WSR 14-23-036

RULES OF COURT

[November 6, 2014]

The Washington State Bar Association having recommended the adoption of the proposed rules for the Enforcement of Lawyer Conduct (ELCs), and the Court having considered the amendments and comments submitted thereto, and having determined that the proposed amendments will aid in the prompt and orderly administration of justice;

Now, therefore, it is hereby

(a) That the amendments as shown below are adopted.

(b) That the amendments will be published in the Washington Reports and will become effective January 1, 2015.

DATED at Olympia, Washington this 6th day of November, 2014.

Unless the context clearly indicates otherwise, terms used in these rules have the following meanings:

(a) - (m) [Unchanged]

(n) "APR" means the Admission toand Practice Rules.

(o) - (r) [Unchanged]

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

(1) Limitation of Authority. The Conflicts Review Officer's duties are limited to performing the initial review of grievances covered by this Rule. A Conflicts Review Officer may, under rule 5.3(b), 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 under rule 5.6(a), defer the investigation under rule 5.3(d), or assign the grievance to special disciplinary counsel for investigation under rules 2.8(b) and 5.3. If a grievant requests review of a dismissal under rule 5.7(b), the Conflicts Review Officer may either reopen the matter for investigation or refer it to a review committee under that rule.

(2) [Unchanged]

(b) - (f) [Unchanged]

Communications to the Association, Board of Governors, Disciplinary Board, review committee, hearing officer, disciplinary counsel, adjunct investigative disciplinary counsel, Association staff, or any other individual acting under authority of these rules, are absolutely privileged, and no lawsuit predicated thereon may be instituted against any grievant, witness, or other person providing information.

(a) [Unchanged]

(b) Public Disciplinary Information. The public has access to the following information subject to these rules:

(1) - (9) [Unchanged]

(10) a lawyer's resignation in lieu of discipline under rule 9.3; and

(11) any sanction or admonition imposed on a respondent; and

(12) a stipulation to dismissal upon institution of proceedings for failure to comply with the terms of the stipulation.

(c) [Unchanged]

(a) [Unchanged]

(b) Restriction on Release of Client Information. Notwithstanding any other provision of this title, no information identified or known to the Association to constitute by a respondent as privileged or confidential client information that a lawyer would be required to keep confidential under RPC 1.6 rule 5.4 may be released under rule 3.4 (c) - (i) unless the client consents, including implied consent under rule 5.1(b).

(c) - (f) [Unchanged]

(a) – (c) [Unchanged]

(d) Diversion Contracts. Except as provided by rule 6.6, diversion contracts and supporting affidavits and declarations under rules 6.5 and 6.6 are confidential, despite rule 3.1 (b)(1). However, a lawyer may authorize release of a diversion contract or supporting affidavit under rule 3.4(c). When a matter that has previously become public under rule 3.1(b) is diverted by a diversion contract, that contract and the supporting documents are confidential but the fact that the matter was diverted from discipline is public information and a notice of diversion will be placed in the public file. Upon the conclusion of the diversion, whether by successful completion of diversion and dismissal of the grievance, or by breach of the diversion contract, a notice of that result will be placed in the public file.

(a) - (b) [Unchanged]

(c) Grievant Rights. A grievant has the following rights:

(1) - (2) [Unchanged]

(3) to receive a copy of any response submitted by the respondent, subject to the following:

(A) [Unchanged]

(B) Challenge to Disclosure Decision. Either the grievant or the respondent may file a challenge to disciplinary counsel's decision to withhold or not withhold all or a portion of a grievance or response within 20 days of the date of mailing of the decision. The challenge shall be resolved by a review committee, unless the matter has previously been dismissed under rule 5.7(d) or the time period for submitting a request for review of a dismissal has expired under rule 5.7(b).

(5) (4) to attend any hearing conducted into the grievance, subject to these rules and any protective order issued under rule 3.2(e); except that if the grievant is also a witness, the hearing officer may order the grievant excluded during the testimony of any other witness whose testimony might affect the grievant's testimony;

(6) (5) to provide relevant testimony at any hearing conducted into the grievance, subject to these rules and any protective order issued under rule 3.2(e);

(7) (6) to be notified of any proposed decision to refer the respondent to diversion and to be given a reasonable opportunity to submit to disciplinary counsel a written comment thereon;

(8) (7) to be advised of the disposition of the grievance; and

(9) (8) to request reconsideration of a dismissal of the grievance as provided in rule 5.7(b).

(d) - (e) [Unchanged]

(a) - (c) [Unchanged]

(1) Disciplinary counsel may defer an investigation into alleged acts of misconduct by a lawyer:

(A) - (B) [Unchanged]

(C) if a hearing has been ordered under Rrule 8.2(a) or supplemental proceedings have been ordered under rule 8.3(a); or

(D) [Unchanged]

(2) Disciplinary counsel must inform the grievant and respondent of a decision to defer or a denial of a request to defer and of the procedure for requesting review. A grievant or respondent may request review of a decision on deferral. If review is requested, disciplinary counsel refers the matter to a review committee for reconsideration of the decision on deferral. To request review, the grievant or respondent must deliver or deposit in the mail a request for review to the Association disciplinary counsel no later than 45 days after the Association disciplinary counsel mails the notice regarding deferral.

(e) - (i) [Unchanged]

(a) [Unchanged]

(1) Assertion In Response to Investigative Inquiries. In response to an investigative inquiry made under rule 5.3(g), or an investigatory subpoena under ELC rule 5.5, unless a lawyer makes an objection under rule 5.6, a lawyer may not assert the attorney-client privilege or other prohibitions on revealing information relating to the representation of a client as a basis for refusing to provide information.

(2) - (3) [Unchanged]

(a) - (d) [Unchanged]

(1) To protect confidential client information, or for other good cause shown, a respondent lawyer may object under rule 5.6 to an investigative subpoena issued pursuant to this rule.

(2) [Unchanged]

(a) Review Authorized. On motion, Tthe chief hearing officer, or a hearing officer designated by the chief hearing officer, may hear the following matters:

(1) - (3) [Unchanged]

(b) - (d) [Unchanged]

A diversion contract must be supported by the respondent lawyer's affidavit or declaration as approved by disciplinary counsel setting forth the respondent's misconduct related to the grievance or grievances to be deferred under this title. If the diversion contract is terminated due to a material breach, the affidavit or declaration is admissible into evidence in any ensuing disciplinary proceeding. Unless so admitted, or unless release is authorized by the respondent under rule 3.4(c), the affidavit or declaration is confidential and must not be provided to the grievant or any other individual outside the Office of Disciplinary Counsel, but may be provided to a review committee or the Board considering the grievance.

(a) - (e) [Unchanged]

(f) Duration of Suspension. A suspension under this rule must terminate when the disciplinary proceeding is fully completed, after appeal or otherwise final. A copy of the final decision, stipulation or order terminating the disciplinary proceeding will be provided to the Court.

(1) Risk to Public. Disciplinary counsel may petition the Supreme Court for an order suspending the respondent lawyer during the pendency of any proceeding under these rules if:

(A) - (C) [Unchanged]

(2) - (3) [Unchanged]

(b) [Unchanged]

At any time a respondent lawyer and disciplinary counsel may stipulate that the respondent be suspended during the pendency of any investigation or proceeding because of conviction of a serious crime felony, a substantial threat of serious harm to the public, or incapacity to practice law. A stipulation must state the factual basis for the stipulation and be submitted directly to the Supreme Court for expedited consideration. When the stipulation is based on the lawyer's mental incapacity to practice law, the lawyer must be represented by counsel, and if counsel does not otherwise appear, the Association will appoint counsel. Stipulations under this rule are public upon filing with the Court, but the Court may order that supporting materials are confidential. Either party may petition the Court to terminate the interim suspension, and on a showing that the cause for the interim suspension no longer exists, the Court may terminate the suspension.

(a) [Unchanged]

(b) Procedure During Court Recess. When a petition seeking interim suspension under this title is filed during a recess of the Supreme Court, the Chief Justice, the Acting Chief Justice, or the senior Justice under SAR 10, subject to review by the full Court on motion for reconsideration, may rule on the motion petition for interim suspension.

(a) - (c) [Unchanged]

(d) When Final. If a hearing officer recommends reprimand or an admonition, or recommends dismissal of the charges, the recommendation becomes the final decision if neither party files an appeal and the Chair does not refer the matter to the Board for sua sponte review under rule 11.13(b). If the Chair refers a matter for sua sponte review under rule 11.3(b) and the Board declines review, the hearing officer's recommendation becomes the final decision upon entry of the Board's order declining review. If a hearing officer recommends disbarment or suspension, the recommendation becomes the final decision only upon entry of an order by the Supreme Court under rule 11.12(g) or final action on an appeal or petition for discretionary review under Title 12.

(a) Restitution May Be Required. A respondent lawyer who has been sanctioned under rule 13.1 or admonished under rule 13.5(b) may be ordered to make restitution to persons financially injured by the respondent's conduct or the Lawyer's' Fund for Client Protection.

(1) [Unchanged]

(2) A respondent ordered to make restitution to the Lawyer's' Fund for Client Protection must do so within 30 days of the date on which the decision requiring restitution becomes final, unless the decision provides otherwise or the respondent enters into a periodic payment plan with the Lawyer's' Fund for Client Protection Board.

(3) Disciplinary counsel or the Lawyer's' Fund for Client Protection Board may enter into an agreement with a respondent for a reasonable periodic payment plan if:

(A) the respondent demonstrates in writing present inability to pay restitution and

(B) disciplinary counsel consults with the persons owed restitution.

(4) [Unchanged]

(c) [Unchanged].