WSR 97-15-049

RULES OF COURT

STATE SUPREME COURT

[July 10, 1997]

IN THE MATTER OF THE ADOPTION ) ORDER

OF THE AMENDMENTS TO RLD 11.1 ) NO. 25700-A-610

AND 11.2 )

The Washington State Bar Association having recommended the adoption of the proposed amendments to RLD 11.1 and 11.2, 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 amendments as attached hereto are adopted.

(b) That the amendments will be published in the Washington Reports and will become effective September 1, 1997.

dated at Olympia, Washington this 10th day of July, 1997.

Durham, C.J.

_______________________

Dolliver, J. Madsen, J.

________________________ ________________________

Smith, J. Talmadge, J.

________________________ ________________________

Guy, J. Alexander, J.

________________________ ________________________

Johnson, J.

________________________ ________________________

(a) Investigations Confidential. An investigation into an alleged act of misconduct by a lawyer shall be confidential except as necessary to conduct the investigation or to keep a grievant advised of the status of a matter, but the pendency, subject matter, and status of an investigation may be disclosed if:

(1) Both the respondent lawyer and the grievant have waived confidentiality; or

(2) The proceeding is based upon the conviction of a crime; or

(3) A review panel finds that the investigation is based upon allegations that have become generally known to the public.

In furtherance of its supervisory function, and not in derogation of the foregoing, the Board of Governors shall have access to all records and information of the disciplinary department.

Policy Statement. Disciplinary information shall be public information to which the public will be given access subject to the restrictions set forth below and reasonable regulation as to the time, place and circumstances. In general, records of disciplinary action shall be public information. In general, records of grievances shall be confidential unless a determination has been made by disciplinary counsel that the lawyer's apparent conduct warrants a public statement of concern, or disciplinary counsel has recommended that a review committee order the grievance to hearing or issue an admonition, or the Disciplinary Board has approved a stipulation to a disciplinary sanction or admonition. Disciplinary hearings and meetings of the Disciplinary Board shall be public, with the exception of deliberations or matters made confidential by a protective order.

(b) Release May Be Authorized. The Board of Governors, or the Executive Director acting under the direction of the Board, may authorize the general or limited release of any confidential information obtained during the course of an investigation when to do so appears necessary to protect the interests of clients or other persons, the public, or the integrity of the Bar. A respondent lawyer shall be given notice of a decision to release information under this section prior to its release unless the Board, or the Executive Director acting under the direction of the Board, finds that such notice would jeopardize serious interests of any person or the public, or that the delay caused by giving the notice to the respondent would be detrimental to the integrity of the Bar.

Pending Investigations. Disciplinary counsel shall evaluate all submissions. Any submission which fails to allege conduct which, if true, would constitute a violation of either the Rules of Professional Conduct or the Rules for Lawyer Discipline, shall be treated as an inquiry, not a grievance, and shall not be public information. A grievance is a submission or other matter of which the Association takes notice which alleges a violation of the Rules of Professional Conduct or the Rules for Lawyer Discipline. Grievances shall be treated as confidential unless otherwise made public by these rules.

(c) Proceedings--Public. Upon the filing and service of a formal complaint and after the lawyer has answered that complaint, or failed to answer within the time required, a disciplinary proceeding shall be public, subject to the provisions of any protective order as may be entered pursuant to section (f). The filing of a motion for a protective order shall stay the provisions of this rule with regard to any matter sought to be kept confidential in that motion, and the motion itself shall be confidential, until ruled upon.

Public Information. Public information means:

(1) the record upon submission by disciplinary counsel to a review committee, in any matter where disciplinary counsel has recommended that the matter be ordered to hearing or that an admonition be issued;

(2) the record before a review committee in any matter which a review committee has ordered to hearing or ordered an admonition be issued;

(3) the record upon submission by disciplinary counsel to a review committee or to the Supreme Court in proceedings based upon a lawyer's conviction of a felony or serious crime, as defined in rule 3.1(i);

(4) the record upon submission by disciplinary counsel to a review committee or to the Supreme Court in proceedings pursuant to rule 3.2;

(5) a statement of concern issued pursuant to rule 11.1(f) upon expiration of 14 days following service of the statement of concern upon the lawyer about whom the statement of concern has been filed, absent an appeal pursuant to rule 11.1 (f)(3);

(6) the record upon approval by the Disciplinary Board of a stipulation for discipline imposing a disciplinary sanction or admonition;

(7) the record before a hearing officer or panel;

(8) the record upon submission to the Disciplinary Board in any matter reviewed pursuant to rule 6.1;

(9) the bar file and any exhibits in any matter which the Disciplinary Board or a Review Committee has ordered to public hearing, or any matter in which disciplinary action has been taken, or any proceeding under Title 3; and

(10) In any disciplinary matter referred to the Supreme Court, the file, record, briefs, and argument in the case;

except for documents the disclosure of which is restricted by Title 10, rule 2.8(d), rule 2.9 (a)(4), a protective order entered pursuant to rule 11.1(g), court order, or other applicable law (e.g., medical records, police reports, etc.). During the course of an investigation or proceeding, the Chief Disciplinary Counsel may authorize disciplinary counsel to keep confidential any information which is otherwise public information when doing so is necessary to further the purposes of the investigation, provided however, that at the conclusion of the proceeding all such materials will become public information unless made subject to a protective order pursuant to rule 11.1(g).

(d) Matters Which Are Public. In a matter which is public pursuant to section (c), any person may have access to the contents of the bar file in the pending proceeding, may attend any hearing on the charges against the attorney, except a hearing on a motion, and may attend any oral argument before the Board conducted pursuant to rule 6.7(c). In any disciplinary matter referred to the Supreme Court, the file, record, briefs, and argument in the case shall also be public except to the extent previously made confidential by a protective order or as otherwise ordered by the court.

Scope of Confidentiality. All disciplinary materials which are not public information as defined in rule 11.1(c) are confidential, and are held by the Washington State Bar Association under the authority of the Supreme Court. Disciplinary counsel may disclose such information as necessary to conduct the investigation or to keep a grievant advised of the status of a matter except as prohibited by Title 10, by rule 2.8(d), by rule 2.9 (a)(4), by a protective order entered under rule 11.1(g), by other court order, or by other applicable law. In furtherance of its supervisory function, and not in derogation of the foregoing, the Board of Governors shall have access to all confidential disciplinary information, but will maintain the confidentiality thereof.

(e) Matters Which Are Not Public. In no case shall the deliberations of a hearing panel, board or court, or matters made confidential by a protective order, be public

(f) Statement of Concern. The Chief Disciplinary Counsel may in his or her discretion file a statement of concern with the Clerk of the Disciplinary Board when deemed necessary to protect members of the public from a substantial threat, based on information from a pending investigation into a lawyer's apparent ongoing serious misconduct not otherwise made public by these rules, provided that:

(1) On or before the date it is filed, a copy of the statement of concern shall be served pursuant to rule 12.1(a) on the lawyer about whom the statement of concern has been made;

(2) The lawyer about whom a statement of concern has been filed may at any time appeal to the chairperson of the Disciplinary Board to have the statement of concern withdrawn;

(3) If an appeal to the chairperson of the Disciplinary Board is filed with the Association pursuant to rule 12.2(a) within 14 days of service of the statement of concern, the statement of concern will not be public information until the chairperson of the Disciplinary Board has entered a final order on the appeal;

(4) The decision of the chairperson of the Disciplinary Board regarding a statement of concern shall be final; and

(5) The Chief Disciplinary Counsel may at any time withdraw a statement of concern.

(fg) Protective Orders. In order to protect a compelling interest of a grievant, witness, third party, or respondent, or other participant in an investigation, the hearing officer or panel chairperson to whom a matter is assigned, the chairperson of a review committee or of the Board when a matter is before a committee or the Board for review, or the chairperson of the Character and Fitness Committee in the case of a petition for reinstatement after disbarment, following individuals may, upon motion and for good cause shown, issue a protective order prohibiting the disclosure of specific information or specific documents or pleadings, and direct that the proceedings be conducted so as to implement the order.:

(1) the chairperson of the Disciplinary Board;

(2) the chairperson of a Review Committee, when a matter is before a Review Committee;

(3) a hearing officer or panel chairperson to whom a matter is assigned; or

(4) the chairperson of the Character and Fitness Committee, in the case of a petition for reinstatement after disbarment

The filing of a motion for a protective order shall stay the provisions of this rule with regard to any matter sought to be kept confidential until ruled upon. The Disciplinary Board shall review decisions granting or denying protective order if either the respondent lawyer or disciplinary counsel, or in a proceeding for reinstatement after disbarment, the petitioner or counsel for the Association, requests a review within 5 days of service of the decision. Upon review, the Disciplinary Board may affirm, reverse, or modify the protective order as it deems appropriate. The Board's decision shall be final. A request for review by the Disciplinary Board shall stay the provisions of this rule with regard to any matter sought to be kept confidential in that request, and the request itself shall be confidential until ruled upon.

(gh) Application to Stipulations. A stipulation entered into pursuant to rule 4.14 providing for imposition of a disciplinary sanction or admonition shall be confidential until approved by the Board, except that a grievant may be advised concerning a stipulation and its proposed or actual content at any time. A stipulation which is approved by the Board shall be public, except that a stipulation entered into prior to the filing of a formal complaint and which provides for dismissal or conditional dismissal of a grievance without the imposition of a disciplinary sanction or admonition shall be confidential, unless and until proceedings are instituted for failure to comply with the conditions of the stipulation.

(h) Application to Title 3 Suspensions. Proceedings for suspension of a lawyer for conviction of a crime pursuant to rule 3.1 shall be public upon the filing of the petition. Proceedings for suspension of a lawyer for other causes pursuant to rule 3.2 shall be public upon issuance of a show cause order by the Chief Justice of the Supreme Court.

(i) Application for Disability Proceedings. Proceedings for transfer to and from disability inactive status are confidential. However, a grievant may be advised of disability proceedings or transfers affecting a lawyer complained against. The fact that a lawyer is on inactive status, or has been reinstated to active status, is public.

Disclosure of Information. Except as provided in rule 11.1(g), nothing in these rules shall prohibit the grievant, respondent, or any witness from disclosing the existence of proceedings under these rules or from disclosing any documents or correspondence served on or provided to those persons.

(j) Application to Reinstatement Proceedings. A petition for reinstatement after disbarment shall be a public proceeding within this rule from the time the petition is filed.

Association Response to Inquiry. The President, the Board of Governors, the Executive Director or Chief Disciplinary Counsel of the WSBA, or their designees, may respond to specific inquiries concerning matters that are in the public domain, but otherwise confidential under these rules, by disclosing the status of the disciplinary proceedings.

(k) 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.

(k) Release to Judicial Officers. Any federal judicial officer under the disciplinary jurisdiction of a circuit Judicial Council, or any state judicial officer under the disciplinary jurisdiction of the Commission on Judicial Conduct or comparable authority of another jurisdiction, Any state or federal judicial officer may be advised of the status of a confidential disciplinary grievance regarding a lawyer appearing before the judicial officer in a representational capacity and may be provided with requested confidential or public information, if the confidential disciplinary grievance is relevant to the conduct of the lawyer in a matter pending before that judicial officer. The judicial officer shall maintain the confidentiality of the matter.

(1) Wrongful Disclosure. Disclosure 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, review committees, hearing panels, hearing officers, disciplinary counsel, special district counsel, a lawyer appointed pursuant to rule 8.6 or 10.2(d), 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 a lawyer, such wrongful disclosure may also be grounds for discipline:

Cooperation With Criminal and Disciplinary Authorities. Except as provided in rule 11.1(e) these rules shall not preclude the giving of any information or testimony to authorities authorized in any jurisdiction to investigate alleged criminal activity or lawyer misconduct.

(m) 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 Board of Governors.

Response to False or Misleading Statement. Subject to rule 11.1(e), if public statements that are false or misleading are made about any otherwise confidential disciplinary matter, the President, the Board of Governors, the Executive Director or Chief Disciplinary Counsel of the WSBA, or their designees, may disclose all information necessary to correct such false or misleading statements.

(n) Disclosure Based Upon Respondent's Waiver. Upon a written waiver executed by a respondent lawyer, the Washington State Bar Association may disclose the status of otherwise confidential disciplinary proceedings and provide copies of nonpublic information to:

(1) the Washington State Bar Association Committee of Law Examiners, the Washington State Bar Association Character and Fitness Committee, the National Conference of Bar Examiners, or the comparable body in other jurisdictions for the purpose of evaluating the character and fitness of an applicant for admission to the practice of law in that jurisdiction; and

(2) the Washington State Bar Association Judicial Recommendation Committee, or the comparable body in other jurisdictions, for the purpose of evaluating the character and fitness of a candidate for judicial office; and

(3) the Governor of the State of Washington, or of any other state, or his or her delegate, for the purpose of evaluating the character and fitness of a potential nominee to judicial office; and

(4) any other agency that an Association member authorizes to investigate his or her disciplinary record.

(o) Discretionary Disclosure. The Executive Director or the Chief Disciplinary Counsel may authorize the general or limited release of any confidential information obtained during the course of an investigation when to do so appears necessary to protect the interests of clients or other persons, the public, or the integrity of the Bar. A respondent lawyer shall be given notice of a decision to release information under this section prior to its release unless the Executive Director or the Chief Disciplinary Counsel finds that such notice would jeopardize serious interests of any person or the public, or that the delay caused by giving the notice to the respondent would be detrimental to the integrity of the Bar.

(p) Application to Disability Proceedings. Proceedings for transfer to and from disability inactive status are confidential. However, a grievant may be advised of disability proceedings or transfers affecting a lawyer complained against. The fact that a lawyer is on inactive status, or has been reinstated to active status, is public.

(q) Application to Reinstatement Proceedings. A petition for reinstatement after disbarment shall be a public proceeding within this rule from the time the petition is filed.

(r) 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) 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) 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.

(a) Disciplineary Action to Be Public. In any case in which a disciplinary action, including sanctions under rule 5.1 and admonitions under rule 5.5A is imposed upon a lawyer pursuant to these rules, whether after a hearing or by stipulation, the nature of the sanction disciplinary action and the decision or stipulation upon which it is based shall be public. When a lawyer is permitted to resign with discipline pending, the fact of the resignation with discipline pending shall also be public.

(b) Notice to Supreme Court. A copy of any decision imposing a disciplinary sanction on a lawyer shall be filed with the Supreme Court when that decision becomes final. A copy of any admonition, together with the order issuing the admonition, shall be filed with the Supreme Court if the admonition is accepted or otherwise becomes final.

(c) Other Notices. Notice of the imposition of a disciplinary sanction or admonition on a lawyer, or of the filing of a statement of concern under rule 11.1(f) shall also be given to the as followings authorities, in such form as may appear appropriate:

(1) The lawyer discipline authority or highest court in any jurisdiction where the lawyer is believed to be admitted to practice;

(2) The chief judge of each federal district court in the state of Washington, and the chief judge of the United States Court of Appeals for the Ninth Circuit;

(3) The National Discipline Data Bank.;

(4) The Washington State Bar News.

(d) Notices of Suspension, Disbarment, or Disability Inactive Status. Additional notices in any case where a lawyer is suspended, disbarred, or transferred to disability inactive status shall be given as provided in rule 8.4.

(e) Person Responsible. The clerk of the Board if one has been appointed, or disciplinary counsel, shall be responsible for providing the notices set forth in this rule.

(f) Discipline Under Prior Rules. Discipline imposed on a lawyer under prior rules of this state which was confidential when imposed shall remain confidential, regardless of the provisions of section (a). A record of confidential discipline may be kept confidential during the course of proceedings under these rules, or in connection with the consideration of a stipulation under rule 4.14, through a protective order issued under rule 11.1(fg).