the ELC, for the purpose of determining whether the lawyer violated the RPC in a manner that warrants discipline.⁶

Grievances

ODC receives and opens files on more than 2,000 grievances against Washington lawyers each year. Most grievances are filed online using the WSBA’s e-grievance form.⁷ Grievances do not have to be submitted on the WSBA’s grievance form, but they must be in writing. Individuals needing assistance writing a grievance because of a disability can contact accommodations@wsba.org. ODC also accepts grievances written in Spanish.

There is no time limit for filing a grievance, but disciplinary counsel may consider timeliness when evaluating a grievance. There is no filing fee. Anyone can file a grievance. Most grievances are filed by clients, former clients, and opposing parties. ODC can also open grievances in ODC’s name, often based on information about lawyer conduct in the media or in court opinions or based on trust account overdraft notifications. ODC grievances can be based on allegations from an anonymous or confidential source. If a grievant asks to be treated as a confidential source, they will not be required to participate further, but they also will not be kept informed about the status or outcome of the grievance. ODC will not disclose the identity of a confidential source unless ordered to do so by a discipline system adjudicator, which would only occur if the adjudicator determined revealing the identity was necessary for the respondent to conduct a proper defense.

Grievances raise a variety of issues, with some of the most common being lack of diligence and lack of communication. Many grievances involve the practice areas of family law and criminal law.

Some issues, such as difficulty contacting a lawyer or getting a copy of the client file from a former lawyer, can be resolved more informally without the need to file a grievance. Clients who would like help reestablishing communication or obtaining a copy of their file should submit a request for assistance.

The Intake Process

Not every grievance submission leads to the opening of a grievance file. For example, if the complaint is about a judge (the Washington State Commission on Judicial Conduct handles complaints of judicial misconduct or disability), a lawyer not licensed in Washington, or a lawyer who has already been disbarred or resigned in lieu of discipline, ODC may notify the filer that we are not opening a grievance.

Most often, though, when ODC receives a grievance form, a grievance file is opened and assigned a unique file number. ODC notifies the person who filed it (the grievant) and the lawyer against whom the grievance was filed (the respondent) that we received the grievance and the file number assigned.

Not every grievance leads to an investigation. Under the ELC, disciplinary counsel must review and may investigate a grievance. Disciplinary counsel reviews each grievance. After review, disciplinary counsel can dismiss the grievance or request the lawyer’s preliminary written response. Because disciplinary counsel can dismiss a grievance without requiring a lawyer’s response, the lawyer’s first notification about the grievance may be when the lawyer receives a copy of the dismissal letter along with a copy of the grievance. This may occur, for example, if the conduct being complained about in the grievance does not violate the RPC, or if the allegations relate to matters that are usually best addressed by the courts in the first instance, such as whether the lawyer provided ineffective assistance of counsel in a criminal case.

ODC receives and opens files on more than 2,000 grievances against Washington lawyers each year.

If disciplinary counsel requests the lawyer’s preliminary written response, the letter notifies the lawyer that they are required to respond to the grievance and that ODC will send a copy of the response to the grievant. The response period is generally 30 days, but this can be extended for good cause. The lawyer has a right under the ELC to be represented by counsel at this or any other point in the disciplinary process. Because the disciplinary process is a specialized area that has very different rules and procedures than the lawyer’s typical area of practice, and because it has potentially serious consequences for the lawyer’s license to practice law, ODC strongly encourages lawyers to consider hiring a lawyer to represent them.

After receiving a response from the lawyer and often a grievant reply, disciplinary counsel reviews the file information and decides whether the grievance should be dismissed or investigated.

Dismissed Grievances

When a grievance is dismissed, disciplinary counsel sends a letter to the grievant, with a copy to the lawyer, explaining why the grievance was dismissed and informing the grievant of the right to request review of the dismissal. Because of the volume of grievances, the explanation for why a grievance was dismissed after intake review is generally quite brief.

A grievant has a right to ask for review of the dismissal by a review committee of the Disciplinary Board within 45 days of the dismissal date. The Disciplinary Board is a volunteer body with lawyers and community members appointed by the Washington Supreme Court. Review committees have three Disciplinary Board members—two lawyers and one community member. If a grievant requests review, the lawyer is not required to respond, but if a lawyer chooses to respond, the response will be provided to the review committee and, generally, to the grievant. If the review committee agrees with the dismissal, that decision is final and there is no further appeal.

Review committees do not conduct hearings, and neither the grievant nor the lawyer can appear at a review committee meeting. Review committees only consider a written record, which can include the information submitted by the grievant, the information submitted by the lawyer, and disciplinary counsel’s dismissal letter.

Investigation

If a lawyer does not respond to disciplinary counsel’s request for information, the lawyer may receive a letter requiring a response in 10 days and cautioning that a deposition may be scheduled for failure to respond. Failure to respond is, in itself, grounds for discipline and may also result in the lawyer’s interim suspension by order of the Washington Supreme Court (a temporary suspension that lasts until the lawyer cooperates or until the end of the disciplinary proceeding).

If ODC investigates a grievance, the lawyer and grievant are notified and the matter is generally reassigned to a different disciplinary counsel. Disciplinary counsel determines the scope of the investigation and may require additional written responses, request records, conduct depositions, and take other investigative action. Depending on the scope of the investigation and complexity of the issues, this may take a substantial amount of time, and other ODC personnel, such as investigators and auditors, may be assigned to assist. Disciplinary counsel then determines whether to recommend a disciplinary proceeding or other form of disciplinary action or to dismiss the grievance.

If there is related civil or criminal litigation, disciplinary counsel may and often will defer the investigation until the litigation resolves. Disciplinary counsel’s decision on deferral, similar to a decision on dismissal, can be reviewed by a review committee of the Disciplinary Board.

After Investigation

Many grievances that are investigated are then dismissed. Some grievances involving less serious misconduct are referred to diversion under ELC Title 6. In a diversion, the lawyer enters into a contract with disciplinary counsel requiring the lawyer to take certain steps—such as seek counseling, resolve client disputes, or improve law office management—intended to address the circumstances that caused or contributed to the misconduct. If the lawyer successfully completes the contract terms, the grievance is dismissed.

If disciplinary counsel does not dismiss a grievance after an investigation, disciplinary counsel could recommend an admonition or a public disciplinary hearing. Many factors influence disciplinary counsel’s decision-making, including whether evidence will prove an RPC violation by a clear preponderance of the evidence, what the likely sanction is under the American Bar Association Standards for Imposing Lawyer Sanctions (which have been adopted by the Washington Supreme Court as the applicable sanction guideline in Washington disciplinary matters), and whether Washington Supreme Court precedent supports discipline.

Court rules determine what information about the discipline system is available to the public.

Disciplinary counsel’s recommendation for a disciplinary hearing is considered by a review committee of the Disciplinary Board. If the lawyer wants to respond to disciplinary counsel’s recommendation, they can do so, and that information will be provided to the review committee. The review committee reviews disciplinary counsel’s recommendation and supporting materials, along with any response from the lawyer, and decides whether to order a hearing. Hearing officers appointed by the Washington Supreme Court preside over disciplinary hearings, at which ODC and the lawyer can call witnesses to testify, introduce exhibits, and make opening statements and closing arguments, much like a regular trial. Following the hearing, the hearing officer makes findings and, if the hearing officer finds ODC has proven the charges by a clear preponderance of evidence, recommends disciplinary action, which could include admonition, reprimand, suspension up to three years, or disbarment. The lawyer or ODC can appeal the hearing officer’s decision to the Disciplinary Board and ultimately, in many situations, to the Washington Supreme Court.

Many disciplinary proceedings resolve by agreement. A stipulation to discipline requires approval by a hearing officer, the Disciplinary Board, or the Washington Supreme Court. A lawyer may also choose to permanently resign their membership in lieu of further disciplinary proceedings. A lawyer who resigns in lieu of discipline must stop practicing immediately and can never apply for readmission, whereas a lawyer who is disbarred may apply for reinstatement after five years.

Confidential and Public Information

Court rules determine what information about the discipline system is available to the public and what is confidential. Grievances under review or investigation are confidential. Dismissed grievances are confidential. Generally speaking, grievances do not become public information unless a review committee orders that a hearing should take place and the matter then becomes what is referred to in the rules as a “proceeding.” Most records related to proceedings are public. Disciplinary hearings and oral arguments are open to the public. Disciplinary sanctions and admonitions are public.

The WSBA is required to carefully follow these rules and maintain the confidentiality of information designated as confidential. Unless information is subject to a protective order, however, the WSBA cannot restrict a lawyer’s ability or a grievant’s ability to communicate to third parties about a grievance. Subject to some restrictions, ODC can release confidential information from its files to law enforcement authorities and other disciplinary authorities, and in certain other limited circumstances.

Resources

For additional information, see the Professional Discipline page⁸ on the WSBA website. It contains links to the current ethical and procedural rules for lawyers, LPOs, and LLLTs, information about ODC and other components of the discipline system, and the Discipline System Annual report, among other resources. The Concerns About a Lawyer page⁹ has information about filing and responding to grievances, requests for assistance, and Client Protection Fund applications, and links to the relevant forms.

To see whether a licensed legal professional has a record of public discipline, access the Discipline Notices¹⁰ directory. Information about upcoming disciplinary hearings and Disciplinary Board arguments is posted on our Disciplinary Board page.¹¹ To request public records, contact PublicRecords@wsba.org.

To discuss an ethical issue, members can call the confidential Ethics Line at 206-727-8284. Finally, for members struggling with mental health or substance use, or other health or wellness issues, the WSBA’s confidential Member Wellness Program¹² may help. Contact them at wellness@wsba.org or 206-727-8267. Communications to the Ethics Line and Member Wellness Program are confidential and not shared with ODC.

ABOUT THE AUTHOR

Kirsten Schimpff is the associate director of the Office of Disciplinary Counsel. The Office of Disciplinary Counsel can be reached at:

intake@wsba.org

NOTES

1. This article updates prior articles published in the May 2007 issue of Washington State Bar News and Dec 2015/Jan 2016 issue of NWLawyer.

2. There are approximately 42,000 lawyer members of WSBA, nearly 35,000 of whom are on active status, approximately 850 LPO members, and approximately 80 LLLT members.

3. www.courts.wa.gov/court_rules/?fa=court_rules.list&group=ga&set=ELC.

4. The ELC also contain procedural rules related to—and the discipline system also investigates and adjudicates—incapacity cases. The rules refer to them as “disability proceedings,” but the issue being decided is whether the lawyer lacks the mental or physical capacity to practice law and/or to participate in the defense of a disciplinary proceeding against them.

5. www.courts.wa.gov/court_rules/?fa=court_rules.list&group=ga&set=RPC.

6. LPOs and LLLTs each have their own set of ethical rules and procedural rules. Grievances against LPOs and LLLTs are received and reviewed by the WSBA’s Regulatory Services Department in conjunction with the discipline committee for the applicable license type. If the initial review determines that further investigation is warranted, the grievance is investigated by ODC.

7. https://onlinegrievance.wsba.org/Attorney.

8. www.wsba.org/for-legal-professionals/professional-discipline.

9. www.wsba.org/for-the-public/concerns-about-a-lawyer.

10. www.mywsba.org/PersonifyEbusiness/Default.aspx?TabID=1540.

11. www.wsba.org/Legal-Community/Committees-Boards-and-Other-Groups/disciplinary-board/.

12. www.wsba.org/for-legal-professionals/member-support/member-wellness-program.