Overview of Washington's lawyer discipline system

Washington's lawyer discipline system has numerous procedural steps, so it can be confusing when encountered for the first time. Here is a brief, albeit incomplete, overview of the system. For more details, review the full Rules for Enforcement of Lawyer Conduct (ELC) . Keep in mind that ODC procedures can change at any time.

Intake

The Office of Disciplinary Counsel (ODC)'s intake unit handles the initial stage of grievances. The intake unit decides whether to dismiss a grievance or request a preliminary response. If a response is requested, it will be sent to the grievant for a reply. At that stage, the intake unit will either dismiss the grievance or send it on for investigation by another disciplinary counsel.

Dismissal

A grievant may request review of a dismissal within 45 days of the date on the dismissal letter. ELC 5.7(b). ODC notifies the lawyer of the request for review and the lawyer has the option of submitting additional information or documents. A review committee then reviews all the documents and issues an order.

Investigations

Investigations can include obtaining records, asking the respondent lawyer for additional information or documents, interviewing the respondent or other witnesses and/or taking depositions. A respondent lawyer may object to a request from disciplinary counsel. ELC 5.3(i), ELC 5.6. Disciplinary counsel can subpoena documents or take depositions without providing notice to the respondent lawyer. ELC 5.5. There is no limit to this authority under the ELC.

At the conclusion of the investigation, disciplinary counsel will dismiss the grievance; issue an analysis letter and send the matter to a review committee with a recommendation for a hearing, admonition, or advisory letter, ELC 5.7; or propose diversion. Diversion can also occur later in the process, up to 60 days after a formal complaint is filed. ELC 6.1.

Review Committees

Review committees are made up of three members of the Disciplinary Board -- two lawyers and one nonlawyer. ELC 2.4. The meetings are closed. The review committee makes its decisions based on the documents submitted by disciplinary counsel. The Review Committee can dismiss a grievance, issue an admonition or advisory letter, or order the matter to hearing. ELC 5.7(d). The review committee has to give notice if it wants to issue an admonition or order a hearing without a request from disciplinary counsel that it do so. ELC 5.7(e).

Admonitions

Admonitions can be issued by a review committee or by a hearing officer after hearing. ELC 13.5. Technically an admonition is not a "sanction." ELC 13.1(e). However, like sanctions, admonitions are published in the NW Lawyer (formerly known as Bar News), listed in the bar's online directory of lawyers and with the 2014 revisions to the ELC, are permanent. If a review committee issues an admonition, the lawyer has the option of contesting it, in which case the matter is deemed ordered to hearing. ELC 13.5(a).

Diversion

Diversion is similar to a deferred prosecution. Whether to offer diversion is in disciplinary counsel's discretion and the referral to diversion must occur no later than 60 days after the filing of a formal complaint. ELC 6.1. Diversion requires the lawyer to admit to misconduct and agree to specified terms which vary depending on the case. Examples are CLEs, AA attendance, and law office management counseling. If the lawyer successfully completes diversion, the grievance is dismissed. Diversion is only available in limited circumstances. See ELC 6.2, ELC 6.3. The bar's website has more detail about the diversion process.

Stipulations

Disciplinary counsel and the respondent lawyer can agree to a stipulation at any stage of the case. If you are offered a stipulation and have doubts about whether you should agree to it, you may want to consult with counsel. Stipulations must meet certain requirements in ELC 9.1(b) and must be approved either by a hearing officer or the Disciplinary Board. Only the Board can approve a stipulation for suspension or disbarment. The Supreme Court must also approve a stipulation to suspension or disbarment.

Formal Proceedings

An order to hearing authorizes disciplinary counsel to file a formal complaint. That does not happen in every case ordered to hearing because the parties may agree to diversion or to a stipulation before the formal complaint is filed. Filing the formal complaint begins the "disciplinary proceedings" (often called "formal proceedings") stage of the disciplinary process. ELC 10.3(b). After the formal complaint is filed, the respondent for the first time may request discovery, but other than requests for admission, discovery is permitted only if ordered by the hearing officer or stipulated to by the parties. ELC 10.11. The hearing procedures are contained in Title 10 of the ELC. Disciplinary counsel has the burden of proving misconduct by a clear preponderance of the evidence. ELC 10.14(b). Following the hearing, the hearing officer must issue a written decision consisting of findings of fact, conclusions of law and recommended outcome.

Appeals

The hearing officer's decision may be appealed to the Disciplinary Board. Title 11 of the ELC governs appeals to the Board and contains the applicable deadlines. Either party may appeal a Disciplinary Board order of suspension or disbarment to the Supreme Court. ELC 12.3(a). In addition, either party may seek discretionary review of any other Disciplinary Board decision. ELC 12.4. The deadlines for Supreme Court appeals and for discretionary review are in Title 12 of the ELC.


Copyright 2017, Anne I. Seidel. All rights reserved.