WSR 97-15-050

RULES OF COURT

STATE SUPREME COURT

[July 10, 1997]

IN THE MATTER OF THE ADOPTION ) ORDER

OF THE AMENDMENTS TO RLD 1.1; ) NO. 25700-A-611

2.2; 2.3; 2.4; 2.5; 2.6; 2.7; )

2.9; 3.2; NEW 3.3; 4.2; 4.13; )

4.14; 5.2; 5.3; 5.5A; 5.6; 5.7; )

6.1; 6.3; 6.5; 6.7; 7.1; 7.3; )

7.5; 7.6; 9.3; 9.6; 10.2; 12.1; )

12.8 AND 12.10 )

The Washington State Bar Association having recommended the adoption of the proposed amendments to RLD 1.1; 2.2; 2.3; 2.4; 2.5; 2.6; 2.7; 2.9;

3.2; New 3.3; 4.2; 4.13; 4.14; 5.2; 5.3; 5.5A; 5.6; 5.7; 6.1; 6.3; 6.5; 6.7; 7.1; 7.3; 7.5; 7.6; 9.3; 9.6; 10.2; 12.1; 12.8 and 12.10, and the Court having considered the amendments, proposed new rule and comment submitted thereto, and having determined that the proposed amendments and new rule will aid in the prompt and orderly administration of justice;

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, 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 lawyer may be subjected to the disciplinary sanctions or actions set forth in these rules for any of the following:

(a) The commission of any act involving moral turpitude, dishonesty, or corruption, or any unjustified act of assault or other act which reflects disregard for the rule of law, whether the same be committed in the course of his or her conduct as a lawyer, or otherwise, and whether the same constitutes a felony or misdemeanor or not; and if the act constitutes a felony or misdemeanor, conviction thereof in a criminal proceeding shall not be a condition precedent to disciplinary action, nor shall acquittal or dismissal thereof preclude the commencement of a disciplinary proceeding;

(b) Willful disobedience or violation of a court order directing him or her to do or cease doing an act which he or she ought in good faith to do or forbear;

(c) Violation of his or her oath or duties as a lawyer;

(d) Willfully purporting to act as a lawyer for any person without the authority of that person;

(e) Permitting his or her name to be used as a lawyer by another person who is not a lawyer authorized to practice law in the state of Washington;

(f) Misrepresentation or concealment of a material fact made in his or her application for admission to the bar or admission to the bar examination or reinstatement or in support thereof;

(g) Suspension, disbarment or other disciplinary sanction by competent authority in any state, federal or foreign jurisdiction;

(h) Practicing law with or in cooperation with a disbarred or suspended lawyer, or maintaining an office for the practice of law in a room or office occupied or used in whole or in part by a disbarred or suspended lawyer, or permitting a disbarred or suspended lawyer to use his or her name for the practice of law, or practicing law for or on behalf of a disbarred or suspended lawyer, or practicing law under any arrangement or understanding for division of fees or compensation of any kind with a disbarred or suspended lawyer;

(i) Violation of the Rules of Professional Conduct of the profession adopted by the Supreme Court of the State of Washington;

(j) Violation of duties imposed by these rules, including but not limited to violation of rule 2.8, failing to respond to inquiries or requests regarding matters under investigation; rule 4.5, failing to file an answer to a formal complaint; rule 4.6(c), failing to file an answer to an amendment to a formal complaint; rule 4.7(e), failing to cooperate with discovery; rule 4.10(g), failing to attend a hearing or failing to bring materials requested by disciplinary counsel; rule 5.5(b), failing to appear to receive a reprimand; rule 8.1, failing to notify clients and others of inability to act; rule 8.2, failing to discontinue practice; rule 8.3, failing to file an affidavit of compliance; rule 11.1(lt), wrongful disclosure; rule 13.2, failing to cooperate with an examination of books and records; rule 13.4(d), failing to notify Association of trust account overdraft; rule 13.5, failing to file a declaration or questionnaire certifying compliance with RPC 1.14;

(k) Violation of the Code of Judicial Conduct;

(l) Engaging in the practice of law while on inactive status, or while suspended from the practice of law for any cause;

(m) Failure to meet conditions of probation imposed pursuant to rule 5.2, or conditions of a stipulation approved pursuant to rule 4.14;

(n) Willful failure to pay restitution where required pursuant to rule 5.3, or to pay costs where required pursuant to rule 2.8(b) or rule 5.7;

(o) Attempting to commit an act, or assisting another in committing or attempting to commit an act, which if completed would be prohibited by this rule;

(p) Conduct demonstrating unfitness to practice law.

(a) Authority. The Board of Governors of the Association shall have the power and authority to:

(1) Supervise the general functioning of the Disciplinary Board, review committees, disciplinary counsel, bar staff and special district counsel;

(2) Make appointments, remove persons appointed, and fill vacancies as provided in these rules;

((3.) Review recommendations of the Character and Fitness Committee to deny petitions for reinstatement after disbarment pursuant to Title 9;

(43.) Perform such other functions and take such other actions as provided in these rules or as may be delegated to it by the Supreme Court or as may be necessary and proper to carry out its duties.

(b) Limitation of Authority. The Board of Governors shall have no right or responsibility to review decisions or recommendations of a hearing officer or panel or of the Disciplinary Board in specific cases except as provided in rule 7.3(c).

(a) Membership.

(1) Composition. The Board shall consist of not less than three nonlawyer members, appointed by the Supreme Court, and not less than one lawyer member from each congressional district, appointed by the Board of Governors.

(2) Qualifications. Lawyer members must have been active members of the Association for at least 7 years.

(3) Quorum. A majority of the Board members shall constitute a quorum. Given a quorum, the concurrence of a majority of those present shall constitute action of the Board.

(4) Disqualification. In the event a grievance is filed with the Association alleging an act of misconduct by a lawyer member of the Board, such member shall take a leave of absence from the Board until the matter is resolved, unless otherwise directed by the Board of Governors. If a disciplinary sanction is imposed against the member, he or she shall be ineligible to serve further on the Board. The resulting vacancy shall be filled as set forth in section (d).

(5) Voting. Each member, whether nonlawyer or lawyer, shall have one vote.

(b) Terms Of Office. The term of office for a member of the Board shall be 3 years. Newly created Board positions may be filled by appointments of less than 3 years, as designated by the court or the Board of Governors, to permit as equal a number of positions as possible to be filled each year. All terms of office begin October 1 and end September 30 or when a successor has been appointed, whichever occurs later. Members may not serve more than one term except as otherwise provided in these rules. Members heretofore appointed shall continue to serve until replaced.

(c) Chairperson. The Board of Governors shall annually designate one lawyer member of the Board to act as chairperson and another as vice-chairperson. The vice-chairperson shall serve in the absence of or at the request of the chairperson.

(d) Vacancies. Vacancies in lawyer membership on the Board and in the office of the chairperson and the vice-chairperson shall be filled by the Board of Governors. Vacancies in nonlawyer membership shall be filled by the Supreme Court. A person appointed to fill a vacancy shall complete the unexpired term of the person he or she replaces, and if that unexpired term is less than 18 months he or she may be reappointed to a consecutive term.

(e) Pro Tempore Members. When a member of the Board is disqualified or unable to function on a case for good cause, the chairperson of the Board may, by written order, designate a member pro tempore to sit with the Board to hear and determine the cause. A member pro tempore may be appointed from among those persons who have previously served as members of the Disciplinary Board, or from among lawyers appointed as alternate Board members by the Board of Governors and nonlawyers appointed as alternate Board members by the Supreme Court. A lawyer shall be appointed to substitute for a lawyer member of the Board, and a nonlawyer to substitute for a nonlawyer member of the Board.

(f) Authority of Board. The Board shall have the power and authority to:

(1) Review each proceeding in which a recommendation of disbarment, suspension, or transfer to disability inactive status has been made by a hearing officer or panel;

(2) Review each proceeding in which a recommendation other than disbarment or suspension from the practice of law has been made by a hearing officer or panel, including a recommendation of dismissal, upon an appeal filed pursuant to rule 6.1(b);

(3) Review sua sponte a decision of a hearing officer or panel recommending reprimand or censure, or recommending dismissal of the charges against the respondent lawyer, upon referral from the chairperson of the Board pursuant to rule 6.1(c). Sua sponte review will be used in the discretion of the Board only in extraordinary circumstances to prevent substantial injustice or where a clear error has been made. Any sua sponte review will be subject to the same standards of review as applied to other cases;

(34) Review stipulations entered into pursuant to rule 4.14;

(45) Review any prehearing ruling of a hearing officer or panel, upon request for review by either the respondent lawyer or disciplinary counsel, where the chairperson of the Board determines that such review is necessary and appropriate and will serve the ends of justice;

(56) Review the decision of a review committee dismissing allegations of misconduct by a lawyer when such review the grievant has served a request for review upon the Association within 45 days of mailing of the notice of dismissal by the review committee, and review is directed by the chairperson of the Board, and upon such review order a hearing on the alleged misconduct, dismiss the matter, issue an advisory letter pursuant to rule 5.6, issue an admonition pursuant to rule 5.5A, or order such further investigation as may appear appropriate;

(7) Monitor the performance of hearing officers;

(8) Review recommendations of the Character and Fitness Committee to deny petitions for reinstatement after disbarment pursuant to Title 9; and

(69) Perform such other functions and take such other actions as provided in these rules or as may be delegated to it by the Board of Governors or Supreme Court, or as may be necessary and proper to carry out its duties.

(g) Meetings. The Board shall hold meetings at such times and places as it may determine. Where the chairperson of the Board determines that prompt action is necessary for protection of the public, and that circumstances do not permit a full meeting of the Board, the Board may vote on a matter otherwise ready for review without meeting together, through telephone or written communication.

(h) Clerk. The Executive Director of the Association, under the direction of the Board of Governors, may appoint a suitable person or persons to act as clerk to the Board, to assist the Board and the review committees in carrying out their functions under these rules.

(a) Membership. The chairperson of the Board shall appoint three or more review committees of three members each from among the members of the Board. Each review committee shall consist of two lawyers and one nonlawyer. The chairperson of the Board may reassign members among the several committees on an interim or permanent basis. The chairperson of the Board shall not serve on a review committee.

(b) Chairperson. The chairperson of the Board shall designate one member of each review committee to act as its chairperson.

(c) Terms of Office. A member of a review committee shall serve until his or her term of office on the Board expires.

(d) Authority of Review Committees. Each review committee shall have the power and authority to:

(1) Review reports on investigations of alleged acts of misconduct by a lawyer, and upon such review order a hearing on the alleged misconduct, issue an admonition, dismiss the matter, issue an advisory letter, or direct such further investigation as may appear appropriate;

(2) Order that an investigation into an alleged act of misconduct by a lawyer be deferred when it appears that the allegations are substantially similar to those in pending civil or criminal litigation, or when the lawyer against whom a grievance is filed is physically or mentally unable to respond to the investigation, or for other good cause, where it appears that such deferral will not endanger the public;

(3) Review reports on investigations into allegations that a lawyer is mentally or physically unable to conduct the practice of law, and upon such review order a hearing into the capacity of the lawyer to conduct the practice of law, dismiss the matter, or direct such further investigation as may appear appropriate;

(4) Reconsider grievances conditionally dismissed by disciplinary counsel, when the grievant has disputed served upon the Association a request for review of the dismissal within 45 days of mailing of the notice of dismissal and the grievance has not been reopened, and upon such reconsideration affirm the dismissal, order a hearing on the alleged misconduct, issue an admonition, issue an advisory letter, or direct such further investigation as may appear appropriate;

(5) Make determinations of whether a crime is a "serious crime" under rule 3.1 and authorize proceedings for suspension of a lawyer upon finding of risk to the public pursuant to rule 3.2(a);

(6) Perform such other functions and take such other actions as provided in these rules or as may be delegated to it by the Disciplinary Board or the Board of Governors, or as may be necessary and proper to carry out its duties.

(e) Distribution of Cases. The clerk of the Board if one has been appointed, or disciplinary counsel, shall have the responsibility of transmitting matters to the several review committees under direction of the chairperson of the Board so as to equalize the case load of the committees to the extent possible.

(f) Meetings. Each review committee shall meet at such times and places as determined by the committee chairperson, under the general direction of the chairperson of the Board. A review committee may also conduct business and take action by conference call or through written communication without meeting together where the chairperson of the committee determines that prompt action is necessary.

(a) Eligibility. Hearing officers shall be assigned to cases from a list of lawyers maintained by the Board of Governors. The list shall include all lawyer members of the Disciplinary Board, and shall also include as many additional lawyers as the Board of Governors considers necessary to carry out the provisions of these rules effectively and efficiently. In making appointments, the Board of Governors should consider diversity in gender, ethnicity, geography and practice experience.

(b) Qualifications. Appointment by the Board of Governors to the hearing officer list shall be made from among active lawyers who have been active lawyer or judicial members of the Association for at least 7 years and have experience as an adjudicator or as an advocate in contested adjudicative hearings.

(c) Hearing Panel. When a hearing panel is assigned to hear a matter, the panel shall consist of three persons on the hearing officer list, or two such persons plus a nonlawyer. If the third member of a hearing panel is to be a nonlawyer, he or she shall be assigned from a list of suitable persons willing to serve in that capacity to be maintained by the Board of Governors. Such list may include the nonlawyer members of the Disciplinary Board, at the option of those members.

(d) Terms of Appointment. Appointment by the Board of Governors to the hearing officer list, or to the list of nonlawyers maintained pursuant to section (c), shall be for a period of 35 years, shall be made on a staggered and rotating basis, and shall be subject to reappointment at the discretion of the Board of Governors. Eligibility of a member of the Disciplinary Board to serve as a hearing officer or panel member shall be concurrent with his or her term on the Board. Notwithstanding the provisions of this rule, a hearing officer or panel member shall have authority to act in any matter assigned to him or her prior to the expiration of his or her appointment or term.

(e) Duty. It shall be the duty of the hearing officer or panel to whom a case has been assigned for hearing to conduct the hearing as hereinafter provided. The Disciplinary Board shall monitor the performance of hearing officers and hearing panels.

(a) Appointment. The Executive Director of the Association, under the direction of the Board of Governors, shall employ a suitable person or persons from among the members of the Association to act as counsel for the Association with respect to matters under these rules. Special disciplinary counsel may be appointed whenever necessary to conduct an individual investigation or proceeding.

(b) Duties. It shall be the duty of disciplinary counsel to:

(1) Take cognizance of any alleged or apparent act of misconduct by a lawyer, whether by grievance or otherwise, and investigate the same or assign the same for investigation to special district counsel;

(2) Assist in investigations conducted by special district counsel and monitor the performance of special district counsel;

(3) Report results of investigations, except those conditionally dismissed, to a review committee;

(4) Conduct such additional investigation as a review committee may request;

(5) Act as counsel on behalf of the Association on all matters coming within these rules;

(6) Perform such other duties as shall be required by the Executive Director or the Board of Governors.

(c) Conditional Dismissals By Disciplinary Counsel. Disciplinary counsel shall have power conditionally to dismiss allegations of misconduct. A grievant may dispute such a conditional dismissal, in which case disciplinary counsel may either reopen the matter for investigation, or may refer the case to a review committee for reconsideration of the conditional dismissal. A grievant whose grievance is dismissed shall be notified that any request for review must be served upon the Association within 45 days of mailing of the notice of dismissal.

(d) Discovery Prior to Formal Complaint. Where disciplinary counsel deems it advisable prior to the filing of a formal complaint to conduct the deposition of a lawyer being investigated or of a witness, or to issue requests for admission to a lawyer being investigated, he or she may do so.

(1) Procedure. Depositions pursuant to this rule shall be conducted in conformity with CR 30 or 31 to the extent possible. Requests for admission shall be governed by CR 36.

(2) Subpoenas for Depositions. A lawyer member of the Board or disciplinary counsel shall have the power to issue subpoenas to compel the attendance of the lawyer being investigated or of a witness, or the production of books, or documents, or other evidence, at the taking of a deposition. Subpoenas shall be served in the same manner as in civil cases in the superior court.

(a) Appointment and Term of Office. The Board of Governors shall, in consultation with the Chief Disciplinary Counsel appoint one or more special district counsels in each congressional district of the state, from among the active members of the Association, who have been active or judicial members of the Association for at least 7 years, and have no record of disciplinary misconduct and who is in good standing practicing in the district. In appointing special district counsel, diversity in gender, ethnicity, geography and practice experience should be considered. The term of office for each special district counsel shall be 35 years, appointed on a staggered basis. Special district counsel shall be trained in the investigation of discipline cases and may be reappointed for consecutive terms.

(b) Duties. It shall be the duty of special district counsel to:

(1) Assist disciplinary counsel when requested in investigating allegations of misconduct by a lawyer as assigned and supervised by disciplinary counsel, whether or not the lawyer resides or practices in the same congressional district;

(2) Forward to disciplinary counsel grievances alleging misconduct by a lawyer;

(2) Meet case schedules and deadlines as required by disciplinary counsel;

(3) Investigate at the request of a review committee any grievance of misconduct brought against disciplinary counsel and report the same directly to the review committee.

(c) Review by Disciplinary Counsel. The performance of special district counsel will be monitored by disciplinary counsel. Upon receiving a report of an investigation conducted by a special district counsel, disciplinary counsel may request additional investigation, may conduct any additional investigation as may appear necessary, and may take any action under rule 2.6 as appears appropriate.

(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 conditional 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 when by serving upon the Association a request for review within 45 days of mailing of the notice of dismissal by a review committee the chairperson of the Board so directs;

(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(fg);

(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(fg);

(8) Be advised of the disposition of the grievance.

(b) Duties. A person filing a grievance shall have the duty to furnish the person assigned to its investigation with documentary evidence in his or her possession, and the names and addresses of witnesses; to assist in securing evidence in relation to the facts charged; and to appear and testify at any hearing resulting from the grievance. Failure to fulfill these duties may be grounds for dismissal of a grievance.

(c) Consent to Disclosure. The filing of a grievance shall constitute consent to disclose the content of the grievance to the lawyer, or to any other person contacted during the investigation of the grievance, or to any person pursuant to rule 11.1, absent a protective order issued pursuant to rule 11.1(g) or a grievance filed pursuant to rule 12.9 unless the grievant specifically withholds such consent. The filing of a grievance shall also constitute consent to disclosure by the lawyer complained against, or by any other lawyer contacted by the grievant, of any information relevant to the investigation of the grievance, absent a protective order issued pursuant to rule 11.1(g) unless the grievant specifically withholds such consent.

(d) Continuation of Grievance. Neither the unwillingness of a grievant to continue his or her grievance, nor withdrawal of the grievance, nor compromise between the grievant and the lawyer, nor restitution by the lawyer, shall in itself require dismissal of a grievance.

(a) Upon Finding of Risk to Public or Claim of Inability to Conduct a Proper Defense. At any time when it appears that a continuation of the practice of law by a respondent lawyer during the pendency of any proceeding under these rules, including proceedings under Title 10, will result in substantial harm, loss or damage to the public, and at any time a respondent lawyer alleges in the course of a disciplinary proceeding or proceeding under rule 10.2 that he or she is unable to conduct a proper defense because of mental or physical incapacity, the Association, on unanimous recommendation of a review committee, or upon order of a hearing officer or panel pursuant to rule 10.2(b), may petition the Supreme Court for an order suspending the respondent lawyer during the pendency of the proceedings.

(b) Upon Board Recommendation for Disbarment. When the Board enters a decision providing for disbarment of a lawyer, disciplinary counsel shall file a petition under this rule for suspension of the lawyer during the remainder of the proceedings. Suspension under this section shall occur unless a lawyer makes an affirmative showing that his or her continuation of the practice of law will not be detrimental to the integrity and standing of the Bar and the administration of justice, or be contrary to the public interest. If the decision of the Board is not appealed and becomes final, such petition need not be filed, or if filed may be withdrawn.

(c) Petition. A petition to the Supreme Court under this rule shall set forth the acts of the respondent lawyer believed to constitute grounds for such suspension, and if filed pursuant to section (b) shall include a copy of the decision of the Board. The petition may be supported by documents or affidavits. A copy of the petition shall be personally served upon the respondent lawyer.

(d) Show Cause Order. Upon filing of the petition an order to show cause, signed by the Chief Justice of the Supreme Court, shall be issued requiring the respondent lawyer to appear before the court on such date as the Chief Justice may set, and then and there show cause why the petition for suspension should not be granted. A copy of the order to show cause shall be personally served upon the respondent lawyer by the Association at least 5 days before the scheduled show cause hearing.

(e) Answer to Petition. The respondent lawyer may answer the petition. Any such answer may be supported by documents or affidavits. Failure to answer shall not result in default or waive the right to appear at the show cause hearing.

(f) Filing of Answer. A copy of any answer shall be filed with both the Supreme Court and the Association at least 3 days before the scheduled show cause hearing.

(g) Application of Other Rules. If the Supreme Court enters an order suspending the lawyer, the provisions of these rules relating to suspended attorneys, including Title 8, shall apply.

(a) Expedited Review. Petitions seeking interim suspension under this title shall receive an expedited hearing, ordinarily no later than 14 days from issuance of an order to show cause.

(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 for interim suspension.

(a) Appointment. The chairperson of the Board shall appoint a hearing officer or panel to hear a matter ordered to hearing from among the persons eligible under rule 2.5, on a rotating basis, taking into account geographical and expertise considerations, except that a member of the review committee which ordered the matter to hearing shall not be appointed on the case. When a panel is appointed the committee shall designate one lawyer member as chairperson. Any vacancy in the position of hearing officer or hearing panel member or chairperson may be filled by the chairperson of the Board.

(b) Disqualification. Either Tthe respondent attorney lawyer or disciplinary counsel may seek the disqualification of the hearing officer or any hearing panel member for cause.

(1) A request for disqualification of a hearing officer or panel member shall be filed in writing within 20 days of service upon the respondent lawyer of the name of the officer or panel member challenged. The request shall set forth in detail the reason for the request.

(2) The unchallenged member or members of the hearing panel, if any, shall rule on the request. In the event the challenge is against a hearing officer or against all members of the panel, or if the remaining members of the panel cannot agree, the chairperson of the Board shall rule on the requested disqualification.

(3) If a request for disqualification is granted, the chairperson of the Board shall fill the vacancy created. Both Tthe respondent lawyer and disciplinary counsel shall have the right to request the disqualification of any such appointee in the same manner as the original appointee.

(c) Authority. In addition to the powers specifically provided herein, the hearing officer or panel chairperson appointed to hear a matter may make any ruling which appears necessary and appropriate to insure a fair and orderly proceeding.

(a) Proposed Findings. At the request of the hearing officer or panel chairperson, or without such request, either the respondent lawyer or disciplinary counsel may submit a proposed decision in the form of findings, conclusions, and recommendation to the hearing officer or to each member of the hearing panel.

(b) Filing. Decision. Within 20 days after the proceedings are concluded, unless extended by agreement, the hearing officer or panel chairperson should file a decision in the form of findings of fact, conclusions of law, and recommendation in the office of the Association.

(b) Preparation of Findings. The hearing officer or hearing panel shall write their own findings of fact, conclusions of law and recommendations. At the request of the hearing officer or panel chairperson, or without such request, either the respondent lawyer or disciplinary counsel may submit a proposed decision in the form of findings, conclusions and recommendation to the hearing officer or to each member of the hearing panel.

(c) Amendment. Within 5 days of service of the decision of the hearing officer or panel on the respondent lawyer, either the respondent lawyer or disciplinary counsel may file a motion to modify, amend, or correct the decision. When a hearing panel member dissents from a decision of the majority, the 5-day period shall not begin until the written dissent is filed or the period to file such a dissent has expired, whichever is sooner. Consideration of such a motion shall be governed by the provisions of rule 4.8, except that all members of a hearing panel shall be served with the motion and any response thereto, and shall participate in a decision on the motion. Deliberation by a panel may be conducted through telephone conference call. The hearing officer or panel shall rule on such a motion within 15 days after the filing of a timely response or after the period to file such a response under rule 4.8(b) has expired. The ruling may deny the motion or may allow such amendment, modification, or correction of the decision as may appear appropriate. Failure to move for a modification, correction, or amendment shall not affect any appeal to the Board or review by the Supreme Court.

(d) Dissent of Panel Member. Any member of a hearing panel who dissents from the decision of the majority of the panel shall file a dissent, which may consist of alternative findings, conclusions, or recommendation. A dissent should be filed within 10 days of the filing of the decision of the majority of the panel and shall become part of the record of the proceedings.

(e) Panel Members Unable To Agree. Where no two panel members are able to agree on a decision, each panel member shall file his or her own findings, conclusions, and recommendation, and the Board shall review the matter whether or not an appeal is filed.

(f) Decision Final. When the decision of a hearing officer or panel recommends reprimand, or censure or an admonition upon a finding of misconduct, or recommends dismissal of the charges against the respondent lawyer, the recommendation shall become the final decision in the case if neither the respondent lawyer nor disciplinary counsel files an appeal within the time permitted by rule 6.1(b). In the event the Chairperson of the Disciplinary Board refers the matter to the Board for consideration of a sua sponte review, the decision will become final upon entry of an order dismissing sua sponte review under rule 6.1(c) or upon other Board decision as provided in rule 6.7(g).

(a) Requirements. Any disciplinary matter or proceeding may be disposed of by a stipulation for discipline entered into at any time. The stipulation shall be signed by the respondent lawyer and approved by disciplinary counsel. The stipulation may contain the imposition of terms and conditions of probation and such other provisions as may appear appropriate.

(b) Form. A stipulation for discipline shall:

(1) Set forth the material facts relating to the particular acts or omissions of the respondent lawyer in such detail as to enable the Board to form an opinion as to the propriety of the discipline being agreed upon, and, if approved, to make the stipulation useful in any subsequent disciplinary proceeding against the respondent lawyer;

(2) Set forth the respondent lawyer's prior disciplinary record or the absence of such record;

(3) State that the stipulation is not binding on the Association as a statement of all existing facts relating to the professional conduct of the respondent lawyer, but that any additional existing facts may be proven in any subsequent disciplinary proceeding; and

(4) Fix the amount of the costs and expenses to be paid by the lawyer.

(c) Approval. All stipulations shall be filed with the Board. A stipulation may be presented to the Board without notice and shall be reviewed solely on the basis of the record as agreed upon by the respondent lawyer and disciplinary counsel. The Board may either approve a stipulation or reject it. Regardless of the provisions of rule 11.1(gh), the Board may direct that information or documents considered in reviewing a stipulation be kept confidential.

(d) Stipulation Not Approved. If a stipulation is not approved by the Board as herein provided, then the stipulation shall be of no force and effect and neither it nor the fact of its execution shall be admissible in evidence in the pending disciplinary proceeding, in any subsequent disciplinary proceeding, or in any civil or criminal action.

(e) Failure To Comply. Failure of a respondent lawyer to comply with the terms of a stipulation for discipline entered into and approved as provided in this rule may constitute grounds for discipline.

(a) Conditions of Probation. A lawyer who has been found to have committed an act of misconduct and who has been sanctioned pursuant to rule 5.1 or admonished after hearing pursuant to rule 5.5A(b) may in addition be placed on probation for a fixed period not in excess of 2 years, under such conditions as may appear appropriate. Such conditions may include but are not limited to requiring alcohol or drug treatment, requiring medical care, requiring psychological or psychiatric care, requiring professional office practice or management counseling, and requiring periodic audits or reports. In any case where a lawyer is placed on probation pursuant to this rule, the chairperson of the Board may upon the request of disciplinary counsel appoint a suitable person to supervise the probation. Cooperation with a person so appointed shall be a condition of the probation.

(b) Failure To Comply. Failure to comply with a condition of probation may result in a disciplinary proceeding pursuant to rule 1.1(m), and any sanction to be imposed for violation of that provision shall take into account the act or acts of misconduct leading to the probation.

(a) Restitution May Be Required. A lawyer who has been found to have committed an act of misconduct and who has been sanctioned pursuant to rule 5.1 or admonished after hearing pursuant to rule 5.5A(b) may in addition be ordered to make restitution to persons financially injured by the lawyer's conduct.

(b) Payment of Restitution. A lawyer ordered to make restitution shall do so within 30 days of the date upon which the decision requiring restitution becomes final, unless otherwise provided in that decision, or unless a periodic payment plan has been entered into with the approval of disciplinary counsel. Disciplinary counsel shall have authority to enter into an agreement with a lawyer for a reasonable periodic payment plan upon the lawyer's affirmative written demonstration of present inability to meet the terms of a decision requiring restitution, and after consultation with the persons to whom restitution is to be made.

(c) Failure To Comply. Failure of a lawyer to make restitution when ordered to do so, or failure of a lawyer to comply with the terms of a periodic payment plan entered into by agreement between the lawyer and disciplinary counsel, may constitute grounds for discipline.

(a) Grounds. An admonition may be issued by a review committee, or as permitted by rule 2.3(f)(56), by the Disciplinary Board, when investigation of a grievance shows misconduct involving inattention, neglect or lack of competence in handling a matter.

(b) Following a Hearing. A hearing officer may recommend that a lawyer receive an admonition if a hearing shows misconduct involving inattention, neglect or lack of competence in handling a matter, and the hearing officer concludes that a disciplinary sanction, as set out in rule 5.1 (a)-(e), is not warranted. When an admonition recommended by a hearing officer becomes final, the admonition shall be signed by the chairperson of the Board or the chairperson's designee.

(bc) Effect. An admonition shall be admissible in evidence in subsequent discipline or disability proceedings involving the lawyer. File materials relating to an investigation or hearing concluded with an admonition, including the admonition, shall be subject to destruction as provided in rule 12.8(b).

(cd) Protest. A respondent lawyer wishing to protest either the review committee's or the Board's prehearing issuance of an admonition must file a notice to that effect with the Association within 30 days of service of the admonition. Upon receipt of a timely protest, the admonition is rescinded, and the grievance shall be considered to have been ordered to hearing by the review committee issuing the admonition.

(de) Action on Board Review. After a hearing on the protest relating to the issuance of the admonition, and uUpon appeal pursuant to rule 6.1(b) or review pursuant to rule 6.1(c), the Board may dismiss, issue an admonition, or impose sanctions pursuant to rule 5.1. An admonition issued by the Board shall be signed by the chairperson or the chairperson's designee.

(ef) Admonition Not Public. An admonition shall not be a public matter, unless a stipulation approved by the Disciplinary Board provides that the admonition shall be public, or the admonition is admitted into evidence in a public disciplinary proceeding, or issued by the Board after a hearing under section (d). An admonition is disciplinary action for the purposes of rule 11.1 and rule 11.2 and is public information.

An advisory letter may be issued when a hearing does not appear warranted but when it appears appropriate to caution a lawyer concerning his or her conduct. An advisory letter may be issued by a review committee, or by the Board when reviewing a matter under rule 2.3(f)(56), but shall not be issued when a grievance is dismissed following a hearing. An advisory letter shall not constitute a finding of misconduct, and is not a disciplinary sanction, is not disciplinary action for the purposes of rule 11.1 and rule 11.2, and is not public information.

(a) Assessment. In all cases in which a sanction or admonition is imposed upon a lawyer following a hearing and a finding of misconduct, or a lawyer accepts an admonition pursuant to rule 5.5A(a), costs and expenses as herein defined may be assessed against the lawyer in favor of the Association.

(b) Costs Defined. The term "costs" for the purposes of this rule shall include all obligations in money reasonably and necessarily incurred by the Association in the complete performance of its duties under these rules, whether incurred before or after the filing of a formal complaint, except attorney fees. Costs shall include, by way of illustration and not of limitation:

(1) Charges of court reporters in attending and transcribing depositions or hearings;

(2) Charges of process servers;

(3) Necessary travel expenses of hearing officers or hearing panel members, or of disciplinary counsel, or of witnesses;

(4) Charges of expert witnesses;

(5) Costs in conducting an examination of books and records or an audit pursuant to Title 13;

(6) Costs incurred in supervising probation imposed pursuant to rule 5.2;

(7) Telephone toll charges;

(8) Charges of a lawyer appointed pursuant to rule 10.2(d);

(9) Costs of copying materials for submission to a review committee, a hearing officer or panel, or the Disciplinary Board, or the Board of Governors.

(c) Expenses Defined. "Expenses" for the purposes of this rule shall mean a reasonable charge for attorney fees and administrative costs. Expenses assessed pursuant to this rule may equal the actual expenses incurred by the Association, but in any case the following amounts shall conclusively be presumed reasonable:

(1) For an admonition that is accepted pursuant to rule 5.5A(a), $500.

(2) For a matter which becomes final without review by the Board, $1,000.

(3) For a matter which becomes final following Board review, without appeal to the Supreme Court, a total of $1,500.

(4) For a matter appealed to the Supreme Court, a total of $2,000.

(d) Association To File Statement of Costs and Expenses. When the decision of a hearing officer or panel imposing a sanction becomes final without Board review, or when a decision of the Board imposing a sanction or an admonition becomes final after being served on the respondent lawyer after Board review, or when a decision of the Board imposing discipline is appealed, the Association shall have 10 days in which to file a statement of costs and expenses in the office of the Association.

(1) Content. A statement of costs and expenses shall state with particularity the nature and amount of the costs claimed and shall state the expenses requested. The statement shall be signed by disciplinary counsel, which signature shall constitute a certification that all reasonable attempts have been made to insure the accuracy of the statement.

(2) Exceptions. The respondent lawyer shall have 10 days from service of the statement of costs and expenses on him or her to file exceptions in the office of the Association.

(e) Assessment. The chairperson of the Board shall review the statement of costs and expenses and any exceptions thereto after the period for filing such exceptions has passed and the decision of the hearing officer or panel or of the Board and shall enter and file with the Association an order assessing costs and expenses. The order shall be served on the respondent lawyer.

(1) Request for Review by Board. Within 10 days of service on the respondent lawyer of the order assessing costs and expenses, the lawyer may file with the Association a request for Board review of the order. Upon the timely filing of such a request, the Board shall review the order assessing costs and expenses, based upon the statement of costs and expenses of the Association and the exceptions thereto, the decision of the hearing officer or panel or of the Board, and any written statement submitted by either party within such time as the chairperson of the Board may direct.

(2) Board Action. The Board may approve or modify the order assessing costs and expenses by order filed with the Association and served upon the respondent lawyer. The decision of the Board shall be final when filed and not subject to further review, except in cases reviewed by the Supreme Court pursuant to Title 7.

(f) Assessment in Matters Reviewed by the Supreme Court. When a matter is reviewed by the Supreme Court as provided in Title 7, any order assessing costs and expenses entered pursuant to section (e) and any statement of costs and expenses and exceptions thereto filed in the proceeding shall be made a part of the record transmitted to the court. Upon filing of an opinion by the court imposing a sanction, costs and expenses may be assessed in favor of the Association pursuant to the procedures of RAP Title 14, except that "costs" as used in that rule shall mean any costs and expenses allowable under this rule.

(g) Waiver. In all cases where costs and expenses are sought pursuant to this rule, assessment of any or all such costs and expenses may be denied where it appears in the interests of justice to do so.

(h) Payment of Costs and Expenses. A lawyer ordered to pay costs and expenses shall do so within 30 days of the date upon which the assessment becomes final, unless otherwise ordered at the time costs and expenses are assessed, or unless a periodic payment plan has been entered into with the approval of disciplinary counsel. Disciplinary counsel shall have authority to enter into an agreement with a lawyer for a reasonable periodic payment plan upon the lawyer's affirmative written demonstration of present inability to meet the terms of an order or decision assessing costs and expenses.

(i) Failure To Comply. Failure of a lawyer to pay costs and expenses when ordered to do so or failure of a lawyer to comply with the terms of a periodic payment plan entered into by agreement between the lawyer and disciplinary counsel may constitute grounds for discipline.

(j) Costs in Other Cases. Costs in cases involving stipulations shall be governed by the provisions of rule 4.14. Assessment of costs in cases of transfer to disability inactive status shall be governed by the provisions of this rule, but payment of such costs shall not become due until 90 days after the lawyer is reinstated to active status.

The decision of a hearing officer or panel shall be reviewed by the Board when:

(a) The recommendation is for the suspension or disbarment of the respondent lawyer; or

(b) The respondent lawyer or disciplinary counsel files a notice of appeal with the Association within 15 days of service of the decision on the respondent lawyer. When a motion to amend is filed as permitted by rule 4.13(c) the 15-day period shall not begin until the motion is decided. A notice of appeal shall specify the issues intended to be raised before the Board.; or

(c) The recommendation is for dismissal, admonition, censure or reprimand, and the chairperson of the Board files with the Association a notice of referral for sua sponte consideration of the decision within 15 days of service of the decision on the respondent lawyer. Upon filing such a notice of referral, the chairperson of the Board shall cause a copy of such notice to be forthwith served on the respondent lawyer and disciplinary counsel and shall schedule the matter for consideration by the Disciplinary Board. Upon consideration, the Board shall either issue an order for sua sponte review setting forth the issues to be reviewed or dismiss the sua sponte review.

(a) Transcript To Be Ordered. When Board review is being conducted pursuant to a notice of appeal filed under rule 6.1(b), disciplinary counsel shall cause a transcript of the hearing to be prepared and settled pursuant to rule 6.6, unless the respondent lawyer and disciplinary counsel agree that no transcript or only a partial transcript of the hearing is necessary for review. When Board review is being conducted pursuant to an order for sua sponte review filed under rule 6.1(c), a transcript of the hearing shall be prepared, served and settled as provided in rule 6.6 unless otherwise directed by the order for sua sponte review.

(b) Statement in Opposition. The appealing party shall file with the Association a statement in opposition to the decision of the hearing officer or panel (1) within 20 days of service on the respondent lawyer of a copy of the transcript, whether or not the transcript has been settled; or (2) within 20 days of filing of the notice of appeal when the transcript has previously been prepared and served on the respondent lawyer or when the parties have agreed that no transcript is necessary for review, whichever occurs later. Failure to file such a statement within the required period shall constitute an abandonment of the appeal.

(c) Counterstatement. The opposing party shall have 15 days from service on him or her of the statement of the appealing party to file a counterstatement, in response to the issues raised on appeal.

(d) Response. The appealing party may file a response to the counterstatement of the opposing party within 10 days of service of the counterstatement on him or her.

(e) Procedure When Both Parties Appeal. When the respondent lawyer and disciplinary counsel both file notices of appeal pursuant to rule 6.1(b), the respondent lawyer shall be considered the appealing party and disciplinary counsel shall be considered the opposing party for purposes of this rule. In such case the counterstatement of disciplinary counsel may raise any issue for Board review, and the respondent lawyer shall have an additional 5 days to file the response permitted by section (d).

(f) Procedure On Sua Sponte Review. When Board review is being conducted pursuant to an order of sua sponte review filed under rule 6.1(c), the procedures of rule 6.3(e) shall apply unless otherwise modified by the order for sua sponte review, except that both the respondent lawyer and disciplinary counsel may raise any issue for Board review.

(a) How Made. In making any statement, counter statement or response as permitted in rules 6.2 and 6.3, the respondent lawyer or disciplinary counsel may request that the record be reopened to allow the submission of additional evidence, or that an additional hearing be held before the hearing officer or panel for the taking of additional evidence on the ground of newly discovered evidence. A request to reopen the record or to conduct an additional hearing shall be supported by affidavit describing in detail the additional evidence sought to be admitted, and the reason or reasons why the same was not presented at the previous hearing. Such request may be granted or denied in the discretion of the Board.

(b) No Additional Evidence. Except as allowed under section (a), e Evidence not presented to the hearing officer or panel shall not be presented to or considered by the Board by any party without the consent of the opposing party.

(a) Basis for Review. Review by the Board shall be based on the decision of the hearing officer or panel; any dissent of a hearing panel member; the statements and responses filed by the respondent lawyer and disciplinary counsel pursuant to rule 6.2 or 6.3; and the transcript or partial transcript of the hearing if one has been prepared. The Board may additionally review any other portion of the record of the matter including bar file documents and exhibits.

(b) Standard of Review. In reviewing the findings of fact of a hearing officer or hearing panel the Board shall apply a "substantial evidence" standard of review. In reviewing the conclusions of law and recommendation of a hearing officer or hearing panel, the Board will apply a "de novo" standard of review.

(bc) Participation. A member of the Board who sat as hearing officer or as a member of a hearing panel, or who sat as a member of a review committee which issued a lawyer an admonition on a matter, shall not be present during the review of that matter by the Board.

(cd) Oral Argument. Oral argument before the Board shall be permitted upon the request of either the respondent lawyer or disciplinary counsel, and may in addition be requested by the chairperson of the Board. Such request shall be filed with the Association no later than the date on which the party requesting oral argument is permitted to file his or her final statement, counterstatement or response under rule 6.2 or rule 6.3, or in the case of a request by the chairperson of the Board, the chairperson's notice of oral argument shall be filed and served on the respondent lawyer and disciplinary counsel no later than 14 days prior to the date for oral argument. Oral argument shall be conducted at such time and place and under such terms as the chairperson of the Board shall direct.

(de) Action by Board. Upon review the Board may adopt, modify or reverse the findings, conclusions or recommendation of the hearing officer or panel. The Board may also reopen the record to allow the admission of additional evidence, or direct that an additional hearing be held by the hearing officer with regard to any issue, on its own motion or upon request of either party.

(ef) Decision. The action of the Board shall be set forth in a written order filed with the Association, a copy of which shall be served upon the respondent lawyer. If the Board amends, modifies, or reverses any finding, conclusion or recommendation of the hearing officer or panel, the order of the Board shall set forth the reasons for its decision. A member of the Board agreeing with the decision of the majority may file separate concurring reasons.

(fg) Dissent. If any member of the Board dissents from the decision of a majority of the Board in a matter in which the majority of the Board recommends suspension or disbarment, he or she shall set forth in writing the reasons for that dissent. Written dissents may be filed in any other case. A copy of any dissent shall be served upon the respondent lawyer, and shall be part of the record.

(gh) Decision Final Unless Appealed. A decision of the Board shall become final if neither a notice of appeal nor a petition for review is filed by the respondent lawyer or disciplinary counsel within the time permitted by Title 7. A decision of the Board shall also become final upon denial by the Supreme Court of a petition for discretionary review.

(a) Two Methods for Seeking Review of Board Decisions. There are two methods for seeking review by the Supreme Court of decisions of the Board entered pursuant to rule 6.7(ef): (1) Review as a matter of right, called "appeal"; and (2) review by permission of the Supreme Court, called "discretionary review". Both "appeal" and "discretionary review" are called "review".

(b) Power of Court Not Affected. This rule shall not affect the power of the Supreme Court to automatically review all decisions of the Board recommending suspension or disbarment and exercise its inherent and exclusive jurisdiction over the lawyer discipline and disability system. In the exercise of sua sponte review of any decision of the Disciplinary Board, the Supreme Court will give the respondent lawyer and disciplinary counsel notice of the Court's intent to consider such a review within 90 days of the Court being apprised of the decision by notice under rule 11.2(b), rule 3.1(h), or otherwise.

(a) Decisions Subject to Discretionary Review. Decisions of the Board entered pursuant to rule 6.7(ef) which do not provide for suspension or disbarment are subject to review by the Supreme Court only through discretionary review. Discretionary review will be accepted only:

(1) If the decision of the Board is in conflict with a decision of the Supreme Court; or

(2) If a significant question of law is involved; or

(3) If there is no substantial evidence in the record to support a material finding of fact upon which the decision of the Board is based; or

(4) If the petition involves an issue of substantial public interest that should be determined by the Supreme Court.

(b) Respondent Lawyer May Petition. A respondent lawyer wishing to seek discretionary review by the Supreme Court of a decision of the Board must file a petition for review with the Supreme Court within 25 days of service of the decision of the Board upon the respondent lawyer.

(c) Board of Governors Disciplinary Counsel May Authorize Petition by Disciplinary Counsel. The Board of Governors Chief Disciplinary Counsel may authorize disciplinary counsel to seek discretionary review by the Supreme Court of a decision of the Disciplinary Board by filing a petition for review with the Supreme Court within 25 days of service of the decision of the Board upon the respondent lawyer. In order to seek such review, disciplinary counsel must file a notice of intention to seek discretionary review with the Association within 15 days of service of the decision of the Board upon the respondent lawyer. Within 45 days thereafter disciplinary counsel must file a petition for review with the Supreme Court, together with an order of the Board of Governors, signed by the president, authorizing such a petition. If the Board of Governors denies such authorization, the respondent lawyer shall be promptly notified.

(d) Content of Petition; Answer; Service; Decision. A petition for review should be substantially in the form prescribed by RAP 13.4(c) for petitions for review by the Supreme Court of decisions of the Court of Appeals, except that references in that rule to the Court of Appeals shall be considered references to the Board. The appendix to the petition or an appendix to an answer or reply may additionally contain any part of the record, including portions of the transcript or exhibits, to which the party refers in the petition, answer or reply. The provisions of RAP 13.4 (d), (e), (f), (g) and (h) shall govern answers and replies to petitions for review and related matters including service and decision by the court. Any party filing a petition for review with the court shall give notice of that fact to the other party.

(e) Acceptance of Review. The Supreme Court accepts discretionary review of a decision of the Board by granting a petition for review. Upon acceptance of review, procedures in the Supreme Court for matters subject to appeal and for matters subject to discretionary review are the same.

(a) Transmittal. Upon filing of a notice of appeal by the respondent attorney or upon acceptance of discretionary review by the Supreme Court, the record shall be transmitted to the Supreme Court by the clerk of the Board if one has been appointed, or by disciplinary counsel if no clerk has been appointed, within 10 days of the filing of the notice of appeal or service of the order accepting review, or in the event that oral argument was heard by the Board, within 10 days of the filing of the transcript with the Association. Each party shall be provided with a list of the portions of the record so transmitted.

(b) Content. The record transmitted to the court shall consist of:

(1) Any notice of appeal filed by the respondent attorney, and any notice of intention to seek discretionary review filed by disciplinary counsel;

(2) The decision of the Board, including any dissents or concurring statements;

(3) The decision of the hearing officer or panel, including any dissent;

(4) The transcript or partial transcript of the hearing if one has been prepared;

(5) Exhibits admitted in evidence;

(6) Any order assessing costs and expenses and any statements of costs and expenses and exceptions thereto;

(6) A transcript of any oral argument heard by the Board; and

(7) Any other portions of the record, including bar file documents, which appear necessary for full review.

(c) Transmittal of Cost Orders. Any order assessing costs and expenses entered under rule 5.7(e) and the supporting statements of costs and expenses and any exceptions filed under rule 5.7(d), shall be transmitted to the court as a separate part of the record within 10 days after the order assessing costs under rule 5.7(e) becomes final.

(cd) Additions to Record. The respondent lawyer and disciplinary counsel shall each have the right at any time to request the transmittal of additional portions of the record to the court.

(a) Brief Required. The party seeking review shall file a brief setting forth his or her objections to the decision of the Board.

(b) Time for Filing. The brief of the party seeking review should be filed with the Supreme Court within 45 30 days after he or she is notified of transmittal of the record to the Supreme Court.

(c) Answering Brief. The answering brief of the other party should be filed with the Supreme Court within 30 days after service of the brief of the party seeking review.

(d) Reply Brief. A reply brief of a party seeking review should be filed with the Supreme Court within the sooner of 30 20 days after service of the answering brief or 14 days before oral argument. A reply brief should be limited to a response to the issues in the brief to which the reply brief is directed.

(e) Briefs When Both Parties Seek Review. When both the respondent lawyer and disciplinary counsel seek review of a decision of the Board, the respondent lawyer is deemed the party seeking review for the purposes of this rule. In such case disciplinary counsel may file a brief in reply to any response the respondent lawyer has made to the issues presented by disciplinary counsel, to be filed with the Supreme Court the sooner of 30 20 days after service of the reply brief of the respondent lawyer or 14 days before oral argument.

(f) Form of Briefs. Briefs filed pursuant to this rule shall conform as nearly as possible to the requirements of RAP 10.3 and 10.4. Bar file documents should be abbreviated BF and, the transcript or partial transcript of the hearing should be abbreviated TR and exhibits should be abbreviated EX.

(g) Reproduction and Service of Briefs by Clerk. Briefs filed pursuant to this rule shall be reproduced and served by the clerk as provided in RAP 10.5.

(a) Membership.

(1) Composition. The Committee shall consist of not less than three nonlawyer members, appointed by the Supreme Court, and not less than one lawyer member from each congressional district, appointed by the Board of Governors.

(2) Qualifications. Lawyer members must have been active members of the Association for at least 7 years.

(3) Quorum. A majority of the Committee members shall constitute a quorum. Given a quorum, the concurrence of a majority of those present shall constitute action of the Committee.

(4) Disqualification. In the event a complaint is made to the Association alleging an act of misconduct by a lawyer member of the Committee, such member shall take a leave of absence from the Committee until the matter is resolved, unless otherwise directed by the Board of Governors.

(5) Voting. Each member, whether nonlawyer or lawyer, shall have one vote.

(b) Terms of Office. The term of office for a member of the Committee shall be 3 years. Newly created Committee positions may be filled by appointments of less than 3 years, as designated by the court or the Board of Governors, to permit as equal a number of positions as possible to be filled each year. All terms of office begin October 1 and end September 30 or when a successor has been appointed, whichever occurs later. Members may not serve more than one term except as otherwise provided in these rules. Members heretofore appointed shall continue to serve until replaced.

(c) Chairperson. The Board of Governors shall annually designate one lawyer member of the Committee to act as chairperson and another as vice-chairperson. The vice-chairperson shall serve in the absence of or at the request of the chairperson.

(d) Vacancies. Vacancies in lawyer membership on the Committee and in the office of the chairperson and the vice-chairperson shall be filled by the Board of Governors. Vacancies in nonlawyer membership shall be filled by the Supreme Court. A person appointed to fill a vacancy shall complete the unexpired term of the person he or she replaces, and if that unexpired term is less than 18 months he or she may be reappointed to a consecutive term.

(e) Pro Tempore Members. When a member of the Committee is disqualified or unable to function on a case for good cause, the chairperson of the Committee may, by written order, designate a member pro tempore to sit with the Committee to hear and determine the cause. A member pro tempore may be appointed from among those persons who have previously served as members of the Character and Fitness Committee, or from among lawyers appointed as alternate Board members by the Board of Governors and nonlawyers appointed as alternate Committee members by the Supreme Court. A lawyer shall be appointed to substitute for a lawyer member of the Committee, and a nonlawyer to substitute for a nonlawyer member of the Board.

(f) Authority of Committee. The Committee shall have the power and authority to:

(1) Accept referrals from the Executive Director of the Association by concerning itself with matters of character and fitness bearing upon the qualification of applicants for reinstatement.

(2) Review each Petition for Reinstatement to practice law in the state of Washington.

(3) Investigate matters relevant to the reinstatement of any applicant and conduct hearings concerning such matters.

(4) The Committee's recommendation to grant the application shall be forwarded to the Supreme Court. The Committee's recommendation to deny the application may be forwarded to the Disciplinary Board of Governors for review upon request of the applicant. All recommendations shall contain findings of fact, conclusions of law, and rationale for the recommendation.

(5) Perform such other functions and take such other actions as provided in these rules or as may be delegated to it by the Board of Governors or Supreme Court, or as may be necessary and proper to carry out its duties.

(g) Meetings. The Committee shall hold meetings at such times and places as it may determine. Where the chairperson of the Committee determines that prompt action is necessary for protection of the public, and that circumstances do not permit a full meeting of the Committee, the Committee may vote on a matter otherwise ready for review without meeting together, through telephone or written communication.

(h) Clerk. The Executive Director of the Association, under the direction of the Board of Governors, may appoint a suitable person or persons to act as clerk to the Committee, and to assist the Committee in carrying out its functions under these rules.

(a) Requirements for Favorable Recommendation. Reinstatement may be recommended by the Character and Fitness Committee only upon an affirmative showing that the petitioner possesses the qualifications and meets the requirements as set forth in the Admissions to Practice Rules for lawyer applicants, and that his or her reinstatement will not be detrimental to the integrity and standing of the judicial system or to the administration of justice, or be contrary to the public interest.

(b) Action on Committee Recommendation. The recommendation of the Character and Fitness Committee shall be served upon the petitioner. If the Committee recommends reinstatement, the record and recommendation shall be transmitted to the Supreme Court for disposition. If the Committee recommends against reinstatement, the record and recommendation shall be retained in the office of the Association unless the petitioner requests that it be submitted to the Disciplinary Board of Governors. If the petitioner so requests, the record and recommendation shall be transmitted to the Disciplinary Board of Governors for disposition. If the petitioner does not so request, the bar examination fee shall be refunded to the petitioner, but the petitioner shall still be responsible for payment of the costs incidental to the reinstatement proceeding as directed by the Character and Fitness Committee.

(c) Action on Disciplinary Board of Governors Recommendation. The recommendation of the Disciplinary Board of Governors shall be served upon the petitioner. If the Disciplinary Board recommends reinstatement, the record and recommendation shall be transmitted to the Supreme Court for disposition. If the Disciplinary Board recommends against reinstatement, the record and recommendation shall be retained in the office of the Association unless the petitioner requests that it be submitted to the Supreme Court. If the petitioner so requests, the record and recommendation shall be transmitted to the Supreme Court for disposition. If the petitioner does not so request, the bar examination fee shall be refunded to the petitioner, but the petitioner shall still be responsible for payment of the costs incidental to the reinstatement proceeding as directed by the Disciplinary Board of Governors.

(a) Review Committee May Order Inquiry. When it appears to a review committee that there is reasonable cause to believe that an active lawyer is unable adequately to practice law because of insanity, mental illness, senility, excessive use of alcohol or drugs, or other mental or physical incapacity, the committee shall order that a hearing be held to inquire into the capacity of the lawyer to practice law.

(b) Inquiry During Course of Disciplinary Proceedings. When it appears to the Board, a hearing officer or a hearing panel that there is reasonable cause to believe that a respondent lawyer is incapable of conducting a proper defense to a disciplinary proceeding against him or her because of insanity, mental illness, senility, excessive use of alcohol or drugs, or other mental or physical incapacity, the Board, officer or panel shall order that a supplemental hearing be held to inquire into the capacity of the lawyer to conduct a proper defense. Upon disciplinary counsel's receipt of such an order, disciplinary counsel shall petition the Supreme Court pursuant to rule 3.2(a) for interim suspension during the pendency of the inquiry. Such supplemental hearing and petition for interim suspension shall be automatic where the respondent lawyer alleges in the course of a disciplinary proceeding that he or she is unable to conduct a proper defense because of mental or physical incapacity.

(c) Procedure. Proceedings conducted pursuant to this rule are not disciplinary proceedings, but shall be conducted under the same procedural rules as disciplinary proceedings. Any hearing held under section (b) above may be treated either as a new proceeding or as part of an existing proceeding, in the discretion of the Board, hearing officer or panel, and the disciplinary proceedings shall be held in abeyance pending the outcome of the supplemental proceeding. Upon a finding that (1) a lawyer does not have adequate mental or physical capacity to practice law, or (2) that a respondent lawyer is incapable of conducting a proper defense to a disciplinary proceeding against him or her because of insanity, mental illness, senility, excessive use of alcohol or drugs, or other mental or physical incapacity, the A recommendation of a hearing officer or panel shall recommend that a the lawyer be transferred to disability inactive status under this rule, which recommendation shall be treated as a recommendation for suspension for the procedural purposes of these rules, including rule 6.1(a) and rule 7.2(a).

(d) Appointment of Counsel. In the event the respondent lawyer does not appear by counsel within the time required by these rules for the filing of an answer, or within 20 days of being notified of the issues to be considered in a supplemental proceeding under section (b), the chairperson of the Board shall appoint a member of the Association as counsel for such respondent lawyer.

(e) Finding of Incapacity. If after review of the decision of the hearing officer or panel, the Board (1) finds that a lawyer does not have adequate mental or physical capacity to practice law; or (2) finds that the respondent lawyer is incapable of to conducting a proper defense to a disciplinary charges proceeding against him or her because of insanity, mental illness, senility, excessive use of alcohol or drugs, or other mental or physical incapacity, it shall enter an order immediately transferring the lawyer to disability inactive status. Such transfer shall become effective upon service of such order upon the lawyer or his or her counsel.

(f) Appeal to Supreme Court. The lawyer may appeal an order of transfer to disability inactive status pursuant to the provisions of rule 7.2. The order of the Board shall remain in effect, regardless of the pendency of such appeal, unless and until reversed by the Supreme Court.

(g) Proceedings Confidential. All proceedings conducted pursuant to this rule shall be confidential.

(a) Service Required. Every pleading, every paper relating to discovery, every written request or motion other than one which may be heard ex parte, and every similar paper or document issued by disciplinary counsel or the respondent lawyer under any provision of these rules shall be served on the opposing party (the respondent lawyer or disciplinary counsel as the case may be) as follows, unless personal service is required or unless these rules specifically provide otherwise:

(1) On the respondent lawyer, by mailing the same postage prepaid to the lawyer or his or her attorney of record, or leaving the same, at the address set forth in the answer or in a notice of appearance filed by an attorney on behalf of the lawyer or at the address set forth in any subsequent document filed by the lawyer or his or her attorney; or, in the absence of an answer, by mailing the same postage prepaid to the lawyer or leaving the same at his or her address on file with the Association;

(2) On disciplinary counsel, by mailing the same postage prepaid, or leaving the same, at the address of the Association or such other address as disciplinary counsel may request;

(3) Service of notice of dismissals by disciplinary counsel under rule 2.6(c) and notice of dismissals by review committees under rule 2.4 (d)(4) may be made by regular first class mail. In all other instances, service by mail under this section shall be by certified or registered mail, return receipt requested, unless the parties agree otherwise, except that when one or more certified mailings properly made pursuant to this rule is returned as unclaimed service may be made by regular first class mail. Service properly made as herein provided shall be effective regardless of whether the person to whom the mail is addressed actually receives it.

(b) Personal Service. When personal service upon a respondent lawyer is required by these rules, it shall be accomplished as follows:

(1) If the respondent lawyer is found in the state of Washington, by personal service upon him or her in the manner required for personal service of a summons in a civil action in the superior court.

(2) If the respondent lawyer cannot be found in the state of Washington, service can be made either by (i) leaving a copy at his or her place of usual abode in the state of Washington with some person of suitable age and discretion then resident therein; or (ii) mailing by registered or certified mail, postage prepaid, a copy addressed to him or her at his or her last known place of abode, or office address maintained by him or her for the practice of law, or post office address or address on file with the Association.

(3) If the respondent lawyer is found outside of the state of Washington, then by service as set forth in (1) or (2) above.

(c) Service Where Question of Mental Competence. If a guardian or guardian ad litem has been duly appointed for a respondent lawyer who has been judicially declared to be of unsound mind or incapable of conducting his or her own affairs, service under sections 12.1 (a) and (b) above shall also be made on the guardian or guardian ad litem.

(d) Service of Request by Grievant for Review of Dismissal. Service upon the Association of a request by a grievant for review of dismissal of a grievance shall be made by delivering or mailing by first class, registered or certified mail a written request for review to disciplinary counsel. Service shall be deemed accomplished on the date of mailing, or, if not mailed, on the date of receipt by the Association.

(de) Proof of Service. Proof of service when personal service is required shall be made by affidavit of service, sheriff's return of service, or a signed acknowledgment of service. Proof of service in other cases may alternatively be made by certificate of an attorney similar to that allowed by CR 5 (b)(2)(B), which certificate shall state the form of mail used. Proof of service in all cases shall be filed in the office of the Association, or with the Supreme Court in matters before the court, but need not be served on the opposing party.

(a) Permanent Records. In any matter in which a disciplinary sanction has been imposed on a lawyer, the bar file and transcripts in the proceeding shall be permanent records of the Association and/or of the Supreme Court. Related file materials, including investigatory files, may be maintained in the discretion of disciplinary counsel. Exhibits may be returned to the party supplying them, but copies shall be retained where possible.

(b) Destruction of Files. In any matter in which a grievance or investigation has been dismissed without the imposition of a disciplinary sanction, whether following a hearing or otherwise, file materials relating to the matter may be destroyed 3 years after the dismissal first occurred, and shall be destroyed at that time upon the request of the lawyer involved unless the files are being used in an ongoing investigation or unless other good cause exists for retention. The Disciplinary Board of Governors shall rule on a request by a lawyer for destruction of files pursuant to this rule when that request is opposed by disciplinary counsel.

(c) Retention of Docket. When a file on a matter has been destroyed pursuant to section (b), the Association may retain a docket record of the matter for statistical purposes only. That docket record shall not include the name or other identification of the lawyer complained against.

(d) Deceased Lawyers. Records and files relating to a lawyer who has died, including permanent records, may be destroyed at any time in the discretion of disciplinary counsel.

There is no statute of limitation or other time limitation restricting the filing of a grievance or bringing of a proceeding under these rules, but the passage of time since an act of misconduct occurred may be considered in determining what if any action or sanction is warranted.

Reviser's note: The brackets and enclosed material in the text above occurred in the copy filed by the Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.