IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO RPC 8.5-DISCIPLINARY AUTHORITY; CHOICE OF LAW AND ELC 1.2-JURISDICTION

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ORDER NO. 25700-A-935

     The Washington State Bar Association having recommended the adoption of the proposed amendments to RPC 8.5-Discilinary Authority; Choice of Law and ELC 1.2-Jurisdiction, and the Court having approved the proposed amendments for publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(g), the proposed amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January 2010.

     (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 April 30, 2010. 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 5th day of November, 2009.

	For the Court
	Gerry L. Alexander
	CHIEF JUSTICE

     Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

     WSBA disciplinary authority over lawyers is established and defined by the Rules for Enforcement of Lawyer Conduct (ELC) and the Rules of Professional Conduct (RPC). ELC 1.1 provides that a lawyer may be subject to discipline for violating the RPC. Both ELC 1.2 and RPC 8.5(a) provide that any lawyer admitted to the practice of law in this state is subject to Washington's disciplinary authority. Under ELC 5.3(a), disciplinary counsel "must review" and may investigate any alleged or apparent act of misconduct by a lawyer. The RPC provide that it is professional misconduct for a lawyer to violate the Code of Judicial Conduct. RPC 8.4(m).

     The Commission on Judicial Conduct (CJC) has authority to investigate complaints of, and conduct proceedings as to, alleged violations of the Code of Judicial Conduct. RCW 2.64.057. There is no affirmative provision of law conferring exclusive jurisdiction on the CJC over complaints alleging misconduct committed by a judge.

     If a judge subject to CJC jurisdiction is a lawyer, the judge is subject to WSBA disciplinary authority. Because it is a violation of RPC 8.4(m) to violate the Code of Judicial Conduct, the rules can be interpreted to confer concurrent jurisdiction with the CJC over allegations of judicial misconduct. Under this view, the rules require the WSBA Office of Disciplinary Counsel (ODC) to review grievances alleging judicial misconduct against judges. Though ODC has always endeavored to refer grievants with complaints regarding judicial acts to the CJC, it can reasonably be concluded that ODC is obliged to open a grievance file if a grievant insists that his or her allegations be reviewed by WSBA. This can result in an undesirable extension of WSBA disciplinary authority if the allegations in question relate to violations of the Code of Judicial Conduct that are appropriately investigated by the CJC.

     The suggested amendment to RPC 8.5 is intended to address this dilemma. New paragraph (c) of RPC 8.5 provides that, notwithstanding the provisions of RPC 8.4(m), a lawyer, while serving as a judge, shall not be subject to the disciplinary authority provided for in the RPC or the ELC "for acts performed in his or her judicial capacity or as a candidate for judicial office." This exception expressly does not apply if judicial discipline has been imposed for the conduct by the CJC. There are also a number of suggested new comments to the rule:

     •     Comment [8] describes the jurisdiction of the CJC;

     •     Comment [9] addresses the scope of the term "judicial capacity";

     •     Comment [10] clarifies the situations in which WSBA jurisdiction would still exist over a judge;

     •     Comment [11] explains when prior judicial discipline should not establish a basis for subsequent lawyer discipline;

     •     Comment [12] deals with the jurisdictional analysis as applied to candidates for judicial office;

     •     Comment [13] delineates the types of judges that are subject to the new rule.

     A companion amendment to ELC 1.2 is intended as a cross-reference to the provisions of suggested RPC 8.5(c) for purposes of clarity.

     The suggested amendments will accommodate legitimate concerns of the judiciary while preserving necessary aspects of WSBA's disciplinary authority over lawyers. These amendments will provide an express basis for ODC to decline to open grievances in situations where the CJC ought to be investigating the allegations in the first instance.

     The draft has been circulated to and approved by the Superior Court Judges' Association and the District and Municipal Court Judges' Association. It has also been provided to and reviewed by the judges of the Court of Appeals and the Commission on Judicial Conduct, without objection.

     (c) Disciplinary Authority Over Judges. Notwithstanding the provisions of Rule 8.4(m), a lawyer, while serving as a judge or justice as defined in RCW 2.64.010, shall not be subject to the disciplinary authority provided for in these Rules or the Rules for Enforcement of Lawyer Conduct for acts performed in his or her judicial capacity or as a candidate for judicial office unless judicial discipline is imposed for that conduct by the Commission on Judicial Conduct or the Supreme Court.

     Additional Washington Comments (8-12)

     [8] The Commission on Judicial Conduct is an independent agency of the judicial branch of state government. Wash. Const. Art. IV, § 31; RCW 2.64.120. The Commission has authority to receive and investigate complaints of, and conduct proceedings as to, alleged violations of rules of judicial conduct by a "judge or justice". Wash. Const. Art. IV, § 31; RCW 2.64.057. The terms "judge" and "justice" are defined to include justices of the supreme court, judges of the court of appeals, judges of the superior courts, judges of any court organized under RCW Titles 3 or 35, judges pro tempore, court commissioners, and magistrates, and the Commission's authority applies regardless of whether the judge or justice serves full time or part time. RCW 2.64.010(4).

     [9] Whether an act is performed in the judge's "judicial capacity" depends on the facts and circumstances of the conduct. In general, acts are performed in the judicial capacity if they involve the making of judicial decisions, the performance of judicial duties, or the discharge of administrative responsibilities in connection with judicial office. Other factors include whether the act was performed or purported to be performed in the individual's official capacity as a judge and whether the conduct is expressly governed by the Code of Judicial Conduct. With the exception of conduct committed during a judicial campaign, see Comment [12], paragraph (c) does not apply to conduct occurring prior to service as a judge, nor does it apply to conduct wholly outside of the judicial capacity.

     [10] Paragraph (c) does not prevent the exercise of disciplinary authority over (1) a judge or justice after he or she has been disciplined for judicial misconduct by the Commission on Judicial Conduct or the Supreme Court, (2) a former judge or justice, or (3) a lawyer who serves as a pro tem or part time judge for acts performed by him or her as a lawyer and otherwise outside of his or her judicial capacity.

     [11] In situations where a judge or justice has been disciplined for judicial misconduct by the Commission on Judicial Conduct or the Supreme Court, disciplinary authority should not be exercised for the identical conduct if the violation of the Code of Judicial Conduct pertains to the role of the judiciary and does not relate to the judge's or justice's fitness to practice law. For example, disciplinary authority should not ordinarily extend to a violation of the requirement in Canon 3 (A)(2) that "Judges should maintain order and decorum in proceedings before them."

     [12] Acts performed as a candidate for judicial office are governed by paragraph (c) if performed by a judge or a justice or a successful lawyer candidate for judicial office. This rule has no application to acts performed by an unsuccessful lawyer candidate for judicial office.

     [13] Paragraph (c) applies to judges and justices defined to be within the jurisdiction of the Commission on Judicial Conduct under Wash. Const. Art. IV, § 31 and RCW Title 2.64 and is not intended to apply to other lawyers in this state designated as judges, including but not limited to federal judges, administrative law judges, and tribal judges.

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

     See Statement of Purpose accompanying Suggested Amendment to RPC 8.5.

     Reviser's note: The typographical errors in the above material occurred in the copy filed by the state supreme court and appear in the Register pursuant to the requirements of RCW 34.08.040.

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