WSR 09-15-046

RULES OF COURT

STATE SUPREME COURT


[ July 8, 2009 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENT TO ELC 2.7-CONFLICTS REVIEW OFFICER )

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)

ORDER

NO. 25700-A-920


The Washington State Bar Association having recommended the adoption of the proposed amendment to ELC 2.7-Conflicts Review Officer, and the Court having approved the proposed amendment for publication;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(g), the proposed amendments as attached hereto are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites expeditiously.

(b) The purpose statement as required by GR 9(e) is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than 60 days from the published date. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 8th day of July, 2009.
For the Court
Gerry L. Alexander



CHIEF JUSTICE

GR 9 COVER SHEET

Suggested Amendment

RULES FOR ENFORCEMENT OF LAWYER CONDUCT (ELC)

ELC 2.7 - Conflicts Review Officer


(Modifying Conflicts Review Officer position to a panel of three and clarifying duties and procedures)


Submitted by the Board of Governors of the Washington State Bar Association


Purpose: The Conflicts Review Officer position was created in October 2002 with the adoption of Rule for Enforcement of Lawyer Conduct (ELC) 2.7. Pursuant to the Rule, the Conflicts Review Officer reviews grievances filed against disciplinary counsel, hearing officers, other lawyers employed by the Association, and members of the Disciplinary Board, the Board of Governors, and the Supreme Court. The CRO is not a WSBA employee and operates at "arm's length" of the WSBA and the Office of Disciplinary Counsel. CROs are appointed by the Supreme Court on recommendation of the Board of Governors.

When reviewing a grievance, the CRO essentially performs the intake screening function that would otherwise be performed by the Office of Disciplinary Counsel. The CRO reviews the grievance and the response of the lawyer and determines whether the grievance should be dismissed, deferred, or referred to special disciplinary counsel for investigation. CROs perform intake screening only, not investigation, and are expected to comply with the 60-day aspirational timeline applicable to grievance intake. CRO files are unique. Unlike "regular" grievances, which can be dismissed at the intake level without requiring a response from the Respondent lawyer, the CRO is required, under ELC 2.7(a), to obtain a response before performing the intake review on a grievance. This includes grievances which are a direct result of a lawyer's work within the discipline system (e.g., grievances filed against a disciplinary counsel or review committee members because they dismissed a grievance).

The Rule currently provides for one Conflicts Review Officer, and allows for appointment of CROs pro tem as needed for a specific case; however, this has resulted in the appointment of an inordinate number of CROs pro tem, which in turn has interfered with the ability to process such grievances in a timely fashion. The proposed amendments to the ELC would establish a panel of three Conflicts Review Officers while preserving the ability to appoint a CRO pro tem where all three CROs were unable to serve on a particular matter. The proposed amendments set forth with greater specificity what grievances are to be assigned to CROs, and would allow a CRO to dismiss a baseless or frivolous grievance without requiring the attorney to file a response.


SUGGESTED AMENDMENT

RULE FOR ENFORCEMENT OF LAWYER CONDUCT (ELC)

Rule 2.7 - Conflicts Review Officer


(a) Function. The Conflicts Review Officers reviews grievances filed against disciplinary counsel, hearing officers and other lawyers employed by the Association, hearing officers, conflicts review officers and conflicts review officers pro tempore, and members of the Disciplinary Board, the Board of Governors, and the Supreme Court. Conflicts Review Officers also review grievances filed against persons who have been assigned cases as adjunct investigative counsel or special disciplinary counsel, or appointed in disability matters pursuant to ELC 8.2 (c)(2), at the time the grievance is filed.

(1) Limitation of Authority. A Conflicts Review Officer's duties are limited to performing the initial review of grievances covered by this Rule. After obtaining the respondent lawyer's response to the grievance, the A Conflicts Review Officer may obtain the respondent lawyer's response to the grievance, if he/she feels it necessary to do so, in his/her sole discretion. A Conflicts Review Officer may dismiss the grievance, defer the investigation, or assign the grievance to special disciplinary counsel for further investigation.

(2) Independence. The Conflicts Review Officers acts independently of disciplinary counsel and the Association.

(b) Appointment and Qualifications.

(1) The Supreme Court, on the recommendation of the Board of Governors, appoints an active member shall appoint three active members of the Association to a three-year renewable term as Conflicts Review Officers. Each Conflicts Review Officer is appointed for a three-year term on a staggered basis, and may be recommended for reappointment at the discretion of the Board of Governors. Applications shall be solicited from those eligible to serve, and submitted to the Board of Governors, in such manner as the Association deems most appropriate under the policies and procedures then in effect for recruitment and appointment of volunteers in the discipline system.

(2) When no Conflicts Review Officer is available to handle a matter due to conflict of interest or other good cause, the Supreme Court, on the recommendation of the Board of Governors, shall appoint a Conflicts Review Officer pro tempore for the matter.

(3) To be eligible for appointment as Conflicts Review Officer or Conflicts Review Officer pro tempore, a lawyer must have prior experience either as a Disciplinary Board member, or as disciplinary counsel, or special disciplinary counsel. The Conflicts Review Officers and Conflicts Review Officers pro tempore may have no other active role in the discipline system during the term of appointment. When the Conflicts Review Officer is not available to handle a matter due to conflict of interest or other good cause, on the recommendation of the Board of Governors, the Supreme Court will appoint a Conflicts Review Officer pro tempore for the matter.

(4) The Association shall assign matters to the Conflicts Review Officers in such a manner as to balance their caseloads insofar as it is practicable to do so.

(c) Access to Disciplinary Information. The Conflicts Review Officers and Conflicts Review Officers pro tempore have has access to any otherwise confidential disciplinary information necessary to perform the duties required by these rules. Conflicts Review Officers and Conflicts Review Officers pro tempore shall return original files to the Association promptly upon completion of the duties required by these rules and shall not retain copies.

(d) Compensation and Expenses. The Association reimburses a Conflicts Review Officers and Conflicts Review Officers pro tempore for all necessary and reasonable expenses, and compensates a Conflicts Review Officer may provide compensation at a level established by the Board of Governors.

Washington State Code Reviser's Office