A few days ago Judge Richard Posner, for a panel of the 7th Circuit, threw out a class action settlement regarding claims related to Pella windows. Decision. What the lawyers have done in the case and the fees they claimed is shocking. In situations like this one wonders whether the local bar discipline process will step into the situation and process grievances against the lawyers involved.
This complaint is interesting. See Attorneys face discipline for DUI setup during shock jock trial. Fox June 3, 2014. Looks like the whole firm was involved. How does the attorney discipline system work in Florida? — Florida Bar and its Department of Attorney Regulation.
Law360, New York (May 23, 2014, 5:32 PM ET) — New York’s attorney-discipline process is cloaked in secrecy and its outcomes vary widely between the state’s four appellate divisions, which administer cases, according to a new study, made available Thursday, that calls the system “disturbing” and “broken” and calls for changes.
The study by New York University Law Prof. Stephen Gillers, an expert on legal and judicial ethics and the regulation of the legal profession, flatly concludes that the system is “deficient in design and operation” and “fails the professed purpose of protecting the public and the administration of justice.”
There is a NYT Op-Ed, Better Rules for Better Lawyers
RPC 5.1 says:
(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
There are no Washington Supreme Court cases dealing with RPC 5.1. There are, however, three WSBA Advisory Opinions.
A useful discussion of RPC 5.1 can be found in Advisory Opinion 2219 (2013), RPC(s): RPC 1.0, 5.1(a)-(c), 5.5(d)(1), Subject: General Counsel Responsibility for In-house Lawyer
On June 12, 2014, the Bangor Daily News reported that a Maine lawyer has been disciplined for not taking action to stop foreclosure proceedings he was involved in which were based upon faulty, robo-signed affidavits. Decision and Order of the Maine Board of Overseers of the Bar.
Spokane County Superior Court
In a recent post, the due process of the Tennessee lawyer discipline system was an issue in discipline system case. The court held that due process was not denied a lawyer where lawyer investigation, investigation, prosecution and adjudication were in the hands of the Tennessee Supreme Court, one entity.
The discipline system created by Supreme Court is found in Supreme Court Rule 9. Nowhere is a Tennessee bar association mentioned. That is to say, Rule 9 does not require the involvement a bar association in the operation of Rule 9.
It should also be noted that the rules of professional responsibility are also found in a Tennessee Supreme Court Rule – Rule 8.
The due process issue might be decided differently if the discipline system was in the hands of a bar association regarding the investigation, prosecution and adjudication of lawyers. Or, is the presence of a bar association a distinction without a difference?
The American Bar Association states that in 2013 there were 17,203 Active Resident Lawyers in Tennessee. In Washington there were in 2013, 24,032. American Bar Association, Number of Lawyers by State 2011, 2013.
The Supreme Court of Tennessee recently confronted the issue of whether the state’s lawyer discipline system violated due process. See Long v. Board of Professional Responsibility, “Long contended that Rule 9 is unconstitutional and violates his due process rights because Rule 9 combines investigative, enforcement, and adjudicative authority in the same agency; creates a financial incentive for the Board to pursue formal disciplinary proceedings; and gives rise to an institutional bias in favor of finding guilt and imposing discipline.” The court said that “[b]ecause the investigatory/enforcement responsibilities and the adjudicative responsibilities are functionally separate within the Board, Rule 9 does not violate due process principles.”
The following discussion will be of interest to those who think the combination of attorney discipline functions is a violation of due process:
Appellate courts in other jurisdictions have squarely rejected claims that the combination of investigatory, enforcement, and adjudicative functions in a single attorney disciplinary agency (or judicial disciplinary agency) violates due process principles. See, e.g., In re Hanson, 532 P.2d 303, 306 (Alaska 1975) (stating that the “combination of judicial and investigative functions in the Commission [on Judicial Qualifications] did not violate petitioner’s due process rights under eigher [sic] the federal constitution or Alaska’s constitution”); People v. Varallo, 913 P.2d 1, 4 (Colo. 1996) (holding that “[t]he fact that the members of the grievance committee and the disciplinary counsel are appointed by the supreme court is not enough by itself to establish a per se violation of due process”); In re Zoarski, 632 A.2d 1114, 1121 (Conn. 1993) (holding that the combination of investigatory and adjudicatory functions in one judicial disciplinary agency does not violate due process); In re Baun, 232 N.W.2d 621, 623-24 (Mich. 1975) (holding that Michigan’s lawyer disciplinary proceedings do not violate due process, because the functions of investigation, prosecution, adjudication, and review are “functionally separate” and are handled by different individuals); Goldstein v. Comm’n on Practice of Supreme Court, 995 P.2d 923, 928 (Mont. 2000) (rejecting claim that Montana’s attorney disciplinary system violated due process principles because investigatory and enforcement authority were combined in one agency). But see Tweedy v. Okla. Bar Ass’n, 624 P.2d 1049, 1054-55 (Okla. 1981) (holding that the Oklahoma Supreme Court, under due process principles, could not order the investigation of an attorney disciplinary grievance but also noting that the Board of Governors of the state bar could review the matter).
The Washington State Bar Association has, as one of its primary purposes, the discipline of lawyers who practice law in the state of Washington. Over 35% of the WSBA’s budget, each year is devoted to the Washington Lawyer Discipline System.
The Washington Lawyer Discipline System has two main parts: Prosecution and adjudication. Both parts are controlled by the WSBA. That is to say, the WSBA is in command of the prosecution of errant Washington lawyers and the adjudication of the WSBA prosecutions. WSBA lawyer sanctions consisting of either suspension or disbarment may be appealed to the Washington State Supreme Court.