Local Rule LCR 83.3: STANDARDS OF PROFESSIONAL CONDUCT; CONTINUING ELIGIBILITY TO PRACTICE; ATTORNEY DISCIPLINE
W.D. Wash. — Attorney rule
LCR 83.3
STANDARDS OF PROFESSIONAL CONDUCT; CONTINUING ELIGIBILITY TO PRACTICE; ATTORNEY DISCIPLINE
(a) Standards of Professional Conduct
In order to maintain the effective administration of justice and the integrity of the court, attorneys appearing in this district shall be familiar with and comply with the following materials ("Materials"):
(1) The local rules of this district, including the local rules that address attorney conduct and discipline;
(2) The Washington Rules of Professional Conduct (the "RPC"), as promulgated, amended, and interpreted by the Washington State Supreme Court, unless such amendments or additions are specifically disapproved by the court, and the decisions of any court applicable thereto;
(3) The Federal Rules of Civil and Criminal Procedure;
(4) The General Orders of the court.
In applying and construing these Materials, the court may also consider the published decisions and formal and informal ethics opinions of the Washington State Bar Association, the Model Rules of Professional Conduct of the American Bar Association and Ethics Opinions issued pursuant to those Model Rules, and the decisional law of the state and federal courts.
(b) Continuing Eligibility and Maintenance of Good Standing
(1) Representation of Continuing Eligibility. By signing any document filed with the court or otherwise participating in any matter before the court, an attorney certifies that he or she is currently eligible to practice before this court. Should the status of an attorney change so that he or she no longer meets the requirements of LCR 83.1(b), he or she shall notify the Clerk of Court in writing no later than 10 days after the change in status.
(2) If the change in status is due to a disciplinary proceeding or criminal conviction, the provisions of LCR 83.3(c) shall apply. Otherwise, upon receipt of a notification of change of status, the Chief Judge, or other district judge who may be assigned to the matter, may issue an Order to Show Cause why the court should not suspend or revoke the attorney's admittance to practice before the court. The Order to Show Cause shall contain:
(A) a reference to the notification of the change of status;
(B) an order directing the attorney to show cause within 30 days why the attorney's admission to practice before this court should not be suspended or revoked;
(C) notification that failure by the attorney to file a timely response to the Order to Show Cause may be deemed to be acquiescence to suspend or revoke the attorney's admission to practice before the court.
(3) If the attorney files a response stating that he or she does not contest the suspension or revocation of his or her admission to practice before this court or the attorney does not respond to the Order to Show Cause within the time specified, then the Chief Judge or other judge assigned to the matter may issue an order suspending or revoking the attorney's admission to practice before this court.
(4) If the attorney files a written response to the Order to Show Cause within the time specified, stating that he or she contests the entry of an order suspending or revoking his or her admission to practice, then the Chief Judge, or other district judge who may be assigned, shall determine whether such an order shall be entered. The judge shall impose an order suspending or revoking the attorney's admission to practice unless the attorney demonstrates by clear and convincing evidence that one or more of the following elements have been shown from the record:
(A) the procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process;
(B) there was such an infirmity of proof establishing the reasons underlying the change in status in the other jurisdiction as to give rise to a clear conviction that the court should not accept as final the other jurisdiction's conclusion(s) on that subject;
(C) the imposition of suspension or revocation would result in a grave injustice; or
(D) other substantial reasons exist so as to justify not suspending or revoking the attorney's admission to practice.
(c) Attorney Discipline
(1) Jurisdiction. Any attorney admitted to practice before this court, admitted for a particular proceeding and/or who appears before this court is subject to the disciplinary jurisdiction of this court.
(2) Powers of an Individual Judge to Deal with Contempt or Other Misconduct Not Affected. Nothing contained in this Rule shall be construed to limit or deny the court the powers necessary to maintain control over proceedings before it, including the contempt powers. Nothing contained in this Rule precludes the court from imposing sanctions for violations of the Local Rules, the Federal Rules of Civil and Criminal Procedure, or other applicable statutes and rules.
(3) Grounds for Discipline. An attorney may be subject to disciplinary action for any of the following:
(A) violations of the Standards of Professional Conduct stated in subsection (a) above;
(B) disbarment, suspension, sanctions or other attorney discipline imposed by any federal or state court, bar association or other governing authority of any state, territory, possession, or the District of Columbia, or any other governing authority or administrative body which regulates the practice of attorneys;
(C) conviction of any felony or a misdemeanor involving dishonesty or corruption, including, but not limited to, those matters listed in Rule 6.2 of the Washington Rules of Enforcement of Lawyer Conduct ("ELC");
(D) misrepresentation or concealment of a material fact made in an application for admission to the Bar of this court or in a pro hac vice or reinstatement application;
(E) violation of this court's Oath of Attorney.
(4) Types of Discipline. Discipline may consist of one or more of the following:
(A) disbarment from the practice of law before this court.
(B) suspension from the practice of law before this court for a specified period;
(C) interim suspension from the practice of law before this court, defined as the temporary suspension of a lawyer from the practice of law pending imposition of final discipline. Examples of situations in which the court will consider interim suspension include:
(i) suspension upon conviction of a serious crime;
(ii) suspension when the lawyer's continuing conduct is likely to cause immediate and serious injury to a client or the public; or
(iii) inability to practice.
(D) reprimand, defined as a form of public discipline which declares the conduct of the lawyer improper, but does not limit the lawyer's right to practice before this court;
(E) admonition, defined as a form of non-public discipline which declares the conduct of the lawyer improper, but does not limit the lawyer's right to practice before this court;
(F) The following types of discipline may be imposed alone or in conjunction with other types of discipline. If imposed alone or in conjunction with a reprimand, these other types of discipline need not be made public by the court:
(i) probation, with or without conditions;
(ii) restitution;
(iii) fines and/or assessment of costs; and
(iv) referral to another appropriate disciplinary authority.
Any discipline imposed may be subject to specific conditions, which may include, but are not limited to, continuing legal education requirements, counseling and/or supervision of practice.
(5) Discipline Initiated by the Court.
(A) Authority of the Court. The court has the inherent authority to govern the conduct of attorneys practicing law before it.
(B) Initiation of a Grievance. A United States District Court Judge, Bankruptcy Judge, or Magistrate Judge may present to the Chief Judge a written grievance alleging that an attorney has violated any of the standards of conduct specified in this Rule and recommending the imposition of discipline against that attorney. The Chief Judge shall review the grievance and determine whether the grievance should be dismissed or pursued further.
If the Chief Judge determines that the grievance should be pursued, he or she may refer it to another judge who shall review the record and evaluate the evidence. If the Chief Judge initiates the grievance, he or she must refer it to another judge. If, at any time during the evaluation of a grievance, the Chief Judge or the assigned judge determines that the grievance would be more appropriately addressed by the Washington State Bar Association or other governing authority or administrative body which governs the practice of attorneys, the Chief Judge and the judge who referred the grievance may refer the matter to another authority or dismiss the grievance.
(C) Notice and Hearing.
(i) If, after reviewing the record, the assigned judge determines that the matter should not be pursued, he or she will inform the Chief Judge. If the assigned judge concludes that a disciplinary proceeding should be conducted, he or she will issue an order to show cause to the respondent attorney explaining the alleged misconduct and inviting the attorney to show cause why he or she should not be disciplined. The notice shall be sufficiently clear and specific to inform the respondent attorney of the alleged misconduct. The order to show must also state that the failure to file a timely response may be deemed acquiescence to the imposition of discipline. The order to show cause shall be emailed and mailed to the attorney at the last known addresses the attorney provided to the court.
(ii) The attorney will be afforded at least thirty days to present any objections and show cause why discipline should not be imposed, and the order to show cause must include the deadline.
(iii) The attorney may request a hearing and choose to be represented by counsel at his or her own expense. There is no right to court appointed counsel or to a jury at the disciplinary proceeding.
(iv) During the hearing, if one is requested, or in the attorney's response to the order to show cause, the respondent attorney may submit any evidence or statements to rebut the grievance. The court may impose disciplinary sanctions only after the respondent attorney is afforded the opportunity to present evidence and argument in rebuttal and/or mitigation.
(v) If the attorney fails to file a timely response to the order to show cause, the assigned judge will review the record and determine whether the imposition of discipline is warranted.
(D) Confidentiality. During the pendency of the disciplinary proceedings, the allegations and other records of the proceeding will remain confidential and will not be made a part of the public record.
(E) Recommendation to the Chief Judge. Within a reasonable time after the hearing, if one has been requested, or after receiving the attorney's response to the order to show cause, the assigned judge shall make findings of fact and conclusions of law and recommend the disciplinary action, if any, to be taken. The assigned judge will transmit his or her findings of fact and conclusions of law, recommendation, and the record to the Chief Judge.
(F) Imposition of Discipline. The Chief Judge will review the documents transmitted by the assigned judge under subparagraph (E) and determine whether discipline should be imposed and if so, the appropriate discipline. If the Chief Judge initiated the grievance, then the matter shall be referred to the judge who is next in seniority for review and a determination. The appropriate disciplinary sanction to be imposed is within the court's discretion. However, in determining the proper disciplinary sanction, the court may refer to the American Bar Association Standards for Imposing Lawyer Sanctions. In addition, the court may, in its discretion, use as a guide any federal or state case law the court deems helpful.
(6) Reciprocal Discipline.
(A) For purposes of this section, "discipline by any other jurisdiction" refers to discipline imposed by any federal or state court, bar association or other governing authority of any state, territory, possession, or the District of Columbia, or any other governing authority or administrative body which regulates the practice of attorneys.
(B) For purposes of this section, "discipline by any other jurisdiction" refers only to suspension, disbarment or other disciplinary action which temporarily or permanently deprives an attorney of the right to practice law.
(C) Upon receipt of a copy of an order or other official notification that he or she has been subjected to discipline by any other jurisdiction, an attorney who is also subject to the disciplinary jurisdiction of this court shall provide the Clerk of Court with a copy of such disciplinary letter, notice or order.
(D) Any attorney subject to the disciplinary jurisdiction of this court who resigns from the Bar of any other jurisdiction while disciplinary proceedings are pending against the attorney in that jurisdiction shall promptly notify the Clerk of Court of such resignation.
(E) Upon receipt of reliable information that an attorney subject to the disciplinary jurisdiction of this court has been subjected to discipline by any other jurisdiction, or has resigned from the Bar of any other jurisdiction while an investigation or proceeding for discipline was pending, the Chief Judge, or other district judge who may be assigned to the matter, may issue an Order to Show Cause why reciprocal discipline should not be imposed by this court. The Order to Show Cause shall contain:
(i) a reference to the order or other official notification from the other jurisdiction;
(ii) an order directing the attorney to show cause within 30 days why reciprocal discipline should not be imposed by this court;
(iii) an order directing that if the attorney chooses to respond to the order and to contest the imposition of reciprocal discipline, he or she must produce a certified copy of the entire record from the other jurisdiction or persuade the court that less than the entire record will suffice;
(iv) notification that failure by the attorney to file a timely response to the Order to Show Cause may be deemed to be acquiescence to reciprocal discipline.
(F) If the attorney files a response stating that he or she does not contest the imposition of reciprocal discipline from this court, or if the attorney does not respond to the Order to Show Cause within the time specified, then the court may issue an order of reciprocal discipline. In fashioning the sanction to be imposed, the court may be guided by the discipline imposed by the other jurisdiction. The order imposing reciprocal discipline shall be issued by the Chief Judge or other district judge who may be assigned to the matter.
(G) If the attorney files a written response to the Order to Show Cause within the time specified, stating that he or she contests the entry of an order of reciprocal discipline, then the Chief Judge, or other district judge who may be assigned, shall determine whether an order of reciprocal discipline shall be entered. The judge shall impose an order of reciprocal discipline, unless the attorney demonstrates by clear and convincing evidence that one or more of the following elements appear from the record on which the original discipline is predicated;
(i) the procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process;
(ii) there was such an infirmity of proof establishing the misconduct as to give rise to a clear conviction that the court should not accept as final the other jurisdiction's conclusion(s) on that subject;
(iii) the imposition of like discipline would result in a grave injustice; or
(iv) other substantial reasons exist so as to justify not accepting the other jurisdiction's conclusion(s).
(7) Discipline Based Upon a Criminal Conviction.
(A) Any attorney subject to the disciplinary jurisdiction of this court shall promptly notify the Clerk of Court of the attorney's conviction of any felony or a misdemeanor involving dishonesty or corruption, including, but not limited to, those matters listed in Rule 6.2 of the ELC (hereafter, "crime" or "criminal conviction").
(B) Upon receipt of reliable proof that an attorney has been convicted of any of those matters identified in paragraph A above, the court shall enter an order of interim suspension, suspending the attorney from engaging in the practice of law in this court pending further order. Upon good cause shown, the court may set aside such suspension where it appears to be in the interest of justice to do so.
(C) The court shall forthwith issue an order to the subject attorney directing the attorney to show cause why the conviction or the facts underlying the conviction do not affect the attorney's fitness to practice law and why the attorney should not be subject to discipline based upon the conviction. The Order to Show Cause shall contain:
(i) a copy of or a reference to the notification to the court that the attorney has been convicted of a crime;
(ii) an order directing the attorney to show cause within 30 days why the criminal conviction or underlying facts do not affect the attorney's fitness to practice law, and why discipline should not be imposed by this court;
(iii) notification that failure by the attorney to file a timely response to the Order to Show Cause may be deemed acquiescence to discipline based upon the criminal conviction.
(D) If the attorney files a response stating that he or she does not contest the imposition of discipline by this court based upon the criminal conviction, or if the attorney does not respond to the Order to Show Cause within the time specified, then the court may issue an order of discipline.
(E) If the attorney files a written response to the Order to Show Cause within the time specified, stating that the criminal conviction or its underlying facts do not affect the attorney's fitness to practice law or stating that he or she contests the entry of an order of discipline, then the court shall determine whether discipline should be imposed.
(F) The discipline to be imposed shall be within the court's discretion. The court may consider the underlying facts of the criminal conviction, the sentence imposed on the attorney, the gravity of the criminal offense, whether the crime involved dishonesty or corruption, the effect of the crime on the attorney's ability and fitness to practice law, and any other element the court deems relevant to its determination.
(G) Upon the court's receipt of reliable proof demonstrating that the underlying criminal conviction has been reversed or vacated, any suspension order entered under subparagraph (7)(B) and any other discipline imposed solely as a result of the conviction may be vacated.
(8) Disciplinary Orders and Notices.
(A) Any order of discipline, except for non-public forms of discipline, as stated in subparagraph (4)(E)-(F) herein, shall be a public record.
(B) The court shall cause copies of all orders and notices of discipline, except for an admonition, to be given to the Clerk of Court, the Clerk of the United States District Court for the Eastern District of Washington, the Clerk of the United States Bankruptcy Court for the Western District of Washington, the Clerk of the United States Court of Appeals for the Ninth Circuit, the Washington State Bar Association, and the appropriate disciplinary bodies in the jurisdictions in which the court knows the disciplined attorney is admitted to practice.
(9) Reinstatement.
(A) No attorney who has been suspended or disbarred from practice before this court may resume practice before the court until reinstated by order of the court.
(B) Any attorney who has been suspended or disbarred from practice before this court may not apply for reinstatement until the expiration of such period of time as the court shall have specified in the order of suspension or disbarment.
(C) Any attorney who has been disbarred or suspended from practice pursuant to the provisions of subparagraph (6) (reciprocal discipline) may apply for reinstatement based upon a change of the attorney's status in the jurisdiction whose imposition of discipline upon the attorney was the basis for the imposition of reciprocal discipline by the court.
(D) Any attorney whose admission to practice before this court was suspended or revoked pursuant to LCR 83.3(b) may apply for reinstatement if the attorney becomes eligible again under LCR 83.1.
(E) Petitions for reinstatement shall be filed with the Clerk of Court, who will transmit the petition to the Chief Judge. The petition must include a copy of this court's prior order of suspension or disbarment, a copy of an order of reinstatement from another jurisdiction if the petitioner is seeking reinstatement based on such an order, and a concise statement of facts claimed to justify reinstatement. Petitioners for reinstatement after disbarment must also file a Petition for Admission to Practice before this court and pay the applicable fee.
Upon receipt of a petition for reinstatement, the Chief Judge shall consider the matter or refer it to another designated judge. The petitioner shall have the burden of demonstrating that he or she is qualified and able to practice law before this court and that the circumstances that led to the suspension or disbarment have changed. After consideration, the court shall enter an appropriate order.
(F) Expenses incurred in the investigation and proceedings for reinstatement may be assessed by the court against the petitioning attorney, regardless of the outcome of the proceedings.