Ethical Considerations in Landlord-Tenant Law

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August 23, 2018
Author: Larry J. Kuznetz
Organization: Powell, Kuznetz & Parker, P.S.

A. The Disciplinary Board And Its Process
The Disciplinary Board (“Board”) is currently made up of 14 members consisting of 10 lawyer members and 4 non-lawyer members. Rules For Enforcement of Lawyer Conduct (ELC) 2.3(b). The lawyer members are recommended to the Washington State Bar Association Board of Governors by the lawyers’ district representative, and thereupon appointed to the Disciplinary Board by the Board of Governors. The non-lawyer members are appointed by the Supreme Court. All members serve three year terms. ELC 2.3(c). Board action is based upon majority vote with a required minimum of seven votes. ELC 2.3(b)(4). The full Board meets six times per year usually every other month beginning in October and ending in September. The meetings typically begin at 9AM in the Seattle office of the bar association and vary in length depending on the agenda items. The agendas average five hearing reviews and four stipulations.

In hearing review cases, the Board reviews the record below which was the basis for findings of fact authored by an appointed hearing officer. The hearing officer hears live testimony and evidence during a formal hearing, and concludes with the issuance of findings of fact, conclusions of law and a determination of sanctions for any ethical violations.

At a hearing before a hearing officer, the bar association is represented by a staff attorney of the Office of Disciplinary Counsel (ODC) who prosecutes the claim for violation of the Rules of Professional Conduct. ODC has the burden of proof by a “clear preponderance” of the evidence (ELC 10.14(b)), which is evidence greater than a “preponderance”, but less than “beyond a reasonable doubt”. The rules of evidence allow hearsay evidence (ELC 10.14(d)(1)) and the Washington Rules of Evidence are used as a guideline for other evidentiary rulings. ELC 10.14(d)(2). Pre-hearing discovery is allowed. ELC 10.11. A court reporter is present to record the proceedings. The respondent/attorney may be represented by counsel or proceed pro-se (at
his/her risk).

When a decision is appealed to the Disciplinary Board, typically the parties designate documents to be reviewed by the Board in addition to the verbatim testimony received by the hearing officer. ELC 11.5. Briefs by the parties are also submitted in support or opposition to the hearing officers decision. ELC 11.8. The Board then reviews the record below in advance of hearing any appeal. The Board reviews any hearing officer sanction recommendation de novo. The Board is prohibited from considering evidence outside the record of proceedings. ELC 11.5(d). The Board is also not allowed to substitute it’s own judgment as to credibility of any witness. The hearing officer, like a trial judge, is considered to be the best judge on issues of credibility.

On a hearing review, the Board hears oral argument if requested by either party. ELC 11.12(c). Presently, the current Board policy allows 15 minutes per side for oral argument, including any rebuttal time. Although oral arguments are public, the Board’s deliberations are private and confidential. ELC 3.1(a). At the conclusion of any oral argument, the public is dismissed from the hearing room and the Board votes on an outcome. The Board may adopt, modify or reverse the findings, conclusions or recommendations of the hearing officer. ELC 11.12(d). Members of the Disciplinary Board may offer concurring and dissenting opinions in addition to the majority opinion. The Board must issue a written opinion explaining its rationale and any modifications to a hearing officer’s decision. ELC 11.12(e). The Board automatically reviews disbarment and suspension recommendations by a hearing officer. ELC 11.2(b)(1). The Board decision to suspend or disbar an attorney may be appealed to the Supreme Court on a direct appeal. ELC 12.3(a). A Board decision that does not recommend either a suspension or disbarment may only be appealed to the Supreme Court based upon discretionary review. ELC 12.4(a).

The parties sometimes stipulate to suspension, disbarment or transfer to disability inactive status. If so, the Board reviews any such agreement. ELC 9.1. Hearing officers can approve stipulations to reprimand or admonition. ELC 9.1(c)(1). All other stipulations must be presented to the Board. ELC 9.1(c)(2). The ELC’s do not contain an explicit standard for Board review of stipulations. A stipulation is generally the product of negotiation between the parties. And although some of the facts may be outlined as part of any stipulation, the Board does not see the record below when reviewing a stipulation. ELC 9.1(c)(2). That places the Board at a disadvantage in trying to understand the basis for the stipulation, especially when the recited facts appear to require a more severe sanction than agreed upon. The Board may accept, reject or conditionally accept a stipulation. ELC 9.1(c)(2) and (d). In a conditional acceptance, the Board tells the parties that it would accept the stipulation if the parties agree to a different sanction, disciplinary action, probation or other terms. The parties then have a short period to accept the changes. If the Board rejects or conditionally approves a stipulation, the parties may seek reconsideration. ELC 9.1(e). The Chair has the discretion to grant the parties request to orally present an explanation for the stipulation. The Board also reviews any other hearing officer recommendation if appealed or the chair may also recommend a matter for review sua sponte. ELC 11.3. The Board may also review interim orders issued by a hearing officer, if the Chair determines that it is “necessary, appropriate and will serve the ends of justice.” ELC 10.9. The Board may also review an interlocutory appeal of a hearing officer’s order dismissing a portion of the complaint against the respondent based on the pleadings. ELC 10.10.

B. Sanctions, Admonitions and Advisory Letters
(1). Sanctions (ELC 13.1)
Disbarment: In Washington, if disbarred, a lawyer’s license to practice law is revoked for a period of not less than six years. (Admission to Practice Rule (APR) 25.1(c)). Conditions for reinstatement may include restitution (ELC 13.7), probation (ELC 13.8), attending continuing education programs, attending specific alcohol/drug treatment (ELC 13.8(a)(1(A)), obtaining or receiving medical care (ELC 13.8(a)(1(B)), obtaining or receiving psychological or psychiatric care (ELC 13.8(a)(1(C)), attending professional office practice or management counseling (ELC 13.8(a)(1(D)), and being subject to periodic trust account audits and reports (ELC 13.8(a)(1(E)). After five years and satisfaction of all conditions, a lawyer may file a petition for reinstatement. APR 25.1. All petitions for reinstatement after disbarment are referred to the Character and Fitness Committee for investigation and hearing. If a lawyer was disbarred based solely on a criminal conviction and the conviction is later reversed and the case dismissed on its merits, the Supreme Court may order reinstatement. APR 25.2. The record of disbarment remains on the lawyer’s record permanently.

Suspension (ELC 13.3): If suspended, a lawyer’s license to practice law may be temporarily withheld for a specific period of time, not to exceed three years. ELC 13.3(a). Washington follows the American Bar Association (ABA) Standards for sanctions. The minimum suspension recommended by the ABA Standards is 6 months. The suspension order may include other conditions and probation. The lawyer is administratively returned to active status after the suspension time has been served, all conditions of the suspension have been satisfied, and the lawyer is current in his/her licensing requirements. The suspension remains on the lawyer’s record permanently.

Reprimand (ELC 13.4): A reprimand is a letter signed by the president of the bar association stating that “the lawyer’s actions bring discredit upon him/herself and the legal profession and show disregard for the high traditions of honor expected from a member of the profession.” A respondent can request a review of the reprimand language prior to receiving the final signed sanction in the mail. The reprimand does not impair the lawyer’s license to practice in Washington. The reprimand does remain on the lawyer’s record permanently.

For all disbarments, suspensions or reprimands, a notice is published in the bar association Bar News, on the bar association website and sent to the courts and media in the geographic locale where the lawyer practices. The public may request copies of any material not subject to a protective order.

(2). Admonition (ELC 13.5)
An admonition is a letter signed by either the Board Chair or Review Committee Chair. ELC 13.5(f). An admonition that is issued following a hearing or stipulation is a public document. An admonition issued by a review committee is public at the end of the 30 day protest period. If a lawyer protests the admonition, it is rescinded and the grievance is automatically ordered to hearing. Admonitions are usually destroyed after five years and removed from bar association records. They are also published in the Bar News, and the bar association website, and sent to the courts in the locale where the lawyer practices. Admonitions are admissible in subsequent disciplinary proceedings involving a lawyer. ELC 13.5(d).

(3). Advisory Letter (ELC 5.7)
An advisory letter is not discipline and is not public. This is a letter signed by the Review Committee Chair cautioning a lawyer about his/her conduct. The letter is sent to the respondent lawyer with the review committee’s order dismissing the grievance. The letter is not sent to the grievant. Advisory letters are used when the lawyer has not committed an ethical violation, but a statement cautioning the lawyer about his/her conduct is necessary. The letter is a short statement of the facts and a reference to the Rules of Professional Conduct involved. Such letters are usually destroyed with any investigation file three years after the grievance is dismissed.

C. Review Committee and Its Process (ELC 2.4 & 5.6)
The Board is divided into four Review Committees. The Board Chair and Vice Chair do not serve on a Review Committee. Each committee has two lawyer member and one non-lawyer member. One committee meets each month on a rotating basis. Prior to the meeting, the members receive grievance materials in the mail consisting of 50 to 70 items organized based on disciplinary counsel’s recommendation as to outcome. The recommended outcome from disciplinary counsel could be: 1) that the grievance has merit and the matter should be referred on to hearing before a hearing officer; 2) an admonition should be issued; 3) a dismissal should be entered with or without an advisory letter; or, 4) further investigation may be ordered as appropriate. ELC 5.6(d). The committee reviews each grievance, deliberates and votes on the recommended outcome proposed by disciplinary counsel. The deliberations are confidential. ELC 3.1(a). The committee may review disciplinary counsel’s dismissal if the grievant requests a review of the dismissal in writing within 45 days of notification that the grievance is being dismissed. ELC 5.6(b). The committee also reviews disciplinary counsel’s recommendation for a disability proceeding (ELC 8.2), whether a non-felony crime is a serious crime under ELC 7.1(d), grants or denies disciplinary counsel’s petition for interim suspension of an attorney under ELC 7.2 and limited guardian ad litem petitions per ELC 8.2 and 8.9, and may authorize protective orders (ELC 3.2(e)).

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