RULES OF COURT
| IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO RLD 2.6, RLD 2.9, RLD 11.1 AND NEW RLD 14 | ) )) |
ORDER NO. 25700-A-707 |
Now, therefore, it is hereby
ORDERED:
(a) That the amendments and new rule as attached hereto are adopted.
(b) That the amendments and new rule will be published in the Washington Reports and will become effective September 1, 2001.
DATED at Olympia, Washington this 8th day of June 2001.
| Alexander, C. J. |
|
| Smith, J. |
Sanders, J. |
| Johnson, J. |
Bridge, J. |
| Madsen, J. |
Chambers, J. |
| Ireland, J. |
Owens, J. |
RULES FOR LAWYER DISCIPLINE (RLD)
NEW TITLE 14 TO IMPLEMENT A PROGRAM OF DIVERSION
[NEW TITLE]
TITLE 14 DIVERSION
[NEW SECTION]
RULE 14.1 REFERRAL TO DIVERSION. In a matter involving less serious
misconduct as defined in rule 14.2, prior to the filing of a
formal complaint, disciplinary counsel may refer a respondent
lawyer to diversion. Diversion may include fee arbitration,
arbitration, mediation, law office management assistance, lawyer
assistance programs, psychological and behavioral counseling,
monitoring, restitution, continuing legal education programs, or
any other program or corrective course of action agreed upon by
disciplinary counsel and respondent to address respondent's
misconduct.
[NEW SECTION]
RULE 14.2 LESS SERIOUS MISCONDUCT. Less serious misconduct is conduct
that does not warrant a sanction restricting the respondent's
license to practice law. Conduct shall not ordinarily be
considered less serious misconduct if any of the following
considerations apply:
(a) the misconduct involves the misappropriation of funds;
(b) the misconduct results in or is likely to result in substantial prejudice to a client or other person, absent adequate provisions for restitution being made;
(c) the respondent has been publicly disciplined in the last three years;
(d) the misconduct is of the same nature as misconduct for which the respondent has been publicly disciplined in the last five years;
(e) the misconduct involves dishonesty, deceit, fraud or misrepresentation by the respondent;
(f) the misconduct constitutes a "serious crime" as defined in rule 3.1(i);
(g) the misconduct is part of a pattern of similar misconduct.
[NEW SECTION]
RULE 14.3 NOTICE TO GRIEVANT. Pursuant to rule 2.9 (a)(8), the
grievant, if any, shall be notified of disciplinary counsel's
proposed decision to refer the respondent to diversion, and shall
have a reasonable opportunity to submit to disciplinary counsel a
written comment thereon. The grievant shall be notified when the
grievance is diverted and when the grievance is dismissed upon
completion of diversion. Such decisions to divert or dismiss are
not appealable.
[NEW SECTION]
RULE 14.4 FACTORS FOR DIVERSION. The following factors shall be
considered by disciplinary counsel in determining whether to
refer a respondent to diversion:
(a) whether the presumptive sanction under the ABA Standards for Imposing Lawyer Sanctions for the violations raised by the grievance or grievances is likely to be no more severe than reprimand, censure or admonition;
(b) whether participation in diversion is likely to improve the future professional conduct of the respondent and accomplish the goals of lawyer discipline;
(c) whether aggravating or mitigating factors exist; and
(d) whether diversion was already tried.
[NEW SECTION]
RULE 14.5 DIVERSION CONTRACT. Disciplinary counsel and the respondent
shall negotiate a contract, the terms of which shall be tailored
to the individual circumstances. In each case, the contract
shall be signed by the respondent and disciplinary counsel. The
contract shall set forth the terms and conditions of the plan for
the respondent and, if appropriate, shall identify the use of a
practice monitor and/or a recovery monitor and the
responsibilities of any monitor. The contract shall provide for
oversight of fulfillment of the contract terms. Oversight
includes reporting of any alleged breach of the contract to
disciplinary counsel. The contract shall also provide that the
respondent will pay all costs incurred in connection with the
contract. The contract may also provide that the respondent will
pay the costs associated with the disciplinary grievances to be
deferred. The contract shall include a specific acknowledgment
that a material violation of a term of the contract renders the
respondent's participation in diversion as to the allegations of
misconduct in the grievance voidable by disciplinary counsel.
The contract may be amended upon agreement of the respondent and
disciplinary counsel. If a recovery monitor is assigned, the
contract shall include respondent's limited waiver of
confidentiality permitting the recovery monitor to make
appropriate disclosures in order to fulfill the monitor's duties
under the contract.
[NEW SECTION]
RULE 14.6 AFFIDAVIT SUPPORTING DIVERSION. A diversion contract must be
supported by the respondent's affidavit or declaration as
approved by disciplinary counsel setting forth the respondent's
misconduct related to the grievance or grievances to be held in
abeyance under this rule, which affidavit or declaration, in the
event of termination of the diversion contract due to a material
breach of the diversion contract will be admissible into evidence
in any ensuing disciplinary proceeding and may be made available
to the review committee or the Board considering the grievance.
Unless admitted into evidence at a disciplinary hearing, the
affidavit or declaration will remain confidential and will not be
provided to the grievant or any other individual outside the
Office of Disciplinary Counsel.
[NEW SECTION]
RULE 14.7 EFFECT OF NON-PARTICIPATION IN DIVERSION. The respondent has the
right to decline disciplinary counsel's offer to participate in
diversion. If the respondent chooses not to participate, the
matter will proceed as though no referral to diversion had been
made.
[NEW SECTION]
RULE 14.8 STATUS OF GRIEVANCE. After a diversion contract is executed
by the respondent and disciplinary counsel, the disciplinary
grievance shall be held in abeyance pending successful completion
of the terms of the contract.
[NEW SECTION]
RULE 14.9 TERMINATION OF DIVERSION.
(a) Fulfillment of the Contract. The contract is terminated when respondent has fulfilled the terms of the contract and submits to disciplinary counsel an affidavit or declaration demonstrating the same. Upon receipt of such affidavit or declaration, disciplinary counsel will acknowledge receipt and either dismiss any grievances held in abeyance pending successful completion of the contract, or give notice to respondent that fulfillment of the contract is disputed. Such a dismissal is not appealable by the grievant. Successful completion of the contract constitutes a bar to any further disciplinary proceedings based upon the same allegations.
(b) Material Breach. A material breach of the contract shall be cause for termination of respondent's diversion. After a material breach, disciplinary counsel will give respondent notice of termination from diversion and disciplinary proceedings may be instituted, resumed or reinstated.
(c) Review by the Chairperson. Disputes regarding fulfillment of the terms of the contract and/or material breach of the contract may be reviewed by the chairperson of the Board upon the request of the respondent or disciplinary counsel. Such request must be filed with the Board within 15 days of notice to respondent of the determination for which review is sought. Determinations by the chairperson under this section shall be final and the matters determined shall not be reviewable in any proceeding.
Supporting Amendments to Rules for Lawyer Discipline 2.6, 2.9 & 11.1
RULE 2.6 DISCIPLINARY COUNSEL
(a) No Change.
(b) No Change.
(c) No Change.
(d) No Change.
(e) Diversion. Disciplinary counsel shall have the authority to determine pursuant to rule 14.1 those grievances appropriate for diversion, after giving notice to any grievants pursuant to rule 2.9 (a)(8). Disciplinary counsel shall have the authority to negotiate and execute diversion contracts, to monitor and determine compliance with the terms of diversion contracts and to determine fulfillment of or any material breach of diversion contracts, subject to the review authorized by rule 14.9.
RULE 2.9 GRIEVANT
(a) Rights. Any person filing a grievance with the Association alleging an act of misconduct by a lawyer shall have the right to:
(1) Be advised promptly of the receipt of the grievance, and of the name, address and office phone number of the person assigned to its investigation if such an assignment is made;
(2) Request reconsideration by a review committee of a dismissal of the grievance by disciplinary counsel by serving upon the Association a request for review within 45 days of mailing of the notice of dismissal, or reconsideration, when the chairperson of the Board so directs, by the Board of a dismissal of the grievance by a review committee by serving upon the Association a request for review within 45 days of mailing of the notice of dismissal by a review committee;
(3) Have a reasonable opportunity to speak with the investigator assigned to the grievance, by telephone or in person, concerning the substance of the grievance or its status;
(4) Receive a copy of any response submitted by the lawyer against whom a grievance is filed, except when that response makes reference to confidences or secrets of a client of the lawyer to which the grievant is not privy, or contains information of a personal and private nature regarding the lawyer, or when a review committee determines that the interests of justice would better be served if the response is not released;
(5) Submit additional supplemental written information or documentation at any time;
(6) Attend any hearing conducted into the grievance, subject to the applicable rules of evidence and any protective order issued pursuant to rule 11.1(g);
(7) Testify as a witness at any hearing conducted into the grievance, subject to the applicable rules of evidence and any protective order issued pursuant to rule 11.1(g);
(8) Be notified of any proposed decision to refer the respondent to diversion and be given a reasonable opportunity to submit to disciplinary counsel a written comment thereon;
(8) (9) Be advised of the disposition of the grievance.
(b) No Change.
(c) No Change.
(d) No Change.
RULE 11.1 DISCLOSURE
(a) No Change.
(b) No Change.
(c) No Change.
(d) No Change.
(e) No Change.
(f) No Change.
(g) No Change.
(h) No Change.
(i) No Change.
(j) No Change.
(k) No Change.
(l) No Change.
(m) No Change.
(n) No Change.
(o) No Change.
(p) No Change.
(q) No Change.
(r) Diversion Contracts. Diversion contracts and supporting affidavits and declarations under rules 14.5 & 14.6 are confidential, not withstanding the provisions of subsection (c), unless admitted into evidence in a disciplinary proceeding following a termination of the diversion contract based on a material breach of the diversion contract. When a matter that has previously become public under rule 11.1(c) is diverted by execution of a diversion contract, that contract and the supporting documents will remain confidential but the fact that the matter has been diverted from discipline will be public information.
(r) (s) Regulations. Public access to file materials and
proceedings as permitted by this rule may be subject to
reasonable regulation as to time, place and circumstances.
Certified copies of public bar file documents shall be made
available at the same rate as certified copies of superior court
records. Uncertified copies of public bar file documents shall
be made available at a rate to be set by the Executive Director
of the Association.
(s) (t) Release to Lawyers' Fund for Client Protection.
Nothing in these rules shall prohibit the release of information
obtained during the course of an investigation to the Lawyers'
Fund for Client Protection concerning applications which are
pending before it. The Fund shall treat such information as
confidential unless release is authorized by this rule or the
Executive Director.
(t) (u) Wrongful Disclosure. Disclosure, except as
permitted by these rules, by any person involved with an
investigation or proceeding, either as an officer or agent of the
Association (including, but not limited to, its staff, members of
the Board of Governors, the Disciplinary Board, a review
committee, hearing panels, hearing officers, disciplinary
counsel, special district counsel, a lawyer appointed pursuant to
rule 8.6, or any other individual acting under authority of these
rules) of any information concerning a pending or completed
investigation or proceeding, except as permitted by these rules,
may subject that person to an action for contempt of the Supreme
Court. When the person is also a lawyer, such wrongful
disclosure may also be grounds for discipline.
Reviser's note: The brackets and enclosed material in the text above occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.
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.