title: Factors for Diversion

text: ELC 6.3 FACTORS FOR DIVERSION Disciplinary counsel considers the following factors in determining whether to refer a respondent lawyer 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 or admonition; (B) whether participation in diversion is likely to improve the respondent’s future professional conduct and accomplish the goals of lawyer discipline; (C) whether aggravating or mitigating factors exist; and (D) whether diversion was already tried. [Adopted effective October 1, 2002.]

citation: ELC ELC 6.3

rule_number: ELC 6.3


doc_type: court-rule

jurisdiction: wa

title: Notice to Grievant

text: ELC 6.4 NOTICE TO GRIEVANT As provided in rule 5.1(c)(7), disciplinary counsel must notify the grievant, if any, of the proposed decision to refer the respondent lawyer to diversion, and must give the grievant a reasonable opportunity to submit written comments. The grievant must be notified when the grievance is diverted and when the grievance is dismissed on completion of diversion. Such decisions to divert or dismiss are not appealable. [Adopted effective January 1, 2014.]

license: public-domain-government-work

citation: ELC ELC 6.4

rule_set: ELC

rule_number: ELC 6.4


title: Diversion Contract

text: ELC 6.5 DIVERSION CONTRACT (a) Negotiation. Disciplinary counsel and the respondent lawyer negotiate a diversion contract, the terms of which are tailored to the individual circumstances. (b) Required Terms. A diversion contract must: (1) be signed by the respondent and disciplinary counsel; (2) set forth the terms and conditions of the plan for the respondent and, if appropriate, identify the use of a practice monitor and/or a recovery monitor and the monitor’s responsibilities. If a recovery monitor is assigned, the contract must include respondent’s limited waiver of confidentiality permitting the recovery monitor to make appropriate disclosures to fulfill the monitor’s duties under the contract; (3) include a statement in substantially the following form: “This diversion contract is a compromise and settlement of one or more disputes. Except as specifically authorized by the Rules for Enforcement of Lawyer Conduct, it is not admissible in any court, administrative, or other proceedings. It may not be used as a basis for establishing liability to any person who is not a party to this contract.” (4) provide for oversight of fulfillment of the contract terms. Oversight includes reporting any alleged breach of the contract to disciplinary counsel; (5) 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 grievances to be deferred; (6) include a specific acknowledgement that a material violation of a term of the contract renders the respondent’s participation in diversion voidable by disciplinary counsel; and (7) include a specific acknowledgement that the diversion contract and the supporting affidavit or declaration under ELC 6.6 are subject to release under ELC 3.3. (c) Limitations. A diversion contract does not create any enforceable rights, duties, or liabilities in any person not a party to the diversion contract or create any such rights, duties, or liabilities outside of those stated in the diversion contract or provided by Title 6 of these rules. (d) Amendment. The contract may be amended on agreement of the respondent and disciplinary counsel. [Adopted effective October 1, 2002; Amended effective January 1, 2014; January 2, 2018.]

citation: ELC ELC 6.5

rule_number: ELC 6.5


title: Affidavit Supporting Diversion

text: ELC 6.6 AFFIDAVIT SUPPORTING DIVERSION A diversion contract must be supported by the respondent lawyer’s affidavit or declaration as approved by disciplinary counsel setting forth the respondent’s misconduct related to the grievance or grievances to be deferred under this title. If the diversion contract is terminated due to a material breach, the affidavit or declaration is admissible into evidence in any ensuing disciplinary proceeding. Unless so admitted, or unless release is authorized under rule 3.3, the affidavit or declaration is confidential and must not be provided to the grievant or any other individual outside the Office of Disciplinary Counsel, but may be provided to a review committee or the Board considering the grievance. [Adopted effective October 1, 2002; Amended effective January 1, 2015; January 2, 2018.]

citation: ELC ELC 6.6

rule_number: ELC 6.6


title: Effect of Non-Participation in Diversion

text: ELC 6.7 EFFECT OF NON PARTICIPATION IN DIVERSION The respondent lawyer has the right to decline disciplinary counsel’s offer to participate in diversion. If the respondent chooses not to participate, the matter proceeds as though no referral to diversion had been made. [Adopted effective October 1, 2002.]

citation: ELC ELC 6.7

rule_number: ELC 6.7


title: Status of Grievance

text: ELC 6.8 STATUS OF GRIEVANCE After a diversion contract is executed by the respondent lawyer and disciplinary counsel, the disciplinary grievance is deferred pending successful completion of the contract. [Adopted effective October 1, 2002.]

citation: ELC ELC 6.8

rule_number: ELC 6.8


title: Termination of Diversion

text:
ELC 6.9 TERMINATION OF DIVERSION (a) Termination. Respondent may provide disciplinary counsel an affidavit or declaration demonstrating fulfillment of the terms of the contract. Upon receipt of such an affidavit or declaration, or upon expiration of the diversion period, disciplinary counsel may take any of the following actions:

(1) Upon disciplinary counsel’s determination that the contract has been completed, dismiss any grievances that were deferred pending the completion of the diversion. (2) Amend the diversion contract under rule 6.5(d). (3) Declare a material breach of the diversion contract under the provisions of subsection (b) of this rule. (b) Material Breach. A material breach of the contract is cause for termination of the diversion. After a material breach, disciplinary counsel must notify the respondent of termination from diversion and disciplinary proceedings may be instituted, resumed, or reinstated. (c) Review by the Chair. The Chair may review disputes about fulfillment or material breach of the terms of the contract on the request of the respondent or disciplinary counsel. The request must be filed with the Board within 15 days of notice to the respondent of the determination for which review is sought. Determinations by the Chair under this section are not subject to further review and are not reviewable in any proceeding. (d) Effect of Completion. The grievant cannot appeal a dismissal under this rule. Completion of the diversion is a bar to any further disciplinary proceedings based on the same allegations. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 6.9

rule_number: ELC 6.9


title: Interim Suspension for Conviction of A Crime

text:
ELC 7.1 INTERIM SUSPENSION FOR CONVICTION OF A CRIME (a) Definitions. (1) "Conviction" for the purposes of this rule occurs upon entry of a plea of guilty, unless the defendant affirmatively shows that the plea was not accepted or was withdrawn, or upon entry of a finding or verdict of guilty, unless the defendant affirmatively shows that judgment was arrested or a new trial granted. (2) ”Felony” includes any crime denominated as a felony in the jurisdiction in which it is committed. (b) Reporting of Conviction. When a lawyer is convicted of a felony, the lawyer must report the conviction to disciplinary counsel within 30 days of the conviction as defined by this rule. (c) Disciplinary Procedure upon Conviction. (1) If a lawyer is convicted of a felony, disciplinary counsel must file a formal complaint regarding the conviction. Disciplinary counsel must also petition the Supreme Court for an order suspending the respondent lawyer during the pendency of disciplinary proceedings. The petition for suspension may be filed before the formal complaint. (2) If a lawyer is convicted of a crime that is not a felony, the review committee may consider a report of the conviction in the same manner as any other report of possible misconduct by a lawyer. (d) Petition. A petition to the Supreme Court for suspension under this rule must include a copy of any available document establishing the fact of conviction. Disciplinary counsel may also include additional facts, statements, arguments, affidavits, and documents in the petition. A copy of the petition must be personally served on the respondent, and proof of service filed with the Court. (e) Immediate Interim Suspension. Upon the filing of a petition for suspension under this rule: (1) The Court must enter an order immediately suspending the respondent from the practice of law. (2) Upon suspension, the respondent must comply with Title 14. (3) Suspension under this rule occurs: (A) whether the conviction was under a law of this state, any other state, or the United States; (B) whether the conviction was after a plea of guilty, nolo contendere, not guilty, or otherwise; and (C) regardless of the pendency of an appeal. (4) On or before the date established for the entry of the order of interim suspension the respondent may assert to the Court any jurisdictional deficiency that establishes that the suspension may not properly be ordered, such as that the crime did not constitute a felony or that the respondent is not the individual convicted.

(f) Duration of Suspension. A suspension under this rule must terminate when the disciplinary proceeding is final. A copy of the final decision, stipulation, or order terminating the disciplinary proceeding will be provided to the Court. (g) Termination of Suspension. (1) Petition and Response. A respondent may at any time petition the Court to terminate an interim suspension. Disciplinary counsel may file a response to the petition. (2) Court Action. The Court determines the procedure for its consideration of a petition to terminate a suspension. [Adopted October 1, 2002; Amended effective January 1, 2014; January 1, 2015.]

citation: ELC ELC 7.1

rule_number: ELC 7.1


title: Interim Suspension in Other Circumstances

text:
ELC 7.2 INTERIM SUSPENSION IN OTHER CIRCUMSTANCES (a) Types of Interim Suspension. (1) Risk to Public. Disciplinary counsel may petition the Supreme Court for an order suspending the respondent lawyer during the pendency of any proceeding under these rules if: (A) it appears that a respondent’s continued practice of law poses a substantial threat of serious harm to the public and a review committee recommends an interim suspension; or (B) a review committee orders a hearing on the capacity of a lawyer to practice law under rule 8.2(d)(1); or (C) when a hearing officer or the chief hearing officer orders supplemental proceedings on a respondent lawyer’s capacity to defend a disciplinary proceeding under rule 8.3. A suspension under this subsection shall terminate when the underlying proceeding is final or upon order of the court. (2) Board Recommendation for Disbarment. When the Board enters a decision recommending disbarment, disciplinary counsel must file a petition for the respondent’s suspension during the remainder of the proceedings. The respondent must be suspended absent an affirmative showing that the respondent’s continued 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 Board’s decision is not appealed and becomes final, the petition need not be filed, or if filed may be withdrawn. (3) Failure To Cooperate with Investigation. When any lawyer fails without good cause to comply with a request under rule 5.3(g) or rule 15.2(a) for information or documents, or with a subpoena issued under rule 5.3(h) or rule 15.2(b), or fails to comply with disability proceedings as specified in rule 8.2(d), disciplinary counsel may petition the Court for an order suspending the lawyer pending compliance with the request or subpoena. A petition may not be filed if the request or subpoena is the subject of a timely objection under rule 5.5(e) and the hearing officer has not yet ruled on that objection. If a lawyer has been suspended for failure to cooperate and thereafter complies with the request or subpoena, the lawyer may petition the Court to terminate the suspension on terms the Court deems appropriate. (b) Procedure. (1) Petition. A petition to the Court under this rule must set forth the acts of the lawyer constituting grounds for suspension, and if filed under subsection (a)(2) must include a copy of the Board’s decision. The petition may be supported by documents or affidavits. The Association must serve the petition by mail or electronic service as provided in ELC 4.1. In addition, a copy of the petition must be personally served on the lawyer no later than the date of service of the show cause order. (2) Show Cause Order. Upon filing of the petition, the Chief Justice orders the lawyer to appear before the Court on a date set by the Chief Justice, and to show cause why the petition for suspension should not be granted. Disciplinary counsel must have a copy of the order to show cause personally served on the lawyer at least 10 days before the scheduled show cause hearing. Subsection (b)(5) notification requirements must be included in the show cause order. (3) Answer to Petition. The lawyer may answer the petition. An answer may be supported by documents or affidavits. Failure to answer does not result in default or waive the right to appear at the show cause hearing.

(4) Filing of Answer. A copy of any answer must be filed with both the Court and disciplinary counsel by the date specified in the show cause order, which will be at least 5 days before the scheduled show cause hearing. (5) Notification. The lawyer must inform the court no less than 7 days prior to the show cause hearing whether the lawyer will appear for the show cause hearing, or the hearing will be stricken and the Court will decide the matter without oral argument. (6) Application of Other Rules. If the Court enters an order suspending the lawyer, the rules relating to suspended lawyers, including Title 14, apply. [Adopted effective October 1, 2002; Amended effective January 3, 2006; January 1, 2014; January 1, 2015; December 8, 2015; September 1, 2022.]

citation: ELC ELC 7.2

rule_number: ELC 7.2


title: Automatic Suspension When Respondent Asserting Incapacity

text: ELC 7.3 AUTOMATIC SUSPENSION WHEN RESPONDENT ASSERTING INCAPACITY When a respondent lawyer asserts incapacity to conduct a proper defense to disciplinary proceedings, upon receipt of appropriate documentation of the assertion, the respondent must be suspended on an interim basis by the Supreme Court pending the conclusion of the disability proceedings. However, if the hearing officer in the supplemental proceeding files a decision that the respondent is not incapacitated, on petition of either party, the Court may terminate the interim suspension. [Adopted effective October 1, 2002.]

citation: ELC ELC 7.3

rule_number: ELC 7.3


title: Stipulation to Interim Suspension

text: ELC 7.4 STIPULATION TO INTERIM SUSPENSION At any time a respondent lawyer and disciplinary counsel may stipulate that the respondent be suspended during the pendency of any investigation or proceeding because of conviction of a felony, a substantial threat of serious harm to the public, or incapacity to practice law. A stipulation must state the factual basis for the stipulation and be submitted directly to the Supreme Court for expedited consideration. When the stipulation is based on the lawyer’s mental incapacity to practice law, the lawyer must be represented by counsel, and if counsel does not otherwise appear, the Association will appoint counsel. Stipulations under this rule are public upon filing with the Court, but the Court may order that supporting materials are confidential. Either party may petition the Court to terminate the interim suspension, and on a showing that the cause for the interim suspension no longer exists, the Court may terminate the suspension, and on a showing that the cause for the interim suspension no longer exists, the Court may terminate the suspension. [Adopted effective October 1, 2002; Amended effective January 1, 2014; January 1, 2015.]

citation: ELC ELC 7.4

rule_number: ELC 7.4


title: Interim Suspensions Expedited

text: ELC 7.5 INTERIM SUSPENSIONS EXPEDITED (a) Expedited Review. Petitions seeking interim suspension under this title 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 petition for interim suspension. [Adopted effective October 1, 2002; Amended effective January 1, 2015.]

citation: ELC ELC 7.5

rule_number: ELC 7.5


title: Effective Date of Interim Suspensions

text: ELC 7.6 EFFECTIVE DATE OF INTERIM SUSPENSIONS Interim suspensions become effective on the date of the Supreme Court’s order unless the order provides otherwise. [Adopted effective October 1, 2002.]

citation: ELC ELC 7.6

rule_number: ELC 7.6


title: Appointment of Custodian to Protect Clients' Interests

text: ELC 7.7 APPOINTMENT OF CUSTODIAN TO PROTECT CLIENTS' INTERESTS (a) Custodians Allowed. The Chair, on motion by disciplinary counsel or any other interested person, may appoint one or more lawyers or Association counsel as a custodian to act as counsel for the limited purpose of protecting clients’ interests. A custodian may be appointed whenever a lawyer (1) has been transferred to disability inactive status, suspended, or disbarred, and fails to carry out the obligations of Title 14 or fails to protect the clients' interests, or (2) disappears, dies, abandons practice, or is otherwise incapable of meeting the lawyer’s obligations to clients. A custodian should not be appointed if a partner, personal representative, or other responsible person appears to be properly protecting the clients’ interests. The Chair may enter orders to carry out the provisions and purposes of this rule. (b) Duties. The custodian takes possession of the necessary files and records and takes action as seems indicated to protect the clients' interests or required by the Chair’s orders or these rules. Such action may include but is not limited to assuming control of trust accounts or other financial affairs. Any bank or other person honoring the authority of the custodian is exonerated from any resulting liability. In determining ownership of funds in the trust account, including by subrogation or indemnification, the custodian should act as a reasonably prudent lawyer maintaining a client trust account. The custodian may rely on a certification of ownership issued by a person who conducts audits for the Association under rule 15.1. If the client trust account does not contain sufficient funds to meet known client balances, the custodian may disburse funds on a pro rata basis. (c) Discharge. On motion by disciplinary counsel or any interested person, the Chair may discharge the custodian from further duties. The Chair may also order destruction of files and records as appropriate. (d) Fees and Costs. Payment of any fees and costs incurred by the Association under this rule may be a condition of reinstatement of a disbarred or suspended lawyer or a lawyer transferred to disability inactive status, ordered as restitution in a disciplinary proceeding for failure to comply with rule 14.1, or claimed against the estate of a deceased or adjudicated incapacitated lawyer. (e) Records. The Bar Association maintains record of the custodianship permanently. The custodian maintains files and papers obtained as custodian until otherwise ordered by the Chair. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 7.7

rule_number: ELC 7.7


title: Action on Adjudication of Incompetency or Incapacity

text: ELC 8.1 ACTION ON ADJUDICATION OF INCOMPETENCY OR INCAPACITY (a) Grounds. The Association must automatically transfer a lawyer from active to disability inactive membership status upon receipt of a certified copy of the judgment, order, or other appropriate document demonstrating that the lawyer: (1) was found to be incapable of assisting in their own defense in a criminal action; (2) was acquitted of a crime based on insanity; (3) had a guardian (but not a limited guardian) appointed for themselves or their estate on a judicial finding of incapacity; (4) was involuntarily committed to a mental health facility for more than 14 days under 71.05 RCW; or (5) was found to be mentally incapable of conducting the practice of law in any other jurisdiction. (b) Notice to Lawyer. The Association must forthwith notify the disabled lawyer and their guardian or guardian ad litem, if any, of the transfer to disability inactive status. The Association must also notify the Supreme Court of the transfer and provide a copy of the judgment, order, or other appropriate document on which the transfer was based. [Adopted effective October 1, 2002; Amended effective January 1, 2014; January 1, 2023.]

citation: ELC ELC 8.1

rule_number: ELC 8.1


title: Determination of Incapacity to Practice Law

text:
ELC 8.2 DETERMINATION OF INCAPACITY TO PRACTICE LAW (a) Review Committee May Order Hearing. Disciplinary counsel reports to a review committee on investigations into an active, suspended, or inactive respondent lawyer’s mental or physical capacity to practice law. Subject to rule 5.2, the respondent lawyer and their guardian or guardian ad litem, if any, shall be provided with a complete copy of disciplinary counsel’s report and shall be afforded a reasonable opportunity to respond prior to the review committee taking action on the report. The committee orders a hearing if it appears there is reasonable cause to believe that the respondent does not have the mental or physical capacity to practice law. In other cases, the committee may direct further investigation as appears appropriate or dismiss the matter. (b) Not Disciplinary Proceedings. Proceedings under this rule are not disciplinary proceedings. (c) Procedure. (1) Applicable Rules and Case Caption. Proceedings under this rule are conducted under the procedural rules for disciplinary proceedings except that the respondent lawyer’s initials are to be used in the case caption rather than the lawyer’s full name. (2) Appointment of Counsel. If counsel for the respondent does not appear within the time for filing an answer, the Chair must appoint an active member of the Association as counsel for the respondent under rule 8.10. (3) Health Records. After a review committee orders a hearing under this rule, disciplinary counsel may require the respondent to furnish written releases and authorizations for medical, psychological, or psychiatric records as may be relevant to the inquiry, subject to a motion to the hearing officer, or if no hearing officer has been appointed, to the chief hearing officer, to limit the scope of the requested releases or authorizations for good cause. (4) Examination. Upon motion, the hearing officer, or if no hearing officer has been appointed, the chief hearing officer, may order an examination by a physician of the respondent’s physical condition or by a mental health professional (as defined by RCW 71.05.020) of the respondent’s mental condition to assist in determining the respondent’s capacity to practice law. Unless waived by the parties, the examiner must submit a report of the examination, including the results of any tests administered and any diagnosis, to the hearing officer, disciplinary counsel, and the respondent. (5) Hearing Officer Recommendation. If the hearing officer finds that the respondent does not have the mental or physical capacity to practice law, the hearing officer must recommend that the respondent be transferred to disability inactive status. (6) Appeal Procedure. Either respondent or disciplinary counsel may appeal from a final determination of the hearing officer as to the respondent’s capacity to practice law. The procedures for appeal and review of suspension recommendations apply to such appeals. (7) Transfer Following Board Review. If, after review of the decision of the hearing officer, the Board finds that the respondent does not have the mental or physical capacity to practice law, it must enter an order immediately transferring the respondent to disability inactive status. The transfer is effective upon service of the order under rule 4.1. (d) Interim Suspension.

(1) When a review committee orders a hearing on the capacity of a respondent to practice law, disciplinary counsel must petition the Supreme Court for the respondent’s interim suspension under rule 7.2(a) unless the respondent is already suspended on an interim basis. (2) Even if the Court previously denied a petition for interim suspension under subsection (d)(1), disciplinary counsel may petition the Court for the interim suspension of a respondent under rule 7.2(a)(3) if the respondent fails: (A) to appear for an independent examination under this rule; (B) to waive health care provider-patient privilege as required by this rule; or (C) to appear at a hearing under this rule. (e) Termination of Interim Suspension. If the hearing officer files a decision recommending that a respondent placed on interim suspension under this rule not be transferred to disability inactive status, upon either party’s petition the Court may terminate the interim suspension. [Adopted effective October 1, 2002; Amended effective January 1, 2014; January 1, 2023.]

citation: ELC ELC 8.2

rule_number: ELC 8.2


title: Disability Proceedings During the Course of Disciplinary Proceedings

text:
ELC 8.3 DISABILITY PROCEEDINGS DURING COURSE OF DISCIPLINARY PROCEEDINGS (a) Supplemental Proceedings on Capacity To Defend. A hearing officer, or chief hearing officer if no hearing officer has been appointed, must order a supplemental proceeding on the respondent lawyer’s capacity to defend the disciplinary proceedings if the respondent asserts, or there is reasonable cause to believe, that the respondent is incapable of properly defending the disciplinary proceeding because of mental or physical incapacity. A different hearing officer shall be appointed for the supplemental proceeding. (b) Purpose of Supplemental Proceedings. In a supplemental proceeding, the hearing officer determines if the respondent: (1) is incapable of defending themself in the disciplinary proceedings because of mental or physical incapacity; (2) is incapable, because of mental or physical incapacity, of defending against the disciplinary charges without the assistance of counsel; or (3) is currently unable to practice law because of mental or physical incapacity. (c) Not Disciplinary Proceedings. Proceedings under this rule are not disciplinary proceedings. (d) Procedure for Supplemental Proceedings. (1) Applicable Rules and Case Caption. Proceedings under this rule are conducted under the procedural rules for disciplinary proceedings except that the respondent lawyer’s initials are to be used in the case caption rather than the lawyer’s full name. (2) Effect on Pending Disciplinary Matters. Pending the outcome of the supplemental proceedings, the hearing officer, or the chief hearing officer if no hearing officer has been appointed, must order any disciplinary proceedings pending against the respondent stayed. Disciplinary counsel may defer any pending disciplinary investigation in accordance with the provisions of rule 5.3(d). (3) Appointment of Counsel. If counsel for the respondent does not appear within 20 days of notice to the respondent of the issues to be considered in a supplemental proceeding under this rule, or within the time for filing an answer, the Chair must appoint an active member of the Association as counsel for the respondent in the supplemental proceedings under rule 8.10. (4) Health Records. Disciplinary counsel may require the respondent to furnish written releases and authorizations for medical, psychological, or psychiatric records as may be relevant to the determination under subsection (b), subject to a motion to the hearing officer to limit the scope of the requested releases or authorizations for good cause. If the respondent asserted incapacity, there is a rebuttable presumption that good cause does not exist. (5) Examination. Upon motion, the hearing officer may order an examination by a physician of the respondent’s physical condition or by a mental health professional (as defined by RCW 71.05.020) of the respondent’s mental condition to assist in the determinations to be made under subsection (b). Unless waived by the parties, the examiner must submit a report of the examination, including the results of any tests administered and any diagnosis, to the hearing officer, disciplinary counsel, and the respondent. (6) Failure To Appear or Cooperate. If the respondent fails to appear for an independent examination, fails to waive health care provider-patient privilege as required in these rules, or

fails to appear at the hearing, unless the procedure under rule 8.10(d) is followed the following procedures apply: (A) If the Association has the burden of proof, the hearing officer must hold a hearing and, if presented with sufficient evidence to determine incapacity, order the respondent transferred to disability inactive status. If there is insufficient evidence to determine incapacity, the hearing officer must enter an order terminating the supplemental proceedings and reinstating the disciplinary proceedings. A respondent who does not appear at the hearing may move to vacate the order of transfer under rule 10.6(c). (B) If the respondent has the burden of proof, the hearing officer must enter an order terminating the supplemental proceedings and resuming the disciplinary proceedings. (7) Hearing Officer Decision. (A) Capacity To Defend and Practice Law. If the hearing officer finds that the respondent is capable of defending themself and has the mental and physical capacity to practice law, the disciplinary proceedings resume. (B) Capacity To Defend with Counsel. Regardless of the hearing officer’s determination as to mental or physical capacity to practice law, if the hearing officer finds that the respondent is not capable of defending themself in the disciplinary proceedings but is capable of adequately assisting counsel in the defense, the supplemental proceedings are dismissed and the disciplinary proceedings resume. If counsel does not appear on behalf of the respondent within 20 days of service of the hearing officer’s decision, the Chair must appoint an active member of the Association as counsel for the respondent in the disciplinary proceeding. (C) Finding of Incapacity. If the hearing officer finds that the respondent either does not have the mental or physical capacity to practice law, or is incapable of assisting counsel in properly defending a disciplinary proceeding because of mental or physical incapacity, the hearing officer must recommend that the respondent be transferred to disability inactive status. (D) Review and Appeals. Either respondent or disciplinary counsel may appeal from a final determination of the hearing officer as to the respondent’s capacity to practice law or respondent’s capacity to defend a disciplinary proceeding. The procedures for appeal and review of suspension recommendations shall apply. (8) Transfer Following Board Review. (A) The Board must enter an order immediately transferring the respondent to disability inactive status if after review of a hearing officer’s recommendation of transfer to disability inactive status, the Board finds that the respondent: (i)does not have the mental or physical capacity to practice law; or (ii) is incapable of assisting counsel in properly defending a disciplinary proceeding because of mental or physical incapacity. (B) The transfer is effective upon service of the order on the respondent under rule 4.1. (e) Interim Suspension. When supplemental proceedings have been ordered, disciplinary counsel must petition the Supreme Court for the respondent’s interim suspension under rule 7.2(a)(1) or seek automatic suspension under rule 7.3 unless the respondent is already suspended on an interim basis. [Adopted effective October 1, 2002; Amended effective January 1, 2014; January 1, 2023.]

citation: ELC ELC 8.3

rule_number: ELC 8.3


title: Appeal of Disability Determinations

text: ELC 8.4 APPEAL OF DISABILITY DETERMINATIONS The respondent lawyer and disciplinary counsel may appeal a Board decision under rules 8.2 or 8.3. The procedures of Title 12 apply to such appeals. The Board’s order as to transfer to disability inactive status remains in effect, regardless of the pendency of an appeal, unless and until reversed by the Supreme Court. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 8.4

rule_number: ELC 8.4


title: Stipulated Transfer to Disability Inactive Status

text: ELC 8.5 STIPULATED TRANSFER TO DISABILITY INACTIVE STATUS (a) Requirements. At any time a respondent lawyer, respondent’s counsel, and disciplinary counsel may stipulate to the transfer of the respondent to disability inactive status under this title. The respondent, respondent’s counsel, and disciplinary counsel must all sign the stipulation. (b) Form. The stipulation must: (1) state with particularity the nature of the respondent’s incapacity to practice law and the nature of any pending disciplinary proceedings that will be stayed and any disciplinary investigation that will be deferred as a result of the respondent’s transfer to disability inactive status; (2) state that it is not binding on the Association as a statement of all existing facts relating to the professional conduct of the respondent and that any additional existing facts may be proved in a subsequent disciplinary proceeding; and (3) fix the amount of costs and expenses to be paid by the respondent. (c) Respondent Must be Represented by Counsel. Respondent must be represented by counsel at the time of entering into the stipulation. If the respondent has not retained counsel, the Chair must appoint an active member of the Association as counsel for the respondent pursuant to rule 8.10. Any counsel appointed for purposes of entering into a stipulation shall be deemed automatically discharged when the Board approves or rejects the stipulation. (d) Approval. The stipulation must be presented to the Board. The Board reviews the stipulation based solely on the record agreed to by the respondent, respondent’s counsel, and disciplinary counsel. The Board may either approve the stipulation or reject it. Upon approval, the transfer to disability inactive status is not subject to further review. (e) Stipulation Not Approved. If the stipulation is rejected by the Board, the stipulation has no force or effect and neither it nor the fact of its execution is admissible in any pending or subsequent disciplinary proceeding or in any civil or criminal action. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 8.5

rule_number: ELC 8.5


title: Costs in Disability Proceedings

text: ELC 8.6 COSTS IN DISABILITY PROCEEDINGS When reviewing a matter under this title, the Board may authorize disciplinary counsel to seek assessment of the costs and expenses against the respondent lawyer. If the Board authorizes, disciplinary counsel may file a statement of costs within 20 days of service of the Board’s order. Rule 13.9 governs assessment of these costs and expenses. The respondent is not required to pay the costs and expenses until 90 days after reinstatement to active status. [Adopted effective October 1, 2002.]

citation: ELC ELC 8.6

rule_number: ELC 8.6


title: Burden and Standard of Proof

text: ELC 8.7 BURDEN AND STANDARD OF PROOF In proceedings under rules 8.2 or 8.3, the party asserting or alleging the incapacity has the burden of proof. If the issue of incapacity is raised by a hearing officer, the Association has the burden of proof. A respondent lawyer establishes incapacity by a preponderance of the evidence. The Association establishes incapacity by a clear preponderance of the evidence. [Amended effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 8.7

rule_number: ELC 8.7


title: Reinstatement to Active Status

text:
ELC 8.8 REINSTATEMENT TO ACTIVE STATUS (a) Right of Petition and Burden. A respondent lawyer transferred to disability inactive status may resume active status only by Board or Supreme Court order. Any respondent transferred to disability inactive status may petition the Board for transfer to active status. The respondent has the burden of showing that the disability has been removed. (b) Petition. The petition for reinstatement must: (1) state facts demonstrating that the disability has been removed; (2) include the name and address of each psychiatrist, psychologist, physician, or other person and each hospital or other institution by whom or in which the respondent has been examined or treated since the transfer to disability inactive status; and (3) be filed with the Clerk and served on disciplinary counsel. (c) Waiver of Privilege. The filing of a petition for reinstatement to active status by a respondent transferred to disability inactive status waives any privilege as to treatment of any medical, psychological, or psychiatric condition during the period of disability. The respondent must furnish, if requested by the Board or disciplinary counsel, written consent to each treatment provider to divulge information and records relating to the disability. (d) Initial Review by Chair. The Chair reviews the petition and any response by disciplinary counsel and directs appropriate action to determine whether the disability has been removed, including investigation by disciplinary counsel or any other person or an examination by a physician of the respondent’s physical condition or by a mental health professional (as defined by RCW 71.05.020) of the respondent’s mental condition. (e) Board Review. (1) The respondent must have a reasonable opportunity to review any reports of investigations or examinations ordered by the Chair and submit additional materials before the matter is submitted to the Board. (2) On submission, the Board reviews the petition and any reports as expeditiously as possible and takes one or more of the following actions: (A) grants the petition; (B) directs additional action as the Board deems necessary to determine whether the disability has been removed; (C) orders that a hearing be held before a hearing officer under the procedural rules for disciplinary proceedings; (D) directs the respondent to establish proof of competence and learning in the law, which may include certification by the bar examiners of successful completion of an examination for admission to practice; (E) denies the petition; (F) directs the respondent to pay the costs of the reinstatement proceedings; or (G) approves or rejects a stipulation to reinstatement between the respondent and the Association.

(3) The petition may be denied without the respondent having an opportunity for a hearing before a hearing officer only if the Board determines that a hearing is not necessary because: (A) the respondent fails to state a prima facie case for reinstatement in the petition; or (B) the petition does not indicate a material change of circumstance since a previous denial of a petition for reinstatement. (f) Petition Granted. If the petition for reinstatement is granted, the Association restores the respondent to the respondent’s prior status and notifies the Supreme Court of the transfer, unless disciplinary counsel files a notice of appeal under subsection (g) of this rule, in which case respondent will not be returned to the respondent’s prior status until that appeal is final. If a disciplinary proceeding has been stayed, or a disciplinary investigation has been deferred because of the disability transfer, the proceeding or investigation resumes upon reinstatement. (g) Review by Supreme Court. Either the respondent or disciplinary counsel may appeal the Board’s decision to the Supreme Court, by filing a notice of appeal with the Clerk within 30 days of service of the Board’s decision on the respondent. Title 12 applies to review under this section. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 8.8

rule_number: ELC 8.8


title: Petition for Limited Guardianship

text: ELC 8.9 PETITION FOR LIMITED GUARDIANSHIP (a) Request for Authorization To Initiate Guardianship Proceedings. A hearing officer, the Chair, Association counsel, the respondent, or respondent’s counsel may request that a review committee authorize the filing of a petition for a limited guardianship of a respondent. (b) Notice. The person requesting authority to file the guardianship petition must give notice to the parties at the time of the request. The party not making the request shall be given a reasonable opportunity, under the facts and circumstances of the case, to respond before the Review Committee renders its decision. The Association and the respondent may submit declarations or affidavits relevant to the Review Committee’s decision. (c) Review Committee Determination. The review committee may authorize the filing of a petition for the appointment of a limited guardian when the review committee reasonably believes that grounds for such an appointment exist under RCW 11.88.010(2). The review committee may require the respondent to submit to any necessary examinations or evaluations and may retain independent counsel to assist in the investigation and the filing of any petition. (d) Action for Limited Guardianship. (1) Upon authorization of a review committee, the petitioning party may file a petition in any Superior Court seeking a limited guardian to act regarding the respondent’s license or any disciplinary or disability investigation or proceeding. (2) Notwithstanding any other statutory qualifications, any guardian or guardian ad litem appointed pursuant to a petition filed under this rule must be a lawyer qualified to maintain and protect the information protected by RPC 1.6 or RPC 1.9 of the respondent’s clients. (3) Upon application to the Superior Court, the respondent may have the matter moved to the county where the respondent is domiciled or maintains an office or another county as authorized by law. (4) The guardianship proceedings must be sealed to the extent necessary to protect information protected by RPC 1.6 or RPC 1.9 of the respondent’s clients or on any other basis found by the Superior Court. (5) The costs of any guardianship proceeding are paid out of the guardianship estate, except if the guardianship estate is indigent, the Association pays the costs. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 8.9

rule_number: ELC 8.9


title: Appointment of Counsel for Respondent

text: ELC 8.10 APPOINTMENT OF COUNSEL FOR RESPONDENT (a) Appointment of Counsel for Respondent. If counsel for the respondent does not appear within the time for filing an answer, or as may otherwise be required, under Title 8 of these rules, or upon an order of further proceedings or a hearing under rule 9.2(e)(3), the Chair must appoint an active member of the Association as counsel for the respondent. (b) Counsel’s Role. Counsel appointed for respondent shall act as an advocate for their client and shall not substitute counsel’s own judgment for that of the client. (c) Withdrawal of Appointed Counsel. Counsel appointed under this rule may withdraw only upon authorization from the Chair, upon a showing of good cause. (d) Action Upon Withdrawal of Appointed Counsel. Upon authorizing appointed counsel to withdraw, the Chair will determine whether to appoint other counsel to represent the respondent, or, upon a finding that there is no reasonable chance that other counsel will be able to represent the respondent and that appointment of counsel would be futile, may recommend to the Board that the respondent be transferred to disability inactive status. The Board will review any order of the Chair recommending transfer to disability inactive status because appointment of counsel would be futile and may either affirm such order or direct that substitute counsel be appointed for the respondent. An unrepresented respondent may not participate in this review by the Board unless specifically authorized by the Chair to participate. The respondent may seek review under rule 12.3 of an order of the Board recommending transfer to disability inactive status under this rule but must be represented by counsel for purposes of such motion unless specifically authorized by the Chair to proceed without representation. [Adopted effective January 1, 2014.]

citation: ELC ELC 8.10


title: Stipulations

text:
ELC 9.1 STIPULATIONS (a) Requirements. Any disciplinary matter or proceeding may be resolved by a stipulation at any time. The stipulation must be signed by the respondent lawyer and approved by disciplinary counsel. The stipulation may impose terms and conditions of probation and contain any other appropriate provisions. (b) Form. A stipulation must: (1) provide sufficient detail regarding the particular acts or omissions of the respondent to permit the Board or hearing officer to form an opinion as to the propriety of the proposed resolution, and, if approved, to make the stipulation useful in any subsequent disciplinary proceeding against the respondent; (2) set forth the respondent’s prior disciplinary record or its absence; (3) state that the stipulation is not binding on disciplinary counsel as a statement of facts about the respondent’s conduct, and that additional facts may be proved in a subsequent disciplinary proceeding; and (4) fix the amount of costs and expenses to be paid by the respondent. (c) Stipulation to Alleged Facts. A respondent lawyer and disciplinary counsel may agree to stipulate to alleged facts in lieu of admissions to particular acts or omissions. The stipulation must also include an agreement that the facts and misconduct will be deemed proved in any subsequent disciplinary proceeding in any jurisdiction. (d) Approval. (1) Standards. The chief hearing officer, a hearing officer, or the Board must approve a stipulation unless the stipulation results in a manifest injustice. (2) Approval by Chief Hearing Officer. Subject to a subsection (1), the chief hearing officer may approve of a stipulation disposing of any matter that is not then pending before an assigned hearing officer, the Board, or the Supreme Court. Approval may be granted at any point, during an investigation or otherwise, prior to entry of final decision under rule 10.16(d). The chief hearing officer may not approve of a stipulation that requires the respondent’s suspension or disbarment. (3) Approval by Hearing Officer. Subject to subsection (1), a hearing officer may approve a stipulation disposing of a matter pending before the officer, unless the stipulation requires the respondent’s suspension or disbarment. This approval constitutes a final decision and is not subject to further review. (4) Approval by Board. All other stipulations must be presented to the Board. The Board reviews a stipulation based solely on the record agreed to by the respondent lawyer and disciplinary counsel. The parties may jointly ask the Chair to permit them to address the Board regarding a stipulation. Such presentations are at the Chair’s discretion. Subject to subsection (1), the Board may approve, conditionally approve, or reject a stipulation. Regardless of the provisions of rule 3.3(a), the Board may direct that information or documents considered in reviewing a stipulation be kept confidential. (5) Approval by Supreme Court.

(A) Suspension and Disbarment. All stipulations agreeing to suspension or disbarment approved by the Board, together with all materials that were submitted to the Board, must be submitted to the Court. Following review, the Court issues an order regarding the stipulation. (B) Matters Pending Before the Supreme Court. At any time a matter is pending before the Court, the parties may submit to the Court for its consideration a stipulation of the parties to resolve the matter. The Court will resolve the matter under such procedure as the Court deems appropriate. (e) Conditional Approval. (1) By Hearing Officer. Subject to subsection (d) (1), a hearing officer may condition the approval of a stipulation on the agreement by the respondent and disciplinary counsel to a different disciplinary action, probation, restitution, or other terms the hearing officer deems necessary to accomplish the purposes of lawyer discipline, provided the terms do not involve suspension or disbarment. If the hearing officer conditions approval of a stipulation, the stipulation as conditioned is deemed approved if, within 14 days of service of the order, or within additional time granted by the hearing officer, both parties serve on the hearing officer written consent to the conditional terms in the order of the hearing officer or chief hearing officer. For purposes of this subsection, “hearing officer” includes the chief hearing officer. (2) By Board. Subject to subsection (d)(1), the Board may condition its approval of a stipulation on the agreement by the respondent and disciplinary counsel to a different disciplinary action, probation, restitution, or other terms the Board deems necessary to accomplish the purposes of lawyer discipline. If the Board conditions approval of a stipulation, the stipulation as conditioned is deemed approved if, within 14 days of service of the order, or within additional time granted by the Chair, both parties serve on the Clerk written consent to the conditional terms in the Board’s order. (f) Reconsideration. Within 14 days of service of an order rejecting or conditionally approving a stipulation, the parties may serve on the Clerk a joint motion for reconsideration. If the conditional approval was made by a hearing officer or chief hearing officer, the motion shall also be served on that officer. The parties may ask to address the Board or officer on the motion. (g) Stipulation Rejected. An order rejecting a stipulation must state the reasons for the rejection. A rejected stipulation has no force or effect and neither it nor the fact of its execution is admissible in evidence in any disciplinary, civil, or criminal proceeding. (h) Review. When a hearing officer or chief hearing officer rejects a stipulation, by agreement the parties may present the stipulation to the Board for consideration. (i) Costs. A final order approving a stipulation is deemed a final assessment of the costs and expenses agreed to in the stipulation for the purposes of rule 13.9, and is not subject to further review. (j) Failure to Comply. A respondent’s failure to comply with the terms of an approved stipulation may be grounds for discipline. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 9.1

rule_number: ELC 9.1


title: Reciprocal Discipline and Disability Inactive Status; Duty to Self-Report

text:
ELC 9.2 RECIPROCAL DISCIPLINE AND DISABILITY INACTIVE STATUS; DUTY TO SELF-REPORT (a) Duty To Self-Report Discipline or Transfer to Disability Inactive Status. Within 30 days of being publicly disciplined, or being transferred to disability inactive status in another jurisdiction, a lawyer admitted to practice in this state must inform disciplinary counsel of the discipline or transfer. (b) Obtaining Order. Upon notification from any source that a lawyer admitted to practice in this state was publicly disciplined, or was transferred to disability inactive status in another jurisdiction, disciplinary counsel must obtain a copy of the order and file it with the Supreme Court, except in circumstances set forth in subsection (g). (c) Supreme Court Action. Except in circumstances set forth in subsection (g), upon receipt of a copy of an order demonstrating that a lawyer admitted to practice in this state has been disciplined or transferred to disability inactive status in another jurisdiction, the Supreme Court orders the respondent lawyer to show cause within 60 days of service why it should not impose the identical discipline or disability inactive status. Disciplinary counsel must personally serve this order, and a copy of the order from the other jurisdiction, on the respondent under rule 4.1(b)(3). (d) Deferral. If the other jurisdiction has stayed the discipline or transfer, any reciprocal discipline or transfer in this state is deferred until the stay expires. (e) Discipline or Transfer To Be Imposed. (1) Sixty days after service of the order under section (c), the Supreme Court imposes the identical discipline or disability inactive status unless disciplinary counsel or the lawyer demonstrates, or the Court finds, that it clearly appears on the face of the record on which the discipline or disability transfer is based, that: (A) The procedure so lacked notice or opportunity to be heard that it denied due process; (B) The proof of misconduct or disability was so infirm that the Court is clearly convinced that it cannot, consistent with its duty, accept the finding of misconduct or disability; (C) The imposition of the same discipline would result in grave injustice; (D) The established misconduct warrants substantially different discipline in this state; (E) The reason for the original transfer to disability inactive status no longer exists; or (F) Appropriate discipline has already been imposed in this jurisdiction for the misconduct. (2) If the Court determines that any of the factors in subsection (1) exist, it enters an appropriate order. The burden is on the party seeking different discipline in this jurisdiction to demonstrate that imposing the same discipline is not appropriate. (3) If the Court orders further proceedings or a hearing to determine if respondent should be transferred to disability inactive status, the provisions of rule 8.10 as to appointment of counsel will apply. (f) Conclusive Effect. Except as this rule otherwise provides, a final adjudication in another jurisdiction that a lawyer has been guilty of misconduct or should be transferred to disability inactive status conclusively establishes the misconduct or the disability for purposes of a disciplinary or disability proceeding in this state.

(g) Prior Matter in Washington. No action will be taken against a lawyer under this rule when the lawyer has already been the subject of discipline, disability transfer, or other final disposition of a grievance, disciplinary proceeding, or disability proceeding in Washington arising out of the same circumstances that are the basis for discipline, resignation, or disability transfer in another jurisdiction. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 9.2

rule_number: ELC 9.2


title: Resignation in Lieu of Discipline

text:
ELC 9.3 RESIGNATION IN LIEU OF DISCIPLINE (a) Grounds. A respondent lawyer who desires not to contest or defend against allegations of misconduct may, at any time before the answer in any disciplinary proceeding is due, or thereafter with disciplinary counsel’s consent, resign their membership in the Association in lieu of further disciplinary proceedings. (b) Process. The respondent first notifies disciplinary counsel that the respondent intends to submit a resignation and asks disciplinary counsel to prepare a statement of alleged misconduct and to provide a declaration of costs and a proposed resignation form. After receiving the statement and the declaration of costs, if any, the respondent may resign by signing and submitting to disciplinary counsel, the resignation form prepared by disciplinary counsel, sworn to or affirmed under oath, which must include the following: (1) Disciplinary counsel’s statement of the misconduct alleged in the matters then pending. (2) Respondent’s statement that they are aware of the alleged misconduct stated in disciplinary counsel’s statement and that rather than defend against the allegations, they wish to permanently resign from membership in the Association. (3) Respondent’s affirmative acknowledgment that the resignation is permanent including the statement: “I understand that my resignation is permanent and that any future application by me for reinstatement as a member of the Washington State Bar Association is currently barred. If the Supreme Court changes this rule or an application is otherwise permitted in the future, it will be treated as an application by one who has been disbarred for ethical misconduct, and that, if I file an application, I will not be entitled to a reconsideration or reexamination of the facts, complaints, allegations, or instances of alleged misconduct on which this resignation was based.” (4) Respondent’s agreement: (A) to notify all other jurisdictions in which the respondent is or has been admitted to practice law of the resignation in lieu of discipline; (B) to seek to resign permanently from the practice of law in any other jurisdiction in which the respondent is admitted; (C) to provide disciplinary counsel with copies of any of these notifications and any responses; and (D) acknowledging that the resignation could be treated as a disbarment by all other jurisdictions. (5) Respondent’s agreement to: (A) notify all other professional licensing agencies in any jurisdiction from which the respondent has a professional license that is predicated on the respondent’s admission to practice law of the resignation in lieu of discipline; (B) seek to resign permanently from any such license; and (C) provide disciplinary counsel with copies of any of these notifications and any responses.

(6) Respondent’s agreement that when applying for any employment or license the respondent agrees to disclose the resignation in lieu of discipline in response to any question regarding disciplinary action or the status of the respondent’s license to practice law. (7) Respondent’s agreement to pay any restitution or additional costs and expenses ordered by a review committee, and attaches payment for costs as described in subsection (f) below, or states that the respondent will execute a confession of judgment or deed of trust as described in subsection (f). (8) Respondent’s agreement that when the resignation becomes effective, the respondent will be subject to all restrictions that apply to a disbarred lawyer. (c) Public Filing. Upon receipt of a resignation meeting the requirements set forth above, and the costs and expenses and any executed confession of judgment or deed of trust required under subsection (f), disciplinary counsel will endorse the resignation and promptly causes it to be filed with the Clerk as a public and permanent record of the Association. (d) Effect. A resignation under this rule is effective upon its filing with the Clerk. All disciplinary proceedings against the respondent terminate except disciplinary counsel has the discretion to continue any investigations deemed appropriate under the circumstances to create a record of the respondent’s actions. The Association immediately notifies the Supreme Court of a resignation under this rule and the respondent’s name is forthwith stricken from the roll of lawyers. Upon filing of the resignation, the resigned respondent must comply with the same duties as a disbarred lawyer under title 14 and comply with all restrictions that apply to a disbarred lawyer. Notice is given of the resignation in lieu of discipline under rule 3.5. (e) Resignation is Permanent. Resignation under this rule is permanent. A respondent who has resigned under this rule will never be eligible to apply and will not be considered for admission or reinstatement to the practice of law nor will the respondent be eligible for admission for any limited practice of law. (f) Costs and Expenses. If a respondent resigns under this rule, the expenses under rule 13.9(c) are $1,500 and respondent must consent to the entry of an order assessing these expenses under ELC 13.9(e). Disciplinary counsel may file a claim under section (g) for costs not covered by this amount. (g) Review of Costs, Expenses, and Restitution. Any claims for restitution or for costs and expenses not resolved by agreement between disciplinary counsel and the respondent may be submitted at any time, including after the resignation, to a review committee in writing for the determination of appropriate restitution or costs and expenses. The Lawyers’ Fund for Client Protection may request review including a determination by the review committee of whether any funds were obtained by the respondent by dishonesty of, or failure to account for money or property entrusted to, the respondent in connection with the respondent’s practice of law or while acting as a fiduciary in a matter related to the respondent’s practice of law. The review committee’s order is not subject to further review and is the final assessment of restitution or costs and expenses for the purposes of rule 13.9 and may be enforced as any other order for restitution or costs and expenses. The record before the review committee and the review committee’s order is public information under rule 3.1(b). [Adopted effective October 1, 2002; Amended effective January 1, 2014; September 1, 2017; January 1, 2023.]

citation: ELC ELC 9.3

rule_number: ELC 9.3


title: Reciprocal Resignation in Lieu of Discipline

text: ELC 9.4 RECIPROCAL RESIGNATION IN LIEU OF DISCIPLINE (a) Duty To Self-Report Resignation in Lieu of Discipline. Within 30 days of resigning in lieu of discipline from another jurisdiction, a lawyer admitted to practice in this state must inform disciplinary counsel of the resignation in lieu of discipline. (b) Obtaining Order. Upon notification from any source that a lawyer admitted to practice in this state has resigned in lieu of discipline in another jurisdiction, disciplinary counsel must obtain a copy of the resignation in lieu of discipline and any order approving the resignation and file it with the Supreme Court, except in circumstances set forth in subsection (e). (c) Supreme Court Action. Except in circumstances set forth in subsection (e), upon receipt of a copy of a resignation in lieu of discipline and any order approving the resignation the Supreme Court orders the respondent lawyer to show cause within 60 days of service why the lawyer should not be disbarred in this jurisdiction. The Association must personally serve this order and a copy of the resignation in lieu of discipline and any order from the other jurisdiction approving the resignation, on the respondent under rule 4.1(b)(3). (d) Discipline To Be Imposed. (1) Sixty days after service of the order under subsection (c), the Supreme Court enters an order disbarring the respondent lawyer unless the lawyer demonstrates that disbarment would result in grave injustice. (2) The burden is on the respondent to establish that continuing to remain admitted to practice in this jurisdiction will not place the public at risk. (3) If the Supreme Court determines that disbarment would result in a grave injustice, the Court may enter an appropriate order. (e) Prior Matter In Washington. No action will be taken against a lawyer under this rule when the lawyer has already been the subject of disciplinary action or other final disposition of a grievance or disciplinary proceeding in Washington arising out of the same circumstances that are the basis for discipline or a resignation in another jurisdiction. [Adopted effective January 1, 2014.]

citation: ELC ELC 9.4

rule_number: ELC 9.4


title: General Procedure

text: ELC 10.1 GENERAL PROCEDURE (a) Applicability of Civil Rules. The civil rules for the superior courts of the State of Washington serve as guidance in proceedings under this title and, where indicated, apply directly. A party may not move for summary judgment, but either party may move at any time for an order determining the collateral estoppel effect of a judgment in another proceeding. Motions for judgment on the pleadings and motions to dismiss based upon the pleadings are available only to the extent permitted in rule 10.10. (b) Meaning of Terms in Civil Rules. In applying the civil rules to proceedings under these rules, terms have the following meanings: (1) "Court" or "judge” means the hearing officer; and (2) "Parties” means the respondent lawyer and disciplinary counsel. (c) Hearing Officer Authority. In addition to the powers specifically provided in these rules, the hearing officer may make any ruling that appears necessary and appropriate to ensure a fair and orderly proceeding. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 10.1


title: Hearing Officer Assignment

text: ELC 10.2 HEARING OFFICER ASSIGNMENT (a) Assignment. The chief hearing officer assigns a hearing officer, from those eligible under rule 2.5. (b) Disqualification and Removal. (1) Removal Without Cause. Either party is entitled to have an assigned hearing officer removed, without establishing cause for the removal, by filing a written request with the Clerk within ten days after service on the respondent of that officer’s assignment. A party may only once request removal without cause in any proceeding. (2) Disqualification for Cause. Either party may move to disqualify any assigned hearing officer for good cause. A motion under this subsection must be filed promptly after the party knows, or in the exercise of due diligence should have known, of the basis for the disqualification. (3) Notice to Chief Hearing Officer. The Clerk must promptly provide copies of requests or motions for removal or for disqualification to the chief hearing officer. (4) Decision. The chief hearing officer decides all requests for removal and disqualification motions, except the Chair decides a request to remove or disqualify the chief hearing officer. The decision of the chief hearing officer or Chair on a request for removal or a motion to disqualify is not subject to interim review. After removal or disqualification of the assigned hearing officer, the chief hearing officer assigns a replacement. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 10.2


title: Commencement of Proceedings

text: ELC 10.3 COMMENCEMENT OF PROCEEDINGS (a) Formal Complaint. (1) Filing. After a matter is ordered to hearing, disciplinary counsel files a formal complaint with the Clerk. (2) Service. After the formal complaint is filed, it must be personally served on the respondent lawyer, with a notice to answer. (3) Content. The formal complaint must state the respondent’s acts or omissions in sufficient detail to inform the respondent of the nature of the allegations of misconduct. Disciplinary counsel must sign the formal complaint, but it need not be verified. (4) Prior Discipline. Prior disciplinary action against the respondent may be described in a separate count of the formal complaint if the respondent is charged with conduct demonstrating unfitness to practice law. (b) Filing Commences Proceedings. A disciplinary proceeding commences when the formal complaint is filed. (c) Consolidation and Joinder. A review committee ordering a hearing on alleged misconduct, or the chief hearing officer after consultation with any assigned hearing officer, has discretion to consolidate for hearing two or more matters against the same respondent, or to join matters against two or more respondents. A consolidation or joinder ordered under this provision serves as authorization to combine multiple matters in one formal complaint or to amend the formal complaint to the extent necessary to implement the joinder or consolidation. (d) Severance. On motion of a party, the hearing officer, in furtherance of convenience or to avoid prejudice, or when severance will promote a fair determination of the issues, may order a severance and separate hearing of any matter joined or consolidated for hearing under subsection (c) of this rule. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 10.3


title: Notice to Answer

text:
ELC 10.4 NOTICE TO ANSWER (a) Content. The notice to answer must be substantially in the following form: BEFORE THE DISCIPLINARY BOARD OF THE WASHINGTON STATE BAR ASSOCIATION In re

) ) _________________, ) Lawyer. )

NOTICE TO ANSWER; NOTICE OF HEARING OFFICER; NOTICE OF DEFAULT PROCEDURE

To: The above named lawyer: A formal complaint has been filed against you, a copy of which is served on you with this notice. You are notified that you must file your answer to the complaint within 20 days of the date of service on you, by filing the original of your answer with the Clerk to the Disciplinary Board of the Washington State Bar Association, [insert address] and by serving one copy on the hearing officer if one has been assigned and one copy on disciplinary counsel at the address[es] given below. Failure to file an answer may result in the imposition of a disciplinary sanction against you and the entry of an order of default under rule 10.6 of the Rules for Enforcement of Lawyer Conduct. Notice of default procedure: Your default may be entered for failure to file a written answer to this formal complaint within 20 days of service as required by rule 10.6 of the Rules for Enforcement of Lawyer Conduct. The entry of an order of default will result in the allegations and violations in the formal complaint being admitted and established and discipline being imposed or recommended based on the admitted charges of misconduct. If an order of default is entered, you will lose the opportunity to participate further in these proceedings unless and until the order of default is vacated on motion timely made under rule 10.6(c) of the Rules for Enforcement of Lawyer Conduct. The entry of an order of default means that you will receive no further notices regarding these proceedings except those required by rule 10.6(b)(2). The hearing officer assigned to this proceeding is: [insert name, address, and telephone number of hearing officer. Dated this __________ day of __________________, 20___.

_________________________________ Disciplinary Counsel, Bar No. Address: _______________________________ Telephone: _____________________________ (b) Notice When Hearing Officer Not Assigned. If no hearing officer has been assigned when a formal complaint is served, disciplinary counsel serves the formal complaint and a notice to answer as in subsection (a), but without reference to the hearing officer. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 10.4


title: Answer

text: ELC 10.5 ANSWER (a) Time to Answer. Within 20 days of service of the formal complaint and notice to answer, the respondent lawyer must file and serve an answer. Failure to file an answer as required may be grounds for discipline and for an order of default under rule 10.6. The filing of a motion to dismiss for failure to state a claim stays the time for filing an answer during the pendency of the motion. (b) Content. The answer must contain: (1) a specific denial or admission of each fact or claim asserted in the formal complaint in accordance with CR 8(b); (2) a statement of any matter or facts constituting a defense, affirmative defense, or justification, in ordinary and concise language without repetition; and (3) an address at which all further pleadings, notices, and other documents in the proceeding may be served on the respondent. (c) Filing and Service. The answer must be filed and served under rules 4.1 and 4.2. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 10.5


title: Default Proceedings

text:
ELC 10.6 DEFAULT PROCEEDINGS (a) Entry of Default. (1) Timing. If a respondent lawyer, after being served with a notice to answer as provided in rule 10.4, fails to file an answer to a formal complaint or to an amendment to a formal complaint within the time provided by these rules, disciplinary counsel may serve the respondent with a written motion for an order of default. (2) Motion. Disciplinary counsel must serve the respondent with a written motion for an order of default and a copy of this rule at least five days before entry of the order of default. The motion for an order of default must include the following: (A) the dates of filing and service of the notice to answer, formal complaint, and any amendments to the complaint; and (B) disciplinary counsel’s statement that the respondent has not timely filed an answer as required by rule 10.5 and that disciplinary counsel seeks an order of default under this rule; and (C) notice that a default will result in the allegations and violations in the formal complaint being admitted and established. (3) Entry of Order of Default. If the respondent fails to file a written answer with the Clerk within 5 days of service of the motion for entry of an order of default, the hearing officer, or if no hearing officer has been assigned, the chief hearing officer, on proof of proper service of the motion, enters an order finding the respondent in default. (4) Effect of Order of Default. Upon entry of an order of default, the allegations and violations in the formal complaint and any amendments to the complaint are deemed admitted and established for the purpose of imposing discipline and the respondent may not participate further in the proceedings unless the order of default is vacated under this rule. (b) Proceedings After Entry of an Order of Default. (1) Service. The Clerk serves the order of default and a copy of this rule under rule 4.2(b). (2) No Further Notices. Notwithstandng any other provision of these rules, after entry of an order of default, no further notices, motions, documents, papers, or transcripts need be served on the respondent except for copies of the decisions of the hearing officer, the Board, and the Court. (3) Disciplinary Proceeding. Within 60 days of the filing of the order of default, the hearing officer must conduct a disciplinary proceeding to recommend disciplinary action based on the allegations and violations established under subsection (a). At the discretion of the hearing officer, these proceedings may be conducted by formal hearing, written submissions, telephone hearing, or other electronic means. Disciplinary counsel may present additional evidence including, but not limited to, requests for admission under rule 10.11(b), and depositions, affidavits, and declarations regardless of the witness’s availability. (c) Setting Aside Default. (1) Motion To Vacate Order of Default. A respondent may move to vacate the order of default and any decision of the hearing officer or Board arising from the default on the following grounds:

(A) mistake, inadvertence, surprise, excusable neglect, or irregularity in obtaining the default; (B) erroneous proceedings against a respondent who was, at the time of the default, incapable of conducting a defense; (C) newly discovered evidence that by due diligence could not have been previously discovered; (D) fraud, misrepresentation, or other misconduct of an adverse party; (E) the order of default is void; (F) unavoidable casualty or misfortune preventing the respondent from defending; or (G) any other reason justifying relief from the operation of the default. (2) Time. The motion must be made within a reasonable time and for grounds (A) and (C) within one year after entry of the default. If the respondent's motion is based on allegations of incapability of conducting a defense, the motion must be made within one year after the disability ceases. (3) Burden of Proof. The respondent bears the burden of proving the grounds for setting aside the default. If the respondent proves that the default was entered as a result of a disability which made the respondent incapable of conducting a defense, the default must be set aside. (4) Service and Contents of Motion. The motion must be filed and served under rules 4.1 and 4.2 and be accompanied by a copy of respondent's proposed answer to each formal complaint for which an order of default has been entered. The proposed answer must state with specificity the respondent's asserted defenses and any facts that respondent asserts as mitigation. The motion to vacate the order of default must be supported by an affidavit showing: (A) the date on which the respondent first learned of the entry of the order of default; (B) the grounds for setting aside the order of default; and (C) an offer of proof of the facts that the respondent expects to establish if the order of default is vacated. (5) Response to Motion. Within ten days of filing and service of the motion to vacate, disciplinary counsel may file and serve a written response. (6) Decision. The hearing officer decides a motion to vacate the order of default on the written record without oral argument. If the proceedings have been concluded, the chief hearing officer assigns a hearing officer to decide the motion. Pending a ruling on the motion, the hearing officer may order a stay of proceedings not to exceed 30 days. In granting a motion to vacate an order of default, the hearing officer has discretion to order appropriate conditions. (7) Appeal of Denial of Motion. A respondent may appeal to the Chair a denial of a motion to vacate an order of default by filing and serving a written notice of appeal stating the arguments against the hearing officer’s decision. The respondent must file the notice of appeal within ten days of service on the respondent of the order denying the motion. The appeal is decided on the written record without oral argument. Pending a ruling on the appeal, the Chair may order a stay of proceedings not to exceed 30 days. In granting a motion to vacate an order of default, the Chair has discretion to order appropriate conditions.

(8) Decision To Vacate Is Not Subject to Interim Review. An order setting aside an order of default is not subject to interim review. (d) Order of Default Not Authorized in Certain Proceedings. The default procedure in this rule does not apply to a proceeding to inquire into a lawyer's capacity to practice law under Title 8 except as provided in that Title. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 10.6


title: Amendment of Formal Complaint

text: ELC 10.7 AMENDMENT OF FORMAL COMPLAINT (a) Amendments Adding Related Facts or Charges. Disciplinary counsel may amend a formal complaint at any time to add facts or charges that relate to matters in the formal complaint or to the respondent lawyer’s conduct regarding the pending proceedings. The respondent may, within 10 days of service of the amendment, object to the amendment by a motion to the hearing officer. The hearing officer will consider the motion under the procedure provided by ELC 10.8. (b) Amendments Dismissing Charges. Disciplinary counsel may dismiss charges at any time and amend a formal complaint accordingly. The respondent may, within 10 days of service of the amendment, object to the amendment by a motion to the hearing officer. The hearing officer will consider the motion under the procedure provided by ELC 10.8. (c) Other Amendments. Disciplinary counsel must obtain authorization from the chief hearing officer for amendments other than those under subsections (a) or (b) or ELC 10.3(c). Disciplinary counsel must give respondent notice of a request for authorization to amend. A request to amend will be considered under the procedure provided by rule 10.8. The chief hearing officer, after consultation with any assigned hearing officer, may authorize the amendment, may require that the additional facts or charges be the subject of a separate formal complaint, or may direct disciplinary counsel to report the matter to a review committee under rule 5.7(c). (d) Decision. In ruling on a motion under this rule, a hearing officer or the chief hearing officer may grant or deny the motion in whole or part. Authorization to amend should be freely given when justice so requires. (e) Service and Answer. Disciplinary counsel serves an amendment to a formal complaint on the respondent as provided in rule 4.1 but need not serve a Notice to Answer with the amendment. Rule 10.5 governs the answer to an amendment except that any part of a previous answer may be incorporated by reference. [Adopted effective October 1, 2002; Amended effective January 1, 2014; September 1, 2017.]

citation: ELC ELC 10.7


title: Motions

text: ELC 10.8 MOTIONS (a) Filing and Service. Motions to the hearing officer, except motions which may be made ex parte or motions at hearing, must be in writing and filed and served as required by rules 4.1 and 4.2. (b) Response. The opposing party has ten days from service of a motion to respond, unless the time is altered by the hearing officer for good cause. (c) Reply. The moving party has seven days from service of the response to reply unless the time for reply is altered by the hearing officer for good cause. (d) Consideration of Motion. Upon expiration of the time for reply, the hearing officer should promptly rule on the motion, with or without argument as may appear appropriate. Argument on a motion may be heard by conference telephone call. (e) Ruling. A ruling on a written motion must be in writing and filed with the Clerk. (f) Minor Matters. Alternatively, motions on minor matters may be made by letter to the hearing officer, with a copy to the opposing party and to the Clerk. The provisions of sections (b) and (c) apply to these motions. A ruling on such motion may also be by letter to each party with a copy to the Clerk. (g) Chief Hearing Officer Authority. Before the assignment of a hearing officer, the chief hearing officer may rule on any prehearing motion. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 10.8


title: Interim Review

text: ELC 10.9 INTERIM REVIEW Unless these rules provide otherwise, the Board may review any interim ruling on request for review by either party, if the Chair determines that review is necessary and appropriate and will serve the ends of justice. [Adopted effective October 1, 2002.]

citation: ELC ELC 10.9


title: Prehearing Dispositive Motions

text: ELC 10.10 PREHEARING DISPOSITIVE MOTIONS (a) Respondent Motion. A respondent lawyer may move for dismissal of all or any portion of one or more counts of a formal complaint for failure to state a claim upon which relief can be granted. (b) Disciplinary Counsel Motion. Disciplinary counsel may move for an order finding misconduct based on the pleadings. In ruling on this motion, the hearing officer may find that all or some of the misconduct as alleged in the formal complaint is established, but will determine the sanction after a hearing. (c) Time for Motion. A motion under subsection (a) of this rule must be filed within the time for filing of the answer to a formal complaint or amended formal complaint, and may be filed in lieu of filing an answer. If the motion does not result in the dismissal of the entire formal complaint or amended formal complaint, the respondent must file and serve an answer to the remaining allegations within 10 days of service of the ruling on the motion. A motion under subsection (b) of this rule must be filed within 30 days of the filing of the answer to a formal complaint or amended formal complaint. (d) Procedure. Rule 10.8 and CR 12 apply to motions under this rule. No factual materials outside the answer and complaint may be presented. If the motion results in dismissal of part but not all of a formal complaint, the Board must hear an interlocutory appeal of the order by either party. The appeal must be filed within 15 days of service of the order. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 10.10


title: Discovery and Prehearing Procedures

text: ELC 10.11 DISCOVERY AND PREHEARING PROCEDURES (a) General. The parties should cooperate in mutual informal exchange of relevant non privileged information to facilitate expeditious, economical, and fair resolution of the case. (b) Requests for Admission. After a formal complaint is filed, the parties may request admissions under CR 36. Under appropriate circumstances, the hearing officer may apply the sanctions in CR 37(c) for improper denial of requests for admission. (c) Other Discovery. After a formal complaint is filed, the parties have the right to other discovery under the Superior Court Civil Rules, including under CR 27–31 and 33–35, only on motion and under terms and limitations the hearing officer deems just or on the parties’ stipulation. (d) Limitations on Discovery. The hearing officer may exercise discretion in imposing terms or limitations on the exercise of discovery to assure an expeditious, economical, and fair proceeding, considering all relevant factors including necessity and unavailability by other means, the nature and complexity of the case, seriousness of charges, the formal and informal discovery that has already occurred, the burdens on the party from whom discovery is sought, and the possibility of unfair surprise. (e) Subpoenas. Subpoenas may be issued under CR 45. Subpoenas may be enforced under rule 4.7. (f) Commissions. For a deposition outside Washington State, a commission need not issue, but a copy of the order of the chief hearing officer or hearing officer, certified by the officer, is sufficient to authorize the deposition. (g) CR 16 Orders. The hearing officer may enter orders under CR 16. (h) Duty to Cooperate. A respondent lawyer who has been served with a formal complaint must respond to discovery requests and comply with all lawful orders made by the hearing officer. The hearing officer may draw adverse inferences as appear warranted by the failure of either the Association or the respondent to respond to discovery. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 10.11


title: Scheduling Hearing

text:
ELC 10.12 SCHEDULING OF HEARING (a) Where Held. Absent agreement of all parties, all disciplinary hearings must be held in Washington State. (b) Scheduling Conference. Following the filing of respondent’s answer, the hearing officer must convene a scheduling conference of the parties, by conference call or in person. (c) Scheduling Order. The hearing officer must enter an order setting the date and place of the hearing. This order may include any prehearing deadlines the hearing officer deems required by the complexity of the case, as well as a determination regarding a settlement conference under subsection (h). The Scheduling Order may be in the following form with the following timelines: SCHEDULING CONFERENCE DETERMINATION: The hearing officer finds that this case may benefit from a settlement conference, and a settlement officer should be appointed. IT IS ORDERED that the hearing is set and the parties must comply with prehearing deadlines as follows: 1. Witnesses. A preliminary list of intended witnesses, including addresses and phone numbers, and a designation of whether the witness is a fact witness, character witness, or expert witness, must be filed and served by [Hearing Date (H)-12 weeks]. 2. Discovery. Discovery cut-off is [H-6 weeks]. 3. Motions. Prehearing motions, other than motions to bifurcate, must be served by [H-4 weeks]. An exhibit not ordered or stipulated admitted may not be attached to a motion or otherwise transmitted to the hearing officer unless the motion concerns the exhibit’s admissibility. The hearing officer will advise counsel whether oral argument is necessary, and, if so, the date and time, and whether it will be heard by telephone. (Rule 10.15 provides the deadline for a motion to bifurcate.) 4. Exhibits. Lists of proposed exhibits must be exchanged by [H-3 weeks]. 5. Service of Exhibits/Final Witness List. Copies of proposed exhibits and a final witness list, including a summary of the expected testimony of each witness must be exchanged by [H-2 weeks]. A copy of the final witness list, excluding the summary of expected testimony, must be filed and served by [H-2 weeks]. 6. Objections. Objections to proposed exhibits, including grounds other than relevancy, must be exchanged by [H-1 week]. 7. Briefs. Any hearing brief must be filed and served by [H-1 week]. Exhibits not ordered or stipulated admitted may not be attached to a hearing brief or otherwise transmitted to the hearing officer before the hearing. 8. Hearing. The hearing is set for [H] and each day thereafter until recessed by the hearing officer, at [location].

(d) Failure to Comply With Scheduling Order. Upon a party failing to comply with a provision of the scheduling order, the hearing officer may exclude witnesses, testimony, exhibits or other evidence, and take such other action as may be appropriate. (e) Motion for Hearing Within 120 Days. A respondent’s motion under section (b) for a hearing within 120 days must be granted, unless disciplinary counsel shows good cause for setting the hearing at a later date. (f) Notice. Service of a copy of an order or ruling of the hearing officer setting a date, time, and place for the hearing constitutes notice of the hearing. The respondent must be given at least ten days notice of the hearing absent consent. (g) Continuance. Either party may move for a continuance of the hearing date. The hearing officer has discretion to grant the motion for good cause shown. (h) Settlement Conference. (1) Procedure. The hearing officer determines whether a settlement conference should be ordered whenever: (A) the hearing officer issues a scheduling order under subsection (c); or (B) a party requests a settlement conference in writing. (2) Timing. Unless agreed to by the parties a settlement conference may not be scheduled later than 30 days prior to the hearing date specified in the scheduling order. (3) Factors Considered. When making a determination about whether to order a settlement conference, the hearing officer shall consider whether such a conference would be helpful in light of the complexity of the issues, the extent to which the relevant facts or charged violations are disputed, or any other relevant factor. (4) Appointment. The chief hearing officer will determine whether to appoint the assigned hearing officer or another hearing officer to conduct the settlement conference. Following a settlement conference, the hearing officer who conducted the settlement conference may not conduct the disciplinary hearing without the consent of all parties. (5) Confidentiality. Settlement conference proceedings are confidential and not admissible in any discipline proceeding. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 10.12


title: Disciplinary Hearing

text: ELC 10.13 DISCIPLINARY HEARING (a) Representation. The respondent lawyer may be represented by counsel. (b) Respondent Must Attend. A respondent given notice of a hearing must attend the hearing. Failure to attend the hearing, without good cause, may be grounds for discipline. If, after proper notice, the respondent fails to attend the hearing, the hearing may proceed, and the hearing officer: (1) may draw an adverse inference from the respondent's failure to attend as to any questions that might have been asked the respondent at the hearing; and (2) must admit testimony by deposition regardless of the deponent’s availability. An affidavit or declaration is also admissible, if: (A) the facts stated are within the witness’s personal knowledge; (B) the facts are set forth with particularity; and (C) it shows affirmatively that the witness could testify competently to the stated facts. (c) Respondent Must Bring Requested Materials. Disciplinary counsel may request in writing, served on the respondent at least three days before the hearing, that the respondent bring to the hearing any documents, files, records, or other written materials or things previously requested in accordance with these rules. The respondent must comply with this request and failure to bring requested materials, without good cause, may be grounds for discipline. (d) Witnesses. Except as provided in subsection (b)(2), witnesses must testify under oath. Testimony may also be submitted by deposition as permitted by CR 32. If ordered by the hearing officer, testimony may be taken by telephone, television, video connection, or other contemporaneous electronic means. Testimony must be recorded by a court reporter or, if allowed by the hearing officer, by tape or electronic recording. The parties have the right to cross-examine witnesses who testify and to submit rebuttal evidence. (e) Subpoenas. The parties may subpoena witnesses, documents, or things under the terms of CR 45. A witness must promptly comply with all subpoenas issued under this rule and with all lawful orders made by the hearing officer under this rule. Subpoenas may be enforced under rule 4.7. The hearing officer may additionally draw adverse inferences as appear warranted by the respondent’s failure to respond. (f) Prior Disciplinary Record. The respondent’s record of prior disciplinary action, or the fact that the respondent has no prior disciplinary action, must be made a part of the hearing record before the hearing officer files a recommendation. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 10.13


title: Evidence and Burden of Proof

text: ELC 10.14 EVIDENCE AND BURDEN OF PROOF (a) Proceedings Not Civil or Criminal. Hearing officers should be guided in their evidentiary and procedural rulings by the principle that disciplinary proceedings are neither civil nor criminal but are sui generis hearings to determine if a lawyer's conduct should have an impact on the lawyer’s license to practice law. (b) Burden of Proof. Disciplinary counsel has the burden of establishing an act of misconduct by a clear preponderance of the evidence. (c) Proceeding Based on Criminal Conviction. If a formal complaint charges a respondent lawyer with an act of misconduct for which the respondent has been convicted in a criminal proceeding, the court record of the conviction is conclusive evidence at the disciplinary hearing of the respondent’s guilt of the crime and violation of the statute on which the conviction was based. (d) Rules of Evidence. Consistent with subsection (a) of this rule, the following rules of evidence apply during disciplinary hearings: (1) Evidence, including hearsay evidence, is admissible if in the hearing officer’s judgment it is the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their affairs. The hearing officer may exclude evidence that is irrelevant, immaterial, or unduly repetitious; (2) If not inconsistent with subsection (1), the hearing officer shall refer to the Washington Rules of Evidence as guidelines for evidentiary rulings; (3) Documents may be admitted in the form of copies or excerpts, or by incorporation by reference; (4) Official Notice. (A) official notice may be taken of: (i) any judicially cognizable facts; (ii) technical or scientific facts within the hearing officer’s specialized knowledge; and (iii) codes or standards adopted by an agency of the United States, of this state, or of another state, or by a nationally recognized organization or association. (B) The parties shall be notified either before or during hearing, or by reference in preliminary reports or otherwise, of the material noticed and the sources thereof, including any staff memoranda and data, and they shall have an opportunity to contest the facts and material noticed. A party proposing that official notice be taken may be required to produce a copy of the material to be noticed. (e) Administrative Procedure Act (APA) as Guidance. The evidence standards in this rule are based on the evidence provisions of the Washington Administrative Procedures Act, ch. 34.05 RCW, which, when not inconsistent with these standards, should be looked to for guidance. “Shall” has the meaning in this rule ascribed to it in the APA. [Adopted effective October 1, 2002; Amended effective January 1, 2014; January 1, 2023.]

citation: ELC ELC 10.14