WSR 18-01-033
RULES OF COURT
STATE SUPREME COURT
[December 6, 2017]
IN THE MATTER OF THE PROPOSED AMENDMENTS TO ELC 3.3—APPLICATION TO STIPULATIONS, DISABILITY PROCEEDINGS, CUSTODIANSHIPS, AND DIVERSION CONTRACTS, ELC 3.4—RELEASE OR DISCLOSURE OF OTHERWISE CONFIDENTIAL INFORMATION, ELC 6.5—DIVERSION CONTRACT, AND ELC 6.6—AFFIDAVIT SUPPORTING DIVERSION
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ORDER
NO. 25700-A-1214
The Washington State Bar Association, having recommended the expeditious adoption of the proposed amendments to ELC 3.3—Application to Stipulations, Disability Proceedings, Custodianships, and Diversion Contracts, ELC 3.4—Release or Disclosure of Otherwise Confidential Information, ELC 6.5—Diversion Contract, and ELC 6.6—Affidavit Supporting Diversion, 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
ORDERED:
(a) That the proposed amendments as shown below are adopted.
(b) That the proposed amendments will be published expeditiously in the Washington Reports and will become effective upon publication.
DATED at Olympia, Washington this 6th day of December, 2017.
 
 
Fairhurst, C.J.
Johnson, J.
 
Wiggins, J.
 
 
Gonzalez, J.
Owens, J.
 
Gordon McCloud, J.
Stephens, J.
 
Yu, J.
RULE 3.3 APPLICATION TO STIPULATIONS, DISABILITY PROCEEDINGS, CUSTODIANSHIPS, AND DIVERSION CONTRACTS
(a) – (c) [No change]
(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 may be authorized under rule 3.4(c), provided that a respondent must be given notice of a decision to make a discretionary release under rule 3.4(e) and a reasonable opportunity to seek a protective order under ELC 3.2(e). 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.
RULE 3.4 RELEASE OR DISCLOSURE OF OTHERWISE CONFIDENTIAL INFORMATION
(a) – (i) [No change]
(j) Other Counsel. Conflicts review officers, special disciplinary counsel, adjunct disciplinary counsel, Association counsel, a custodian appointed under rule 7.7, counsel for a petitioner under rule 8.9(d), counsel appointed under rule 8.10, and any lawyer representing the Association in any matter have access to any otherwise confidential disciplinary information necessary to perform their duties.
(k) – (m) [No change]
(n) Information Not Subject to Subpoena. Information made confidential under these rules shall not be subject to a subpoena in any civil, criminal, or other proceeding except by leave of the Supreme Court upon a showing of compelling need.
RULE 6.5 DIVERSION CONTRACT
(a) [Unchanged]
(b) Required Terms. A diversion contract must:
(1) [Unchanged]
(2) [Unchanged]
(3) [Unchanged]
(4) [Unchanged]
(5) [Unchanged]
(6) include a specific acknowledgement that a material violation of the term of the contract renders the respondent's participation in diversion voidable by disciplinary counsel.;
(7) include a specific acknowledgement that the diversion contract and the supporting affidavit or declaration under rule 6.6 are subject to release under Rule 3.3.
RULE 6.6 AFFIDAVIT SUPPORTING DIVERSION
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) 3.3, 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.
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.