WSR 17-12-072

RULES OF COURT

[June 1, 2017]

The Washington State Bar Association, having recommended the adoption of the proposed amendments to ELC 2.5—Hearing Officers, ELC 2.7—Conflicts Review Officer, ELC 4.2—Filing; Orders, ELC 5.3—Investigation of Grievance, ELC 5.5—Investigatory Subpoenas, ELC 5.6—Review of Objections to Inquiries and Motions to Disclose, ELC 9.3—Resignation in Lieu of Discipline, ELC 10.7—Amendment of Formal Complaint, ELC 10.16—Decision of Hearing Officer, ELC Title 15—Trust Account Examinations Overdraft Notification, and IOLTA, ELC 15.1—Random Examination of Books and Records, 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 September 1, 2017.

DATED at Olympia, Washington this 1st day of June 2017.

 

(a) – (d) [No change]

(1) [No change]

(2) Duties and Authority. The chief hearing officer:

(A) – (G) [No change]

(H) hears requests for amendment or of formal complaints under rule 10.7(bc),

(I) – (L) [No change]

(f) – (h) [No change]

(a) Function. [No change to introductory text]

(1) 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 5.67(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) [No change]

(b) – (f) [No change]

(a) Filing and Signing of Originals. Except in matters before the Supreme Court, the original of any pleading, motion, or other paper authorized by these rules, other than discovery, must be filed with the Clerk. Original documents filed with the Clerk must be signed by the party or person filing the document or the attorney of record for the party or person filing the document. Filing may be made by first-class mail or electronically as set forth in subsection (c) of this rule. Filing may be made by first-class mail and is deemed accomplished on the date of mailing. Filing of papers for matters before the Supreme Court is governed by the Rules of Appellate Procedure.

(b) [No change]

(c) Electronic Filing. Filing of documents with the Clerk under subsections (a) and (b) of this rule may be accomplished by e-mail or by facsimile or an electronic system provided by the Clerk,. provided that a A document so filed electronically with the Clerk after 5:00 p.m. or on weekends or legal holidays shall be deemed to have been filed on the next business day. A paper original of documents filed under this subsection (c) should thereafter be filed as well. A document filed electronically shall be considered an original under this rule.

(a) – (h) [No change]

(i) Objections. Within 30 days of service of an investigative inquiry under section (g) of this rule, A a lawyer may serve a written objection on disciplinary counsel who receives an investigative inquiry made under section (g) of this rule may object. An objection is reviewed by motion as provided in rule 5.6.

(a) – (d) [No change]

(1) To protect confidential client information, or for other good cause shown, a lawyer may object under rule 5.6 to an investigative subpoena issued pursuant to this rule or a disciplinary counsel request or inquiry during a deposition under this rule. An objection must be in writing or on the record and is reviewed by motion as provided in rule 5.6.

(2) A timely objection suspends any duty to respond as to the subpoena or to a request or inquiry under this rule until a ruling has been made under rule 5.6. An objection to a subpoena is timely if made prior to the date specified for production or the date of the deposition. An objection to a request or inquiry under this rule is timely if made in response to the request or inquiry during the course of the deposition.

(a) [No change]

(b) Procedure.

(1) A lawyer who has objected under rules 5.3(i) or 5.5(e) must file a motion seeking review of the objection within 15 days of the date of the objection.

(2) An objection must clearly and specifically set out the challenged inquiry or request and the basis for the objection.

(23) [No change to text of former subsection (b)(2)]

(34) [No change to text of former subsection (b)(3)]

(45) [No change to text of former subsection (b)(4)]

(56) [No change to text of former subsection (b)(5)]

(c) – (d) [No change]

(a) [No change]

(b) Process. The respondent first notifies disciplinary counsel that the respondent intends to submit a resignation and asks disciplinary counsel to prepare a statement of alleged misconduct and to provide a declaration of costs and a proposed resignation form. After receiving the statement and the declaration of costs, if any, the respondent may resign by signing and submitting to disciplinary counsel the resignation form prepared by disciplinary counsel, sworn to or affirmed under oath and notarized, which must include the following:

(c) – (e) [No change]

(f) Costs and Expenses. If a respondent resigns under this rule, the expenses under rule 13.9(c) are $1,000 $1,500 and respondent must consent to the entry of an order assessing these expenses under rule 13.9(e). With the resignation, the respondent must pay this $1,000 expense, plus all actual costs as defined by rule 13.9(b). If the respondent demonstrates inability to pay these costs and expenses, instead of paying this amount, the respondent must execute, in disciplinary counsel's discretion, a confession of judgment or a deed of trust for that amount. Disciplinary counsel may file a claim under section (g) for costs not covered by this amount the payment, confession of judgment, or deed of trust.

(g) [No change]

(a) [No change]

(bc) Other Amendments. Disciplinary counsel must obtain authorization from the chief hearing officer for amendments other than those under sections (a) or (b) or rule 10.3(c). Disciplinary counsel must give respondent notice of a request for authorization to amend. A request to amend will be considered under the procedure provided by rule 10.8. The chief hearing officer, after consultation with any assigned hearing officer, may authorize the amendment, may require that the additional facts or charges be the subject of a separate formal complaint, or may direct disciplinary counsel to report the matter to a review committee under rule 5.7(c).

(cd) Decision. In ruling on a motion under section (a) or (b) this rule, a hearing officer or the chief hearing officer may grant or deny the motion in whole or part. Authorization to amend should be freely given when justice so requires.

(de) Service and Answer. Disciplinary counsel serves an amendment to a formal complaint on the respondent as provided in rule 4.1 but need not serve a Notice to Answer with the amendment. Rule 10.5 governs the answer to an amendment except that any part of a previous answer may be incorporated by reference.

(a) [No change]

(b) Preparation of Findings. Either party may submit proposed findings of fact, conclusions of law, and recommendation as part of their argument of the case. Proposed findings, conclusions, and recommendation, if any, must be submitted within 20 days after the disciplinary hearing is concluded or as otherwise ordered by the hearing officer. The hearing officer either (1) writes findings of fact, conclusions of law, and recommendations without requiring submission of proposed findings, conclusions, or recommendations or (2) announces a tentative decision then requests one or both parties to prepare proposed findings, conclusions, and recommendations. After notice and an opportunity to respond, the hearing officer considers the proposals and responses and enters findings, conclusions, and recommendations.

(c) – (d) [No change]

(a) Authorization. The Office of Disciplinary Counsel is authorized to examine the books and records of any lawyer or law firm selected at random to determine whether the lawyer or law firm is complying with RPC 1.15A, 1.15B, and other Rules of Professional Conduct referencing RPC 1.15A or RPC 1.15B. As used in this Title, the term law firm has the same meaning as prescribed in RPC 1.0A(c).

(b) – (e) [No change]