title: Bifurcated Hearings

text: ELC 10.15 BIFURCATED HEARINGS (a) When Allowed. Upon written motion filed no later than 60 days before the scheduled hearing, either party may request that the disciplinary proceeding be bifurcated. The hearing officer must weigh the reasons for bifurcation against any increased cost and delay, inconvenience to participants, duplication of evidence, and any other factors, and may grant the motion only if it appears necessary to insure a fair and orderly hearing because the respondent has a record of prior disciplinary sanction or because either party would suffer significant prejudice or harm. (b) Procedure. (1) Violation Hearing. (A) A bifurcated proceeding begins with an initial hearing to make factual determinations and legal conclusions as to the violations charged, including the mental state necessary for the violations. During this stage of the proceedings, evidence of a prior disciplinary record is not admissible to prove the respondent’s character or to impeach the respondent’s credibility. However, evidence of prior acts of misconduct may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (B) At the conclusion of that hearing, the hearing officer files findings and conclusions. (i) If no violation is found, the proceedings are concluded, the findings and conclusions are the decision of the hearing officer, and the sanction hearing is canceled. (ii) If any violation is found, after the expiration of the time for a motion to amend under rule 10.16(c), or after ruling on that motion, the findings and conclusions as to those violations are not subject to reconsideration by the hearing officer. (2) Sanction Hearing. If any violation is found, a second hearing is held to determine the appropriate sanction recommendation. During the sanction hearing, evidence of the existence or lack of any prior disciplinary record is admissible. No evidence may be admitted to contradict or challenge the findings and conclusions as to the violations. At the conclusion of the sanction hearing, the hearing officer files findings and conclusions as to a sanction recommendation, that, together with the previously filed findings and conclusions, is the decision of the hearing officer. (3) Timing. If a motion for bifurcation is granted, the violation hearing is held on the date previously set for hearing. Upon granting a motion to bifurcate, the hearing officer must set a date and place for the sanction hearing. Absent extraordinary circumstances, the sanction hearing should be held no later than 45 days after the anticipated last day of the violation hearing. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 10.15


doc_type: court-rule

jurisdiction: wa

title: Decision of Hearing Officer

text: ELC 10.16 DECISION OF HEARING OFFICER (a) Decision. Within 30 days after the proceedings are concluded or (if applicable) the transcript of proceedings is served, the hearing officer should file with the Clerk a decision in the form of findings of fact, conclusions of law, and recommendation. This deadline may be extended by agreement. (b) Preparation of Findings. Either party may submit proposed findings of fact, conclusions of law, and recommendation. Proposed findings, conclusions, and recommendation, if any, must be submitted within 20 days after the disciplinary hearing is concluded or as otherwise ordered by the hearing officer. The hearing officer either (1) writes findings of fact, conclusions of law, and recommendations without requiring submission of proposed findings, conclusions, or recommendations or (2) announces a tentative decision then requests one or both parties to prepare proposed findings, conclusions, and recommendations. After notice and an opportunity to respond, the hearing officer considers the proposals and responses and enters findings, conclusions, and recommendations. (c) Amendment. (1) Timing of Motion. Either party may move to modify, amend, or correct the decision as follows: (A) In a proceeding not bifurcated, within 15 days of service of the decision on the respondent lawyer; (B) In a bifurcated proceeding, within 15 days of service of: (i) the violation findings of fact and conclusions of law; or (ii) the sanction recommendation, but this motion may not seek to modify, amend, or correct the violation findings or conclusions. (2) Procedure. Rule 10.8 governs this motion. The hearing officer should rule on the motion within 15 days after the filing of a timely reply or after the period to file a reply under rule 10.8(c) has expired. The ruling may deny the motion or may amend, modify, or correct the decision. (3) Effect of Failure To Move. Failure to move for modification, correction, or amendment does not affect any appeal to the Board or review by the Supreme Court. (d) When Final. If a hearing officer recommends reprimand or an admonition, or recommends dismissal of the charges, the recommendation becomes the final decision if neither party files an appeal and the Chair does not refer the matter to the Board for sua sponte review under rule 11.13(b). If the Chair refers a matter for sua sponte review under rule 11.3(b) and the Board declines review, the hearing officer’s recommendation becomes the final decision upon entry of the Board’s order declining review. If a hearing officer recommends disbarment or suspension, the recommendation becomes the final decision only upon entry of an order by the Supreme Court under rule 11.12(g) or final action on an appeal or petition for discretionary review under Title 12. [Adopted effective October 1, 2002; Amended effective January 1, 2014; January 1, 2015; September 1, 2017.]

license: public-domain-government-work

citation: ELC ELC 10.16

rule_set: ELC


title: Scope of Title

text: ELC 11.1 SCOPE OF TITLE This title provides the procedure for Board review following a hearing officer’s findings of fact, conclusions of law, and recommendation, or dismissal of all claims under rule 10.10(a). It does not apply to Board review of interim rulings under rule 10.9. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 11.1


title: Decisions Subject to Board Review

text: ELC 11.2 DECISIONS SUBJECT TO BOARD REVIEW (a) Decision. For purposes of this title, “Decision” means: (1) the hearing officer’s findings of fact, conclusions of law, and recommendation, provided that if either party properly files a motion to amend under rule 10.16(c), the “Decision” includes the ruling on the motion, and becomes subject to Board review only upon the ruling on the motion; or (2) the hearing officer’s decision under rule 10.10(a) dismissing all claims. (b) Review of Decisions. The Board reviews a Decision if: (1) either party files a notice of appeal within 30 days of service of the Decision on the respondent; or (2) the Board orders sua sponte review under rule 11.3. (c) Cross Appeal. If a party files a timely notice of appeal under subsection (b)(1) of this rule and the other party wants relief from the Decision, the other party must file a notice of appeal with the Clerk within the later of (1) 14 days after service of the notice filed by the other party or (2) within the time set forth in subsection (b) for filing a notice of appeal. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 11.2


title: Sua Sponte Review

text: ELC 11.3 SUA SPONTE REVIEW (a) Sua Sponte Review of Recommendations for Disbarment and Suspension. If neither the Respondent nor Disciplinary Counsel files a timely notice of appeal from a Decision recommending suspension or disbarment, the Decision shall be distributed to the Board members for consideration of whether to order sua sponte review and the matter shall be scheduled for consideration by the Board. The Decision shall be distributed to the Board within 30 days after the last day to file a notice of appeal. An order for sua sponte review shall set forth the issues to be reviewed. If the Board declines to order sua sponte review, the Board shall issue an order declining sua sponte review and adopting the Decision of the hearing officer. (b) Sua Sponte Review of Other Recommendations. The Chair may file a notice of referral for sua sponte consideration of a Decision other than one recommending disbarment or suspension under rule 11.2(b)(2). The notice shall be filed within 30 days after the last day to file a notice of this appeal. Upon this filing, the Chair causes a copy to be served on the parties and schedules the matter for consideration by the Board. On consideration, the Board either issues an order for sua sponte review setting forth the issues to be reviewed or an order declining sua sponte review. (c) Procedure. If the Board issues an order for sua sponte review, the Board’s order must designate the appellant for purposes of rules 11.6 and 11.9, but either party may raise any issue for Board review. Board review is conducted as described in rule 11.12. (d) Standards for Ordering Sua Sponte. The Board should order sua sponte review only in extraordinary circumstances to prevent substantial injustice or to correct a clear error. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 11.3


title: Transcript of Hearing

text: ELC 11.4 TRANSCRIPT OF HEARING (a) Ordering Transcript. A hearing transcript or partial transcript may be ordered at any time by the hearing officer, respondent lawyer, disciplinary counsel, or the Board. If a notice of appeal is filed under rule 11.2(b)(1) disciplinary counsel must order the entire transcript unless the parties agree that no transcript or only a partial transcript is necessary for review. For sua sponte review, the Chair determines the extent of the transcript necessary for review. If the Chair orders a partial transcript, either party may request additional portions of the transcript. (b) Filing and Service. The original of the transcript is filed with the Clerk. Disciplinary counsel must cause a copy of the transcript to be served on the respondent except if the respondent ordered the transcript. (c) Proposed Corrections. Within 10 days of service of a copy of the transcript on the respondent, or within 10 days of filing the transcript if the respondent ordered the transcript, each party may file any proposed corrections to the transcript. Each party has 5 days after service of the opposing party’s proposed corrections to file objections to those proposed corrections. (d) Settlement of Transcript. If either party files objections to any proposed correction under section (c), the hearing officer, upon review of the proposed corrections and objections, enters an order settling the transcript. Otherwise, the transcript is deemed settled and any proposed corrections deemed incorporated in the transcript. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 11.4


title: Record on Review

text: ELC 11.5 RECORD ON REVIEW (a) Generally. The record on review consists of: (1) any hearing transcript or partial transcript; and (2) bar file documents and exhibits designated by the parties. (b) References to the Record. Briefs filed under rule 11.9 must specifically refer to the record if available, using the designations TR for transcript of hearing, EX for exhibits, and BF for bar file documents. (c) Avoid Duplication. Material appearing in one part of the record on review should not be duplicated in another part of the record on review. (d) No Additional Evidence. Evidence not presented to the hearing officer must not be presented to the Board. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 11.5


title: Designation of Bar File Documents and Exhibits

text: ELC 11.6 DESIGNATION OF BAR FILE DOCUMENTS AND EXHIBITS (a) RAP 9.6 Controls. The parties designate bar file documents and exhibits for Board consideration under the procedure of RAP 9.6, except as provided by this rule. (b) Bar File Documents. The bar file documents are considered the clerk’s papers. (c) Disciplinary Board and Clerk. The Disciplinary Board is considered the appellate court and the Clerk to the Disciplinary Board is considered the trial court clerk. (d) and Time for Designation. When a party appeals to the Board, that party must file and serve that party’s designation of bar file documents and exhibits within 15 days of filing the notice of appeal. In all other reviews, the party identified as appellant by the Board’s order is responsible for designating bar file documents and exhibits. (e) Hearing Officer Recommendation. The bar file documents must include the hearing officer’s recommendation. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 11.6


title: Preparation of Bar File Documents and Exhibits

text: ELC 11.7 PREPARATION OF BAR FILE DOCUMENTS AND EXHIBITS (a) Preparation. The Clerk prepares the bar file documents and exhibits in the format required by RAP 9.7(a) and (b), and distributes them to the Board. The Clerk provides the parties with a copy of the index of the bar file documents and the cover sheet listing the exhibits. (b) Costs. Costs for preparing bar file documents and exhibits may be assessed as costs under rule 13.9(b)(9). [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 11.7


title: Deleted

text: ELC 11.8 [RESCINDED] [Adopted effective October1, 2002; Rescinded effective January 1, 2014.]

citation: ELC ELC 11.8


title: Briefs

text: ELC 11.9 BRIEFS (a) Caption of Briefs. The parties should caption briefs as follows: [Name of Party] Opening Brief [Name of Party] Response [Name of Party] Reply (b) Opening Brief. (1) The party seeking review must file an opening brief within 45 days of the later of: (A) service on the respondent lawyer of a copy of the transcript, unless the parties have agreed that no transcript is necessary; or (B) filing of the notice of appeal. (2) Failure to file an opening brief within the required period constitutes an abandonment of the appeal. (c) Response. The opposing party has 30 days from service of the opening brief to file a brief responding to the issues raised on appeal. (d) Reply. The party seeking review may file a reply to the response within 30 days of service of the response. (e) Procedure when Both Parties Seek Review or the Board Orders Sua Sponte Review. When both parties file notices of appeal the party filing first is considered the party seeking review. When the Board initiates sua sponte review, the order must designate the party seeking review. In these cases, the responding party may raise any issue for Board review, and the designated party seeking review has an additional five days to file the reply permitted by subsection (d). [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 11.9


title: Supplementing Record on Review

text: ELC 11.10 SUPPLEMENTING RECORD ON REVIEW The record on review may be supplemented under the procedures of RAP 9.6 except that leave to supplement is freely granted. The Board may direct that the record be supplemented with any portion of the record before the hearing officer, including any bar file documents and exhibits. [Adopted effective October 1, 2002.]

citation: ELC ELC 11.10


title: Request for Additional Proceedings

text: ELC 11.11 REQUEST FOR ADDITIONAL PROCEEDINGS In any brief permitted in rule 11.9, either party may request that an additional hearing be held before the hearing officer to take additional evidence based on newly discovered evidence. A request for an additional hearing must be supported by affidavit describing in detail the additional evidence sought to be admitted and any reasons why it was not presented at the previous hearing. The Board may grant or deny the request in its discretion. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 11.11


title: Decision of Board

text:
ELC 11.12 DECISION OF BOARD (a) Basis for Review. Board review is based on the hearing officer's Decision, the parties' briefs filed under rule 11.9, and the record on review. (b) Standards of Review. The Board reviews findings of fact for substantial evidence. The Board reviews conclusions of law and recommendation de novo. Evidence not presented to the hearing officer cannot be considered by the Board. (c) Oral Argument. The Board hears oral argument if requested by either party or the Chair. A party's request must be filed no later than the deadline for that party to their last brief, including a response or reply, under rule 11.9. The Chair's notice of oral argument must be filed and served on the parties no later than 14 days before the oral argument. The Chair sets the time, place, and terms for oral argument. (d) Action by Board. On review, the Board may adopt, modify, or reverse the findings, conclusions, or recommendation of the hearing officer. The Board may also direct that the hearing officer hold an additional hearing on any issue, on its own motion, or on either party's request. (e) Order or Opinion. The Board must issue a written order or opinion. If the Board amends, modifies, or reverses any finding, conclusion, or recommendation of the hearing officer, the Board must state the reasons for its decision in a written order or opinion. A Board member agreeing with the majority's order or opinion may file separate concurring reasons. A Board member dissenting from the majority's order or opinion may set forth in writing the reasons for that dissent. Regardless of whether or not a dissenting member files a written dissent, the Board order or opinion must set forth the result favored by each dissenting member. The decision should be prepared as expeditiously as possible and consists of the majority's opinion or order together with any concurring or dissenting opinions. None of the opinions or orders may be filed until all opinions are filed. A copy of the complete decision is served by the Clerk on the parties. (f) Procedure to Amend, Modify, or Reverse if No Appeal. (1) If the Board intends to amend, modify, or reverse the hearing officer's recommendation in a matter that has not been appealed to the Board by either party, the Board issues a notice of intended decision. (2) Either party may, within 15 days of service of this notice, file a request that the Board reconsider the intended decision. (3) If a request is filed, the Board reconsiders its intended decision and the intended decision has no force or effect. The Chair determines the procedure for the Board's reconsideration, including whether to grant requests for oral argument. (4) If no timely request for reconsideration is filed, the Board forthwith issues an order adopting the intended decision effective on the date of the order. If a party files a timely request for reconsideration, the Board issues an order or opinion after reconsideration under subsection (e). (g) Decision Final Unless Appealed. The Board's decision is final if neither party files a notice of appeal or a petition for review within the time permitted by Title 12 or upon the Supreme Court's denial of a petition for discretionary review. When a Board decision recommending suspension or disbarment becomes final because neither party has filed a notice of appeal or petition for discretionary review, the Clerk transmits to the Supreme Court a copy of the Board's decision together with the findings, conclusions, and recommendation of the hearing officer for entry of an appropriate order.

[Adopted effective October 1, 2002; Amended effective January 1, 2014; January 1, 2023.]

citation: ELC ELC 11.12


title: Chair May Modify Requirements

text: ELC 11.13 CHAIR MAY MODIFY REQUIREMENTS Upon written motion filed with the Clerk by either party, for good cause shown, the Chair may modify the time periods in Title 11, and make other orders as appear appropriate to assure fair and orderly Board review. However, the time period for filing a notice of appeal in rule 11.2(b) may not be extended or altered. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 11.13


title: Motions

text: ELC 11.14 MOTIONS (a) Content of Motion. A motion must include (1) a statement of the name and designation of the person filing the motion, (2) a statement of the relief sought, (3) reference to or copies of parts of the record relevant to the motion, and (4) a statement of the grounds for the relief sought, with supporting argument. (b) Filing and Service. Motions on matters pending before the Board must be in writing and filed with the Clerk. The motion and any response or reply must be served as required by rule 4.1. (c) Response. The opposing party may submit a written response to the motion. A response must be served and filed within 10 days of service of the motion, unless the time is shortened by the Chair for good cause. (d) Reply. The moving party may submit a reply to a response. A reply must be served and filed within 7 days of service of the response, unless the time for reply is shortened by the Chair for good cause. (e) Length of Motion, Response, and Reply. A motion and response must not exceed 10 pages, not including supporting papers. A reply must not exceed 5 pages, not including supporting papers. For good cause, the Chair may grant a motion to file an over length motion, response, or reply. (f) Consideration of Motion. Upon expiration of the time for reply, the Chair must promptly rule on the motion or refer the motion to the full Board for decision. A motion will be decided without oral argument, unless the Chair directs otherwise. (g) Ruling. A motion is decided by written order filed with and served by the Clerk under rule 4.2(b). (h) Minor Matters. Motions on minor matters may be made by letter to the Chair, with a copy served on the opposing party and filed with the Clerk. The provisions of subsections (c), (d), and (f) of this rule apply to such motions. A ruling on such a motion is decided by written order filed with and served by the Clerk under rule 4.2(b). [Adopted effective January 1, 2014.]

citation: ELC ELC 11.14


title: Applicability of Rules of Appellate Procedure

text: ELC 12.1 APPLICABILITY OF RULES OF APPELLATE PROCEDURE The Rules of Appellate Procedure serve as guidance for review under this title except as to matters specifically dealt with in these rules. [Adopted effective October 1, 2002.]

citation: ELC ELC 12.1


title: Methods of Seeking Review

text: ELC 12.2 METHODS OF SEEKING REVIEW (a) Two Methods for Seeking Review of Board Decisions. The methods for seeking Supreme Court review of Board decisions entered under rule 11.12(e) are: review as a matter of right, called "appeal”, and review with Court permission, called "discretionary review." Both "appeal" and "discretionary review" are called "review." (b) Power of Court Not Affected. This rule does not affect the Court’s power to review any Board decision recommending suspension or disbarment and to exercise its inherent and exclusive jurisdiction over the lawyer discipline and disability system. The Court notifies the respondent lawyer and disciplinary counsel of the Court’s intent to exercise sua sponte review within 90 days of the Court receiving notice of the decision under rule 3.5(a) or otherwise. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 12.2


title: Appeal

text: ELC 12.3 APPEAL (a) Right to Appeal. The respondent lawyer or disciplinary counsel has the right to appeal a Board decision recommending suspension or disbarment. There is no other right of appeal. (b) Notice of Appeal. The appealing party must file a notice of appeal with the Clerk within 30 days of service of the Board’s decision on that party. (c) Susequent Notice by the Other Party. When a timely notice of appeal has been filed by a party, if the other party wants relief from the Board’s decision, that party must file a notice of appeal with the Clerk within 14 days after service of the notice filed by the other party. (d) Filing Fee. The first party to file a notice of appeal must, at the time the notice is filed, either pay the statutory filing fee to the Clerk of the Disciplinary Board by cash or by check made payable to the Clerk of the Supreme Court, or by appropriate motion apply to the Clerk of the Supreme Court for a waiver of the filing fee based upon a showing of indigency. (e) Service. A party filing any notice of appeal must serve the other party. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 12.3


title: Discretionary Review

text: ELC 12.4 DISCRETIONARY REVIEW (a) Decisions Subject to Discretionary Review. Respondent or disciplinary counsel may seek discretionary review of Board decisions under rule 11.12(e) not subject to appeal under rule 12.3. The Court accepts discretionary review only if: (1) the Board’s decision is in conflict with a Supreme Court decision; (2) a significant question of law is involved; (3) there is no substantial evidence in the record to support a material finding of fact on which the Board’s decision is based; or (4) the petition involves an issue of substantial public interest that the Court should determine. (b) Petition for Review. Respondent or disciplinary counsel may seek discretionary review by filing a petition for review with the Clerk within 30 days of service of the Board’s decision on respondent. (c) Content of Petition; Answer; Service; Decision. A petition for review should be substantially in the form prescribed by RAP 13.4(c) for petitions for Supreme Court review of Court of Appeals decisions. References in that rule to the Court of Appeals are considered references to the Board. The appendix to the petition or an appendix to an answer or reply may additionally contain any part of the record, including portions of the transcript or exhibits, to which the party refers. RAP 13.4(d) (h) governs answers and replies to petitions for review and related matters including service and decision by the Court. (d) Subsequent Petition By Other Parties. If a timely petition for discretionary review is filed by the Respondent or disciplinary counsel, and the other party wants relief from the Board’s decision, they must file a petition for discretionary review with the Clerk within the later of: (1) 14 days after service of the petition filed by the other party, or (2) the time for filing a petition under subsection (b) of this rule. (e) Filing Fee. The first party to file a petition for discretionary review must, at the time the petition is filed, either pay the statutory filing fee to the Clerk of the Disciplinary Board by cash or by check made payable to the Clerk of the Supreme Court, or by appropriate motion apply to the Clerk of the Supreme Court for a waiver of the filing fee based upon a showing of indigency. (f) Acceptance of Review. The Court accepts discretionary review of a Board decision by granting a petition for review. Upon acceptance of review, the same procedures apply to matters subject to appeal and matters subject to discretionary review. [Adopted effective October 1, 2002; Amended effective January 1, 2014; January 1, 2023.]

citation: ELC ELC 12.4


title: Record to Supreme Court

text: ELC 12.5 RECORD TO SUPREME COURT (a) Transmittal. The Clerk should transmit the record, including the filing fee, to the Supreme Court within 30 days of the filing of the notice of appeal, service of the order accepting review, or filing of the transcript of oral argument before the Board, if any. Notwithstanding these deadlines, the Clerk should not transmit the record to the Supreme Court prior to payment of the filing fee or receipt of proof that the Supreme Court has waived the filing fee. (b) Content. The record transmitted to the Court consists of: (1) the notice of appeal, if any; (2) the Board’s decision; (3) the record before the Board; (4) the transcript of any oral argument before the Board; and (5) any other portions of the record before the hearing officer, including any bar file documents or exhibits, that the Court deems necessary for full review. (c) Notice to Parties. The Clerk serves each party with a list of the portions of the record transmitted. (d) Transmittal of Cost Orders. Within 10 days of entry of an order assessing costs under rule 13.9(e), the Clerk should transmit it to the Court as a separate part of the record, together with the supporting statements of costs and expenses and any exceptions or reply filed under rule 13.9(d). (e) Additions to Record. Either party may request that the Clerk transmit additional portions of the record to the Court prior to or with the filing of the party’s last brief. Thereafter, either party may move the Court for an order directing the transmittal of additional portions of the record to the Court. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 12.5


title: Briefs

text: ELC 12.6 BRIEFS (a) Brief Required. The party seeking review must file a brief stating their objections to the Board’s decision. (b) Time for Filing. The brief of the party seeking review should be filed with the Supreme Court within 30 days of service under rule 12.5(c) of the list of portions of the record transmitted to the Court. (c) Answering Brief. The answering brief of the other party should be filed with the Court within 30 days after service of the brief of the party seeking review. (d) Reply Brief. A reply brief of a party seeking review should be filed with the Court within the sooner of 20 days after service of the answering brief or 14 days before oral argument. A reply brief should be limited to a response to the issues in the brief to which the reply brief is directed. (e) Briefs When Both Parties Seek Review. When both the respondent lawyer and disciplinary counsel seek review of a Board decision, the respondent is deemed the party seeking review for the purposes of this rule. In that case, disciplinary counsel may file a brief in reply to any response the respondent has made to the issues presented by disciplinary counsel, to be filed with the Court the sooner of 20 days after service of the respondent’s reply brief or 14 days before oral argument. (f) Form of Briefs. Briefs filed under this rule must conform as nearly as possible to the requirements of RAP 10.3 and 10.4. Bar file documents should be abbreviated BF, the transcript or partial transcript of the hearing should be abbreviated TR, and exhibits should be abbreviated EX. (g) Reproduction and Service of Briefs by Clerk. The Supreme Court clerk reproduces and distributes briefs as provided in RAP 10.5. [Adopted effective October 1, 2002. Amended effective January 1, 2023.]

citation: ELC ELC 12.6


title: Argument

text: ELC 12.7 ARGUMENT (a) Rules Applicable. Oral argument before the Supreme Court is conducted under Title 11 of the Rules of Appellate Procedure, unless the Court directs otherwise. (b) Priority. Disciplinary proceedings have priority and are set upon compliance with the above rules. [Adopted effective October 1, 2002.]

citation: ELC ELC 12.7


title: Motion for Reconsideration

text: ELC 12.8 MOTION FOR RECONSIDERATION A motion for reconsideration may be filed as provided in RAP 12.4, but the motion does not stay the judgment or delay the effective date of a suspension or disbarment unless the Court enters a stay. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 12.8


title: Violation of Rules

text: ELC 12.9 VIOLATION OF RULES Sanctions for violation of these rules may be imposed on a party under RAP 18.9. Upon dismissal under that rule of a review sought by a respondent lawyer and expiration of the period to file objections under RAP 17.7, or upon dismissal of review by the Court if timely objections are filed, the Board’s decision is final. [Adopted effective October 1, 2002.]

citation: ELC ELC 12.9


title: Sanctions and Remedies

text: ELC 13.1 SANCTIONS AND REMEDIES Upon a finding that a lawyer has committed an act of misconduct, one or more of the following may be imposed: (a) Sanctions. (1) Disbarment; (2) Suspension under rule 13.3; or (3) Reprimand. (b) Admonition. An admonition under rule 13.5. (c) Remedies. (1) Restitution; (2) Probation; (3) Limitation on practice; (4) Requirement that the lawyer attend continuing legal education courses; (5) Assessment of costs; or (6) Other requirements consistent with the purposes of lawyer discipline. [Adopted effective October 1, 2002.]

citation: ELC ELC 13.1


title: Effective Date of Suspensions and Disbarments

text: ELC 13.2 EFFECTIVE DATE OF SUSPENSIONS AND DISBARMENTS Suspensions and disbarments are effective on the date set by the Supreme Court’s order or opinion, which will ordinarily be seven days after the date of the order or opinion. If no date is set, the suspension or disbarment is effective seven days after the date of the Court’s order or opinion. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 13.2


title: Suspension

text: ELC 13.3 SUSPENSION (a) Term of Suspension. A suspension must be for a fixed period of time not exceeding three years. (b) Reinstatement. (1) After the period of suspension, the Association administratively returns the suspended respondent lawyer to the respondent’s status before the suspension without further order by the Court upon: (A) the respondent’s compliance with all current licensing requirements; and (B) disciplinary counsel’s certification that the respondent has complied with any specific conditions ordered, and has paid any costs or restitution ordered or is current with any costs or restitution payment plan. (2) A respondent may ask the Chair to review an adverse determination by disciplinary counsel regarding compliance with the conditions for reinstatement, payment of costs or restitution, or compliance with a costs or restitution payment plan. On review, the Chair may modify the terms of the payment plan if warranted. The Chair determines the procedure for this review. The Chair’s ruling is not subject to further review. If the Chair determines that the Board should review the matter, the Chair directs the procedure for Board review and the Board’s decision is not subject to further review. [Adopted effective October 1, 2002.]

citation: ELC ELC 13.3


title: Reprimand

text:
ELC 13.4 REPRIMAND (a) Notice of Reprimand. When an order imposing a reprimand is final, Association Counsel prepares a notice of reprimand consisting of the order imposing the reprimand together with the hearing officer’s findings, conclusions, and recommendation, any opinion or order of the Board or the Court, stipulation to discipline, or other final document that forms the basis for the order imposing a reprimand, together with a cover notation. The notice of reprimand is filed with the Clerk and served on the respondent lawyer as an order under rule 4.2(b). (b) Form of Notice. The notice of reprimand must be in substantially the following form: Notice of Reprimand Lawyer , WSBA No. ordered Reprimanded by the following attached documents: [Title and date of the attached documents.] [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

, has been

citation: ELC ELC 13.4


title: Admonition

text: ELC 13.5 ADMONITION (a) By a Review Committee. (1) A review committee may issue an admonition when investigation of a grievance shows misconduct. (2) A respondent lawyer may protest the review committee’s prehearing issuance of an admonition by filing a notice to that effect with the Clerk within 30 days of service of the admonition. Upon receipt of a timely protest, the admonition is rescinded, and the grievance is deemed ordered to hearing. A rescinded admonition is of no effect and may not be introduced into evidence in any disciplinary proceeding or appeal. (b) Following a Hearing. A hearing officer may recommend that a respondent receive an admonition following a hearing. (c) By Stipulation. The parties may stipulate to an admonition under rule 9.1. (d) Effect. An admonition is a permanent discipline record and is admissible in subsequent disciplinary or disability proceedings involving the respondent. (e) Action on Board Review. Upon review under Title 11, the Board may dismiss, issue an admonition, or impose sanctions or other remedies under rule 13.1. (f) Signing of Admonition. The review committee chair signs an admonition issued by a review committee. The Disciplinary Board Chair or the Chair’s designee signs all other admonitions. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 13.5


title: Discipline for Cumulative Admonitions

text: ELC 13.6 DISCIPLINE FOR CUMULATIVE ADMONITIONS (a) Grounds. A lawyer may be subject to sanction or other remedy under rule 13.1 if the lawyer receives three admonitions within a five year period. (b) Procedure. Upon being presented with evidence that a respondent lawyer has received three admonitions within a five-year period, a review committee may authorize the filing of a formal complaint based solely on the provisions of this rule. A proceeding under this rule is conducted in the same manner as any disciplinary proceeding. The issues in the proceeding are whether the respondent has received three admonitions within a five-year period and, if so, what sanction or other remedy should be recommended. [Adopted effective October 1, 2002.]

citation: ELC ELC 13.6


title: Restitution

text: ELC 13.7 RESTITUTION (a) Restitution May Be Required. A respondent lawyer who has been sanctioned under rule 13.1 or admonished under rule 13.5(b) may be ordered to make restitution to persons financially injured by the respondent’s conduct or the Lawyers’ Fund for Client Protection. (b) Payment of Restitution. (1) A respondent ordered to make restitution must do so within 30 days of the date on which the decision requiring restitution becomes final, unless the decision provides otherwise or the respondent enters into a periodic payment plan with disciplinary counsel. (2) A respondent ordered to make restitution to the Lawyers’ Fund for Client Protection must do so within 30 days of the date on which the decision requiring restitution becomes final, unless the decision provides otherwise or the respondent enters into a period payment plan with the Lawyers’ Fund for Client Protection Board. (3) Disciplinary counsel or the Lawyers’ Fund for Client Protection Board may enter into an agreement with a respondent for a reasonable periodic payment plan if: (A) the respondent demonstrates in writing present inability to pay restitution and (B) disciplinary counsel consults with the persons owed restitution. (4) A respondent may ask the Chair to review an adverse determination by disciplinary counsel of the reasonableness of a proposed periodic payment plan for restitution. The Chair directs the procedure for this review. The Chair’s ruling is not subject to further review. If the Chair determines that the Board should review the matter, the Chair directs the procedure for Board review and the Board’s decision is not subject to further review. (c) Failure To Comply. A respondent’s failure to make restitution when ordered to do so, or to comply with the terms of a periodic payment plan may be grounds for discipline. [Adopted effective October 1, 2002; Amended effective January 1, 2014; January 1, 2015.]

citation: ELC ELC 13.7


title: Probation

text: ELC 13.8 PROBATION (a) Conditions of Probation. A respondent lawyer who has been sanctioned under rule 13.1 or admonished under rule 13.5(b) or (c) may be placed on probation for a fixed period of two years or less. (1) Conditions of probation may include, but are not limited to requiring: (A) alcohol or drug treatment; (B) medical care; (C) psychological or psychiatric care; (D) professional office practice or management counseling; or (E) periodic audits or reports. (2) Upon disciplinary counsel’s request, the Chair may appoint a suitable person to supervise the probation. Cooperation with a person so appointed is a condition of the probation. (b) Failure To Comply. Failure to comply with a condition of probation may be grounds for discipline and any sanction imposed must take into account the misconduct leading to the probation. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 13.8


title: Costs and Expenses

text:
ELC 13.9 COSTS AND EXPENSES (a) Assessment. The Association’s costs and expenses may be assessed as provided in this rule against any respondent lawyer who is ordered sanctioned or admonished, or against whom reciprocal discipline is imposed after a contested reciprocal discipline proceeding. (b) Costs Defined. The term "costs" for the purposes of this rule includes all monetary obligations, except attorney fees, reasonably and necessarily incurred by the Association in the complete performance of its duties under these rules, whether incurred before or after the filing of a formal complaint. Costs include, by way of illustration and not limitation: (1) court reporter charges for attending and transcribing depositions or hearings; (2) process server charges; (3) necessary travel expenses of hearing officers, disciplinary counsel, adjunct investigative counsel, or witnesses; (4) expert witness charges; (5) costs of conducting an examination of books and records or an audit under Title 15; (6) costs incurred in supervising probation imposed under rule 13.8; (7) telephone toll charges; (8) fees, costs, and expenses of a lawyer appointed under rule 8.2 or rule 8.3; (9) costs of copying materials for submission to a review committee, a hearing officer, or the Board; and (10) compensation provided to hearing officers under rule 2.11. (c) Expenses Defined. "Expenses" for the purposes of this rule means a reasonable charge for attorney fees and administrative costs. Expenses assessed under this rule may equal the actual expenses incurred by the Association, but in any case cannot be less than the following amounts: (1) for an admonition that is accepted under rule 13.5(a), $750; (2) for a matter that becomes final without review by the Board, $1,500; (3) for a matter that becomes final upon a reciprocal discipline order under rule 9.2 or rule 9.3, in a matter requiring briefing at the Supreme Court, $1,500; (4) for a matter that becomes final following Board review, without appeal to the Supreme Court, a total of $2,000; (5) for a matter appealed to the Supreme Court or in which the Court accepts discretionary review but not requiring briefing, a total of $2,500; and (6) for a matter appealed to the Supreme Court or in which the Court accepts discretionary review in which briefing is required, a total of $3,000. (d) Statement of Costs and Expenses, Exceptions, and Reply.

(1) Timing. Disciplinary counsel must file a statement of costs and expenses with the Clerk within 20 days from any of the following events: (A) an admonition is accepted; (B) the decision of a hearing officer or the Board imposing an admonition or a sanction becomes final; (C) a notice of appeal from a Board decision is filed and served; (D) the Supreme Court accepts or denies discretionary review of a Board decision; or (E) entry of a final decision imposing reciprocal discipline under rule 9.2 or rule 9.4 in a matter requiring briefing at the Supreme Court. (2) Content. A statement of costs and expenses must state with particularity the nature and amount of the costs claimed and also state the expenses requested. Disciplinary counsel must sign the statement, and this signature constitutes a certification that all reasonable attempts have been made to insure the statement’s accuracy. (3) Service. The Clerk serves a copy of the statement on the respondent. (4) Exceptions. The respondent may file exceptions no later than 20 days from service of the statement of costs and expenses. (5) Reply. Disciplinary counsel may file a reply no later than 10 days from service of any exceptions. (e) Assessment. The Chair enters an order assessing costs and expenses after the expiration of the time for filing exceptions or replies. (f) Review of Chair’s Decision. (1) Matters Reviewed by Court. In matters reviewed by the Supreme Court under Title 12, the Chair’s decision is subject to review only by the Court. (2) All Other Matters. In all other matters, the following procedures apply: (A) Request for Review by Board. Within 20 days of service on the respondent of the order assessing costs and expenses, either party may file a request for Board review of the order. (B) Board Action. Upon the timely filing of a request, the Board reviews the order assessing costs and expenses, based on the Association’s statement of costs and expenses and any exceptions or reply, the decision of the hearing officer or of the Board, and any written statement submitted by either party within the time directed by the Chair. The Board may approve or modify the order assessing costs and expenses. The Board’s decision is final when filed and not subject to further review. (g) Assessment in Matters Reviewed by the Court. When a matter is reviewed by the Court as provided in title 12, any order assessing costs and expenses entered by the Chair under section (e) and the statement of costs and expenses and any exceptions or reply filed in the proceeding are included in the record transmitted to the Court. Upon filing of an opinion by the Court imposing a sanction or admonition, costs and expenses may be assessed in favor of the Association under the procedures of Title 14 RAP, except that "costs" as used in that title means any costs and expenses allowable under this rule.

(h) Assessment Discretionary. Assessment of any or all costs and expenses may be denied if it appears in the interests of justice to do so. (i) Payment of Costs and Expenses. (1) A respondent ordered to pay costs and expenses must do so within 30 days of the date on which the assessment becomes final, unless the order assessing costs and expenses provides otherwise or the respondent enters into a periodic payment plan with disciplinary counsel. (2) The respondent must pay interest on any amount not paid within 30 days of the date the assessment is final at the maximum rate permitted under RCW 19.52.020. (3) Disciplinary counsel may enter into an agreement with a respondent for a reasonable periodic payment plan if the respondent demonstrates in writing present inability to pay assessed costs and expenses. (A) Any payment plan entered into under this rule must provide for interest at the maximum rate permitted under RCW 19.52.020. (B) A respondent may ask the Chair to review an adverse determination by disciplinary counsel regarding specific conditions for a periodic payment plan. The Chair directs the procedure for this review. The Chair’s ruling is not subject to further review. If the Chair determines that the Board should review the matter, the Chair directs the procedure for Board review, and the Board’s decision is not subject to further review. (j) Failure To Comply. A respondent’s failure to pay costs and expenses when ordered to do so or to comply with the terms of a periodic payment plan may be grounds for discipline. (k) Costs in Other Cases. Rule 9.1 governs costs and expenses in cases resolved by stipulation. Rule 8.6 governs assessment of costs and expenses in disability proceedings. Rule 5.3(h) governs assessment of costs and expenses pursuant to a respondent’s failure to cooperate. (l) Money Judgment for Costs and Expenses. After the assessment of costs and expenses is final, upon application by the Association, the Supreme Court commissioner or clerk may enter a money judgment on the order for costs and expenses if the respondent has failed to pay the costs and expenses as provided by this rule. The Association must serve the application for a money judgment on the respondent under rule 4.1. The respondent may file an objection with the commissioner or clerk within 20 days of service of the application. The sole issue to be determined by the commissioner or clerk is whether the respondent has complied with the duty to pay costs and expenses under this rule. The commissioner or clerk may enter a money judgment in compliance with RCW 4.64.030 and notify the Association and the respondent of the judgment. On application, the commissioner or clerk transmits the judgment to the clerk of the superior court in any county selected by the Association and notifies the respondent of the transmittal. The clerk of the superior court files the judgment as a judgment in that court without payment of a filing fee. [Adopted effective October 1, 2002. Amended effective January 1, 2014.]

citation: ELC ELC 13.9


title: Notice to Clients and Others; Providing Client Property

text:
ELC 14.1 NOTICE TO CLIENTS AND OTHERS; PROVIDING CLIENT PROPERTY (a) Providing Client Property. A lawyer who has been suspended from the practice of law, has been disbarred, has resigned in lieu of discipline, or has been transferred to disability inactive status must provide each client or the client’s substituted counsel upon request with the client’s assets, files, and other documents in the lawyer’s possession, regardless of any possible claim of lien under 60.40.RCW. (b) Notice if Suspended for 60 Days or Less. A lawyer who has been suspended for 60 days or less under rule 13.3 must within 10 days of the effective date of the suspension: (1) notify every client involved in litigation or administrative proceedings, and counsel for each adverse party (or the adverse party directly if not represented by counsel), of the suspension, that the suspension is a disciplinary suspension, and of the lawyer’s consequent inability to act as a lawyer after the effective date of the suspension, and advise each of these clients to seek prompt substitution of another lawyer. If the client does not substitute counsel within 10 days of this notice, the lawyer must advise the court or agency of the lawyer's inability to act; and (2) notify all other clients of the suspension and consequent inability to act during the suspension. The notice must advise the client to seek legal advice elsewhere if needed during the suspension. (c) Notice if Otherwise Suspended, Disbarred, or Resigned in Lieu of Discipline. A lawyer who has been disbarred, has resigned in lieu of discipline, or has been suspended for more than 60 days, for nonpayment of dues, or under Title 7 or APR 11, APR 17, or APR 26, must within 10 days of the effective date of the disbarment, suspension, or resignation: (1) notify every client of the lawyer’s suspension, disbarment, or resignation in lieu of discipline, whether a suspension is a disciplinary suspension, an interim suspension, or an administrative suspension, and of the lawyer’s consequent inability to act as the client’s lawyer, and advise the client to seek legal advice elsewhere; (2) advise every client involved in litigation or administrative proceedings to seek the prompt substitution of another lawyer. If the client does not substitute counsel within ten days of being notified of the lawyer's inability to act, the lawyer must advise the court or agency of the lawyer's inability to act; and (3) notify counsel for each adverse party in pending litigation or administrative proceedings, or the adverse party directly if not represented by counsel, of the lawyer's suspension, disbarment, or resignation in lieu of discipline, and the lawyer’s inability to act further on the client's behalf. (d) Notice if Transferred to Disability Inactive Status. A lawyer transferred to disability inactive status, or their guardian if one has been appointed, must give all notices required by subsection (c), except that while the notices need not refer to the specifics of the disability, the notice must advise that the lawyer has been transferred to disability inactive status. (e) Address of Client. All notices to lawyers, adverse parties, courts, or agencies as required by sections (b), (c), or (d) must contain the client’s name and last known address, unless doing so would disclose a confidence or secret of the client. If the name and address are omitted, the client must be advised that so long as his or her address remains undisclosed and no new lawyer is substituted, the client may be served by leaving papers with the clerk of the court under CR 5(b)(1) in pending superior court actions, and that comparable provisions may allow similar service in other court proceedings or administrative actions.

[Adopted effective October 1, 2002; Amended effective January 1, 2014; January 1, 2023.]

citation: ELC ELC 14.1


title: Lawyer to Discontinue Practice

text: ELC 14.2 LAWYER TO DISCONTINUE PRACTICE (a) Discontinue Practice. A disbarred or suspended lawyer, or a lawyer who has resigned in lieu of disbarment or discipline, or a lawyer transferred to disability inactive status, must not practice law after the effective date of the disbarment, resignation in lieu of disbarment or discipline, suspension, or transfer to disability inactive status, and also must take whatever steps necessary to avoid any reasonable likelihood that anyone will rely on them as a lawyer authorized to practice law. (b) Continuing Duties to Former Clients. This rule does not preclude a disbarred or suspended lawyer, or a lawyer who has resigned in lieu of disbarment or discipline, or a lawyer transferred to disability inactive status, from disbursing assets held by the lawyer to clients or other persons or from providing information on the facts and the lawyer’s theory of a case and its status to a succeeding lawyer, provided that the lawyer not be involved in any discussion regarding matters occurring after the date of the suspension, resignation in lieu of disbarment or discipline, transfer to disability inactive status, or disbarment. The lawyer must provide this information on request and without charge. [Adopted effective October 1, 2002. Amended effective January 1, 2014; January 1, 2023.]

citation: ELC ELC 14.2


title: Affidavit of Compliance

text: ELC 14.3 AFFIDAVIT OF COMPLIANCE Within 25 days of the effective date of a lawyer’s disbarment, suspension, or transfer to disability inactive status, the lawyer must serve on disciplinary counsel an affidavit stating that the lawyer has fully complied with the provisions of this title. The affidavit must also provide a mailing address and e-mail address where communications to the lawyer may thereafter be directed. The lawyer must attach to the affidavit copies of the form letters of notification sent to the lawyer's clients and opposing counsel or parties and copies of letters to any court, together with a list of names and addresses of all clients and opposing counsel or parties to whom notices were sent. The affidavit is a confidential document except the lawyer’s mailing address and email address are treated as changes of address under APR 13(b) and (c). [Adopted effective October 1, 2002; Amended effective September 1, 2022.]

citation: ELC ELC 14.3


title: Lawyer to Keep Records of Compliance

text: ELC 14.4 LAWYER TO KEEP RECORDS OF COMPLIANCE A lawyer who has been disbarred, suspended, or transferred to disability inactive status must maintain written records of the various steps they have taken under this title, so that proof of compliance will be available in any subsequent proceeding. [Adopted effective October 1, 2002. Amended effective January 1, 2023.]

citation: ELC ELC 14.4


title: Random Examination of Books and Records

text:
ELC 15.1 RANDOM EXAMINATION OF BOOKS AND RECORDS (a) Authorization. The Office of Disciplinary Counsel is authorized to examine the books and records of any lawyer or law firm selected at random to determine whether the lawyer or law firm is complying with RPC 1.15A, 1.15B, and other Rules of Professional Conduct referencing RPC 1.15A or RPC 1.15B. As used in this Title, the term “law firm” has the same meaning as prescribed in RPC 1.0A(c). (b) Selection. (1) Method. The selection of the lawyers or law firms to be examined will be limited to lawyers on active status and will utilize the principle of random selection by Bar Number of all active status lawyers. (2) Law firms. If the number drawn is that of a lawyer who is an employee or member of a law firm, the entire law firm will be examined. If the lawyer or law firm has been randomly examined under this rule within seven years preceding the drawing, the lawyer or law firm will not be subject to random examination. (3) Exclusions. If the number drawn is that of a lawyer employed by the Association, a hearing officer, a conflicts review officer or conflicts review officer pro tem, a member of the Disciplinary Board, a staff attorney or judicial officer of the Supreme Court, or a lawyer who has been assigned a case as an adjunct disciplinary counsel, special disciplinary counsel, or appointed counsel in a disability matter pursuant to Rule 8.2(c)(2), the lawyer will not be subject to random examination. (c) Examination and Reexamination. An examination denotes the initial review following a lawyer or law firm being selected at random. A reexamination denotes a further examination as may be ordered by a review committee under section (e) of this rule. Examinations and reexaminations under this rule will entail a review and testing of the internal controls and procedures used by the lawyer or law firm to receive, hold, disburse and account for money or property as required by RPC 1.15A, and a review of the records of the lawyer or law firm required by RPC 1.15B. A lawyer or law firm is required to cooperate with the examination or reexamination as set forth in Rule 15.2. (d) Conclusion. At the conclusion of an examination or re-examination, the Office of Disciplinary Counsel may: (1) Conclude the examination by issuing a report to the lawyer and/or law firm summarizing the Office of Disciplinary Counsel’s findings and taking no further action; (2) Issue a report to the lawyer and/or law firm summarizing the Office of Disciplinary Counsel’s findings and either: (A) report the matter to a review committee with a recommendation to order corrective action by the lawyer and/or law firm and a re-examination of the books and records of the lawyer and/or law firm to commence within one year; or (B) report the matter to a review committee with a recommendation to order a disciplinary grievance be opened under Rule 5.3. (e) Review Committee Action. In reviewing matters under this rule, a review committee has the following authority:

(1) In reviewing reports of the Office of Disciplinary Counsel under section (d) of this rule, including any response by a lawyer examined or re-examined under this rule, a review committee may: (A) dismiss the matter; (B) order corrective action and a reexamination to commence within one year; or (C) order that the Office of Disciplinary Counsel open a disciplinary grievance under Rule 5.3 regarding this matter. (2) A review committee may review a challenge to the selection of a lawyer or law firm in section (b) of this rule if review is requested by a lawyer or law firm within 30 days of transmittal of the notice of selection. (3) The action of a review committee under this rule is not reviewable. [Adopted effective October 1, 2002; Amended effective January 1, 2014; December 8, 2015; September 1, 2017; September 1, 2022.]

citation: ELC ELC 15.1


title: Cooperation of Lawyer and Law Firm

text: ELC 15.2 COOPERATION OF LAWYER AND LAW FIRM (a) Cooperation Required. Any lawyer or law firm who is subject to examination or reexamination under Rule 15.1, and any lawyer employed by or a member of such a law firm, must cooperate with the person conducting the examination or reexamination, subject only to the proper exercise of any privilege against self-incrimination, by: (1) producing forthwith all evidence, books, records, and papers requested for the examination or reexamination; (2) furnishing forthwith any explanations required for the examination or reexamination; and (3) producing written authorization, directed to any bank or depository, for the person to examine or reexamine trust and general accounts, safe deposit boxes, and other forms of maintaining trust property by the lawyer or law firm in the bank or depository. (b) Failure To Cooperate. (1) Noncooperation Deposition. If a lawyer has not complied with any request made under this rule for more than 30 days, the Office of Disciplinary Counsel may notify the lawyer that failure to comply within 10 days may result in the lawyer’s deposition or subject the lawyer to interim suspension under Rule 7.2. 10 days after this notice, disciplinary counsel may serve the lawyer with a subpoena for a deposition. Any deposition conducted after the 10 day period and necessitated by the lawyer’s continued failure to cooperate may be conducted at any place in Washington State. (2) Costs and Expenses. (A) Regardless of the underlying matter’s ultimate disposition, a lawyer who has been served with a subpoena under this rule is liable for the actual costs of the deposition, including but not limited to service fees, court reporter fees, travel expenses, and the cost of transcribing the deposition, if ordered by disciplinary counsel. In addition, a lawyer who has been served with a subpoena for a deposition under this rule is liable for a reasonable attorney fee of $500. (B) The procedure for assessing costs and expenses is as follows: (i) The Office of Disciplinary Counsel applies to a review committee by itemizing the cost and expenses and stating the reasons for the deposition. (ii) The lawyer has 10 days to respond to the Office of Disciplinary Counsel’s application. (iii) The review committee by order assesses appropriate costs and expenses. (iv) Rule 13.9(f) governs Board review of the review committee order. (3) Grounds for Discipline. A lawyer’s failure to cooperate fully and promptly with an examination as required by this rule is also grounds for discipline. [Adopted effective October 1, 2002; Amended effective January 1, 2014; December 8, 2015.]

citation: ELC ELC 15.2


title: Confidentiality

text: ELC 15.3 CONFIDENTIALITY (a) Maintaining Client Confidentiality. In the course of conducting examinations and reexaminations under this Title, the Office of Disciplinary Counsel receives, reviews and holds attorney-client privileged and other confidential client information under and in furtherance of the Supreme Court’s authority to regulate the practice of law. Disclosure of information to the Office of Disciplinary Counsel is not prohibited by RPC 1.6 or RPC 1.9, and such disclosure does not waive any attorney-client privilege. Notwithstanding any other provision of these rules, if the lawyer identifies specific client information that is privileged or confidential and requests that it be treated as confidential, the Office of Disciplinary Counsel must maintain the confidentiality of the information unless the client consents to disclosure. (b) Disclosure. All information related to an examination or reexamination under Rule 15.1, including any docket maintained under Rule 3.6(d), is confidential and is held by the Office of Disciplinary Counsel under the authority of the Supreme Court. Information under Rule 15.1 is only available to the Office of Disciplinary Counsel, the lawyer or law firm examined or reexamined, and the Board or any review committee considering the matter under this Title. When a disciplinary grievance is opened under Rule 15.1, the disclosure provisions of Title 3 apply to all information related to the examination and/or reexamination that relates to the disciplinary grievance. Nothing in these rules waives or requires waiver of any lawyer’s own privilege or other protection as a client against the disclosure of confidences or secrets. [Adopted effective October 1, 2002; Amended effective January 1, 2014; December 8, 2015.]

citation: ELC ELC 15.3


title: Trust Account Overdraft Notification

text: ELC 15.4 TRUST ACCOUNT OVERDRAFT NOTIFICATION (a) Overdraft Notification Agreement Required. To be authorized as a depository for lawyer trust accounts referred to in RPC 1.15A(i), limited license legal technician (LLLT) trust accounts referred to in LLLT RPC 1.15A(i), or limited practice officer (LPO) trust accounts referred to in LPO RPC 1.12A(i), a financial institution, bank, credit union, savings bank, or savings and loan association must file with the Legal Foundation of Washington an agreement, in a form provided by the Washington State Bar Association, to report to the Washington State Bar Association if any properly payable instrument is presented against a lawyer, LLLT, LPO or closing firm trust account containing insufficient funds, whether or not the instrument is honored. The agreement must apply to all branches of the financial institution and cannot be canceled except on 30 days' notice in writing to the Legal Foundation of Washington. The Legal Foundation of Washington must provide copies of signed agreements and notices of cancellation to the Washington State Bar Association. (b) Overdraft Reports. (1) The overdraft notification agreement must provide that all reports made by the financial institution must contain the following information: (A) the identity of the financial institution; (B) the identity of the (1) the lawyer, LLLT, or law firm, or (2) the limited practice officer or closing firm; (C) the account number; and (D) either: (i) the amount of overdraft and date created; or (ii) the amount of the returned instrument(s) and the date returned. (2) The financial institution must provide the information required by the notification agreement within five banking days of the date the item(s) was paid or returned unpaid. (c) Costs. Nothing in these rules precludes a financial institution from charging a particular lawyer or law firm for the reasonable cost of producing the reports and records required by this rule, but those charges may not be a transaction cost charged against funds payable to the Legal Foundation of Washington under RPC 1.15A(i)(1) and ELC 15.7(e). (d) Notification by Lawyer. Every lawyer or law firm who receives notification that any instrument presented against a trust account of the lawyer or law firm that was presented against insufficient funds, whether or not the instrument was honored, must promptly notify the Office of Disciplinary Counsel of the information required by section (b). The lawyer must include a full explanation of the cause of the overdraft. [Adopted effective October 1, 2002; Amended effective January 1, 2009; December 1, 2009; April 28, 2015; December 8, 2015.]

citation: ELC ELC 15.4


title: Declaration

text: ELC 15.5 DECLARATION (a) Declaration. Annually each active lawyer must provide the Association with such written declaration or other information as the Association determines is needed to assure that the lawyer is complying with RPC 1.15A. Each active lawyer must complete, execute, and deliver this to the Association by the date specified by the Association. (b) Noncompliance. Any lawyer admitted to the active practice of law who fails to comply with this rule by the date specified in subsection (a) may be ordered suspended from the practice of law by the Supreme Court until such time as the lawyer complies. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 15.5


title: Reserved

text: ELC 15.6 [RESERVED] [Adopted effective October 1, 2002; Reserved effective December 8, 2015.]

citation: ELC ELC 15.6


title: Trust Accounts and the Legal Foundation of Washington

text:
ELC 15.7 TRUST ACCOUNTS AND THE LEGAL FOUNDATION OF WASHINGTON (a) Legal Foundation of Washington. The Legal Foundation of Washington (Legal Foundation) was established by Order of the Supreme Court of Washington to administer distribution of Interest on Lawyer’s Trust Account (IOLTA) funds to civil legal aid programs. (1) Administrative Responsibilities. The Legal Foundation is responsible for assessing the products and services offered by financial institutions operating in the state of Washington and determining whether such institutions meet the requirements of this rule, ELC 15.4, and ELPOC 15.4. The Legal Foundation must maintain a list of financial institutions authorized to establish client trust accounts and publish the list on a web site maintained by the Legal Foundation for public information. The Legal Foundation must provide a copy of the list to any person upon request. (2) Annual Report. The Legal Foundation must prepare an annual report to the Supreme Court of Washington that summarizes the Foundation’s income, grants and operating expenses, implementation of its corporate purposes, and any problems arising in the administration of the IOLTA program. (b) Definitions. The following definitions apply to this rule: (1) United States Government Securities. United States Government Securities are defined as direct obligations of the United States Government, or obligations issued or guaranteed as to principal and interest by the United States or any agency or instrumentality thereof, including United States Government-Sponsored Enterprises. (2) Daily Financial Institution Repurchase Agreement. A daily financial institution repurchase agreement must be fully collateralized by United States Government Securities and may be established only with an authorized financial institution that is deemed to be “well capitalized” under applicable regulations of the Federal Deposit Insurance Corporation and the National Credit Union Association. (3) Money Market Funds. A money market fund is an investment company registered under the Investment Company Act of 1940, as amended, that is regulated as a money market funder under Rules and Regulations adopted by the Securities and Exchange Commission pursuant to said Act, and at the time of the investment, has total assets of at least five hundred million dollars ($500,000,000). A money market fund must be comprised solely of United States Government Securities or investments fully collateralized by United States Government Securities. (4) IOLTA. As used in these rules, the term IOLTA means interest on lawyer’s trust accounts, interest on LLLT’s trust accounts, and interest on LPO’s trust accounts, as set forth in RPC 1.15A, LLLT RPC 1.15A, and LPORPC 1.12A, respectively, and Title 15 of these rules and ELPOC Title 15. (c) Authorized Financial Institutions. Any bank, savings bank, credit union, savings and loan association, or other financial institution that meets the following criteria is eligible to become an authorized financial institution under this rule: (1) is insured by the Federal Deposit Insurance Corporation (FDIC) or the National Credit Union Administration; (2) is authorized by law to do business in Washington; (3) complies with all requirements set forth in section (d) of this rule and in ELC 15.4; and

(4) if offering IOLTA accounts, complies with all requirements set forth in section (e) of this rule. The Legal Foundation determines whether a financial institution is an authorized financial institution under this section. Upon a determination of compliance with all requirements of this rule and ELC 15.4, the Legal Foundation must list a financial institution as an authorized financial institution under section (a)(1). At any time, the Legal Foundation may request that a listed financial institution establish or certify compliance with the requirements of this rule or ELC 15.4. The Legal Foundation may remove a financial institution from the list of authorized financial institutions upon a determination that the financial institution is not in compliance. (d) Requirements of All Trust Accounts. All trust accounts established pursuant to RPC 1.15A(i), LLLT RPC 1.15A(i), or LPORPC 1.12A(h) must be insured by the Federal Deposit Insurance Corporation or the National Credit Union Administration up to the limit established by law for those types of accounts or be backed by United States Government Securities. Trust account funds must not be placed in stocks, bonds, mutual funds that invest in stock or bonds, or similar uninsured investments. (e) IOLTA Accounts. To qualify for Legal Foundation approval as an authorized financial institution offering IOLTA accounts, in addition to meeting all other requirements set forth in this Rule, a financial institution must comply with the requirements set forth in this section. (1) Interest Comparability. For accounts established pursuant to RPC 1.15A or LLLT RPC 1.15A, authorized financial institutions must pay the highest interest rate generally available from the institutions to its non-IOLTA account customers when IOLTA accounts meet or exceed the same minimum balance or other account eligibility qualifications, if any. In determining the highest interest rate generally available to its non-IOLTA customers, authorized financial institutions may consider factors, in addition to the IOLTA account balance, customarily considered by the institution when setting interest rates for its customers, provided that such factors do not discriminate between IOLTA accounts and accounts of non-IOLTA customers and that these factors do not include that the account is an IOLTA account. An authorized financial institution may satisfy these comparability requirements by selecting one of the following options: (i) Establish the IOLTA account as the comparable interest-paying product; or (ii) Pay the comparable interest rate on the IOLTA checking account in lieu of actually establishing the comparable interest-paying product; or (iii) Pay a rate on IOLTA equal to 0.75% of the Federal Funds Targeted Rate as of the first business day of the month or IOLTA remitting period, or 0.75%, whichever is higher, and which rate is deemed to be already net of allowable reasonable service charges or fees. (2) Remit Interest to Legal Foundation of Washington. Authorized financial institutions must remit the interest accruing on all IOLTA accounts, net of reasonable account fees, to the Legal Foundation monthly, on a report form prescribed by the Legal Foundation. At a minimum, the report must show details about the account, including but not limited to the name of the lawyer, law firm, LLLT, LPO, or Closing Firm for whom the remittance is sent, the rate of interest applied, the amount of service charges deducted, if any, and the balance used to compute the interest. Interest must be calculated on the average monthly balance in the account, or as otherwise computed in accordance with applicable state and federal regulations and the institution’s standard accounting practice for non-IOLTA customers. The financial institution must notify each lawyer, law firm, LLLT, LPO, or Closing Firm of the amount of interest remitted to the Legal Foundation on a monthly basis on the account statement or other written report.

(3) Reasonable account fees. Reasonable account fees may only include per deposit charges, per check charges, a fee in lieu of minimum balances, sweep fees, FDIC insurance fees, and a reasonable IOLTA account administration fee. No service charges or fees other than the allowable, reasonable fees may be assessed against the interest or dividends on an IOLTA account. Any service charges or fees other than allowable reasonable fees must be the sole responsibility of, and may be charged to, the lawyer, law firm, LLLT, LPO, or Closing Firm maintaining the IOLTA account. Fees or charges in excess of the interest or dividends earned on the account must not be deducted from interest or dividends earned on any other account or from the principal. (4) Comparable Accounts. Subject to the requirements set forth in sections (d) and (e), an IOLTA account may be established as: (i) A business checking account with an automated investment feature, such as a daily bank repurchase agreement or a money market fund; or (ii) A checking account paying preferred interest rates, such as a money market or indexed rates; or (iii) A government interest-bearing checking account such as an account used for municipal deposits; or (iv) An interest-bearing checking account such as a negotiable order of withdrawal (NOW) account, business checking account with interest; or (v) Any other suitable interest-bearing product offered by the authorized financial institution to its non-IOLTA customers. (5) Nothing in this rule precludes an authorized financial institution from paying an interest rate higher than described above or electing to waive any service charges or fees on IOLTA accounts. [Adopted effective December 1, 2009; Amended effective April 28, 2015.]

citation: ELC ELC 15.7


title: Effect on Pending Proceedings

text: ELC 16.1 EFFECT ON PENDING PROCEEDINGS These rules and any subsequent amendments will apply in their entirety, on the effective date as ordered by the Supreme Court, to any pending matter or investigation that has not yet been ordered to hearing. They will apply to other pending matters except as would not be feasible or would work an injustice. The hearing officer assigned to hear a matter, or the Chair in a matter pending before the Board, may rule on the appropriate procedure with a view to insuring a fair and orderly proceeding. [Adopted effective October 1, 2002; Amended effective January 1, 2014.]

citation: ELC ELC 16.1