WSR 01-01-055

RULES OF COURT

STATE SUPREME COURT


[ December 7, 2000 ]

IN THE MATTER OF THE ADOPTION OF PROPOSED NEW TITLE RLD 14, AND AMENDMENTS TO RLD 2.6, RLD 2.9 AND RLD 11.1 )

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ORDER

NO. 25700-A-696

The Washington State Bar Association having recommended the adoption of proposed New Title RLD 14, and amendments to RLD 2.6, RLD 2.9 and RLD 11.1, and the Court having approved the proposed new title and amendments for publication;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(f), the proposed new title and amendments as attached hereto are to be published for comment in the Washington Reports, the Washington Register, Washington State Bar Association and Office of the Administrator for the Court's websites in January 2001.

(b) The purpose statement as required by GR 9(d), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2001. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Lisa.Bausch@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 7th day of December 2000.
Richard P. Guy


CHIEF JUSTICE

GR 9 COVER SHEET


Suggested Amendment

RULES FOR LAWYER DISCIPLINE (RLD)


New Title 14 to Implement a Program of Diversion

And supporting amendments to RLD 2.6, RLD 2.9 & RLD 11.1


(hearing not recommended)


Submitted by the Board of Governors of the Washington State Bar Association




A. Name of Proponent: The Washington State Bar Association.


B. Spokespersons:


Jan Eric Peterson, President, Washington State Bar Association, 1501 Fourth Avenue, Suite 2600, Seattle, WA 98101-1664 (telephone 206-624-6800) (e-mail janeric@pypfz.com).
Randy Beitel, Senior Disciplinary Counsel, Washington State Bar Association, 2101 Fourth Avenue, 4th Floor, Seattle, WA 98121-2330 (telephone 206-727-8257) (e-mail randyb@wsba.org).

C. Purpose: A new Title 14 is suggested to implement a Program of Diversion whereby instances of less serious misconduct by a lawyer may be diverted from a traditional disciplinary prosecution to appropriate corrective, ameliorative, and rehabilitative alternatives to disciplinary action. These alternatives may include fee arbitration, arbitration, mediation, law office management assistance, lawyer assistance programs, psychological and behavioral counseling, monitoring, restitution, continuing legal education programs, or any other program or corrective course of action agreed upon by disciplinary counsel and respondent to address respondent's misconduct.


In 1997 at the recommendation of the Joint Task Force on Lawyer Discipline (1994) and the Washington State Bar Association Board of Governors, the rule authorizing the Bar Association to administer the system of lawyer discipline was amended to include authorization for "diverting less serious misconduct to alternatives outside the formal discipline system.” GR 12(b)(6). Based on that authorization, the Board of Governors' Discipline Committee examined the diversion provisions in the American Bar Association's Model Rules for Lawyer Disciplinary Enforcement (3rd ed., 1996) as well as the diversion systems currently in place in a number of other jurisdictions including Arizona, Colorado, Illinois, Michigan, New York, Missouri and Florida. Many of these jurisdictions operate diversion programs based on the ABA Model Rules, and after considering the various options, the Board of Governors seeks to implement a program closely modeled after the ABA Model Rules.


Diversion is a strictly voluntary program. Under the suggested rules, a disciplinary grievance may be diverted only when it involves "less serious misconduct” as defined by suggested RLD 14.2, and only after the grievant is given a reasonable opportunity to comment. Under the suggested rules, diversion is accomplished by the respondent lawyer and disciplinary counsel negotiating a written diversion contract setting forth the terms of the diversion. The terms will vary depending on the circumstances of the misconduct. If the diversion terms are breached, the matter is returned to the traditional discipline process. If the terms of the contract are fulfilled, the grievance is dismissed. A disciplinary grievance, not otherwise made public, remains confidential when diverted.


In addition to a new RLD Title 14, amendments are suggested to RLD 2.6 regarding Disciplinary Counsel's role in administering diversion, RLD 2.9 regarding notification to the grievant of a proposal to divert the grievance, and RLD 11.1 regarding the confidentiality of the diversion contract and supporting documents.


D. Hearing: A hearing is not recommended.


E. Expedited Consideration:
Circumstances do not require expedited consideration of these proposed rule amendments.


Supporting Information


Attached as supporting information are:


Section by section rule comments approved by the Washington State Bar Association Board of Governors upon recommendation of the suggested rule amendments to the Supreme Court.
A Sample Diversion Contract as anticipated under the suggested rule amendment.
A Sample Diversion Affidavit as anticipated under the suggested rule amendment.
A Sample Information Sheet to inform grievants about diversion.
Relevant excerpts from ABA Model Rules for Disciplinary Enforcement (3rd Ed., 1996).

SUGGESTED AMENDMENT


RULES FOR LAWYER DISCIPLINE (RLD)


NEW TITLE 14 TO IMPLEMENT A PROGRAM OF DIVERSION




[NEW TITLE]


TITLE 14 DIVERSION


[NEW SECTION]

RULE 14.1 REFERRAL TO DIVERSION. In a matter involving less serious misconduct as defined in rule 14.2, prior to the filing of a formal complaint, disciplinary counsel may refer a respondent lawyer to diversion. Diversion may include fee arbitration, arbitration, mediation, law office management assistance, lawyer assistance programs, psychological and behavioral counseling, monitoring, restitution, continuing legal education programs, or any other program or corrective course of action agreed upon by disciplinary counsel and respondent to addresses respondent's misconduct.


[NEW SECTION]

RULE 14.2 LESS SERIOUS MISCONDUCT. Less serious misconduct is conduct that does not warrant a sanction restricting the respondent's license to practice law. Conduct shall not ordinarily be considered less serious misconduct if any of the following considerations apply:

(a) the misconduct involves the misappropriation of funds;

(b) the misconduct results in or is likely to result in substantial prejudice to a client or other person, absent adequate provisions for restitution being made;

(c) the respondent has been publicly disciplined in the last three years;

(d) the misconduct is of the same nature as misconduct for which the respondent has been publicly disciplined in the last five years;

(e) the misconduct involves dishonesty, deceit, fraud or misrepresentation by the respondent;

(f) the misconduct constitutes a "serious crime” as defined in rule 3.1(i);

(g) the misconduct is part of a pattern of similar misconduct.


[NEW SECTION]

RULE 14.3 NOTICE TO GRIEVANT. Pursuant to rule 2.9(a)(8), the grievant, if any, shall be notified of disciplinary counsel's proposed decision to refer the respondent to diversion, and shall have a reasonable opportunity to submit to disciplinary counsel a written comment thereon. The grievant shall be notified when the grievance is diverted and when the grievance is dismissed upon completion of diversion. Such decisions to divert or dismiss are not appealable.


[NEW SECTION]

RULE 14.4 FACTORS FOR DIVERSION. The following factors shall be considered by disciplinary counsel in determining whether to refer a respondent to diversion:

(a) whether the presumptive sanction under the ABA Standards for Imposing Lawyer Sanctions for the violations raised by the grievance or grievances is likely to be no more severe than reprimand, censure or admonition;

(b) whether participation in diversion is likely to improve the future professional conduct of the respondent and accomplish the goals of lawyer discipline;

(c) whether aggravating or mitigating factors exist; and

(d) whether diversion was already tried.


[NEW SECTION]

RULE 14.5 DIVERSION CONTRACT. Disciplinary counsel and the respondent shall negotiate a contract, the terms of which shall be tailored to the individual circumstances. In each case, the contract shall be signed by the respondent and disciplinary counsel. The contract shall set forth the terms and conditions of the plan for the respondent and, if appropriate, shall identify the use of a practice monitor and/or a recovery monitor and the responsibilities of any monitor. The contract shall provide for oversight of fulfillment of the contract terms. Oversight includes reporting of any alleged breach of the contract to disciplinary counsel. The contract shall also provide that the respondent will pay all costs incurred in connection with the contract. The contract may also provide that the respondent will pay the costs associated with the disciplinary grievances to be deferred. The contract shall include a specific acknowledgment that a material violation of a term of the contract renders the respondent's participation in diversion as to the allegations of misconduct in the grievance voidable by disciplinary counsel. The contract may be amended upon agreement of the respondent and disciplinary counsel. If a recovery monitor is assigned, the contract shall include respondent's limited waiver of confidentiality permitting the recovery monitor to make appropriate disclosures in order to fulfill the monitor's duties under the contract.


[NEW SECTION]

RULE 14.6 AFFIDAVIT SUPPORTING DIVERSION. A diversion contract must be supported by the respondent's affidavit or declaration as approved by disciplinary counsel setting forth the respondent's misconduct related to the grievance or grievances to be held in abeyance under this rule, which affidavit or declaration, in the event of termination of the diversion contract due to a material breach of the diversion contract will be admissible into evidence in any ensuing disciplinary proceeding and may be made available to the review committee or the Board considering the grievance. Unless admitted into evidence at a disciplinary hearing, the affidavit or declaration will remain confidential and will not be provided to the grievant or any other individual outside the Office of Disciplinary Counsel.


[NEW SECTION]

RULE 14.7 EFFECT OF NON-PARTICIPATION IN DIVERSION. The respondent has the right to decline disciplinary counsel's offer to participate in diversion. If the respondent chooses not to participate, the matter will proceed as though no referral to diversion had been made.


[NEW SECTION]

RULE 14.8 STATUS OF GRIEVANCE. After a diversion contract is executed by the respondent and disciplinary counsel, the disciplinary grievance shall be held in abeyance pending successful completion of the terms of the contract.


[NEW SECTION]

RULE 14.9 TERMINATION OF DIVERSION.

(a) Fulfillment of the Contract. The contract is terminated when respondent has fulfilled the terms of the contract and submits to disciplinary counsel an affidavit or declaration demonstrating the same. Upon receipt of such affidavit or declaration, disciplinary will acknowledge receipt and either dismiss any grievances held in abeyance pending successful completion of the contract, or give notice to respondent that fulfillment of the contract is disputed. Such a dismissal is not appealable by the grievant. Successful completion of the contract constitutes a bar to any further disciplinary proceedings based upon the same allegations.

(b) Material Breach. A material breach of the contract shall be cause for termination of respondent's diversion. After a material breach, disciplinary counsel will give respondent notice of termination from diversion and disciplinary proceedings may be instituted, resumed or reinstated.

(c) Review by the Chairperson. Disputes regarding fulfillment of the terms of the contract and/or material breach of the contract may be reviewed by the chairperson of the Board upon the request of the respondent or disciplinary counsel. Such request must be filed with the Board within 15 days of notice to respondent of the determination for which review is sought. Determinations by the chairperson under this section shall be final and the matters determined shall not be reviewable in any proceeding.


Supporting Amendments to Rules for Lawyer Discipline 2.6, 2.9 & 11.1


RULE 2.6 DISCIPLINARY COUNSEL

(a) No Change.

(b) No Change.

(c) No Change.

(d) No Change.

(e) Diversion. Disciplinary counsel shall have the authority to determine pursuant to rule 14.1 those grievances appropriate for diversion, after giving notice to any grievants pursuant to rule 2.9(a)(8). Disciplinary counsel shall have the authority to negotiate and execute diversion contracts, to monitor and determine compliance with the terms of diversion contracts and to determine fulfillment of or any material breach of diversion contracts, subject to the review authorized by rule 14.9.


RULE 2.9 GRIEVANT

(a) Rights. Any person filing a grievance with the Association alleging an act of misconduct by a lawyer shall have the right to:

(1) Be advised promptly of the receipt of the grievance, and of the name, address and office phone number of the person assigned to its investigation if such an assignment is made;

(2) Request reconsideration by a review committee of a dismissal of the grievance by disciplinary counsel by serving upon the Association a request for review within 45 days of mailing of the notice of dismissal, or reconsideration, when the chairperson of the Board so directs, by the Board of a dismissal of the grievance by a review committee by serving upon the Association a request for review within 45 days of mailing of the notice of dismissal by a review committee;

(3) Have a reasonable opportunity to speak with the investigator assigned to the grievance, by telephone or in person, concerning the substance of the grievance or its status;

(4) Receive a copy of any response submitted by the lawyer against whom a grievance is filed, except when that response makes reference to confidences or secrets of a client of the lawyer to which the grievant is not privy, or contains information of a personal and private nature regarding the lawyer, or when a review committee determines that the interests of justice would better be served if the response is not released;

(5) Submit additional supplemental written information or documentation at any time;

(6) Attend any hearing conducted into the grievance, subject to the applicable rules of evidence and any protective order issued pursuant to rule 11.1 (g);

(7) Testify as a witness at any hearing conducted into the grievance, subject to the applicable rules of evidence and any protective order issued pursuant to rule 11.1 (g);

(8) Be notified of any proposed decision to refer the respondent to diversion and be given a reasonable opportunity to submit to disciplinary counsel a written comment thereon;

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

(b) No Change.

(c) No Change.

(d) No Change.


RULE 11.1 DISCLOSURE

(a) No Change.

(b) No Change.

(c) No Change.

(d) No Change.

(e) No Change.

(f) No Change.

(g) No Change.

(h) No Change.

(i) No Change.

(j) No Change.

(k) No Change.

(l) No Change.

(m) No Change.

(n) No Change.

(o) No Change.

(p) No Change.

(q) No Change.

(r) Diversion Contracts. Diversion contracts and supporting affidavits and declarations under rules 14.5 & 14.6 are confidential, not withstanding the provisions of subsection (c). unless admitted into evidence in a disciplinary proceeding following a termination of the diversion contract based on a material breach of the diversion contract. When a matter that has previously become public under rule 11.1(c) is diverted by execution of a diversion contract, that contract and the supporting documents will remain confidential but the fact that the matter has been diverted from discipline will be public information.

(r) (s) Regulations. Public access to file materials and proceedings as permitted by this rule may be subject to reasonable regulation as to time, place and circumstances. Certified copies of public bar file documents shall be made available at the same rate as certified copies of superior court records. Uncertified copies of public bar file documents shall be made available at a rate to be set by the Executive Director of the Association.

(s) (t) Release to Lawyers' Fund for Client Protection. Nothing in these rules shall prohibit the release of information obtained during the course of an investigation to the Lawyers' Fund for Client Protection concerning applications which are pending before it. The Fund shall treat such information as confidential unless release is authorized by this rule or the Executive Director.

(t) (u) Wrongful Disclosure. Disclosure, except as permitted by these rules, by any person involved with an investigation or proceeding, either as an officer or agent of the Association (including, but not limited to, its staff, members of the Board of Governors, the Disciplinary Board, a review committee, hearing panels, hearing officers, disciplinary counsel, special district counsel, a lawyer appointed pursuant to rule 8.6, or any other individual acting under authority of these rules) of any information concerning a pending or completed investigation or proceeding, except as permitted by these rules, may subject that person to an action for contempt of the Supreme Court. When the person is also a lawyer, such wrongful disclosure may also be grounds for discipline.

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

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

Washington State Code Reviser's Office