How the Supreme Court Views the Washington Lawyer Discipline System

In the process of analyzing and understanding the real character of the Washington Lawyer Discipline System one must look to how the Washington state Supreme Court views the real character of the system. In the recent decision concerning Fredric Sanai, Supreme Court No. 200,578 – 1, Chief Justice Madsen said this: “On appeal [of a decision disciplinary system hearing officer], the Washington State Bar Association (WSBA) voted unanimously to adopt the hearing officer’s recommendation of disbarment.”What is obvious here is that the Washington State Supreme Court sees the disciplinary system and the appeal aspect of the disciplinary system as a function of the Washington State Bar Association: that is, as an action of the Washington State Bar Association.

The court does not see the disciplinary system as an independent and impartial system. Rather it sees it as a system operated by and for the trade association of the WSBA.

The Discipline System Should be Divested to a State Bar Court

As one looks more carefully at the WSBA Washington Lawyer Discipline System and how the Bar Association sees itself it seems to make good sense to separate the discipline function from the Bar.  This would make the system more fair, make it appear more fair, and generate greated respect and understanding for the process, a necessary process to be sure.

Discipline divestiture would also enhance the Bar Association in that it would concentrate and be known for concentrating on the needs of its members.  The Bar Association would take on a new and more positive image.

One model for a divested system of discipline is the California Bar Association and California Supreme Court model.  State Bar Court of California.

Supreme Court Control of Adminstrative Functions of WSBA

I keep pondering the meaning of the court’s statement in Wash. State Bar Ass’n v. State, 125 Wn.2d 901, 907 – 08, 890 P.2d 1047 (1995):

[t]his court’s control over Bar Association functions is not limited to admissions and discipline of lawyers. The control extends to ancillary administrative functions as well.

One must wonder whether Supreme Court in the exercise of the bar’s function of disciplining members of the bar fraternity was an extension of the Bar Association. The court says it is not and that the court actually regulates the Bar in the exercise of the function.

Really it delegates the function to the Bar and acts as the final decision maker regarding certain bar actions leaving the rest up to the bar.

But, again, in Wash. State Bar Ass’n v. State, the court says its “control over Bar Association functions is not limited to admissions and discipline of lawyers. The control extends to ancillary administrative functions as well.”

What this means is that the court is the Bar Association and that all actions of the Bar Association are under the control of the court and that the court has delegated its function to the Bar Association. That is, the court is in control of the trade association aspects of the Bar Association and that it has delegated the day to day operation of those functions and the disciplinary function to the bar.

At least, that is a point of view based upon this author’s reading and understanding of the evidence, to wit, Wash. State Bar Ass’n v. State and its predecessors.

(By the way, it does not appear that Wash. State Bar Ass’n v. State has been overruled or distinguished in any substantive manner as to the issue in question – the court’s control of the “ancillary administrative functions [of the bar]” as well as the “disciplinary function of the bar association.”)

The court controls the Bar Association, that is the association of the individual members of the bar. Interesting, . . . .

Procedural Due Process in Bar Disciplinary Proceedings

The Washington Constitution provides that “[n]No person shall be deprived of life, liberty, or property, without due process of law. Wash. Const. Art. I. § 3. The 14^th Amendment to the United States Constitution provides that “no State shall . . . deprive any person of life, liberty, or property, without due process of law.”  U.S. Const. amend XIV,  § 1.

Attorneys in disciplinary proceedings have a basic right to procedural due process. In re Ruffalo, 390 U.S. 544, 550 (1968), modified on other grounds, 392 U.S. 919 (1968). Justice Douglas for the majority said:

Disbarment, designed to protect the public, is a punishment or penalty imposed on the lawyer. 71 U. S. 515. He is accordingly entitled to procedural due process, which includes fair notice of the charge. See In re Oliver, 333 U. S. 257, 333 U. S. 273. It was said in 74 U. S. 540, that, when proceedings for disbarment are Selling v. Radford, 243 U. S. 46, 243 U. S. 51.

“not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made and opportunity afforded him for explanation and defence.”

Therefore, one of the conditions this Court considers in determining whether disbarment by a State should be followed by disbarment here is whether “the state procedure from want of notice or opportunity to be heard was wanting in due process.

See also, D. Reaves,  Procedural Due Process Violations in Bar Disciplinary Proceedings, 22 J. Legal Prof. 351 (1998).  For more on this comment go to this link.

Is the Washington Supreme Court Operating a Trade Association?

In light of Graham v. State Bar Ass’n,  86 Wn.2d 624, 890 P.2d 1047 (1995), State Bar Association v. State, 125 Wn.2d 901, 890 P.2d 1047 (1995) and the Supreme Court General Rules 12.1, 12.2 and 12.3 —  one must conclude that the Washington State Bar Association is an arm of the Washington State Supreme Court for all intents and purposes.  Or, as the court itself says in State Bar Association v. State, 125 Wn.2d at 907- 08, 

[t]his court’s control over Bar Association functions is not limited to admissions and discipline of lawyers. The control extends to ancillary administrative functions as well.[fn9] [Ephasis added.]

 [fn9]  See, e.g., Graham v. State Bar Ass’n, 86 Wn.2d at 633 (Legislature may not authorize a state audit of the Bar Association by the executive branch, for it is within the power of the court to make necessary rules and regulations governing the conduct of the bar); Schwab, 80 Wn.2d at 272 (Legislature’s creation of an integrated bar, through enactment of the State Bar Act, RCW 2.48, did not require that the Bar Association be treated as an integral part of the executive branch of government with offices in Olympia).

Even greater assurance that the Supreme Court sees the Washington State Bar Association as a part of itself, as a part of the judiciary for all purposes, can be found by reading these General Rules promulgated by the Supreme Court:  GR 12.1. 12.2 and 12.3. 

Is the Washington Supreme Court operating a trade association?  It would seem so.  But if pressed and if expedient the court might say otherwise.  We shall have to see.